Apr 19, 2017 The courtroom persuasiveness of a powerfully respectful approach backed by strength
When a courthouse deputy sheriff one day during a break in proceedings asked me what led me to taijiquan, I pointed out that trials are combat and that taijiquan helps me with that combat. The overhearing prosecutor disagreed, saying that he was in the military, and that trials are not combat. Oh no? Fail to apply key martial arts principles to trials and other conflicts, and suffer the consequences.
Taijiquan, also known as t’ai chi ch’uan, helps simplify and strengthen all trial work and other conflict situations by focusing on harmonizing disharmonious situations; using no more force than needed; using our ch’i energy and the opponent’s energy; being more aware of ourselves, opponents and overall situation; remaining calm throughout; and being actively relaxed rather than limp, hard, stiff or brittle.
Consequently, when a client urges the necessity of my destroying an opposing witness on cross examination, I respond that the backlash from destroying the opposing witness can be much more harmful than my telling the defense story through cross examination, bringing out important evidentiary points, and defanging the opposing witness’s testimony.
A good criminal defense lawyer will rarely seek the judge’s help in controlling a runaway opposing witness during cross examination. Instead, the criminal lawyer will keep control of the situation, starting with rewarding the opposing witness’s frank, non-runaway answers by proceeding to the next question, and punishing the witness’s beating around the bush with multiple questions on the one point that could have been answered with the first question.
When we get angry, we lose control. Consequently, a criminal lawyer is weak when matching tit for tat in nastiness with a nasty opposing witness, and is in control by remaining powerfully calm and respectful throughout all interactions with opposing witnesses. If the opposing witness wants to test that kindness, the skilled criminal defense lawyer will let the witness feel the needles proverbially buried within the context of the lawyer’s seemingly kind approach to the witness.
Unless the judge as factfinder or jury clearly shows that they are ready for the criminal defendant lawyer to let the obstructionist witness have it — which usually will not happen with any witness other than an opposing expert puffing out his or her obstructionist and obfuscating chest at all times — the judge and jury may well punish the overbearing cross examining criminal lawyer, in one way or another. Even when letting the obstructionist opposing expert witness have it, the criminal lawyer needs to do so with kindness rather than anger.
Some lawyers call this kinder rather than angry version of cross examination “soft cross-examination” (see pages 26-27). However, I prefer to conceptualize of this cross examining approach as taijiquan cross examination, where no more force than necessary is used to obtain material benefits from cross examination.
Do you remember being totally mesmerized and captivated with a musical performance, musical play or film, where your spine is tingling in wonder? Possibly you remember that feeling much more than any word that was spoken or sung in that performance. Similarly at trial, all the fanciest and most intellectual verbal presentation of the criminal lawyer is worth little if not delivered in an attractive package in a likable way. Otherwise, the judge and jury’s decisionmaking process may well be overshadowed by the ill feeling they have in the pit of their stomach when considering the words and messages of an offensively overbearing lawyer. As a colleague aptly points out, people remember how someone made them feel more than what the person said.
Yes indeed, trials are combat, and brute force never wins in any combat.