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The persuasive and personal power of softness

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Soft is not weak when applied in terms of active relaxation. Collapsed is weak. Brittle is weak. Stiff is weak.

Softness enables listening and winning; loudness deafens; hardness makes brittle and weak.

Softness puts opponents and others more at ease — and open to the actor — rather than on guard.

A tidalwave is at once soft and devastatingly powerful. The same goes for a tornado, and fire.

I do my best to cultivate powerful softness throughout the day and the rest of my life. Daily taijiquan practice is ideal on that path. When I do taijiquan sparring/sensing hands with great local taijiquan practitioners, I am reminded that soft is the way.

The power of softness in trial battle recently was re-affirmed when I was crossing a DWI case’s reporting police officer who was having material memory problems to my client’s potential benefit. Before trial had ever started, I had a pleasant brief conversation with the officer, and continued being pleasant with the officer, even when I felt something was off that the officer was recalling numerous harmful details about the months-old incident that never had found their way to the officer’s report on the case.

Softness does not preclude being well armed, and being ready to use those proverbial and/or actual arms. None other than television’s Kung Fu underlines such an approach to trial battle and all other battle, through Master Kan: "Perceive the way of nature and no force of man can harm you. Do not meet a wave head on: avoid it. You do not have to stop force: it is easier to redirect it. Learn more ways to preserve rather than destroy. Avoid rather than check. Check rather than hurt. Hurt rather than maim. Maim rather than kill. For all life is precious nor can any be replaced." (Emphasis added.)

Consequently, the runaway opposing witness often needs more than just a smile to nudge what the criminal defense lawyer needs in fighting for the criminal defendant.  Larry Pozner has analogized effective cross examination as offering the opposing witness to sit on a new thumbtack with each question. Sitting on the thumbtack is uncomfortable, but less uncomfortable than the witness’s being punished with multiple questions to get a direct answer to the one question that could have been answered with one simple answer. Watch out, of course, for the judge who steps in and says for the punishing  cross-examiner to move it along — or emphasizes that the witness has already answered (but the defense lawyer has the right to challenge that answer) — but even the least understanding and least fair judge will get impatient with the witness who repeatedly slows things down by evading even the most simple of questions. With the foregoing thumbtack approach, by the end of the cross examination, the effective cross-examiner may have stuck so many thumbtacks into the opposing witness as to be the equivalent of a dagger, when no witness will be willing to sit on a dagger versus on sequentially-applied thumbtacks.

Recently, two Rocket Docket judges underlined how few jury triable cases proceed to trial in their courthouse. The stakes in those cases are often too high not to settle. However, a trial lawyer must go to court fully ready for battle. That way, the client does not plead guilty out of fear that his or her lawyer will choke at trial; and the lawyer will not come down with the "aw sh*ts" when learning that the prosecutor is not offering as favorable a deal as the lawyer had expected, the client decided not to settle after all, or the judge does not accept the settlement. Moreover, a case is more likely to settle when a lawyer is prepared for trial, and a case is more likely to go to trial if the lawyer prepares it to settle. Moreover, the more the opposing lawyer knows that the lawyer always is trial ready, the more the opposing lawyer will convince his or her client that a formidable fight is looming if the case does not settle.  

The late John Johnson, who lived the power of softness, reminded me to have my bows and arrows at the ready when kindness alone does not cut it. Those arms will always be with me, along with softness.