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Valentine’s day and trial lawyering

Feb 14, 2012 Valentine’s day and trial lawyering

The following blog entry is adapted from my February 14, 2010, blog entry.

A few years ago, my blog addressed Valentine’s Day in terms of the strange juxtaposition of Valentine’s Day and the Eleventh Circuit’s 2007 upholding of a ban on selling sexual devices, and the Fifth Circuit’s 2008 overturning of Texas’s ban on selling such devices. Today’s blog entry looks more inward, on the connection between Valentine’s Day (beyond the heavy commercialization of the holiday) and being more persuasive and personally powerful. 

When I arrived at the Trial Lawyers College in 1995, the power of love was a big theme, as it is in various religious traditions. As if the love theme had not been enough for me to adjust to, hugging became rampant there early on. Before that, I already understood the power of romantic love, and understood how critical it is to care and fight for social justice, but it took some getting used to seeing all the hugging and "I love yous” at the college. By now, I recognize how very many people yearn to hug and be hugged  — in no romantic way at all — in this day and age where such behavior with fellow employees or subordinates can lead to a sexual harassment complaint.

I feel much brotherly and sisterly love for most of my clients. Love your client, I have urged here before. For those with whom I cannot reach that level, I tend to feel that caring, compassion, and empathy are powerful enough to help a lawyer be powerfully persuasive with jurors, judges, opposing lawyers, opposing witnesses, the lawyer’s own clients, and the lawyer’s own witnesses. For instance, if I defend a man whom I am convinced has committed the murder he is accused of committing, it is easier for me to feel compassion and caring for him than love for him.

What about if I believed my client was as heartless and potentially as violent as Hitler? I asked my mentor Jun Yasuda what she would do had she lived in the 1940’s and bumped into Hitler, since I knew her response would not have mirrored my response of shooting him dead first — to eliminate the brutal violence he was causing — and asking questions later. Whether or not I agreed, Jun-san explained that everyone has several personalities including good parts of their personalities; she mentioned Hitler’s having been a painter. Jun-san would have asked Hitler why he was so angry. She said she might have started by offering him a massage, looking at it as soothing the soul of a savage beast, I suppose. 

I grew up too distrustful of other people, thinking too many people were only out for themselves, and did not give a damn about how many heads they stepped on and crushed to get ahead. I was obsessed about bigotry. When I was studying karate in college, I became obsessed with a fellow student’s telling me she had returned to karate study after a man across a Greyhound bus aisle menacingly showed her a knife. I was obsessed over human rights violators, judges who seemed to urinate on the Constitution, police who abused their power, politicians who played lip service to the Bill of Rights while shredding it, and even over Muzak and other perversions and dumbing down of art. Through all those obsessions, I thought outwardly too much, rather than in my own growth and personal health.

Then, in rapid succession, in 1991 I met Jun Yasuda — who is big on bowing rather than hugging — and six months later left the corporate law firm where I had worked for three years to join the Maryland Public Defender’s Office. It was easy from the get-go for me to be caring, compassionate, and empathetic to my public defender clients. I was convinced I was on the side of the angels in the criminal justice system, with it being all the more satisfying helping indigent people post-Gideon. However, it has taken me much more effort to shed my preconceived notions about police, many prosecutors, many judges, and many others in the criminal justice system. Yet, when I shed these preconceived notions, invariably, most of these folks are more open to me and my arguments, making me more powerfully persuasive for my clients.

Once we have compassion, caring and empathy for those in the criminal justice system, the next step is to be open, comfortable, and trusting with them to the extent possible, in part because the magic mirror makes people unlikely to treat me with trust, comfort and openness to the extent I do not do the same with them. Such an approach may not come anywhere near second nature when it is not clear whether the jurors or judge give a damn about justice or the truth.

I read a passage on the website of a colleague who at once said that he goes to court ready to be thrown into the lockup if need be in standing up to judges, but that he is not judgmental. Although I tend to side with my trial guru Steve Rench that a lawyer can be powerfully persuasive without needing too often to risk a judge sending the lawyer to the lockup, my colleague who talks about the lockup makes an excellent point that we can be tremendously powerful for our clients without judging others. With all the judging and pre-judging that too many police, prosecutors and judges engage in, it takes all the more effort not to judge them, but that is necessary.

Suffice it to say, I did not grow up seeing the world as a sufficiently cheerful place, but, for many years, as a place with too many shades of gray, with some bright colors added from time to time. 

Consequently, as discussed above, I know the recipe to approach jurors, judges, police, and prosecutors in the criminal justice system more openly, empathetically, compassionately approachable and persuasively. As to my many above-mentioned preconceptions and self-imposed hurdles and proverbial body armor, I turn, for instance, to my teacher Ihaleakala Hew Len, who talks repeatedly about the importance of our cleaning our memories to arrive at a point of zero limits.

This zero limits approach is an important part of the Chinese martial art of t’ai chi ch’uan, which I have been practicing since 1994. T’ai chi ch’uan is heavily influenced by Taoism.

As it turns out, Wayne Dyer spent 2006 studying Lao Tzu’s Tao Teh Ching, which is the central Taoist text. That led to his recent book Excuses Be Gone, which focuses on our eliminating excuses and our attachment to them for explaining away our inability to reach our full potential, whether it be for stopping smoking, losing weight, moving ahead in life and personal relationships, or moving ahead with one’s career, among other things.

In the final chapter of Excuses Be Gone, Wayne Dyer says: I ask you to place your relationship to your Source of being at the very top of the list of your important relationships. When this becomes your reality, you intuitively go to the silence within and remember to send your ego to a place where it doesn’t interfere with your deliberation. Make your relationship to Source your priority even if you declare yourself an atheist.  I ask you think of God “ or the Tao, Divine mind, Krishna, Source, or any of the thousand names for God “ as love. There’s a loving energy in the universe that allows for the creation of all beings. It is a nonbeing without form or boundaries, and it does nothing while leaving nothing undone! Make this energy your primary relationship, above all other in your life, consulting it before anyone else. Retreat there in silence, and listen and know that this force is outside of you and within you. Its here that you will be guided to change self-defeating excuse patterns. Excuses Be Gone (emphasis added).

Speaking of the Source and loving energy, I deeply thank my wife and son for sharing that with me every day. We are on a wonderful journey together, and I am very fortunate for it.

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