February 29th, 2020

Great Cross Examination-Charles Laughton

 Cross examination is a challenging part of the trial.  It presents the opportunity to either turn an adverse witness into my witness or destroy the adverse witness. Either way my case benefits form successful cross examination.

My preference is to turn the witness into my witness. On destroying the adverse witness I do this in a way the jury will accept. I never embarrass, badger, or abuse a witness.

One of my favorite cross examination movie scenes is Charles Laughton in Witness for the Prosecution.  As we see from viewing this short but sweet cross, Laughton is able to destroy a fact witness in a way acceptable to the jury. He uses the classic inability to perceive facts to destroy the witness.

As we see in the clip Laughton begins by setting the foundation for inability to hear (and hearing a conversation is the basis for the adverse testimony). In setting the foundation Laughton begins by asking the witness in a booming voice if she recently applied for a hearing aid. In doing this Laughton uses change of voice (going into a less audible voice) to dramatically illustrate the witness’s hearing problem. When the prosecutor objects Laughton unfazed agrees to repeat the question.

In a booming voice Laughton restates his question with the witness admitting she has yet to receive her hearing aide. Continuing in his booming voice Laughton verbally summarizes the witness’s testimony. In doing this he paints the scene within which the witness is supposed to have heard a conversation that could not be heard by a person with poor hearing. Then by again lowering his voice Laughton demonstrates the witness’s inability to hear as she again cannot hear Laughton’s lowered voice. The damage is done. The witness is destroyed without being embarrassed, badgered or abused.

    February 9th, 2020

    Jury Selection (With Help from Carl Rogers)

    These are jury selection thoughts thoughts based on Carl Rogers, On Becoming a Person (1961).

    In my relationships with persons I have found that it does not help… to act as though I were something that I am not.”

    The first step in becoming one with the jury is to be real. Being real is being honest. Honest about the bad as well as the good.  Discuss the essence of the case especially the bad facts and problem areas. When this is done reveal how you  feel. Jurors intuitively recognize this and respond by revealing feelings.

    “I have found it of enormous value when I can permit myself to understand another person.”

    Carl Rogers reveals the essence of  jury selection with this quote. Connect with jurors by listening and accepting. Listening and accepting leads to connecting and bonding. Understanding must be unconditional-even when we do not agree. We can understand without agreement. When we have understanding we have a bound.

    “I have found it highly rewarding when I accept another person.”

    Here Rogers tells us we benefit by accepting unconditionally the members of the jury panel. The panel has bounded to some extent before we meet in jury selection. They have accepted each other at various levels. They know when we accept them. When we accept them when we are not in agreement they will more readily accept us when they are not initially in agreement. In essence they accept the possibility we may be right. We may be the exception to their initial reaction. Every rule has an exception.

    “The facts are friendly.”

    Stated another way the truth is friendly. We never forget this maxim in jury selection. The truth rings with authenticity, and jurors know it. Jurors understand problems and bad facts when we deal with them openly seeking their input. We have bonded and we have to accomplish fairness together. To accomplish fairness we must together face the hurdles.

    “Life at its best, is a flowing, changing process in which nothing is fixed.”

    To relax and be fluid is essential, as we can flow with the jury panel. To do this nothing can be fixed.  We are natural and spontaneous. We move with the dynamic of the jury panel. The panel will respond favorably.

      January 5th, 2020

      Final Integration

      In MERTON & SUFISM The Untold Story (Edited by Rob Baker and Gary Henry-FONS VITAE 2005) Thomas Merton discusses what he terms “Final Integration.” This is a state Confucius reached by age 70 and a mystical state to be strived for:

      Merton teaches the “notion of rebirth” exists in most religions including Christianity, Sufism, Zen Buddhism and other religions with spiritual traditions. Here “emphasis is placed on the call to fulfill certain … potentialities in regard to one’s being, to ‘become someone’ that one already (potentially) is, the person one is truly meant to be.” Id. at 268. This is an awakening or a recognition of our universal essence. When we are “fully born” we have an “inner experience of life.” Id. at 271.

      We live from an “inner ground” which is more universal than our ego. In this “fully born” state of “final integration” we reach a “deeper, fuller identity than that of … [our] limited ego self which is only a fragment of our being” Id. In this state we identify with everybody. We are able to experience others “joys and sufferings as our own without becoming dominated by them.” Id. 271-72.

      The person who has “attained final integration is no longer limited by the culture in which [they] grew up.” This person embraces all of life including ordinary life, intellectual life, artistic creation, human love and spiritual life. They have passed through all of these “limiting forms while retaining all that is best and most universal in them, finally giving birth to a fully comprehensive self.” In final integration we accept not only our own community, society, friends, and culture, but all mankind. Id.

      Here we are not bound to a limited set of values. We have a “unified vision and experience of the one truth shining out in all its various manifestations, …”  With this view of life we are able to bring perspective, liberty, and spontaneity into the lives of others. In final integration we are a peacemaker. Id. at 272.

       

        October 28th, 2019

        Zen

        Zen says enlightenment comes in everyday actions. There is no action taken for granted. Every action is lived fully in the moment without thinking about past or future.

        Fritjof Capra, in The Tao oF Physics, discusses Zen Practice as follows:

        We are fortunate to have a wonderful description…in Eugen Herrigel’s little book Zen in the Art of Archery. Herrigel spent more than five years with a celebrated Japanese master to learn his “mystical” art. His book is a personal account of how he experienced Zen through archery. He describes archery as presented to him as a religious ritual “danced” in spontaneous, effortless and purposeless movements. It took him many years of hard practice, which transformed his entire being, to learn how to draw the bow “spiritually,” with a kind of effortless strength, and to release the string “without intention,” letting the shot “fall from the archer like a ripe fruit.” When he reached the height of perfection, bow, arrow, goal and archer melted into one another and he did not shoot, but “it” did it for him.

         F. Capra, The Tao oF Physics, (Shambhala 2010) at 126.

          September 8th, 2019

          Witness Show and Tell

          Facts are subjective or objective. “Both things and events are objective facts. They exist in the public domain and are in principle accessible to all.”  D. Q. McInerny, Being Logical (Random House paperback 2005) at 5. But there is a difference between a subjective fact and an objective fact. A headache is an example of a subjective fact. Id. at 6. The headache sufferer has direct evidence of the headache. Id. When it is another person who is hearing about the headache it can only be indirectly established. “Establishing the reality of subjective facts depends entirely on the trustworthiness of those who claim to be experiencing them.” Id. When the fact is an existing thing to which the listener has access to view it becomes objective and we need not “trust” the speaker.

          What about a fact demonstrated through show and tell. When we show and tell we eliminate communication problems that occur when our spoken word is not interpreted in the way we mean to convey. When we show and tell the listener sees our subjective fact closer to an objective fact. This is because our listener is given visual cues about the fact.

          When we have our witness at trial show and tell what has occurred rather than tell what has occurred the facts rise to a higher level. This is because the jury is able to experience the facts rather than just hear the facts. The facts come to life through the witness as she speaks in the present tense and recreates the event by showing and telling what occurred. 

          This may be done the traditional way from the witness stand. If movement is helpful the witness may be allowed to go into the well of the courtroom. There witness explains the scene to the jury. She may use props such as council table, chair or books to set the scene. She then relives the scene in a show and tell fashion.  As the saying goes seeing is believing and the jury is allowed to see through witness show and tell.

            August 3rd, 2019

            Truthful Feelings

            actor-prepares-cover-200x305-2 I discovered Stanislavaki years ago reading an article in Litigation Magazine titled “Stanislavski in the Courtroom.The article introduced me to the great acting instructor and how his “Method Acting” is applicable to the courtroom. This led me to study Stanislavski.

            From studying  Stanislavaki’s “method” I see how it applies to trials, particularly jury trials. It also applies to sincerity and the elimination of a fake persona. It applies to  getting in touch with emotions and living at a higher level.

            Stanislavski’s first rule is truthfulness, meaning  honesty at all times. Do away with phoniness, pretense, and the desire to act in a way to please others. Truthful expression comes from the heart. With honest expression there is no doubt. Honest expression results in sincerity in voice, facial expression, and body language. The listener picks this up.

            Truth, which is usually simple and straightforward, is inviting to the listener. When truth embraces our whole being it has a way of sinking deeper and deeper into the mind of the listener to the point it reaches the subconscious mind. This invokes positive emotions in the listener. This creates an unconsciousness bond between speaker and listener.

            The opposite occurs when an agenda, pretense, or phoniness is involved- a rehearsed from the mind alone message. Here tone of voice, facial expression and body language tell the listener this is a surface message, a message calculated to convince, and it is not the truth. A gut reaction against the message occurs, as it is processed as “phony.”

              June 22nd, 2019

              Connection (Eye Contact)

              Eye contact leads to meaningful connection. Begin with an accepting and understanding heart,  making eye contact.  

              In a jury trial I start with eye contact before speaking. I stay with a juror  (three to five seconds) then go to the next juror who invites eye contact.

              When talking and listening I keep eye contact until completing a thought. I go to the next juror who invites connection; I engage with eye contact discussion. This allows me to connect. 

              Try making eye contact in all conversation group and individual. It shows the person you have connected with you care.

                June 1st, 2019

                Wu Chi-The Second Position

                The first time Master Yang Jun instructed us on standing like a tree I had little appreciation for what I was about to do. “If you want to learn the real thing, stand still without moving with your hands in front of you as in holding a beach ball.” (Master Yang Jun). When I tried this with Master Yang I was amazed at the difficulty. Standing still in this position is tougher than most physical exertion over a similar length of time.

                With practice I learned what is happening inside my body as I stand still for at least ten minutes. Slowly I began to recognize the internal power of my body through the simple exercise of standing still.

                When I stand like a tree I get in touch with my natural field of energy. Like a tree I take strength from the earth, from the air, and from the space that surrounds me.  I am nourished by everything around me as I stand in mediation.

                  May 10th, 2019

                  Flow Naturally

                  Constantin Stanislavski teaches to be true to our feelings. We trust our feelings without trying  to manipulate  them, which brings “false action.”

                   In a trial we stay away from testimony or argument directed at arousing a feeling for its own sake. Following this rule prevents artificiality. Testimony and argument stand on its own. We must never seek to add emotion in a calculated way.  As taught by Stanislavski all true  feelings and emotions are the result of the internalization of the feeling of the experience.

                  It is proper to think of the previous experience when preparing for  testimony or argument. This is the way to associate the past feeling with the present testimony or fact. When testifying or arguing,  let the result produce itself rather than consciously trying to bring the feeling to the fore front- like trying to push the river.

                  This may seem like a subtle distinction, but it is significant.  Thus for testimony use the feeling at the time of the experience when preparing to testify. For argument use a past similar experience and reaction when preparing for the argument.

                  At the time of testimony or argument, never consciously try to invoke feeling. Rather just testify or argue and allow the feeling to rise to the surface  on its own; it will rise and flow with the testimony or argument without  trying to invoke the emotion and feeling. This is because true emotion and feeling  reproduces itself.

                    March 17th, 2019

                    Lesson from Marcus Aurelius

                    From Sextus Marcus Aurelius learned:

                    Kindness.

                    Gravity without airs.

                    The ability to get along with everyone.

                    The ability to investigate and analyze, with understanding and logic, the principles we ought to live by.

                    Not to display anger and to be free of passion yet full of love.

                    To praise without bombast; to display expertise without pretense.

                    Marcus Aurelius, Meditations