In his Fourth Book, The Book of Wind, Musashi concludes by stressing the traits of a warrior. Applied to the trial lawyer these traits are:

Lack of Pretense. The trial lawyer is without pretense. The trial lawyer is engaged in a career long quest to develop his spirit in the proper manner. Musashi’s, Book of Five Rings (Translated by Stephen Kaufman, Hanish 10th Dan) (1994) at 83-84.  His commitment is to his cause rather than to himself. The trial lawyer “does not go around telling everyone he is a great [trial lawyer]. He permits his actions to govern others’ responses.” Id. at 92.

Study Others-Be Yourself. Musashi teaches the importance of understanding the “reasons and philosophies of other systems” to benefit from our own. “Without comparison you have no reference point with which to judge for yourself and decide how to properly develop your own self.” Id. at 84. We should study other trial masters to reinforce our understanding of ourselves. In this way we constantly reevaluate ourselves.  Remember though to be yourself. When we change our methodology because of others we lose ourselves. “Eventually you are going to have to come back to your natural state. So why leave it in the first place?” Id. at 96.

The Big Picture. Always take the broader view of the situation. “Do not concentrate on details. Keep only one thing in mind: that thing is to beat your enemy. In this way your spirit will continue to grow and you will always be conscious of your surroundings and the situations that appear.” Id. at 95. When we are aware of all possible outcomes we “may not even have to do battle because of superior intelligence based on perception and intuition. It is possible to win a fight without ever having to go into combat.” Id at 93. This occurs when the trial lawyer knows the strengths and weaknesses of her case and is known by the opposition to try her cases.

Quickness over Speed. Trials are competitions. In any competition rhythm and timing are essential. Musashi recognizes this and stress quickness over speed. “Quickness gets inside of speed and enables you to control the situation… . When you advance, … advance quickly and get immediately to the point. Your speed is dependent on the speed of your [opponent]. … [A]djust yourself  accordingly and do not think in terms of being faster and slower. … [I]f you are constantly moving fast you will have no time to maintain your poise and timing.” Id. at 97. “Always move naturally and calmly… .” Id. at 98. Quickness in trial happens when we focus on the present as in the words and body language of the jury in jury selection and the witness during testimony. Rather than concentrating on prepared notes live in the moment of the trial.

Trial Lawyer as Warrior. In today’s legal climate the Gerry Spence metaphor of the trial lawyer as a warrior is apropos. Insurance companies rely on lawyers unwilling to try their cases. Insurance companies base low offers on this reliance. In Musashi’s time it took a warrior to get justice for the weak. In today’s economic climate it takes a lawyer willing to file his case and prosecute it through a jury trial to get justice for the injured. When the insurance company sees such a lawyer they often pay fair value “because they would prefer to fight someone else.”

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In Musashi’s third book, The Book of Fire, Musashi concentrates on the spirit of the warrior/trial lawyer:

Soul and Feeling. We must never overlook the all important aspect of spirit. “To release the spirit one must accentuate the work with mediations of the heart and the soul. Not doing so is the same as performing music note for note, with no emphasis on the ‘feeling’ of the particular piece… . The Way of the warrior is filled with soul and feeling. Without it the warrior is essentially ‘dead’ even though he may appear to be very strong.” Musashi’s, Book of five Rings (Translated by Stephen Kaufman, Hanshi 10th Dan) (1994) at 55.

How to Practice. Musashi stresses the need for a warrior to properly practice. Proper practice requires visualization in training. When you practice technique and apply your “soul” to it “you will find that the technique will reveal to you the manner in which it must be used to your personal advantage.” Id. at 57.

Pressure the Opposition. “By keeping pressure on the enemy, you will keep him constantly in a defensive posture. … Your basic attitude should be of wanting to overwhelm him and unsettle his spirit. This will permit you to control the situation and make good your attack… .” Id. at 59. Remember changing rhythm and timing throws off the opposition. “There are times when, although you are prepared to go right through the enemy, you lay back momentarily and then, without waring, leap in and through.” Id.

Opposition Attacks. Never be overwhelmed by the opposition. “You can ensure this by keeping your spirit tall and your resolve strong. … Should the enemy attack, strongly and calmly, you must become one with the attack, and through superior resolve cut him down swiftly.” Id. at 60. Never permit the opposition to gain an advantage. “[E]ither you lead the enemy or he will lead you.” Id. at 61. ‘You must come to understand the importance of attacking while the enemy is attacking and, in doing so, step on his sword, making him lose balance and advantage.” Id. at 63.

The Snake. “Think of strategy as being both a snake’s head and a snake’s tail. Never permit yourself to become entangled in the small points of combat. Do not become stricken with a single minded attitude.” Id. at 76. Be flexible with the understanding “there is more than one path to the top of the mountain.” Id. See both the large and the small. Focus on the large and refrain from needless diversion into the small.

Control the Battle. Either you or the opposition will control the battle. To control you must understand the opposition. Knowing the spirit of the opposition is the first step of control. Then maintain control over the opposition’s actions. “Embody the spirit by having the spirit to win.” Id. at 77. “You must control… by possessing a greater spirit than that of the [opposition.]” Id. at 79. “The only thing of importance in the way of strategy is the willingness and ability to truly defeat the enemy in actual combat with a long sword.” Id. at 78.

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With Musashi’s second book, The Book of Water,  I continue with the warrior/trial lawyer metaphor:

Appearance. “The manner in which a warrior carries himself is of utmost importance both physically and mentally.” Musashi’s, Book of five Rings (Translated by Stephen Kaufman, Hanshi 10th Dan) (1994) at 26. The appearance of a warrior / trial lawyer should be “quiet and strong and seem to be doing nothing.” Id. The lawyer neither appears to be tense nor in disarray. The lawyer simply appears. When it is necessary to present the lawyer does so with complete resolve, confident, “neither overbearing in attitude nor with false humility.” Id.

 Opposition. “A small man can beat a much larger man and one man can beat many men.” Id. at 27.  Never allow yourself to be intimidated by the size of the opposition. Never show the enemy “false bravado.” Id. at 30. Never “prejudge a view according to what you think things should be, but instead look at all things equally and in this way you will be able to discern what can hurt you and what cannot.” Id. at 29. Steadfastness of purpose is a key requirement because if you lack this you will easily be led into false security and be easily defeated. Id.

Purpose. “The martial arts [and trials] are not a game… . You must mean it when you strike… . If you do not, you will certainly get hurt. The only reason to draw your sword is to cut down the enemy.” Id. ad 31. The warrior/trial lawyer must “go straight to the heart of the matter… .” Id. at 33. Musashi teaches the main purpose of the warrior is to defeat the enemy. “Do not be side-tracked by the appearance of the enemy or yourself. Do not be conscious of the particular technique you will use. This causes hesitation. …” Id. “Your attack must be filled with conviction and purpose. In this way you defeat the enemy regardless of his abilities.” Id. Your attitude will be recognized by your opponent and he will prefer to fight someone else. Id.

Demeanor and Attitude. “Regardless of … experience, you must always remain calm. Calmness is attained through meditation and belief in your own skills. It is not to be confused with egotistical technique, which generally fails… .” Id. at 34-35. “Always be aware of the possibility of changing timing and rhythm.”  “Your attitude must be such that you can shift into any other mode… without having to make a conscious decision.”Id. at 39. Never have a preconceived ideal about how a situation should come out. Be flexible with the intent to defeat the opposition. “The main idea is to move on the enemy instantly upon perceiving his own approaching attack.” Id. at 37. Go into the attack without hesitation and with the attitude of destroying the opposition.

Becoming Bigger. Musashi teaches: “Extend your spirit above and beyond the enemy’s body and spirit. Never cringe in fear. …[keep] your spine straight. … You first beat the enemy with your spirit and then you beat the enemy with…[your argument]. Go for the…[win] with utter resolve and commitment.” Id. at 46.

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Gerry Spence uses the metaphor of a warrior for a plaintiff trial lawyer. Taking from Gerry and the classic warrior treatise Musasahi’s Book Of Five Rings I apply Musasahi’s “martialist” advice to litigation and trials:

Develop Technique. The warrior first learns proper battle tactics to survive in battle. The first step to becoming a trial lawyer warrior is to develop proper technique. Develop technique by reading  trial masters, observing quality lawyers, and trying cases. A martialist knows technique must be instilled into the subconsciousness so it becomes instinctive. The ability “reveals its true identity to a warrior only when the ‘spirit of the thing itself ‘ feels comfortable as a vehicle for its own expression.” Musashi’s, Book of Five Rings (Translated by Stephen Kaufman. Hanshi 10th Dan) (1994) at 11.

Forget Technique. It may sound contradictory, but in battle the warrior forgets technique. “Development of technique is essential to understanding of purpose. Once a specific technique has been understood, the warrior stops using it on a conscious level because in combat having a conscious identity imposes limitations.”  Id. at xi. The same is true in trial- believe, prepare, then try the case instinctively as it develops.

Warrior Consciousness. The development of “warrior consciousness” is ongoing. “Only from a constant search from within, based on one’s own lifestyle, can the truth be known.” Id. at 5.  A trial lawyer must first know himself. Then, according to Musashi, to understand the qualities of a successful trial lawyer, look for successful qualities in other professions. “To learn the sword study the guitar.” Id. at 6.

Rhythm and Timing. “There are good times and there are bad times for for everything.” Id. at 19. Musashi teaches when we understand time we also understand rhythm. To Musashi “[i]t is absolutely essential to understand the timing of Universal harmony.” Id. To restructure time we need an understanding and realization of the universe or else our substance will be infected with error and we will not be able to properly perform in battle. Id. This comes with constant practice with putting attention on intention. Always prepare “with timing and rhythm uppermost in your mind.” Id.

Losing. Musashi teaches that death to a warrior is not necessarily shameful. The same is true for the lawyer who losses. Applied to a trial Musashi says many types of lawyers have lost-some for the right reason and some for the wrong. The only shame in losing is to lose for the wrong reason. According to Musashi there is no shame to a lawyer who loses after thorough preparation and asking for the right amount for the right reason without consideration for his own gain.

Continue to Learn. Musashi teaches a warrior who is an expert in his particular form is still subject to defeat. “It is doubtful that anyone truly understands the ‘real’ way of strategy, much less lives it.” Id. at 3.  Mastery is something we never stop seeking to obtain. Musashi believes when we think we know it all we should retire. The same holds true for a trial lawyer.

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