Persuasion

By Jon Katz, a Virginia and Maryland criminal defense lawyer and DWI defense lawyer practicing in Fairfax County, Montgomery County, and beyond, pursuing the best possible results for clients. 301-495-7755. http://katzjustice.com. 

T'ai chi near the Reflecting Pool, Washington, D.C., August 28, 2010 (Copyright Younghee Katz).

By Jon Katz, a Virginia and Maryland criminal defense lawyer and DWI defense lawyer practicing in Fairfax County, Montgomery County, and beyond. 301-495-7755. http://katzjustice.com. 

Vision may be powerful, but among the five senses, it can be felt most distantly of the five senses. Next comes hearing, as I see hearing as a more intense experience than seeing, and eardrums might agree.

Touch, taste and smell can evoke the most intense of responses and memories. How often do trial lawyers get a chance to persuade people through touch, taste and smell? Does it ever happen? How often do trial lawyers persuade with music, probably not unless the lawyer is singing a song to the jury, which can be a risky proposition. That leaves talk and visuals.

Sound, touch, taste and smell can bring deeply-vaulted memories to the very surface. For instance, one day the dentist was about to stick a small piece of cotton in my cavity during the process of filling it, and I went ape-sh*t in response, because the cotton was soaked in ether, which a few years before sunk me into an awake-seeming nightmare when used to put me asleep during my tonsillectomy. Once the dentist started reassuredly whiffing the soaked cotton on his nose without passing out, I realized I was not going to be put asleep by the balls, and proceeded with the procedure.

Through this blog entry, I am unable to present any smells, touches or tastes. Left with sound and visuals to present, I here post the music video of the Psychedelic Furs performing “Love My Way”. No matter how much the song got overplayed in 1982, and no matter how much it has been borrowed for commercials, for me "Love My Way" captures part of the key essence of rock music in the early 1980’s during a time before the Internet and before compartmentalized digital audio recordings overtook the flow of analog audio recordings. For me, the song transports me back nearly 28 years.

By Jon Katz, a Virginia and Maryland criminal defense lawyer and DWI defense lawyer practicing in Fairfax County, Montgomery County, and beyond. 301-495-7755. http://katzjustice.com. 

As I have said before, for me jazz is improvisation, spontaneity, feeling, being in the moment, tight interaction, entertainment, pushing the limits of excellence, creativity, expanding into new frontiers, fun, inspiration, and discovery. That also is what my criminal defense work is about, albeit with frustration. I continue turning to music for personal and professional inspiration. 

Here are some of the recent musical inspirations that I have found: 

Above , the totally talented Anthony Braxton –- whom I experienced in 1983 in Boston in a double-billing with Gil Evans -- speaks in awe of the late, great trumpeter Woody Shaw.

Woody Shaw plays his spectacular Rosewood composition here, in 1979. I went to experience Woody Shaw on the Boston Harbor jazz boat in mid-1983. Arriving too late to easily find a seat with a stage view, my friend and I took a seat slightly behind the stage. A kindly man encouraged looking harder for a seat seeing the stage, to hear the music better. We finally found seats where he recommended. Woody Shaw came onstage, and I was floored that he was the man recommending seeking better seats (by then, he unexpectedly looked much different than the pictures on his albums). During intermission, I told Woody how much he and his music had meant to me. I asked him about his trumpet, and he handed it to me, which I had not sought nor expected. I pretended as best I could to be calm with his priceless Yamaha trumpet, and handed it back as quickly as I could like a hot potato.  

Woody's official website says: "Like many geniuses, however, Woody's journey would involve periods of prolonged struggle and hardship, yet through his sacrifice and dedication to the evolution of Jazz music, he added to the vocabulary of the trumpet and created a musical language which was all his own." The same month as my law school graduation, Woody died of kidney failure at age forty-four, which is three years younger than my current age. He accomplished so much in such a short time.

What happens when musicians act? Round Midnight has one answer, putting sax great Dexter Gordon (see here, too) in the leading role. For good measure, Martin Scorsese is included in the cast.

In court, I do not have the luxury of turning up a stereo or bringing in my horn. When I immerse myself in my entire being and experience, though, the music is present all day everywhere I go.

By Jon Katz, a Virginia and Maryland criminal defense lawyer and DWI defense lawyer practicing in Fairfax County, Montgomery County, and beyond. 301-495-7755. http://katzjustice.com. 

From time to time, I ask what if an extraordinary person outside the law profession had been a trial lawyer. I have asked this question about Count Basie, James Earl Jones, and Neal Young. 

The videos here and here made it clear to me not to wait any longer to add Ram Dass and Samuel Beckett to those extraordinary people who would add a powerfully persuasive presence to the courtroom.

Also, although I do not yet have a video of her, my close friend Trudy Morse clearly would persuasively engage in the courtroom. Trudy takes life by the horns every day and every moment. From a near death experience, Trudy “learned that life is so fragile, I would try to enjoy every moment of life…” Being in the moment (which Trudy writes more about here), and enjoying it, is critical to successful trial battle.

Abbey Road revisited.

John Johnson and Gerry Spence (Summer 1985).

By Jon Katz, a criminal defense and DWI defense lawyer practicing in Fairfax County, Virginia, Montgomery County, Maryland and beyond. 301-495-7755. http://katzjustice.com. 

This morning, a gaggle of geese crossing a busy street gave drivers a chance to step back from their Friday hustle-bustle. I excused myself from my cellphone call to snap this photo.

John Johnson emphasized to me the importance of finding quiet and calm among the potential turmoil of trial practice. The geese have inspired me to re-post about John and his following poem "A Meeting with Mother Earth":

The late John Johnson of Friday Harbor, Washington, was a great man and a great jury trial consultant. He believed strongly in people's ability to derive great power from being real, feeling and expressing love, and finding inner peace. To deal with our pain, John said, we first must embrace the pain before sending it on its way; this sounds similar to the t'ai chi approach of embrace tiger, return to mountain. John much preferred having a bucket of cow dung to a bucket of beautiful fake flowers, for at least the cow dung bucket holds something real. For John, the necessity and power of realness was underlined by the Velveteen Rabbit.

John was on staff at the Trial Lawyers College in the College's first two years of 1994 and 1995, at his close friend Gerry Spence's ranch. For four weeks in 1995 at the Trial Lawyers College, I experienced John's friendship, caring, and essence. John departed the planet in early 1996 over his conflict with cancer. John and I spoke later in 1995, when John emphasized how much peace was lacking where I live, in the Washington, DC, area, where he also once lived. My view is that the best way to reach a harmonious life is to learn to do so in the eye of the storm. 

One morning during the last week of the Trial Lawyers College, we awoke before sunrise to find a place in this mountainous region away from the sight or sound of anyone else, to reflect on our lives and the courses thereof, before returning to the hustle-bustle of our work and homes. We continued the silence through breakfast and beyond, and John handed each of us his following very applicable signed poem, "A Meeting With Mother Earth":

By Jon Katz, a criminal defense and DWI defense lawyer practicing in Fairfax County, Virginia, Montgomery County, Maryland and beyond. 301-495-7755. http://katzjustice.com.

For around two decades I would experience such a viscerally negative response to Phil Collins that I would switch the radio channel as quickly as possible before Phil had reached his third note. This arose from my seeing Collins being interviewed one weekend morning when he seemed to have a very dry mouth, reminding me of the numerous Sunday mornings in college after drinking too much the night before, accompanied by a queasy, seasick stomach. Thereafter, my stomach started feeling queasy when I would heard Phil Collins. 

Let alone in the practice of life, but in the practice of law, too, it is critical to reach a level of compassion and tolerance for everyone the trial lawyer encounters, including clients, jurors, judges, opposing witnesses, prosecutors, courthouse personnel, and jailers. At the Trial Lawyers College in 1995 the compassion and empathy concept was presented -– overhyped in my view at the time, complete with hugfests without warning, even with men hugging men (which at the time was very alien to me) –- as the importance of brotherly and sisterly love. 

As with t’ai chi and dieting, most of the lessons of the Trial Lawyers College are easy to understand, but profound and demanding to put into practice. In some ways, just as I have battled the flows and ebbs of stomach bulge to little or no bulge to bulge again for nearly a quarter century (recently returning to being ten pounds away from top physical shape), I have steadily progressed towards being more compassionate and seeing nobody as below nor above me, but with various short time periods -– sometimes as short as a few seconds –- of being so wrapped up in my own gig as to have to clamor to regain my compassion.

T’ai chi ch’uan master Cheng Man Ching speaks in Master of Five Excellences  about the observer’s ability to sense when a person’s work is permeated with his or her ch’i, including with the five Chinese classics of painting, poetry, calligraphy, Chinese medicine, and t’ai chi. 

Jurors, judges, and most other people can tell when a trial lawyer is or is not permeating his or her defense of the case with ch’i. Moreover, if a criminal defense lawyer is not going to fully apply his or her ch’I to the case, why will judges and jurors bother listening closely and deeply to the lawyer? 

Today, ch’i reared its head onscreen to me in the box office hit Karate Kid. With a four-year-old boy, I am finally seeing less of the goody-goody Thomas the Tank and his friends, and seeing more of Spongebob Squarepants, who might be ubiquitous on television, Band-Aids, frozen pops and beyond, but at least he and his friend Patrick allude to chewing gum that they have scraped clean from the bottom of the tables at the restaurant where they work. In other words, it will take some time before my son and I watch a Jim Jarmusch or Quentin Tarrantino movie together. 

Today, my wife, son and I went to see Karate Kid. Particularly upon seeing the scenes of Beijing early on in the film, I tried to distance myself from the movie, looking at this as a likely propaganda bonus to the brutal Chinese government which likely bestowed heavy assistance to Karate Kid’s film makers. I anticipated some or plenty of tired movie formulas, and tried distancing myself from the formula for that, too.

I was unable to not be engaged by Karate Kid, however. No matter how much the film’s producers and director geared the film towards manipulating a financial box office hit and merchandising sales online, and no matter how much better the current Karate Kid is or is not to its predecessor, it tells a good story, and resonated strongly with me on some important universal themes, including:

- Adjusting to being uprooted by forces (here, a parent) beyond one’s control while already adjusting to rapid changes as one enters puberty.  

- Learning to fend for oneself.

- The importance of fearlessness, ch’i, practice, and wu  (emptying the mind, among other things) in dealing with conflict. 

- Cultural and geographical obstacles to romance. 

- A master (here in martial arts) taking an underdog by the wing, giving individualized training, and ultimately learning vital lessons from the student. 

As opposed to the original Karate Kid, which I never saw, the current Karate Kid focuses on kung fu, rather than on karate. From what I can tell from t'ai chi books and Internet sites, kung fu (1) is the same as the Chinese gung fu and (2) means accomplishment, rather than referring to any one specific martial art. Many of the martial arts moves in the movie are questionable as to effectiveness and usefulness in real life. 

Even if Karate Kid’s creators were focused on making a box office smash hit, and even if this film is not the most masterful presenter of the foregoing themes, the movie hopefully spreads the concepts of ch’I and wu widely enough to give those concepts a better-understood meaning. 

Karate Kid tells a good story, which also is essential at trial. Trial lawyers compete for attention with such films as Karate Kid, whose creators invest large sums of money into figuring out what makes audiences tick. A good trial lawyer can still captivate and persuade jurors, even without a huge budget, but hard work, ch'i permeation, skill, experience, and sweat equity remain essential to execute a persuasive trial presentation. 

Ever since I was in my single digits in the 1960’s, I have been bombarded with images and details of some of the most heinous violence by humans against humans. Life magazine came to my parents, and I recoiled in horror at such photos as the daylight, on-the-street summary execution captured in 1968 by photographer Eddie Adams, and the 1972 napalming in a Vietnamese village that resulted in the image of a naked girl, Kim Phuc, running desparately for safety but still getting severely burned by the napalm. On top of that was the 1968 My Lai massacre. 

When the foregoing images arrived onscreen, I had little context in which to place all the violence in Vietnam other than hearing one or more anti-war folks say that the United States had no business getting involved in the war there. 

As I later learned, the Vietnam War was hardly the first time that acts of such heinous levels (not limited to any one side, either) had taken place, but it appears that no previous war involved so much free rein of news photographers to capture the rawest of raw war images, and I was there in my earliest years suffering psychological trauma from such images, but certainly not nearly as traumatic as the people experiencing it firsthand. 

As a criminal defense lawyer for nearly two decades, I have defended more than my share of clients accused of violence against others, running from a few punches to the face, to rape that sometimes added additional horrors, to murder. I am sure that at least some of my clients committed such acts. 

How do I jibe my strong opposition to violence and strong leanings towards pacifism (but not total pacifism) with my representation of those charged with violence? There are many reasons, which I believe I have blogged about before, including that nobody’s rights are sufficiently protected if those charged even with the most severe crimes (even those who seem clearly guilty) do not get effective representation at such critical stages as the setting of bond and pretrial release conditions, the preparation for trial, settlement negotiations, trial itself, any sentencing, and appeals. I also do it out of compassion for each human being, although I have some real difficulty reaching compassion for some people, including Hitler, Pol Pot and David Duke. Additionally, I do it because I think that the existing criminal justice system is excessively unjust, in general, to criminal defendants.

How do jurors accept the artificially-seeming (to many) legalism of innocent unless and until proven guilty beyond a reasonable doubt? That probably is not easy at all. Most jurors also have been traumatized several times in their lives learning of (and sometimes experiencing firsthand) horrific violence caused by humans against humans, and may wonder how violence is going to ebb and how violent people are going to get stopped if such “niceties” (as some jurors might see it) as “beyond a reasonable doubt” and the Fourth Amendment exclusionary rule let alleged monsters hit the street again to perpetrate more monstrosities. In that regard, the criminal defense lawyer must humanize the defendant and try to show the jurors and judges directly or implicitly how they need not worry that the release of the defendant will result in any harm to anyone; that takes tremendous skill, empathy, compassion and sweat equity. 

As I have said many times, I often look outside the law -- including to performers and musicians -- for inspiration in life, and in performance as a trial lawyer and persuader. For great performers, nothing substitutes for well-directed practice, practice and more practice.

Ahmad Jamal's version of "Poinciana" has riveted me since I first heard it in the 1970's. Recently, I heard "I'm Glad There is You" and noticed a particular overlap at the 1:55 section of the Pershing version of "Poinciana" and 1:25 of Carmen McRae's version of "I'm Glad There is You." I found nothing on Google relating the two songs together. "I'm Glad There Is You" was composed in 1941, and "Poinciana" was composed in 1936. Maybe Jamal -- who recorded his Pershing version in 1958 -- threw in the riff consciously or unconsciously having heard "I'm Glad There Is You", or maybe it is coincidental.

I experienced an amazing performance by Mr. Jamal and his trio at Tinker's in Boston in 1981. During the first break, Mr. Jamal gave me permission to take a few flash photos. The photos taken with my Nikon are there for me to find. 

Nearly forty years ago, I learned to do the cups and balls magic routine -- without the big ball finale -- but never with clear cups as Penn and Teller do. Dai Vernon (see Vernon here, too) did a great version a few decades earlier. Many hours of quality practice would have been required for Vernon and Penn & Teller to pull off this smooth performance.

As a very talented amateur jazz pianist responded to what he believed to be the idiotic question to a jazz great about how much the musician practiced: "You practice til you're fu--ing great... Then you have a cup of coffee... Then you practice some more."  And some more. 

Jon Katz - Criminal defense and DWI defense lawyer practicing in Fairfax County, Virginia, Montgomery County, Maryland and beyond. 301-495-7755. http://katzjustice.com. 

I frequently write about the persuasive power of storytelling. Here is a nice addition to my storytelling links: Asheville lawyer Stephen P. Lindsay's article on "Storytelling: Why We Do It & How to Get Better." 

One of the article's best parts is Lindsay's discussion of entering the circle of the story:

Entering The Circle: In order to be effective as a story teller, you must get inside the circle of the story, viewing the story from within, being an actual part of the events. You must bring the jury into this circle. What I mean by this is that we tend to view, and present, our cases from the outside looking in. In turn, we present our cases from a distance and in a way that has our jurors also looking at them from afar. It is not surprising that jurors who are distanced from the defendant find it easier to convict. After all, from a distance, jurors are simply outsiders viewing things from a sterile, judgmental perspective. Indeed, studies have shown that during war time, it is far easier for a soldier to kill another human being who is not within sight than it is to pull the trigger on a visible enemy. Translating this observation into the courtroom experience, in order for our jurors to embrace the defense, they must not be permitted to distance themselves from the defendant’s story of innocence. Thus, we must bring jurors inside the circle of the story of innocence.

To be more convincing, you must step into the essence of the case, pulling the jury inside with you. The best way to do this is from the story telling perspective.

With my family in front of Blue Cliff Monastery's largest meeting hall.

A nice alternative to Kerplunk Avenue.

As much as t’ai chi and meditation are great internal methods for achieving powerful harmony, it is great to reconnect with quiet and beautiful natural surroundings among dozens of people into the same.

My family experienced all of that this past weekend through a wonderful and peaceful maiden voyage to the Blue Cliff Monastery, around eighty miles north of New York City, during the celebration of the Buddha’s birthday. We followed this up with a visit to the spectacular views at the Mohonk Preserve.

I came to Thich Nhat Hanh (also known as Thay) and non-attachment/non-dualism through my obsession with overcoming my obsession over my mortality (read what he says about that). I simultaneously learned, largely through my practice of t’ai chi and related lessons, that fearlessness of death leads to more power as a person and persuader; that fear of death increases the risk of sickness and death, including through stress-induced ailments; and that fear of death and other harm increases the chances of having one’s head lopped off by the opponent’s proverbial samurai sword. Moreover, one who hesitates can die, or at least suffer severe defeat. One who fears can die, and fear breeds hesitation. 

Around five years ago, I came across Thich Nhat Hanh’s “Contemplations on No-Coming and No-Going”, which restates in powerful brevity the centuries-old practice of non-attachment/non-dualism. 

Whereas a hallmark of the Dalai Lama is a wonderful childlike playfulness that enhances the delivery of his serious messages, Thay’s hallmark is smiling serenity. When he visited Blue Cliff Monastery last year, Thay produced dozens of beautiful calligraphies on rice paper that are sold for fundraising at the monastery’s bookstore. I bought one with the words “Peace. Smile” inside a Zen circle. This poster underlines a critical lesson for me, after years of focusing intensely on individual liberties often without balancing that with time and focus to enjoy myself along the path, other than to enjoy the victories and helping others. As Thich Nhat Hanh has said: “Smiling is very important. If we are not able to smile, then the world will not have peace. It is not by going out for a demonstration against nuclear missiles that we can bring about peace. It is with our capacity of smiling, breathing, and being peace that we can make peace.”

One thing I liked about my visit to Blue Cliff is that nobody tried to convert me to any religious nor philosophical view. As the Dalai Lama has said: "For those who may not find happiness to exercise religious faith, it's okay to remain a radical atheist, it's absolutely an individual right, but the important thing is with a compassionate heart -- then no problem." 

Peace. Smile. 

Photo from website of U.S. District Court (W.D. Mi.).

A Japanese warrior was captured by his enemies and thrown into a prison. That night, he was unable to sleep because he feared that the next day he would be interrogated, tortured, and executed. Then the words of his Zen master came to him, “Tomorrow is not real. It is an illusion. The only reality is now.” Heeding these words, the warrior became peaceful and fell asleep. 

Be Here Now.  

Stagefright is so rampant in society that it is a wonder that so many televised person-on-the street interviews do not reveal people who are a heap of nervousness. Or, perhaps television producers simply de-select such interviewees. Whether it is more from stagefright or feelings of being slimy to do cold calls, a recent study showed plenty of people willing to give up sex for a month to avoid a week of making cold sales calls. 

So many people will do anything to be out of the spotlight and in obscurity. Perhaps many people seek out jobs that do not require dealing with too many people so that they may remain as obscure as possible while earning a living. Being on stage makes people aware that others are fully aware of them, and makes them all the more aware of themselves, and about things about themselves that they would prefer to will away, whether it be something as small as a bald head or flabby stomach, to stuttering, to reliving memories of being ridiculed by parents, teachers, and by classmates when required to speak in class. 

Even though my own stagefright level by now is at a deep minimum, I still need to understand stagefright and ways to minimize it for my own ongoing journey, and for the sake of the witnesses that I present in court; and in relating with the judges, jurors, opposing lawyer and opposing witnesses with whom I deal.  Trials are war, and require reducing fear and stagefright. 

Working in imperfect chronology, I reached my present level of low stagefright through having been on stage countless times as a trumpeter with school bands and other bands for ten years; through having performed magic shows for children’s birthday parties for several years, and now performing again for my son and his classmates; through presenting a few hundred trials to completion, including several dozen before juries; through having been on the radio every week for nearly two years with my former law partner ; and through having appeared many times before television and radio audiences ranging as high as the hundreds of thousands and possibly millions ;  . Also of help are the jobs I have had that have required me to deal with a wide range of new people, including retail sales work, auditing internal commercial bank operations for a year before law school (of course, auditors’ presence unnerved plenty of employees in my midst), and, ultimately, my nearly two decades of trial work, and appellate oral arguments. 

My low stagefright level also is thanks to my daily t’ai chi practice, which focuses its practitioners on being in the moment, and about the risks of weakness, severe injury and death from letting fear, nervousness, and worry make one unfocused on the task at hand and to miss sensing important opportunities to neutralize and gain advantage over the opponent, to harmonize an imbalanced situation, and to maintain balance when balance already exists. The ultimate boundary to cross in becoming fearless and strong before an audience is to shed all fear of death and physical harm, which I discuss in my blog entries here.  

Yow! I knew Bill Evans was a great musician, but did not realize until recently finding Universal Mind of Bill Evans (taped in 1966) on YouTube how fascinating he was about the creative and self teaching process (see exerprts here, here, and here).

I experienced a great performance by Evans in 1978 at the outdoors Nice jazz festival. At a later point, possibly on another day, he was looking very low-key in purple lenses behind one of the stages just a few feet from me. 

As with the seeds of being a great trial lawyer -- and perhaps being great in anything else involving imagination and creative presentation -- Evans described how he found the way to earn a living playing jazz: "Ultimately I came to the conclusion that all I must do is take care of the music, even if I do it in a closet, and if I really do that, someone is going to come and open the door to the closet and say 'Hey, we're looking for you.'"

One online commenter who viewed Universal Mind of Bill Evans said the video "has changed the way I think about music and life in general." Though I would not go as far as that, in the above-linked video excerpts, Evans transcends his ordinary and dated physical appearance to display a powerhouse human being who is inextricably intertwined wth his music.

I would be interested to know what music great Cecil Taylor would think about these Evans videos. Taylor was way ahead of his time by the 1960's, and has reached amazing outer creative stratospheres by now, and ultimately got to the point of rejecting the term "jazz" music. I have spent time with Mr. Taylor, who is good friends with my friend Trudy Morse, and he is mesmerizing in multiple ways, including his fascination with bridges and their design and construction, and with the relationship of choreography to music.

Back to Universal Mind of Bill Evans, early in the first link he describes going beyond the usual conventions for doing a variation on a song theme, with "How About You?". 1991's The Fisher King with Robin Williams and Jeff Bridges has at least three scenes in which "How About You" is prominent: Williams's character leading a bunch of homeless people in the song, imagining people dancing to the song in a train station, and leading mental hospital patients in the song. 

Bill Evans passed away eleven years before The Fisher King was produced. He would have been a great addition to the film.