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Facing and reversing others’ trespasses

Sep 15, 2013 Facing and reversing others’ trespasses

Recently — I think in one of Ram Dass’s two recent books — I was re-reminded how important it is not to take others’ seeming trespasses personally. For instance, if person A is yelling at person B, that may be more of a manifestation of where person A is in life than of any valid indictment of anything person B did. The author said that he often responds by apologizing for any suffering his actions caused to lead to person B’s reaction, and that this sometimes is the most effective way for person B to feel non-threatened to at least partially admit that his actions were misguided.

Thich Nhat Hanh believes that suffering is so prevalent that he even says that monastics suffer, and summoned a beautiful and riveting group monastic chanting of the name of the goddess of compassion, Avalokita, after speaking of that suffering when he gave a dharma talk nearly two years in Washington, D.C.

Nothing happens in a vacuum, of course. A yelling judge may, for instance, be on automatic pilot, convinced that a lawyer or witness in the courtroom has committed a serious trespass, feeling in need to avoid anybody seeing him or his courtroom out of control, but of course the yelling already looks and is out of control.

Sometimes when a judge prevents me from cross-examining a witness on a clearly legitimate matter or arguing a legitimate evidentiary or procedural matter, I might say "I feel that I am not able to provide effective assistance to my client when I am being prevented from briefly addressing matters A, B and C." I do this to be non-confrontational in giving the judge an opportunity to re-think his or her roadblocks on my being able to provide my client the Sixth Amendment effective assistance of counsel that s/he is entitled to. The judge sometimes gives me some leeway. Sometimes I add: "Judge, my planned cross examination/argument on this matter likely will take not more than 2 or three questions/one or two minutes." Now the judge has my own words to assure and enforce that I do not go further than that; such an approach can work. 

If I said to the judge: "I am sorry about any suffering I have caused you to contribute to your actions" — as Ram Dass does — not only may I have misguidedly ceded my power there, but the judge may also feel I am a touchy-feely nutjob or coming from left field talking what the judge might see as psychobabble or the psychoanalyzing of the judge. That does not, however, prevent me from looking within myself for ways that I can help empower myself and the judge (if not empower the judge, then at least to remove concerns the judge has)  to enable me to pursue the line of argument or cross-examination that is critical for my client’s liberty. I could, though, say something along the lines of: "Judge, I am doing the best I can to serve my client while also serving judicial economy and following the governing procedural rules. I assure you that I will adhere as best I can to serving all these goals well." That, then, might make the judge feel less threatened and more willing to say why s/he is throwing roadblocks in my way. For instance, if the judge is concerned that an approach I am taking will take more time out of the trial or other proceeding than seems justified to the judge, I can assure the judge the extent to which I think the rest of my time on the trial or proceeding will take x or y number of minutes or hours, but only if I have a solid sense of such timing. If the judge says s/he believes I am engaging in shenanigans that s/he has not seen in the courtroom before, for instance through my storytelling approach to persuasion, I might say: "Judge, I am aware that I may do some things that look novel, but they are actually the bedrock of such great and effective trial lawyers as my teachers Gerry Spence and Larry Pozner, and storytelling at trial can be very effective in helping the jury remember the evidence and to send out fewer notes to your Honor asking to be reminded about some of the material testimony presented in court."

All along the way, the more I shed my own ego, the more I can be effective and persuasive for my client. However, that is more easily said than done if a judge is snapping at me with my client standing right next to me, and worse if the jury is also hearing the snapping. Now, I am simultaneously focused on persuading the judge and jury, and maintaining the attorney-client relationship during the judicial snapping.

When thinking about judges providing roadblocks, I remind myself of my great teacher Steve Rench. Even the most tyrannical-seeming judges have some level of desire to be spoken well of, but are less likely to depart from their tyrannical-seeming ways with people who do not give them the benefit of the doubt that they can change for the better. A criminal defense lawyer can be effective inside the courthouse without appearing to kowtow to nor accept the injustices therein. A great example of that is Steve Rench, who applies the basic and effective lessons of the magic mirror. If a judge knows s/he has a poor reputation with lawyers, that presents all the more reason for the lawyer to empty the mind of any such thoughts, and to give the judge a clean slate that day. Oversimplistically, it is like trying to find the thorn in the lion’s sole and to pull it out, rather than trying to slay the lion.

One great trial lawyer told a group of lawyers about his rocky road with a New York federal trial judge on this lawyer’s road to a magnificent jury trial victory in a very complex white collar criminal prosecution. It seems that, for starters, this may have been a judge very much fitting the overly-cerebral, under-hearted Manhattan denizen stereotype, facing a country lawyer who is all about feelings and connecting to all. The lawyer’s gigantic reputation doubtlessly preceded him, and the judge perhaps was intent from the get-go on showing who was in control of the courtroom, when so many trial workshops focus on the lawyer’s taking control of the courtroom.

Repeatedly, the judge snappingly interrupted this magical trial lawyer as he spun his legitimate magic before the jury, to the point that during closing argument — after the judge again snapped at this giant lawyer — this lawyer held open his hands to the jury and sincerely said "I am doing the best I can." Likely, the jury by then shifted the default of most juryies to have confidence in the judge, to seeing this giant lawyer as the most reliable person in the courtroom.

Being as honest as that — for instance telling the jury "I am doing the best can" — is at once honest and perhaps risky seeming, to admit that we can do no better in stopping the judge’s tirades than we have already done. Nothing, though, can be more credible. When anybody sounds even one iota less than fully honest, people tune them down or totally out. Credibility is essential in persuading.

Consequently, when facing a judge’s snapping at me, I can benefit from summoning not only my own inspiration (which always is essential) but also the inspiration of this giant lawyer and of Ram Dass.

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