UNDERDOG - Criminal / Drunk Driving Lawyer for Maryland, Virginia, DC - Persuasion

Why travel a thousand miles to learn to be more real?

nospam@example.com (Jon Katz) — Fri, 22 Aug 2008 00:10:00 -0400

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

Dissidents suffer as Beijing Olympics dazzle.

nospam@example.com (Jon Katz) — Tue, 19 Aug 2008 00:10:00 -0400

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

Reality is no obstacle.

nospam@example.com (Jon Katz) — Tue, 05 Aug 2008 00:00:00 -0400

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.

Practicing non-anger.

nospam@example.com (Jon Katz) — Sun, 03 Aug 2008 00:00:00 -0400

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. Conversely, when I live with non-anger, even some of my opponents may wish to work more harmoniously with me, as some of them try to absorb the good karma of the non-anger and harmony.

Living a life of non-anger is not a new-age, namby-pamby ideal for me. It is a necessity that I did not recognize sufficiently until I was well into adulthood. I have no other choice, nor do you. Jon Katz.

ADDENDUM: Thanks to David Tarrell for his posting on non-anger, including words of wisdom from Fred Rogers, of all people.

Persuading in the first person.

nospam@example.com (Jon Katz) — Tue, 29 Jul 2008 00:00:00 -0400

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

The National Criminal Defense College and Trial Lawyers College focus on persuasion through storytelling. What to do, though, when a judge tries to stop the lawyer from first-person storytelling ("I was sitting there minding my own business, when he rushed at me with a meat cleaver. I had no choice but to shoot him, or else I would have been dead")?

A trial lawyer listerv recently discussed the foregoing matter. In addition to arguments to present to the judge (e.g., "Judge, we all know that lawyer arguments are not facts" and "my client will testify, anyway" (not all parties testify)) to keep doing first person storytelling, two related cases were mentioned:

In People v. Richmond, 341 Ill. App. 3d 39, 791 N.E.2d 1132, 1138 (2003), the prosecution "delivered its entire opening statement in the first-person from [the complainant's] perspective. The State began with, 'Hi. My name is RJ, and I'm 8 years old *** I'm going to tell you about something that happened a couple of years ago when I was just a little kid.' Not long into the opening statement, the State also said, still in the first-person and from R.J.'s perspective, 'Now, my State's Attorneys, Miss Roseanne McDonnell and Theo Jamison then, they're going to present this evidence to you today.'" The court found: "Although the use of a first-person delivery may not be error under other circumstances, in this case it improperly bolstered the credibility of the State's star witness, an eight-year old." Id. at 1139.

To what extent will a lawyer convince a judge to permit first-person opening and argument on the theory that it is no different than if a pro se party were giving the opening, of course, in the first person? Not, not all courts will give even pro se parties wide first person leeway, as confirmed by U.S. v. West, 877 F.2d 281, 286 (4th Cir. 1989), cert. denied, 493 U.S. 959 (1989), where the trial court found the pro se criminal defendant incompetent to represent himself, based on his following remarks in opening statement:

"Although I am not a professional, I will do the best that my ability will allow, and I hope you will bear with me. I hope you will believe in our country's motto, innocent until proven guilty, not the complete opposite of guilty until proven innocent, which both the Court and the Government appear to have forced upon me.

"At last, with all my respect to Mr. Hirschhorn, Mr. Michael, Mr. Gossett, Mr. Yannerella, for all the work they have done and all the [**8] ability they have, gentlemen, I feel we are somewhat at a disadvantage due to all that we have said, all that we have tried, and mostly, all our motions we have filed which have been denied. Men, I definitely feel we are not the home team.

"I ask of you and pray to you, the jury, treat us not like the visitors. Thank you."

The Fourth Circuit upheld the trial court's ordering defendant West to have counsel represent him. Id.

Do you have caselaw and arguments to support giving first-person opening and closing? If so, please send the items my way, preferably by a comment to this blog entry.

ADDENDUM (August 20, 2008) Thanks to a fellow listserv member for the following case: Malicoat v. State, 2000 OK CR 1, 992 P.2d 383, (Okla. Crim. App. 2000): "Malicoat first complains of the first stage closing argument in which the prosecutor delivered a two-page first-person account of Tessa Leadford's final hours. He made timely objection to this argument, preserving the issue for trial. While theatrical, we do not find this argument overly prejudicial. The prosecutor occasionally speculated as to Tessa's feelings and thoughts. The argument very nearly constitutes an improper solicitation of sympathy for the victim, but is largely based on the evidence presented. The medical examiner testified as to the type and severity of pain probably caused by Tessa's injuries and several witnesses testified about Malicoat's account of Tessa's abdominal injuries and death, including her screams of pain. Taken as a whole, the argument does not manipulate or misstate the evidence and we find no error."

Jon Katz.

Gerswhin's inspiration to scale new heights.

nospam@example.com (Jon Katz) — Sun, 20 Jul 2008 00:00:00 -0400

Hundreds of times I improvised haunting and sometimes sad versions of Gershwin's "Summertime" on the trumpet that for over twenty years has not touched my lips, and now sits in my garage. The song continues moving me as much today as ever.

"Summertime" comes from Gershwin's earth-moving Porgy and Bess, which premiered in 1935 after Gershwin spent several weeks on an island off Charleston, South Carolina, to hear and join in the rhythms of life, music and speaking that he would incorporate into this opera with signature Gershwin music, rather than the typical classical music that ordinarily accompanied operas at the time and usually still does.

First performed during the height of rabid and unabashed racism in the United States, the opera would be overwhelmingly cast with Black actors, as provided by Gershwin's brother Ira, who worked with George as lyricist. Among the many concerned about the opera's portrayal of Black people were Paul Robeson and Duke Ellington. Although the Socialist Worker is not ordinarily my preferred source for reliable information, the paper's likely decidedly anti-racist approach makes it particularly noteworthy that one of its writers wrote in 2005: "Some black artists criticised the work, believing it to portray black communities in too negative a light. Duke Ellington stated 'no Negro could possibly be fooled by Porgy and Bess'. Paul Robeson, who Gershwin asked to play the roll of Porgy, having written the part with his voice in mind, refused the role... In later years however both Ellington and Robeson recorded Gershwin’s music because he had played a role in putting black artists in the mainstream theatres."

A 2006 BBC article says Porgy and Bess "was revived after the war in the United States and attracted performers like Maya Angelou and Todd Duncan. A filmed version starring Sidney Poitier (after Harry Belafonte turned it down because it demeaned black people) was produced by Samuel Goldwyn in 1959. After that the work encountered the civil rights and black power era." The rest of the brief article is worth a read. In any event, when local public radio covered the opera's current run at the Kennedy Center, I remained curious and concerned about such issues, starting with grammar errors in such song lines as "I loves you Porgy" and "Bess, you is my woman now."

What prompted me to write today's blog was Gershwin's surprise that he had been able to reach such heights in creating the music to Porgy and Bess. What a wonderful way to exit the planet; he died two years after the opera's premiere.

Similarly, criminal defense lawyers are challenged every day to surmount the often seemingly insurmountable obstacles of reality and would-be reality. How many times do my fellow criminal defense lawyers and I say "Oh sh-t" in the face of apparently insurmountable odds to win a case and, if there is a conviction, to get the most favorable sentence rather than an utterly draconian one? 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. It reminds me of a story from my trial law guru Steve Rench, about a woman he successfully defended in a theft trial. His client was arrested for allegedly pickpocketing a man she danced with in a bar; perhaps the jury got the idea that the would-be victim was there with unwholesome intentions. At one point while the jury was present but the proceedings were on hold, Steve went to a sheriff's deputy and pointed towards his client (held on bond during trial but in civilian clothes) during the conversation. Although his client was caught redhanded, the jury acquitted. Steve later saw one of the jurors at a bus stop, and asked the him if he had any comments about the trial. The juror merely said "Your client is okay," meaning to Steve that the jury disregarded the judges' jury instructions out of a belief that she had served enough time in the pokey while waiting for trial. In Steve's view, jurors are results-oriented, seeking to fix problems, which can put a real damper on the commands of jury instructions.

Again and again, I encounter staff members, clients, and witnesses (even an expert witness recently) who are fearful of doing something because it takes them out of their comfort or experience zone. Sometimes the fear is as basic as fearing to testify for the first time, or, with staffmembers, to tackle an assignment they have never done before. When I believe the person is capable of rising to the occasion, I encourage the person, sometimes by sharing some of my own trepidations along the path, including the fear of doing anything to let a client down and thus causing a conviction or a worse sentence than otherwise; it might be less fearful for me to draft wills and contracts, but certainly less meaningful and fulfilling. I remind them that it is okay to be fearful, but that the fear should not prevent them from proceeding forward. The idea is not to ignore the fear, but to know the fear and to send it on its way, similarly to the t'ai chi posture of embrace tiger/return [the tiger] to mountain.

Ordinarily, a musician or composer might not be seen as having a fearful occupation. Then again, George Gershwin broke radically new ground and entered new frontiers without knowing how audiences and critics would receive Porgy and Bess -- or even how he might rise to the occasion in creating the opera -- when he easily could have rested on the laurels of such preceding masterpieces as "Rhapsody in Blue" and "An American in Paris".

Of course, storytelling is central to persuading jurors and judges. Gershwin was a masterful storyteller, even when only doing it to music, before adding any lyrics. At least with "Rhapsody in Blue", "An American in Paris" and Porgy and Bess, Gershwin's music takes the listener on a storied journey that takes unexpected turns and captures the five senses and deep feelings along the way.

I stopped playing the trumpet that brought forth my versions of "Summertime" in the fall of 1985, when I moved to a shoebox one-room/no-kitchen ten-foot by ten-foot single resident occupancy apartment in Manhattan when working in the belly of the capitalist beast. Rather than scout out a place to play that would not disturb my neighbors where before I would play at my college's music practice rooms and at my parents' home, I stopped playing, and that carried on to law school, even though I probably could have found music practice space at the university; I was not ready to re-learn to get my mouth muscles back to where they were needed to be to play the way I wanted to play.

Not playing a musical instrument has left a creative and musical void in me. It is time to pick the horn back up, regardless of the state of my lip muscles. As a quote on the door of my ethnomusicology professor Jeff Todd Titon said, loosely remembered: "Music does not expect excellence. It welcomes being surprised by it, but does not require it." Consequently, in writing this blog entry, Gershwin has not only continued to inspire me to treat reality as no obstacle in my law practice, but also to open my trumpet case, to see if the valves are not beyond repair to oil them to working function, to vaseline the slides to move them into tuned performance, and to play and play and play, lost in the sheer enjoyment of the music. Jon Katz.

ADDENDUM:

Here are some additional excellent Gershwin links, in addition to those above, which include YouTube performances of "Summertime", "Rhapsody in Blue", and "An American in Paris":

- Dubose Heyward's Porgy, which led to Gershwin's opera.

- PBS on Porgy and Bess. Be bowled over by Maya Angelou's discussion of the opera and her role as Ruby in a mid-1950's European tour.

- Film excerpt from Porgy and Bess.

- 2006 NPR coverage of the first time Porgy and Bess's premiere version was re-presented.

- Sarah Vaughan singing "Summertime", and Janis Joplin substantially altering it.

- Claudia Pierpont on "Why We Still Listen to Gershwin."