May 30, 2015 In the courtroom battlefield, compassion must never make a lawyer hesitate to pull the proverbial trigger
Compassion and empathy are critical to winning in trial battle and to living a good life. However, a criminal defense lawyer has no business walking into the courtroom if s/he will let compassion, empathy, or anything else other than sound strategy make the lawyer hesitate to pull the proverbial firearm trigger during trial battle. Moreover, it is folly to think that one’s opponents will use compassion or empathy to make them hesitate not only to pull the proverbial offensive firearm trigger, but also to take advantage of their opponent’s hesitation, and maybe even to throw dirt in the opponent’s eyes in the process.
Persuasion might start as an inside job, but one cannot merely wish away an attacker wielding a machete. A criminal defense lawyer must always be battle ready, and the power of softness must of course be incorporated into all battle.
The horrifying gladiator fights to the death were infinitely more brutish, dangerous and stressful than trial battle, but trial battle can be much more savage than even the bloodiest boxing match. At least a boxing match has a neutral referee and full transparency between boxers, unless they are hiding a razor blade in their gloves. Trial battle begins long before a criminal defense lawyer even steps into court on the trial date. No judge is watching the opposing lawyers in action as they investigate their cases, seek and provide discovery evidence, discuss case procedure, and engage in settlement negotiations. Each of those stages invites fouls and nastiness that may never be discovered by anyone else nor proven, and even a cleanly-fought case battle can risk bruises and much worse.
Over thirty years ago, I met a man who obnoxiously started vising my hand before I could have had my hand in a position to counter his vise much. My self interest overtook my view of his obnoxious handshake when I was considering pursuing a joint law school and business school degree, and he was ready as a lawyer with a successful business to point out that employers on each side could tend to look askance at the remaining degree. In the process of our conversation, I learned that he has successful competition in every cell of his body, at least some of it admirable. He had a killer instinct that can be good to apply when balanced with the other approaches to combat that I cover in this blog entry.
Litigation is competition. The opponent wants to win for his or her client, for the sake of winning, to keep his or her job if not self employed, and to have a winner’s reputation. Opponents are out there who will unfairly vise your hand, throw sand in your eyes, assault you with an SBD, and worse.
The late Robert Smith was a widely-loved local taijiquan teacher who had a thirst for learning from martial arts greats. In his autobiography he recounts his younger days when he lived with two other martial arts practitioners with a pact that they could attack each other any time of day in the house. They loved this state of always being on guard and sharpening their skills; of course, if this arrangement had gone on for years, they might have grown weary of such a lifestyle.
Litigators do not have the pact that Robert Smith had with his housemate friends. Litigators are opponents pursuing any lawful means necessary to win. Plenty will add psychological warfare to the mix, from burying the other side with mountains of discovery containing only a sliver of useful information, scheduling hearings when the opponent is unlikely to be available, and dumping motions and other filings on the opponent that are deadline-sensitive to respond to, and which can be all the more a challenge when the lawyer is juggling numerous other tight deadlines.
When I mentioned my litigation interest to a federal agency lawyer at my first law school summer job, she warned me about the ulcers so many litigators suffer. My immediate internal response remains as my current one, which is to bring it on. Let’s rumble if that is what is needed for me to serve my clients well. Let’s stay in the courtroom until midnight and beyond if needed. Trial battle is no genteel sport. Whatever it takes to win is just that. Just saying these words is not enough. An effective criminal defense lawyer must live these words, and in the process nurture and maintain a strong and resilient mind body, soul, and spirit. The garbage flung by the opponent can be deflected, neutralized, deflated, and vanished. Flung dung can be converted to beautiful fertilizer, enhancing rather than detracting from a lawyer’s invigoration.