"The true warrior’s greatest battle is the battle that lies within, the struggle to master the ego, to fight not for gain or glory, but to balance the scales of justice. Only when the mind is free of the concept of self can the hand strike swift and true."-Bruce Lee
A common attitude amongst many trial lawyers is “I will go to trial if I am forced to.” We see this in several lawyer TV ads and for some odd reason, the lawyer on the screen wears it like a badge of pride. Another common refrain I hear is “You never know what a jury will do, so I guess I’ll go ahead and give it a shot.” These attitudes are inherently weak and put the trial lawyer in the wrong mindset. It is much more powerful to think and believe “I will go to trial to hold the defendant accountable” or “I will go to trial to obtain justice for my client”.
This may seem like semantics, but it is critically important and informs all decisions made during the life of a case and the trial. Imagine a surgeon in a life or death surgery thinking “I guess we’ll give this a shot, but this patient is probably a goner anyway.” One would hope that the surgeon’s first and foremost thought would be “This may be difficult, but I am going to save this patient’s life”.
As trial lawyers, we are champions for a person battling often against insurmountable odds. The term “warrior” is overused, but we can see an analogy with the warrior’s attitude and ancient teachings of Samurai warriors. A warrior should not enter battle thinking: “I guess we’ll give this a shot and see what happens.” A warrior must think: “I am going to prevail at all costs.” Ask yourself, who is the more effective warrior? The one who hopes he might win, or the one who believes in his very being that he is right and will win no matter what is thrown at him.
A trial lawyer should think of a case with a balanced mixture of detachment and passion. The detachment is necessary to keep from making ill-advised decisions, which include cutting witnesses or evidence if these do not help to win the case. The trial lawyer should ask him or herself during the preparation and presentation of the case if the evidence is serving the purpose needed, or is it fluff or repetition. This decision-making process cannot be subject to emotion, including making the battle about opposing counsel as opposed to winning the case. The passion for the cause and the client must drive the trial lawyer to out-think and out prepare the opponent. Passion comes in the form of a strong conviction and belief in the underlying cause. The correct mix of these two divergent emotions wins trials.
The trial lawyer must strive to achieve what eastern philosophy terms “The Quiet Mind”, not allowing passion to displace judgment or passion to displace judgment. Some competitors and performers term the state of effortless performance associated with peak mental focus “The Zone”. Psychologist Mihaly Csikszentmihalyi (say that three times fast) terms this state of optimum mental performance “Flow”. Michael Jordan saw baskets as big as a barrel when in the zone. Ted Williams focused on a fastball so perfectly that the stitches rotated in slow motion. Actors describe being consumed with the moment and utterly forgetting they are performing at all, their mental state has become so acute that all doubt and ego has disappeared into the character they are playing.
The trial lawyer can achieve this state of performance as well: the facts blend into the argument without hesitation, the focus of cross-exam moves beyond thinking of the next question into listening with such acute awareness that subtle facial tics or intonation of the witness takes cross-examination in a different direction. The closing argument moves from a memorized speech to a true connection with the jury.
There are several ways to achieve this state of awareness at trial. Sometimes, the stress of the situation combined with the natural release of adrenalin cobbles together moments of clarity. Other times a daily practice of sitting quietly with eye closed and letting the mind quiet helps bring focus during the trial itself, although it can be hard to have time to sit quietly during the hustle and bustle of trial. This state of mental focus is only possible with one thing: preparation. Preparation. And then add some more preparation to the preparation for good measure.