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CREATIVE LAW
 

"The law hath not been dead,
though it hath slept."

Shakespeare

Editor's Note: The following article was written by a criminal trial attorney in Sacramento, Calif.  I chose it because it embodies the essense of creative thought in regards to legal proceedings and the practice of law. As a former paralegal I found the legal profession sorely lacking the fluidity of mind that comes with right-brained thinking. This attorney has developed an excellent style and method that allows a whole-brained approach to this very important aspect of our society.

Creative Law
INNER TRIAL

This is an article for the trial lawyer and those who know that we are all trial lawyers each and every day. How we think as advocates is the absolute key to success both in jury trial and in life. And learning to think as advocates is a process which flows one step at a time with a few steps back to help us learn from our mistakes. And we do learn.

Eventually we learn that there is a way to think and act in jury trial that not only gives us an infinitely greater chance for success for our client, but also allows us to express the very depth of who we are. To one who knows the secret, trial is an art form. It is done from the heart and from the right side of the brain. I call right-brained jury trial the nuclear power of advocacy. Once you feel it, you will never go back. It is too powerful.

The good news is that the process can be taught - and it can be learned. I know, I have done both. And now I am here to pass it on.

But before we get started, we need to be sure that we are on the same wave length. What is a right-brained lawyer and why do we want to go there? As Ms. Read's website so clearly teaches, there is an actual observable and measurable difference between the right and the left halves of the human brain.

I usually think of the left side of the brain as the computer side. It is the language of organization and communication. It is logical. It is mathematical. It is verbal. The left side serves a function without which there would be no exchange of information as we know it. Without the left side, the Enchanted Mind puzzles, even the right-brain puzzles, would be simply impossible to solve. In fact, there have been actual cases of injury to the left side of the brain in which the patient can apparently take in information and formulate feelings on the abstract but loses the word based thought process, and of course, speech. As functioning humans, we very much need the structure of the left side of the brain.

 

The right side of the brain is something entirely different. It's function is what it is really about to be traveling on this spaceship called Earth. It observes. It feels. It loves. It holds the true integrity and the power. Through the right side of the brain flows the poem of life. It is the artistic side which sends out messages which go deep into the soul and change the world from the inside out. When the right side of the brain hears the baby's cry, it doesn't just register as an unhappy baby. It hears the tears of humanity from birth to death. It hears compassion. It hears love. It hears the sound of the stars on their journey through space. Injury to the right side of the brain leaves the patient speaking in a monotone, a bit like Hal the computer. But through the healthy right brain flows the mystery and the passion of life. And it is what moves juries to understand our clients in their moment of crisis.

Most trial lawyers I have witnessed in action, do it from the left side. When we, as trial lawyers hold a stake in the outcome, emotional or otherwise, it can get away from us. It happens sooner or later to most everyone. The experience can be quite frightening. Jury trial is living on the edge. When we become afraid, we freeze and fall back on the notes we made the night before or the comfortable structure of never asking "why?" on cross-examination because someone in law school told us not to do that. We have found that structure is something we can hide behind when we feel the bullets whizzing by our ears. So we think in terms of pulling in rather than letting go. That pulling in is done on the left side of the brain. It makes us anal retentive and turns our paintings into the wall decorations at a Motel 6. And our juries often lose interest.

So how do we become poets? How do we do jury trial as an art form? How do we say what is really going down and do it in a way that our meaning sinks deep into the jury's very soul? How do we use both sides of the brain?

  • Lesson number one: We do whatever we do for the right reasons. When I was a senior trial lawyer for the Office of the Federal Public Defender in Sacramento, a young attorney came to me with the request that I help him to prepare a cross-examination of a police officer at a pending suppression hearing. I began with the basics. "Why are you doing it?" His answers ranged from "saving his client" to "saving the world from lieing cops." Finally, after a grilling, he followed his thinking down: "to find the truth because our freedom from unreasonable police intrusion is so sacrosanct that we must do absolutely everything we can to protect it." He had started his right-brained journey - and a cross-examination with passion.

  • Lesson number two: The right reasons are not about the self. We think of ourselves as separate from one another, for only by such thinking can we become a king or queen. Without separation, there could be no kingdom. There would be no heros. No worshipers. No pats on the back. So we think about the self. How am I doing? How am I looking? Where am I going? My chest feels really good puffed out like this.

Such thinking comes with a heavy price tag. We get a "stake in the outcome." When that happens we are vulnerable. Winning and losing becomes about us. We know that we can die in the courtroom so we arm ourselves. We withdraw into doing trial by the book, from the left side. And we forget that we are painting a picture or whispering a poem.

  • Lesson number three: We are here to make things better. An easy way to know the "right reasons" is to remember that we are here to be an influence for "good" whatever that means to us. As attorneys, we do it for our clients, but we can move mountains in the process, just by being who we are. We can change the world inch by inch, word by word. When we can do it as a poem, to make things better, with no stake in the outcome, we cannot be hurt. So we allow our true selves to flow through like water through a firehose, from the right side of the brain.

  • Lesson number four: Our credibility as a lawyer is central to the jury. This is our mindset. From the physics of what we do and how we do it, putting our credibility first is the whole ball of wax. The evidence will take care of itself, as the trial unfolds. But it is our awareness that the jury needs to believe in us, which is central to our presentation. What type of lawyer would you believe in? Who would you trust? Would the lawyer be antagonistic toward the other lawyer or the witnesses? Would the lawyer be strong and firm but at the same time gentle and kind? Would the lawyer have dignity and class?. Would the lawyer bore anyone? What would he or she look like? How would he or she dress? Wasn't Gregory Peck good as Atticus Finch in "To kill a Mockingbird?" How would Atticus do it? The jury is watching. Sometimes a gentle word or gesture, from the heart, can move mountains. Maybe a poetic, right brained painting on cross-examination would be better than the sledge hammer. You want to be able to turn to the jury at the end and say from the heart, "trust me." Keep that "trust me" in mind from the beginning to the end. Each of us does it differently. But each one of us has the capacity to move mountains. We need only show a reason to believe in us. It is our credibility which must always be in the forefront of every move we make and every word which passes our lips.

  • Lesson number five: We throw away our notes. I love watching lawyers. I especially love watching really good trial lawyers - the trial lawyers who move juries. While each one is different, they usually have at least two elements in common. First, the lawyers I'm speaking of are inevitably right-brained. Second, they don't use notes, at least not during their presentation. When we use notes, the notes become our focus, our lifeline. They tie our hands and limit our presentation to thoughts we had in the past. The jury doesn't feel the flow of our thought process because it is broken down by our glancing at a piece of paper between each thought. Notes not only keep us from the poetic side, but they keep the jury from going there as well. The simple truth is, we don't need our notes. Take the plunge. Trust. You can do it. If you are afraid, there are ways of giving up the notes in a gentle fashion which still gives us some structure. We'll talk about that another time.

  • Lesson number six: We practice. This is the preparation of the right-brain lawyer. I practice all the time - when I'm driving, when I'm jogging, when I'm working in the yard. I practice, in my mind, any time, any place. I see myself cross-examining a difficult witness, or doing a final argument. What do I say when the witness says X? What if the judge screams at me? What do I say when my pants rip down the back? How do I handle the best and the worst situations that I can envision? Make it specific and as real as you possibly can. I have even gotten a clerk to open up an empty courtroom so that I can feel what it feels like. Practice doing it perfectly. In your practice sessions you are the perfect lawyer. You are confident, at ease, balanced, compassionate, brilliant, modest, powerful, and most of all, you are doing it for the right reasons with all the credibility of Atticus Finch. Practice being a courtroom poet and a peaceful warrior doing what we do to make this world a better place to live and grow.

There are as many ways of doing a jury trial as there are people doing it. It all boils down to who we are and how we want to deal with one another. If you haven't taken it yet, learning to do it from the heart, from the right side of the brain, is the next step. Best wishes in your travels. And remember, when times get tough, you are not alone.

© Robert M. Holley, 1998. All Rights Reserved.

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This site is dedicated in loving memory
to its creator, Janet L. Read
1949 — 2000

 

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