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Winning on framing Club Ah v. Club Blah

Dec 08, 2008 Winning on framing Club Ah v. Club Blah

Photo from website of U.S. District Court (W.D. Mi.).

An essential focus at the Trial Lawyers College is to replace verbal legalese droning at trial with painting word images, telling persuasive stories by re-enacting events, and talking from the first-person perspective of non-lawyers involved in the drama.

Last week, I went to a nearby courthouse remembering last week’s advice to me from local t’ai chi teacher Warren Connor, which was to focus all the more on my centering now that I know the t’ai chi principles. My client was wrongly accused of assaulting a man in a bar, with my client’s fists and a knife, causing superficial wounds. I knew we had a good chance of winning, but also knew that if we lost, the knife part of the attack probably would have enhanced the sentence.

Fortunately, by the time of trial, I had already ramped up my fourteen years of t’ai chi practice from a few times a week to twice a day for six weeks until forever without fail, on the advice of t’ai chi megamaster Ben Lo. I have felt much more healthy spiritually and physically by having increased my t’ai chi practice. This is extremely imperfectly akin to t’ai chi master Cheng Man Ch’ing, who took up the martial art when very sick, recovered, stopped doing t’ai chi because he had reached recovery, got sick again, and reversed the sickness once and for all by returning to regular t’ai chi practice the rest of his life.

As I went to court for this assault trial, I relaxed, sank, and centered myself and my mind to my tan t’ien, which is the part of the abdominal area where the chi is stored, say my t’ai chi teachers and theirs. By doing this centering, I felt more relaxed and in control of my situation, knowing that any negative situation and negative energy can be harmonized and neutralized, and that this can best be done by applying the five t’ai chi principles simultaneously at all times, those principles being relaxing and sinking into the ground and into one’s seat when sitting, keeping the body upright as if the head is suspended from the heavens, keeping the weight balanced and separated as in yin and yang, turning always with the waist (which is near the tan t’ien) as the commander, and keeping the wrists softly unbent.

Now centered, I was ready to add the storytelling and word pictures to the trial, essentially with the following focus and approach:

– The prosecutor focused on proving an assault and getting the knife used for the assault into evidence. I did not deny the assault nor the severity of the assault For unanswered reasons, the bouncers or off-duty cops at the bar let the assailant go rather than holding onto him for the cops to arrive. Our defense was that our client was not present. My client and his roommate testified they were across the street at "Club Ah", whereas the assault took place nearly a mile down the street at "Club Blah." Neither ever frequented "Club Blah" because the club is worse than blah. My client’s roommate and stepfather testified to my client’s utter peacefulness, and that he never had a knife like the one found at the club. My client’s stepfather has a security clearance, which removed any possibility that he would risk his security clearance with perjured testimony.

– The prosecutor tried showing that the complainant’s identification of my client as the assailant was airtight, including his having chosen my client’s picture from a photo array. I focused on the complainant’s absolute unfamiliarity with my client, his name, and his face before the assault, and his having gotten my client’s name from an acquaintance (that information got in over my objection in the first place) and then having found his picture on Facebook (ah, the pitfalls of posting public photos to Facebook). I also focused on how the complainant told the cops the assailant had a full beard, but then backpeddled at trial to try to show that my client’s scraggly, slow-growth whiskers never longer than a five-o’clock shadow could qualify for the phrase "full beard."

– By closing argument time, I wrapped up our version of the story with the following additional themes and images:

— As the prosecutor closed with attempted word logic about how the assault clearly happened and about how the complainant’s identification of my client had been proven beyond a reasonable doubt, I started thinking about a song or titles that might clinch our version of events, versus focusing on SODDI (some other dude did it). One answer was "Moment’s Notice", here performed by Trane. The other title that came to mind was Tell Me a Story, which is a modification from Tillie Olsen’s Tell me a Riddle. Of course, the latter title was apt on its own, because the trial was about the riddle of whodunit? The actual assailant still remains at large.

— In the t’ai chi moment, I realized that it might be most effective to show the judge what happened (this was a bench trial, with the option of appealing for a whole new trial by jury in the event of a conviction), rather than merely telling him. Consequently, I took the acting role of the assailant and the complainant as follows:

ASSAILANT: (Rushing and shouting towards the complainant) You stole my jacket, Mr. C_________.

COMPLAINANT: No, I didn’t.

ASSAILANT: Yes, you did.

COMPLAINAINT:  Ow! (Drops to ground, writhing in pain from having been punched and stabbed.)

BACK IN CHARACTER AS MYSELF: A moment’s notice. That’s the only notice Mr. C________ took of his assailant. The whole assault happened so quickly, and Mr. C________’s first instinct is self-preservation, not getting a detailed rundown of his assailant’s appearance. Why would my client leave the Nirvana of Club Ah on a cold December night to go to the hell of Club Blah in search of a sweatshirt stolen or lost two months earlier, particularly when he and his roommate have always avoided Club Blah like the plague?

After the prosecutor completed his rebuttal closing, the judge gave his verbal findings of fact and conclusions of law, including referencing my argument about how quickly the whole assault happened.

The judge — who post-verdict told me he enjoyed my theatrics, but did not say how persuasive he found them — expressed sadness over the harsh assault. He found the defense witnesses credible and reasonable doubt that my client was the assailant. Numerous of my acquitted client’s friends burst into loud applause. As I motioned a suggestion to them to take their applause outside the courthouse, my thoughts transferred from "Moment’s Notice" to "Bright Moments". If only all courtroom moments could be as sweet.

Jon Katz.

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