Chapter 3, The Tao of Criminal Defense Trial Lawyering


It’s Monday; time for another verse from the Tao Te Ching.

If you overesteem great men,
people become powerless.
If you overvalue possessions,
people begin to steal.

Who is “you”? Obviously, a person who overvalues possessions might steal, but I think the “you” who is the subject of the verse is us. If we overvalue possessions, some of us begin to steal.

If we overesteem great men, people become powerless. We give up power to people when we overesteem them. For a topical example of giving up power by overesteeming people, see Scott Greenfield’s post on the Jack Bauer Scenario:

People in power, even a little bit of power, tend to confuse authority with being right. The burden of responsibility plays a peculiar game with their mind, forcing them not only to make decisions, but to believe that their decisions are better than anyone else’s. Some make snap decisions and other belabor the decisions, but when a decision is ultimately made, it becomes the immutably right decision. We see this on every level of government. And we see that when the decision is wrong, the consequences can be disastrous.

This verse is antigovernment and antimaterialistic; it provides a fairly thorough solution to a large set of social ills. If we don’t overesteem great men, government will not be as powerful, and if we don’t overvalue possessions, crime (most of which can be described as a form of theft) will diminish so that we won’t need powerful government. Or criminal-defense lawyers.

The Master leads
by emptying people’s minds
and filling their cores,
by weakening their ambition
and toughening their resolve.
He helps people lose everything
they know, everything they desire,
and creates confusion
in those who think that they know.

I haven’t specifically addressed who “the Master” is. The Master is who each of us should aspire to be. Instead of “The Master leads . . .” this verse could read, “Aspire to lead . . .”

Change one other word. Change “people” to “jurors” and this verse is a manifesto of trial advocacy. Aspire to lead by emptying people’s minds and filling their cores. We win trials not by convincing jurors’ brains but by convincing their cores — their guts — their hearts. We know that jurors make decisions based more on emotion than on intellect.

Weaken jurors’ ambition — they don’t generally have anything to gain from doing the right thing and acquitting our clients. Toughen their resolve — they need to be willing to stand up for their decisions even in the face of other jurors with contrary opinions trying hard to convince them to agree to a verdict contrary to their cores.

Aspire to help jurors lose everything they know, everything they desire, and create confusion in those who think that they know.

Even if all of our jurors had accurate views of the world when the trial began, when we get to them they think they know things that are wrong. The government gets the first opportunity (through its voir dire, through its opening statement, through direct examination of its witnesses, or through its case in chief generally) to convince the jurors that they know what happened. A juror who thinks he knows is probably wrong. Aspire to help jurors see the world afresh.

Practice not-doing,
and everything will fall into place.

This is the first of several epigrammatic verses offering specific advice. Hey, it’s easy! Just practice not-doing. What is not-doing? Not-doing is not “not doing”. Not-doing is acting without doing, teaching without saying. It’s effortless action. It’s trying without trying — trying cases without trying to.

99% of trying without trying is practice. We practice constantly for the next trial, training ourselves physically, mentally, or emotionally until we are prepared for the last one percent of trying without trying: letting go and letting our training carry us through.

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0 responses to “Chapter 3, The Tao of Criminal Defense Trial Lawyering”

  1. Very interesting, Mark – “trying cases without trying to,” huh? 🙂 Good stuff.

    If you hadn’t seen it, I did a series awhile back on the influences of Taoism, specifically Sun Tzu, in shaping some of my own approaches to professional politics. He delves into many of the tactical considerations of the “not trying” approach in martial affairs that I’ll bet also have ramifications in the courtroom. best,

  2. Re: Jurors “don’t generally have anything to gain from doing the right thing and acquitting our clients.”

    When the prosecution has proven beyond any reasonable doubt that your client has committed the crime, isn‚Äôt convicting him ‘the right thing’ to do?

  3. Malum, you say that as though you suspect that not everyone is enjoying them!

    Grits, I hadn’t seen that. Thank you for the link.

    Dad, when the government proves its case beyond any reasonable doubt, the jury can then decide whether convicting is right or not. Convicting is is still not necessarily the right thing to do. Lots of laws are not right, and lots of statutory minima are not just. That’s why the jury has the power to nullify and acquit despite proof beyond a reasonable doubt. (They don’t generally have anything to gain from convicting, either, but the prosecutors will try to convince them that they do.)

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