January 1st, 2013

The Associate-Do It Yourself

Today we start a New Year-my first full year as a lawyer, John Henry talks about habits of a quality lawyer. Habits  to develop and stay with through my legal career. The habits center around the concept “Do It Yourself.”

The Great Artist.  John Henry begins by telling me a story about a William Cumming art exhibit he attended several years ago where Mr. Cumming spoke in the afternoon. When Mr. Cumming took questions a young man asked him if art school teaches a person how to be an artist. William Cumming looked at the young man in silence for several seconds and then said an artist is an artist and does not need to be taught how to be an artist by an art instructor. John Henry says the same is true of a quality lawyer.

Do the Research. John Henry uses the original case/statutory authority for his legal analysis. He shies away from secondary authority such as ALR or CJS. He teaches me to arrive at my own arguments given the story of my case and original legal sources. Like an artist we write from the heart. We do not rely on a another lawyer’s brief or on secondary authority.

One With Client. John Henry teaches to bound with our client. My client meets with me when we sign the case. I listen to my client tell her story. I have my client speak in the present tense and show and tell me what happened. This allows me to see as close to first hand how my client is impacted. I go to my client’s home and spend time with her to get into her skin to understand her injury. My client and I answer interrogatories together. My client and I prepare for her deposition together. We do this by discussing the elements of the case and telling the story in a clear compelling way.

Believe in Myself. John Henry says the key is to believe in myself every step of the way. Like William Cumming I am an artist in the law. When I know the facts inside and out, have my client’s story internalized, and  feel similar emotions to my client I am ready to trust myself. No one can show me how to try the case, and this is why I am a legal artist.

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December 25th, 2012

The Varieties of Religious Experience-Zen

The first step is “a loosening of the body, without which” nothing can be properly done. This “physical loosening must … be continued in a mental and spiritual loosening, so as to make the mind not only agile, but free; agile because of its freedom, and free because of its original agility; and this original agility is essentially different from everything that is usually understood by mental agility.

Between the two states of a relaxed body and spiritual freedom “there is a difference of level…[reached] by withdrawing from all attachments becoming utterly egoless: so that the soul, sunk within itself, stands in the plenitude of its nameless origin.”

To accomplish actionless activity instinctively “the soul needs an inner hold, and it wins it by concentrating on breathing. … The breathing in, like the breathing out, is practiced again and again… with utmost care. One does not have to wait long for results. The more one concentrates on breathing, the more the external stimuli fade into the background.” Soon we become detached from all stimuli. We only know and feel our breath. Our breathing slows to the point it escapes our attention.

“This state, in which nothing definite is thought, planned, striven for, desired or expected, which aims in no particular direction and yet knows itself capable alike of the possible and the impossible, so unswerving is its power-this state, which is at the bottom purposeless and egoless …[is] truly spiritual.”

Eugen Herrigel, Zen in the Art of Archery (1953).

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December 20th, 2012

The Varieties of Religious Experience-Abandonment

There is nothing more generous than a person who sees the relation of the world with God “in all troubles and the most likely of dangers.” It may be a matter of facing death, marching into the unknown, or working like a slave. In all such things the person finds the fullness of his relationship with God engulfing him instantly.

“An army of soldiers with such a spirit would be invincible. For faith lifts and expands the heart above and beyond all that the senses fear.” It is a delight to be one with God as there is a confidence in one’s actions which makes everything acceptable. There is also “a certain detachment of soul which enables us to handle any situation and every kind of person.”

With faith in God “we are never unhappy and never weak.” This is because we always see God “acting behind happenings which bewilder our senses. Srticken with terror, our senses suddenly cry to the soul: ‘Unhappy wretch, now you are lost and there’s no hope of rescue!’ The robust voice of  faith instantly replies: ‘Hold fast, go forward and fear nothing.’

Jean-Pierre De Caussade, Abandonment to Divine Providence (d.1751)(First Image Books edition 1975)(Chapter III (4) at 64)(edited by P.A.T.)

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December 6th, 2012

The Varieties of Religious Experience (Saintliness)

“The collective name for the ripe fruits of religion in a character is Saintliness. The saintly character is the character for which spiritual emotions are the habitual centre of personal energy; and there is a certain composite photograph of universal saintliness, the same in all religions, of which the features can be easily traced:”

1) The saintly person has a feeling of a life beyond selfish interest. This is combined with a conviction of the existence of an “Ideal Power.”

2) The saintly person has a sense of a friendly continuity with the “Ideal Power” and her own life.

3) The saintly person becomes elated and free as the outlines of confining selfhood are absent.

4) In the saintly person there is a “shifting of the emotional centre towards loving and harmonious affections,” towards “yes” rather than “no” without regard to what others think.

According to William James these saintly characteristics have the practical consequence of:

a) Asceticism- The lack of concern for material goods and comfort. A giving up of fighting for worldly  pleasure.

b) Strength of Soul– A lack of fear and anxiety, replaced by a “blissful equanimity.”  This is because of a  trusting of the natural order of things.

c) Purity– As the “sensitiveness to spiritual discords is enhanced, [there is a] cleansing of existence from brutal and sensual elements… .”

d) Charity– There is “a tenderness for fellow creatures. … The saint loves his enemies, and treats loathsome beggars as brothers.”

William James, The Varieties of Religious Experience, (1902)(Saintliness)

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November 29th, 2012

PI Associate- Professionalism

Today John Henry talks to me about “professionalism.” He begins by telling me I will soon develop a reputation among lawyers, judges, court clerks and bailiffs, court reporters and people in the community. He tells me my reputation the long run is all I have. John Henry makes a big deal about “professionalism.” He tells me I must practice law at my highest level at all times. He tells me I must look like a professional, speak like a professional, write like a professional and be a professional.

Look Like a Professional. John Henry says dress like I am going to court. This means a suit or sport coat with a pressed shirt and tie. This means pressed slacks and dress shoes that are shined. John Henry likes Hickey Freeman for suits and sport coats. He wears Gitman shirts. His shirts are dry cleaned. He likes Allen Edmunds shoes. He  wears a belt matching his shoes. He wears subtle colors. John Henry fits the stereotype of a successful lawyer. He says “to be successful look successful.”

Speak Like a Professional. John Henry reminds me we earn our living by talking and how we speak is essential to our success. First, think before I speak. Refrain from senseless babel. He reminds me of the Lincoln quote “It is better to remain silent and be thought a fool, than to speak and remove all doubt.” He tells me to speak with power. This means speak in nouns and verbs. Eliminate modifiers- adverbs and adjectives that suck the blood out of a message of nouns and verbs. Words that have no place as far as John Henry is concerned are: pretty,  little, probably, maybe – any word or phrase that telegraphs weakness, doubt or uncertainty.

Write Like a Professional. As well as speaking we earn our living by writing. John Henry gives me Strunk & White, The Elements of Style, and tells me to read it from cover to cover. Read it every year until it is ingrained into my writing (and speaking). He tells me never to write something I do not want the world to read. He says this is especially true with e-mails.  On writing he likes to stick to the point, make the point and move to the next. He likes short paragraphs. He likes the rule of three.

Timeliness. John Henry says always be on time. Plan ahead. there is no excuse for being late. John Henry says timeliness means returning telephone calls, and correspondence. Timeliness also means meeting deadlines, including discovery deadlines.

Kindness. John Henry explains a professional is kind. He says “you never know who you are being nice to.” John Henry says learn the other person’s story and therefore who they are.  Here John Henry says the secret is listen. John Henry likes a “soft cross examination.” He prefers to make the witness his rather than destroy the witness.

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November 20th, 2012

The Personal Injury Associate

I feel fortunate. I have landed an associate position. Not a traditional associate position, but a job working for an experienced lawyer-a personal injury (PI) lawyer. He is a member of the law firm Weiss  Henry, Jones, & Bennett (WHJB).

In a traditional law partnership the partners collectively share their profits, or divide them based on a formula at the end of the year. The partners have associates that they bill at a rate at least twice the amount they pay the associate. In this way the law firm can represent multiple clients through the use of associates, and make more money along the way. This traditional formula works for lawyers who bill on an hourly basis.

My cases are billed on a contingency fee basis. This means our law firm or my partner John Henry (JH) does not bill on an hourly basis. He represents injured people without taking a retainer from the client and without billing them for his time. Rather he takes a percentage of the recovery-generally one third. At WHJB the partners each have their own cases and do not share their fees. The partnership is a cost partnership meaning the only sharing is with common overhead such as rent, the receptionist and our internet law library. JH gives me smaller cases and I work them to completion with his help. He pays a salary and keeps his share of the contingent fee.

Most important for me JH is teaching me how to be a lawyer. JH says law school is necessary to become a lawyer but that’s about it. JH says law school has little to do with how to be a lawyer. JH says being a PI lawyer is about two things. First is helping the little guy against the big insurance company. JH says in a car collision case the defendant runs over the plaintiff and then the defendant’s insurance company runs over the plaintiff . The PI lawyer stands in the way of the insurance company and gets fair value (justice) for the little guy. Second the PI lawyer makes a decent living along the way. According to JH this means taking cases he has a likely chance of winning. Sometimes JH loses. He says this is what happens when we try cases on a regular basis.

JH says insurance companies also run over  lawyers who do not try cases. This is because they know they can settle the non trial lawyer’s cases for minimum value since the insurance company has no risk.  It is only when the insurance company has a risk of loss at trial that they may pay fair value. So JH is teaching me how to be a trial lawyer. I’m about to meet a new client so I have to go. Soon I will report on my first lesson on being a trial lawyer.

 

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September 23rd, 2012

Losing Breeds Success

Just lost a “MIST” case. For those who do not know a “MIST” case is what we call an automobile collision case with little or no visible damage to the colliding cars and injuries to plaintiff that cannot be seen. Examples include injuries to soft tissue- thus, Minimum Impact Soft Tissue=”MIST.”

At trial I used techniques learned at Gerry Spence’s Trial Lawyer’s College (TLC). The techniques are  simple. First, know ourself and how we feel about our case. Second, tell the truth to the jury including concerns we have about the case. Third, relate to the jury in a non lawyer natural common sense way. Fourth, show and tell the story. At all times include the jury.

Losing is hard. Losing leads to doubt. Doubt about taking a case to trial. Doubt about being a trial lawyer. Doubt about trial tactics.

On reflection I believe losing is an inevitable result when we try tough cases. There are “MIST” cases I have been successful prosecuting. On reflection I see that it is important to try tough cases. On reflection I have no doubt about the TLC Method.

Trying tough cases gives a legitimately injured plaintiff a shot at justice when the insurance company says pound sand and take little or nothing for your injuries. The only way to succeed in a tough case with little or no offer is to try the case.  By taking on the insurance company in a “MIST” case we stand up for an injured person who deserves fair compensation. This is our charge as a trial lawyer.

Losing is an essential part of the success equation. All successful people have been losers. For me I learn far more from my losses than from my successes. A Loss causes reflection. Reflection leads to retooling techniques. Retooling makes me better. Plus, insurance companies know the only lawyer who can win a case is the lawyer who will try the case. Insurance companies know we will lose sometimes and so will they. When an insurance company deals with a lawyer who will try the case it treats the case more seriously which translates to paying fair value more often in cases where the injured plaintiff is represented by a known trial lawyer.

So I move on to the next trial.  I have learned from my loss. I look forward to trying my next case using the TLC Method- total honesty in a pure and simple way like a regular guy rather than a trial lawyer with a trial lawyer mask.

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August 15th, 2012

Trial Lawyers College-My Take

This post gives my take on Trial Lawyers College  (TLC) where I attended and graduated in the class of July 2012:

Wyoming. TLC is on Gerry Spence’s Ranch in Western Wyoming. Most students fly into Jackson Hole, and take a TLC charter from Jackson to the Ranch. This means seeing the beauty of Western Wyoming on the way to the Ranch. The Tetons are the highlight of the ride, but all of the country from Jackson to the Ranch is beautiful.

The Ranch. The Ranch is located two and a half hours east of Jackson. The closest town is Debois which is a cool cowboy town 40 minutes west of the Ranch. The accommodations at the Ranch are spartan, clean and fine. The Ranch facilities are well maintained ranch buildings. The food (buffet style) is great given the chefs cook breakfast, lunch and dinner for about 75 people. There are abundant morning opportunities for working out-climbing Spence Mountain a four mile hike from 7000 to 7900 feet,  jogging/walking a country road,  fly fishing (I caught 10 fish-catch and release), and working out in the Ranch weight room. The Wind River, which runs through the Ranch, gives a pastoral setting and  good vibes that make the Ranch a magical place.

Classmates. Although The Ranch is a cool place what makes TLC a great experience is the people. In my class we had 54  male and female lawyers of all ages and ethnic groups, from all over the United States with half being criminal defense lawyers and half being plaintiff injury lawyers. We promptly formed a close bound with 25% of the class as we were divided into four equal groups for the first three days. These are the psychodrama days where we learn who we are and who are peers are. We learn to take off our mask and be our real self. We then integrate back into the collective group. For work sessions we are divided into smaller groups. In this way we get to know all of our classmates in our three weeks together.

Instructors. The instructors are TLC graduates. They are quality trial lawyers from around the United States who take a week off to come to TLC to teach the TLC Method. Work sessions are not lecture like a typical law school or continuing  legal education class. Rather, work sessions are about doing. We learn from doing and showing. Typically an instructor asks our fellow classmates who act as jurors during a work session: “Is he like a lawyer or a real person.” If the answer is lawyer we are not in the TLC Method.

TLC Method. We learn to try cases using the TLC Method. First, we must be ourself. We must take off our mask and face the jury with honesty and without any pretense or legalese. We become one with the jury. Second, we show the jury our client’s story rather than tell the jury about our case. Third, we role reverse with the opposition witness allowing us to see the world as he sees the world. This allows for a sensitive humanistic cross examination instead of an aggressive lawyer like cross. It is the exception to the rule to destroy the witness. Finally, we close the case as we have started the case-we highlight the theme and the story, show the jury what justice means and give the case to our jury.

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August 13th, 2012

We are a Diamond

There is only one of us. We are different than anyone else. No other person has our looks, our voice and experiences from birth. This means no other person sees the world in the same way we see the world. This means we are able to offer a perspective that is unique to us and unique to the world.

Because we are different than all others we have a presence that brings variety, that brings something different, and that others can learn from. We learn from others, and others learn from us.

Our differences make us like a diamond. No two diamonds are the same. Each diamond has its own beauty. Some may be thought to be more beautiful than others, but the lesser diamond from a beauty standpoint may be better from a work standpoint. Beauty is in the eye of the beholder. The key is to be ourself, give the gifts only we have, and contribute our uniqueness. This makes the world a better place.

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August 6th, 2012

Back from Trial Lawyers College

With no wasted time we chomp at the bit.

We learn the mask we wear does not fit.

Soon becomes apparent this is about who we are.

To find ourselves we need not go far.

We need only to go within.

To discover our story we go back to then.

There is fear and we know it will not be fun.

But we trust the method and do not run.

For the method teaches to accept the past.

We form a bond that will last.

A bond from taking off the mask.

And after this is done we have a blast.

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