Chapter 2, The Tao of Criminal Defense Trial Lawyering


In a comment to a recent post about Mao and Sun Tzu, Oklahoma criminal-defense lawyer Glen Graham wrote:

While the “Art of War” provides some theories, the Tao, has other theories, and still, there are a multitude of others.

I’m not sure Glen is quite right. It is true that we can learn from Sun Tzu, or Mao, or Lao Tse or, for that matter, Sanford Meisner, Thich Nhat Hanh, Gerry Spence, Keith Johnstone, John Nolte, Milton Erickson, or Bruce Lee. I believe that if we are willing to keep an open mind we can learn to be better trial lawyers from anyone anywhere (I’ve even learned a thing or two about trial lawyering from our Rhodesian Ridgebacks). To me, these teachers do not offer a multitude of theories; they just have different ways to teach us the same theory. They are all (to adopt the Zen metaphor) fingers pointing at the moon, but there’s only one moon.

With that, here is the second chapter of Lao Tse’s Tao te Ching:

When people see some things as beautiful,
other things become ugly.
When people see some things as good,
other things become bad.

Your job as a criminal-defense lawyer is not to judge. Leave the judging to the jury. This extends beyond your client, to everybody else in the case. There will be witnesses against your client; don’t judge them either. They are what they are. Don’t try to force them into categories.

In trial, help the witnesses show the jury what they are, or leave them alone. You’re not likely to convince the jury that a truth-teller is a liar. But if you invite the truth-teller to reveal himself to the jury and together you might find reason for the jury to doubt him.

Being and non-being create each other.
Difficult and easy support each other.
Long and short define each other.
High and low depend on each other.
Before and after follow each other.

If there weren’t prosecutors, you wouldn’t be a defense lawyer. If you didn’t have tragic days, you wouldn’t have joyous ones. If you didn’t try hard cases, you wouldn’t have easy ones. Reverse all of those statements and they’re equally true. There is no “high” without a “low”, and no “low” without a “high”. If you like highs but not lows, you can rage against the lows, but, since their interdependent, doesn’t it make more sense to just take them as they come?

Therefore the Master
acts without doing anything
and teaches without saying anything.
Things arise and she lets them come;
things disappear and she lets them go.
She has but doesn’t possess,
acts but doesn’t expect.
When her work is done, she forgets it.
That is why it lasts forever.

Act without doing anything. Don’t force it. Find the helpful forces at work in your case, and give them room to work. The less you have to interfere, the better off your client is (Bennett’s Chainsaw at work).

This doesn’t mean “don’t prepare.” You can only act without doing if you know your craft and the case thoroughly. Masters of martial arts can act without doing because they have rehearsed their moves thousands of times until they are embedded in muscle memory.

Teach without saying anything. Jury selection again provides an excellent example: we teach the jurors more by letting them talk than by lecturing them. Also, we teach best by demonstrating. And that’s all I’ll say about that.

Things arise . . . . In trial, let things arise and disappear; you might as well because you can’t do anything about them anyway. When things go “wrong” — differently than you expect them to — at trial, don’t get stuck on them; you will defeat yourself. Let them pass. When a witness gives you an answer you didn’t expect, you can’t undo it. Let it pass. Maybe you asked a bad question, but your real error was in expecting something. If you don’t expect anything in trial, you’re not going get stuck.

What do you do when you win a case? What do you do when you lose? One of my teachers taught me to enjoy the victories, and suffer the defeats for 48 hours, then move on. But why 48 hours? Why not 72, or one? If one day, why not one hour or one second or one moment — the moment of the victory or loss. Then move on to the next moment.

Part of the job, though, is continual improvement. If we forgot the lessons of trial, we would never improve. Is this contradictory? Not for me. I learn more by letting go and allowing the lessons to come to me than by looking for them. Again, don’t force. Forget the work, trust the lessons to remain. I can learn the lessons and forget the work. Why does the work last forever? Because I really learn the lessons, rather than just talking to myself about how well or poorly I did.

[Chapter One]


0 responses to “Chapter 2, The Tao of Criminal Defense Trial Lawyering”

  1. Remy, thanks for your comment. Malum in Se is on my shortlist of must-read blogs.

    Anonymous, you’re welcome. But don’t call me john!

    Mark.

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