Persuasion

The Chinese script for the character "mu," which means nothing. Why are so many intricate brush strokes needed to convey nothing? (The copyright was relinquished by this animated symbol's creator. The symbol also is available here.)

At first blush -- at least from a traditional Western perspective -- irony would be apparent in the concept that nothingness can be powerful.

However, I already know about the t'ai chi power of emptying one's mind, emptying one's leg as if a person is only standing on the remaining substantial leg, and not chasing the opponent's strength and energy. I also know about the power of being in trial with no baggage and to handle what is immediately at hand, in the now -- in the zone as my brother lawyer Mark Bennett calls it -- and being at once relaxed and powerful to take on any opportunity, apparent threat, or otherwise stressful situation. Furthermore, I know the power of overcoming fear by redefining life as being here now, with no coming nor going, no chasing nor being chased, no increase nor decrease, with a goal towards no fear even of injury and death, but instead being here now.

Around fifteen years ago in the video store, my attention was drawn to Wim Wenders' Tokyo-ga. Seven years earlier, I spent two weeks in Tokyo on business, at once fascinated by the Buddhist and Shinto aspects of the culture and at the same time very clueless about the two. I focused instead on arriving early each morning at the bank I was auditing with my small team from Wall Street's Irving Trust Company that owned the bank, and spending some evening and weekend free time taking in the sights and sounds of the country. Nine years ago, I returned to Japan, this time on vacation, having started grooving on Nichiren Buddhism, and finding a Nipponzan Myohoji  Nichiren temple in Osaka only after making several inquiries and finally being driven there by a man from the small market where I had brought some grapefruits for the temple, after having stayed for two days in Tokyo with a very kind and interesting family that follows the Nipponzan Myohoji path.

Tokyo-ga is Wenders' tribute to, search for, and immersion in giant filmmaker Yasujiro Ozu (see one of his clips.) How curious that as I unsuccessfully did a YouTube search for the Wenders film that includes a botched-from-the-beginning store robbery by a man who has just been forced out of his home, I instead found a scene from Tokyo-ga that visits Ozu's gravesite. Instead of saying Ozu's name, his headstone has the above-displayed symbol "mu", which I understand can be defined -- perhaps very imperfectly defined -- as "nothing". Here are clips from Tokyo-ga, in serial order: one, two, three, four, five, six, seven, eight, nine, and ten.

What did Ozu mean by having his headstone say "mu"? Was this how he viewed the afterlife? As nothing? Was it a stunt to keep people thinking even after he departed this world? Was he a Buddhist, seeing that at least the Lotus Sutra -- which is particularly followed by Nichiren Buddhists -- focuses heavily on nothingness, including no attachment to one's body or ego, and no attachment to the suffering inherent wtih birth, sickness, old age and death? (See this essay on the person apparently instrumental in driving the foregoing updated 1971 translation of the threefold Lotus Sutra.)

Using "mu" on the Western side is Douglas Hofstadter, in Gödel, Escher, Bach. What to do with all this mu? We can learn much from it. Jon Katz 

At the Trial Lawyers College, singing was encouraged and was everywhere, some of it good, some of it mediocre at best, and some of it drowning out the rest of the conversation too much. A good point was made that by doing more singing, we are better at getting our words and arguments not only past our lips, but in a full voice that carries the message where it needs to go. The passion of singing needs to translate into the passion of speaking in court.

One of my favorite songs is the B-52s "Rock Lobster". The song's words do not seem to have much of a meaning. However, the song very much captures the time period, the type of music that was emerging and continuing for several years, and a way of dancing that took little else than hopping around. It was a late Seventies remake of the late Fifties' "Shout" by the Isley Brothers, at least with the parallels to everyone getting down to the ground at the respective commands of "A little bit softer now" and "Down, down, down" followed by "A little bit louder now" and, with "Rock Lobster" an increase in the music volume. Each song moves very much ahead, rather than meandering about. Unlike most of the top music hits, I never got tired of "Rock Lobster".

"Rock Lobster" now is over thirty years old. For better or worse, the band went from a much more gritty and somewhat off-key early version (the off-key part possibly was intentional, considering that this was just a month before releasing their first album) followed by much tighter versions. Here are some video links to the song's performance: 1978 in Atlanta (where Fred Schneider reminds the crowd that servers work for tips); another early version; this polished version that looks made for MTV; and this version two decades after the first performance. Jon Katz 

At the Trial Lawyers College, the inevitable day comes when everyone is handed a paintbrush, and is told to tell an important personal story through painting, without regard to technical artistry. As it turned out, when I did the painting exercise, some of the most meaningful paintings at first looked as rudimentary as those done by elementary schoolers while the final piece of one of the more talented brushmasters told more of an a la carte menu than an integrated and deep story.

When I launched my previous law firm's website in 1999, I chose the Statute of Liberty as the website's symbol, which embraced justice in general, and logically covered my criminal defense work and Jay Marks's immigration work. Now with my new law firm, I unveil my new logo of the scales of justice within the yin-yang, which is a symbol used -- among other things -- to represent the Chinese martial art of t'ai chi, which I have been practicing for fourteen years, as well as representing one of the five principles of t'ai chi (separating one's weight in yin-yang balance). T'ai chi very much defines my approach to trial battle, convinced that t'ai chi principles are essential for the powerful road to litigation victory and to keeping powerfully harmonized no matter what bows, arrows, urine, vomit, and feces I must deflect and neutralize from opponents and others.

The scales of justice shown within the yin-yang symbol also involve the principles of balance and harmony that are part of the yin-yang. If the yin-yang is seen as rooted in the East and the scales of justice as rooted in the West, bringing them together arguably completes the yin of the East to the yang of the West, thus creating a global yin-yang.

Thanks to my friends and family members who gave me feedback on the various law firm logos I was considering, and thanks immensely to the marketing professional who worked with a graphic artist to turn my idea into reality. I would thank them by name, but my marketing consultant chose web anonymity, at this point.

I welcome your feedback on my new logo, good, bad, in between, and indifferent. Jon Katz 

A Maryland Daily Record reporter reads my blog, and saw my posting about the transition from the Marks & Katz law firm into separate firms. She interviewed me for an article expected to appear this Monday, about law firms that split. I said that although I know about some friction-filled law firm split-ups, ours was amicable, and Jay and I continue sharing good karma (and even have similar roots to our new email addresses, shown below). In fact, we even have jointly notified the public of our new firms, with the information release posted at the bottom of this blog posting.

The world will be a much better place when people take delight in the positive energy that brought them together into a friendship or business relationship. rather than harping on the circumstances that made the relationship end, become more distant, or otherwise change. Imagine if all divorces were that way, and how much better the children of the divorce would emerge from the transition. Imagine if friends ended their friendships positively rather than running to magistrates to swear out criminal charges against each other. In that spirit, before you end today, why not find a way to create harmony out of an apparently disharmonious situation? The rush from doing that can be incredible.

Fortunately, an active movement of so-called holistic lawyers has infiltrated just about every corner of the nation, to help facilitate settling disputes in a more harmonious fashion, and to demonstrate that lawyers, like athletes, are more powerful when using their strength in a wel-timed and well-chosen fashion, rather than bothering with baring a bunch of fangs purchased at the Halloween shop.

Here is our announcement:

 Image from Library of Congress's website.

Anne Reed invited me and four other blawgers to list five of our favorite non-law blogs. she was tagged by another blawger for such a list, but I end my link of the chain letter here, never having sent out such messages before. Instead of listing just five blogs, I list one set of blogs that are far removed from the law, and another set that deals with public policy and legal issues from outside the lawyering realm.

In any event, my favorite reading material usually is beyond blogs, as listed here. Now for the lists:

FIVE NON-LAW BLOGS NOT INVOLVING PUBLIC POLICY

- Cloud Hands

- Conflict Zen

- Happy as a Fat Rat in a Cheese Factory

- Michio Kaku

- Ocean Shaman

FIVE MORE NON-LAW BLOGS

- Index on Censorship

- PETA Files

- Photography is Not a Crime

- Prison Pete

- Real Cost of Prisons

What are your favorite non-law blogs? Jon Katz. 

In the middle of the then-four week Trial Lawyers College in its second year, I asked myself: "I have come all the way to a ranch in Wyoming miles from the nearest paved road to learn that the essence to being a great trial lawyer is being my same real self in all situations, loving myself and others, not giving up my power to others, and crawling under the hide of those I am trying to persuade, represent, and battle? Could I not have just had that written in pamphlet or book form for me to read?" My doubts continued: "Why are we cross-examining nursery rhyme characters? If I am taking a month of my life here, can we not at least have good pre-printed fact patterns to work from?"

By comparison, I immediately was taken the previous summer by the two-week National Criminal Defense College in Georgia. The program was already years in the making and polishing, and it was an accomplishment even to be admitted among the high number of applicants. All fact patterns were well-done and assembled well in advance. Each day we would handle another phase of trial preparation and execution (including client interviews, jury selection, opening, direct exam, cross exam, jury instructions, and closing). At the end of the afternoon, one of the instructing lawyers often would dazzle us in doing a demonstration of what we had just practiced earlier in the day, with the most amazing performances having been demonstrated by SunWolf incorporating a discussion of reasonable doubt into voir dire, talking to the jury as if she were in the box right with them; Lisa Wayne, doing a first-person closing of a winning battered spouse murder case; and Joe Johnson cross examining an expert witness after reeling him into Joe's realm and having him in the palm of his hand to the point of having the expert ready to return a hearty handshake after Joe had substantially diminished his direct testimony. Near the top of those performances was John Delgado, who direct-examined his murder client leading him as smoothly as if he were cross-examining, while pointing his finger at the villains who pressured a false confession, and motioning to the angels with his hand palm-down. There also was cross-examination master Larry Pozner, who at once controls witnesses by adding one new fact at a time to each question if needed, but is still able to do so in a conversational story-telling way that makes witnesses prefer to cooperate with him rather than having him turn one simple question into ten, until the witness succumbs. Ed Mallett demonstrated by example how a true gentleman can effectively enter an objection while doing it politely (to overcome any perceived rudeness of having interrupted the opponent). Crème de la crème came from Andrea Lyon, who did the opening for the battered spouse defense, making it feel like I was in the very house at the very moment when the defendant's husband would abuse his wife for the very last time.

Still on the high of the well-organized National Criminal Defense College, I continued trying to make sense of the Trial Lawyers College, which still was in its infancy. As I eventually came to realize, though, both programs have been essential for me. The NCDC focuses on skills, telling a persuasive and coherent story throughout the trial, and being completely committed to and courageous for our clients. The Trial Lawyers College assumes that participants already have the basic skills to try a case, recognizes that each person is only as good a trial lawyer as s/he is a person, and works on simultaneously developing each participant into a better person and trial lawyer. One participant who ended up taking very much to the Trial Lawyers College described it early on as the Mind F_ck, because few people are accustomed to being thrown into a group of four dozen strangers in the beautiful middle of nowhere being rewarded for baring our souls and warts, and being chastised for hiding and candy-coating them. Early on, participants were revealing painful pasts, and pasts and presents of being sexually molested repeatedly by a relative; struggling with low self confidence; coming from dysfunctional families and alcoholism; and the list goes on. It took some time for me to figure out why people would be willing to bare their souls so willingly. One soul-barer told me: "I was so f_cked up at the time, that I would have told my story to anybody." Another told me that his life was changed by doing a psychodrama session on day two in front of the rest of the group.

And there I was, waiting a very long time to reveal my warts and being careful whom I revealed them to. I did not much like the possibility of being miserable among a bunch of strangers thinking down on me if I revealed my true self. The opposite took hold, though. I recognized that my problems were pretty small compared to many others, that others would share their feces and pearls of experience with me if I shared mine with them, and that I had found a group of people with whom I could bond and enjoy eliminating the veneers and the cocktail party talk. The more we opened up to each other, the more we bonded, to the point that I can call just about any Trial Lawyers College attendee from any year and get right to a real conversation that skips the cocktail party small talk. When I returned from the Wyoming ranch, I all the more sought out kindred spirits who were not afraid of revealing their true selves versus their Madison Avenue public relations self, who were not afraid to take risks in life and to be true to themselves and their values, and who were not afraid to be real.

Did I really need to travel a thousand miles away to learn all this? Yes. The lessons learned there are easy to understand but take long, concerted, and often painful effort to internalize, realize and follow. By learning and applying these lessons full-time in the middle of nowhere among supportive people, I "got it" by the end of the four weeks, and still am getting it.

What is all this hype about being real? Consider this. Who will you trust more if you are a juror? A lawyer who comes into the courtroom wearing the fanciest suit and tie who is all polished with every spoken word and every choreographed  and pre-scripted step, or the lawyer who looks unremarkable but talks to the jury, witnesses and judge the same way s/he would talk to his or her best friends, without a bunch of notes intervening, and with a heart that cares not only about the lawyer's client, but also about everyone else in the courtroom, and who does not try to hide warts -- aside from needing to keep out damaging testimony through evidentiary and procedural rules -- but instead acknowledges them and persuasively puts them into perspective with the rest of the lawyer's case? Jon Katz

Image from NASA's website.

And now we interrupt the Beijing Olympics with this important public service human rights message:  

Life is not all fun and games for Chinese dissidents during the Olympics. For instance, within the last few days, blogger Zhou “Zola” Shuguang has been placed under town arrest.

As Reporters Without Borders reported on August 15, 2008: "Zola alerted his contacts via the microblogging service Twitter: '16:02 (Beijing time): They have forced me to get into their car. I want my family to be able to confirm what has happened today (...) I am all right, I am in their car and I have the impression that I am being kidnapped.' '17:31 (Beijing time): They have asked me to stay in Meitanba. If I go to Beijing, they will come and get me.' Aged 27, Zola keeps a blog in which he often writes about matters that have been hushed up by the authorities." More on this story also is at the Committee to Protect Bloggers' site.

Zhou Shuguang is having a cakewalk with the Chinese authorities, when compared to Beijing human rights activist and blogger Zeng Jinyan and her baby daughter, who, according to ABC online "have been missing since August 7th. Zeng has been under house arrest for months." More on this story is at the Committee to Protect Bloggers' site and in the Associated Press online.

That concludes this public service message. Will you now return to the Olympics as if all in China were the Disneyland that the Chinese government so desperately wishes to portray? Jon Katz

Chick Corea with Return to Forever's reunion concert, Columbia, Maryland (August 4, 2008). Copyright Jon Katz, P.C.

The amazing SunWolf proclaims that "Reality is no obstacle," which at first blush might seem fanciful, but when examined more closely makes perfect sense when considering that many competing would-be realities are usually involved in a criminal case, and jurors and judges have various ways of deciding what is reality and how to handle that reality, sometimes including convicting the utterly innocent and acquitting the clearly guilty.

At its worst, reality can be as stifling as a stench-filled outhouse in the boiling hot humidity, as depressing as a diner with rancid food and grimy walls, and as fatal as a plane crash. At its best, reality is an amazing thing.

The great thing about music and art is the ability to transcend, alter, and re-perceive reality. See how many times a person loses one's blues through great music or other performing arts, for instance. When a trial lawyer is in touch with the wonder of great music and other great performing arts, s/he can translate that into more dynamic and effective trial performance, rather than droning on and on and on and on and on and on in court.

No musician is more infectious to me in that spirit than Chick Corea. Chick Corea is the most infectious to me when performing with his 1970's Return to Forever lineup with Stanley Clarke, Al Di Meola and Lenny White. To say the quartet today is as magical as ever is an understatement. I am still wondering whether I was dreaming last night to have experienced the Maryland leg of their first reunion concert tour in a quarter century, at least starting into their third song, and lasting into their seventh or eighth and last (which might be akin to it usually being best to catch the second or third set of a jazz club performance), ending at the 11:00 hour when noise rules permit no more music-making at the open-air Merriweather Post Pavillion.

On the one hand, the band did not play any new compositions. On the other hand, the four delivered amazing interpretations and variations on their original themes. The band's most magical piece is the one that requires no wires: Romantic Warrior. Its song title most relevant to criminal defense is the "Duel of the Jester and the Tyrant." What an approach to defanging the tyrant.

The band picked up where it left off in the late seventies as if three decades had never intervened. Imagine working as closely, harmoniously, and compellingly as that with our own clients and witnesses. Imagine infecting our clients, witnesses, judges and juries with that magic. Then, imagine bridging that imagination into reality. Jon Katz.

 Yin Yang

Practicing non-anger is easier said than done, but is fully essential to being powerful (and healthy) as a person and persuasive trial lawyer.

One approach I try to use in staying consistently calm and not angry is in focusing on how everyone ultimately is interconnected. Those who reach such a view from a deeply-held religious perspective -- which I do not, still remaining an agnostic who is into Judaism and Buddhism nonetheless -- might have an easier time sticking to the view than I do.

In any event, the more we see that we are interconnected, the less we will be tempted to cause disharmony to others and the more we will want to help everyone rise as we rise, and not to try to pull them into a ditch even if we find ourselves in one.

Yesterday, I was leaving the Barnes & Noble with my two-year-old son. We were in a true state of bliss. For over an hour, he got his fill playing with Thomas trains (you try having children and avoiding America's crass commercialism and its many suburban, mindnumbing pockets), and then moving to dancing to the rhythms of books that play tunes to the touch of a button, while we interacted together alternatively with my reading Ernest Gaines's A Lesson Before Dying (not exactly light reading or viewing (see here, too), but among the many great books I have still yet to discover and read). We rode the elevator up and down, which is like a carnival ride for him. We left as we arrived, with him riding his tricycle.

As we drove off, a pedestrian was waiting to cross the parking lot where the law gave me the right of way, but where I waved him in front of me just as I appreciate others doing the same for me, and just as I believe strongly in returning manifold the kindnesses others have shown me over the decades. I then started thinking about how I could transfer that feeling of goodwill to every waking and sleeping hour and to everyone with whom I interact. I realized that if I could see a part of me in every other person, that would help me want to support their well-being all the more. If that is too abstract an approach for me, then I can also try to see a part of my loved ones and closest friends in every other person. If that still is too abstract to me, I can leave room for the possibility that this is a person who shares some of my deepest core beliefs, values, interests, feelings, and passions, and has done, is doing, or will do some great things to benefit many people. Alternatively, I need to leave room that this person might some day become a close friend or confidante to me, may already be a close friend or confidante to a person who already is close to me, or may be someone who has or will help me or someone close to me in profound ways, whether it be as a teacher, someone who helps others medically or psychologically or spiritually, or someone who helps in innumerable other ways. By turning to such a visualization, then I can step back in a more non-selfish way, to see the person as precious in and of himself or herself, no matter how much the person seems to be devoid of caring or feeling or unselfishness, and capable of doing immediate and serious harm.

Certainly, some of my criminal defense clients not only are accused of doing heinous and despicable acts, but some of them have in fact committed such acts. Consequently, I best be ready to care about everyone -- even my apparently worst enemy -- or how else will I be able to care about such clients, beyond the abstract concept of knowing that I protect everyone's Constitutional rights every time I successfully defend a criminal defense client? Moreover, I must find a way to care about each client, because if I do not, why will the judge, jury, or prosecutor care?

This is all easier to write about on a Sunday when I am not being bombarded with court battles, phone calls, humdinger arguments in opposing counsels' court filings, staff needs, and a slew of other demands on my time, and sometimes on my patience and calmness. This is easier to write about when I am not dealing with people who do not care -- or at least do not seem to care -- about truth, about covering each others' backs, or about true justice. As I do so many times, I can summon up the calming voice and caring of my friend and mentor Jun Yasuda when the day gets chaotic and when I deal with seemingly hostile and dangerous prosecutors, cops and opposing civilian witnesses, but she acknowledges that even she gets angry at times. Consequently, each day that passes with me staying calm in the face of challenges to my becoming angry, is an accomplishment, sort of like the accomplishment an alcoholic reaches upon finishing another day sober.

It is folly to believe one can act out in anger and then have that anger just disappear. If somebody sees me being angry and does not know the context of that anger, the person might think I am being a hothead, a nutball, a whackjob, or worse. If my son sees me acting out in anger, it does not give him harmony, and does not help him learn by example to achieve a life of non-anger. If I lose my cool, my client can suffer.