Category Archives: Trial Lawyers College

How to survive the tyrant Judge (part 3 of 3)

Part 3, The judge. Who is this Tyrant?

We remember from Part 1 that the abused child likely sees the judge as a potential abuser. The child whose parent was self-centered and narcissistic, as a lawyer, will likely suspect the judge as having little concern for him or his client. The child who feels his parent abandoned him will see the judge as one who cannot be trusted. Yes, and the child who was loved and deeply protected may, indeed, as a lawyer, relate to the judge as the source of protection and favor. Any accurate understanding of the judge-lawyer experience requires us to become aware of how we saw the power-persons of our childhood. This judge–any judge–like any other person of power, has the capacity to help, even to love. Yet this same judge can, if challenged, descend upon us with a vengeance in accordance with the judge’s own psychic composition, all of which bring us to the consideration of the judge. Who are they?

So we walk into the courtroom dragging our baggage behind us and look up to His Honor, who drags into the same room his own baggage. Obviously these persons were once lawyers themselves, and before that, children who had experienced their own power-persons. These are human beings who are as vulnerable as we, and to the extent that we have begun to understand ourselves in relation to authority, so, too, we can understand them.

When judges ascend, they do not leave behind their beginnings. When they take on the black shroud their roots do not evaporate into the firmament. Indeed, judges, as we, will exercise power in ways reflecting their own struggle with authority. It is useful to see the judge not as this tyrant peering down at us with evil intent, but as this child not different than we, not this monster shouting his fearsome commands at us or the bully embarrassing us before jury, but the child before he was immersed in his own history. Could we but see the judge as human, as reacting to his history, might we not be so afraid?

At this seminar of Trial Lawyers College I have previously mentioned, the great Josh Karton – a teacher of far more than drama – was working with a pair of attendees. One played the role of the uncharitable judge, the other the lawyer who was attempting to win his point. The lawyer, as is his wont, spoke in the high tight tones of the arguing lawyer employing the empty words we use in the courtroom. Karton frequently interrupted imploring the student to use plain words, not, for example, “I hereby move the court for a continuance,” but, “Your Honor, I need to have this case put over for a week.” Not, “I am otherwise committed by a prior setting in another court,” but “Judge Jones has ordered me to trial on Tuesday.”

The lawyer playing the part of the judge was unmoved. “This is not my problem, counsel,” he replied. “You can take this up with Judge Jones.” But suddenly Karton changed the entire environment when he suggested that the student ask the judge for help. “I would appreciate it if…”

“No,” Karton said. “No. Ask him for help.”

“I would like you to…”

“No,” Karton interrupted again. “Are you afraid to use the word, ‘help?’”

“I need…”

“Use the word, ‘help.’”

“Could you help me,” the lawyer said at last.

The judge was silent for a moment, almost as if he couldn’t think of what to say. Finally he said, “See my clerk, counsel. Perhaps he can find a spot week after next.”

We discovered that the word ‘help,’ does, indeed, carry with it powerful urges. That word is consistent with the parent’s responsibility to the child. On the psychic plain, if the lawyer is child and the judge parent, an underlying impulse to help is at work. The need to be helped is endemic with the judge who was, himself, a child in need of help, and that need persists with the judge who is now the power-person with a parental duty to help. As judge, he likely told himself and his sponsors that he wanted to help his community by rendering justice. To be helpful is the confessed motivation for most judges to abandon private practice and don the robe. Further, without regard to the lawyer-judge relationship, the notion of being helpful is one deeply embedded in our society. We help, or believe we should, those who need help. By intention, if not action, we have become the good Samaritans from the first days of our teaching.

Something magical happens when the judge soars to that place of power, the bench, from which he stares down at us, or worse, refuses to look at us at all. We forget that yesterday he was as we, smallish inside, puffed up on the outside and standing before another judge projecting the preadolescent posture of his own child. But in a matter of a day he has abruptly changed into someone we do not know. How he has shed his history of humanness is a mystery we do not address. We see him in a different light. By representing power he becomes power. His power casts a new eerie light over him. He speaks in a different tone, and his lexicon seems foreign and stilted. In our sight, and in our ears he has transmogrified into that which has arisen and is untouchable.

At this workshop Karton sought to remind the participants that judges are but humans, that they were lawyers as we, and, yes, before then they were once but little children. He called upon a ex-marine, a former sergeant in the View Nam war to play the part of judge. He dressed this judge up in a pair of little panties and put a teddy bear in his arms. Then Karton called upon another participant to present his argument to the judge. There was spontaneous laughter from the audience. How silly, the judge, how ridiculous. That we should be intimidated by such a man, was unthinkable. But how was it that a tough Marine, by a few exterior accouterments of the child, was transformed in our vision from the fearsome jurist to the ridiculous child?

We, of course, know that although the judge may have a revised view of himself, his underlying self has not changed. Although he may be taken with his new power, nevertheless we know that at his core he is the same old Henry Honeycut. The principal change has been in our eyes. They play tricks on us and cannot be trusted.

In the debriefing that took place, the sergeant who had played the role of the judge was asked if he had felt humiliated. He, too, was the same person both before and after his role playing and the fact of his embarrassment was barely able to penetrate his tough exterior. “Yeah, maybe a little,” was all he would admit to.

But at lunch I sat across from a member of the faculty and as we talked about what we had witnessed he began to tear-up, his lips began to quiver and I realized he was crying. I asked him, “What’s the matter, man?” and he replied, “That judge (referring to the marine) was hurt.”

“Yes,” I said, “perhaps a little.”

“More than that,” he said. He is a very sensitive man. “More than that!” he said again weeping through the words. Then he burst out with it: “Who protects the judge?”

And the epiphany came exploding through to me! The judge, before him, the lawyer, and further back the abused child, had always sought protection. There is power in the legal profession, not the greater power of the judge, but power. The lawyer has more power in the course of human affairs than the plumber. Lawyers, police officers, probation officers and judges are in power professions. And who needs power? Most often those who seek it need it.

Given even marginally acceptable conduct, when the judge takes the bench his level of protection is also elevated. He does not enjoy perfect protection for he must consider the whim of the voters, the power of a hostile media and the pressures of his office, but once enthroned the security he achieves is greater by magnitudes than that of nearly every other member of the system. To the litigant in any given case the judge is the most powerful person in the universe. To the lawyer (who may once have been his adversary) he is untouchable. Who can successfully attack the judge? What lawyer? What litigant, what police officer—who?

But what about the bellicose lawyer who challenges the judge to “bring it on.” What about the lawyer who’s willing to attack the judge in ways suggesting mutiny, or even to assault him with a poorly disguised contempt? It’s not that the judge is in actual jeopardy. It’s not that his safety is at issue. He is still the judge. He has the power to order the sheriff to place the contemptible lawyer in the cross-bars hotel and to remain in jail until he has purged himself of such contempt. But that the judge has the power to protect himself, even from mere insult, does not mean he doesn’t feel threatened, and the question raised by our sensitive staff member, “Who protects the judge?” becomes an important key to understanding the attorney-judge relationship.

Let us consider the tough, intransigent, irascible old devil who will skin us like a trapped rabbit, the judge we all fear—the judicial bully. We see him with the young, childlike lawyer we have already met, the one with the cemented smile, the baby face and the voice to match. He will protect her. She requires shield and shelter. But put our mucho-macho man before the same judge and although in reality the judge is no more threatened by him than by the childlike lawyer, the judge will disembowel this lawyer. It isn’t that the judge arises to any danger, real or perceived. He reacts to the child within. He needs protection, and when our friend asks, “Who protects the judge?” we see that he protects himself, the child within, with the power of his position, the power he sought in the beginning for his protection. “Who protects the judge?” We do. We must if we are to effectively represent our client before him in the courtroom.

So there we are, judge and trial lawyer, mirrors of each other, sometimes both fearful of one another, and both taking such steps as may be necessary to survive a perceived danger—both persons echoing the trauma of times past. From the lawyer’s standpoint, his best defense is to understand himself or herself. We cannot educate His Honor about the roots of his need to judge. We cannot take him by the hand and lead him into the forest of his past and reintroduce him to those experiences that formed his needs. Those in power are rarely capable of recognizing the forces that led them to seek it.

But we have become enlightened. We have inspected those original places where the child in us is like the first rings that make up the towering tree. The tiny rings at the heart of the tree never disappear no matter how mighty the tree may grow. We begin to understand how the child in us is still so easily threatened, but so, too, is the judge’s child. We both seek protection. We observe the threatened child as lawyer, fearful, terrorized, sometimes, in defense, confronting and hostile, threatening, even raging. We see the lawyer both afraid and angry that the judge he stands before is the tyrant judge. But we have learned that the tyrant judge was born of similar beginnings, and that, to the same extent we need protection, so does the person we fear the most in the courtroom—His Honor.

The mirror is always at work.

How to survive the tyrant Judge (part 2 of 3)

Part 2, The dangerous disease of power

I have long held to the proposition that the expressed motivation attracting judges to the bench is suspect.

I do not take as universally true the easy, self-serving assurance of many judges that he or she simply wants to do good. I am leery of do-gooders. I have believed, and I still do, that judges, like all persons, have needs that fuel their choices. Their need, in a money society, is certainly not money, for judges are notoriously underpaid. The greatest attraction to the bench is simply power. In a given case the judge has more power over the litigants before him than any other human being on the face of the earth.

I have sometimes encountered tyrant judges who lord it over the poor rabble struggling below them, who seem to enjoy observing a particular lawyer helplessly twisting and turning in the winds of their whims. I have suspected that some such judges furtively rejoice in their power over lawyers who have been more successful than they, and over litigants who for unobvious reasons the judges may despise. I have seen judges who eagerly await the opportunity to dump a load of scorn on those who have made unfortunate choices in their lives. Yes, some want to do harm. And I am saddened that I find myself writing these lines.

I recognize that judges, like doctors who daily face the injured and dying, and lawyers who are routinely relating to clients who are maimed or hated or who are guilty of horrendous crimes, may become calloused in order to maintain some semblance of mental health. But as for judges, how does a human being wrench screaming children from their parents, turn one’s back on the pathetically injured for no better reason than they fail to fit some fictional legal model, send men to the death house or to long terms in the torture chambers of prison unless the judge has grown a certain protective coating around the hide of the heart? Still even the most gentle judge, the rare one who exudes a caring nature, is often one who I am not likely to trust, not at first. I have discovered that too often an outward benevolence covers a merciless heart.

But if I am fair I must acknowledge that judges are not too different than I. I, too, claim I want to do good. I claim that I have devoted my life to help the forgotten, the lost, the voiceless, and the damned. It all sounds good. The idea of it feeds my soul. I have a need to be useful, to feel worthy, to engage in just causes, to fight just fights. I wish to be seen as a warrior for the people. If my own sense of self stands for justice on behalf of ordinary people, justice against the powerful, against the corporate overlord and the tyranny of government why can’t I grant such an honorable motive to judges? After all, we have encountered many humans who genuinely care. And judges who were once lawyers surely know the dismal plight of those who seek justice and who so rarely obtain it. Yes, rarely.

Still, these days too many judges ascend to the bench bearing a fealty pledged to the people’s masters. We can understand the phenomenon. Today, most judges are selected by a power saturated with the interests of business, and a majority of the judges appointed were once prosecutors or corporate lawyers. In their former lives these lawyers took on the cause of power. As prosecutors they were daily drowned in the dreary decadence of criminals crowding the jails. As civil defense lawyers they experienced the excesses of trial lawyers representing those who claimed to be injured or who, even though injured, sought to take advantage of their injuries. The politicians seek judges who reflect their own philosophical leanings. The tree grows bent in the direction of the prevailing wind and in the calm can never fully right itself.

“The tree grows bent in the direction of the prevailing wind and in the calm can never fully right itself.”

Unfortunately, my view of the bench is supported by a majority of trial lawyers who represent ordinary people. At the Trial Lawyers College, where we teach lawyers how to successful fight for people against corporate and government power, the attitude of the attendees who have spent many years in the trenches before countless judges is nearly uniform. Rarely do I find a lawyer who believes most judges are mostly fair, mostly caring, and mostly driven to accomplish good ends. Sadly, many see judges as their enemies, as opponents in the courtroom even more powerful and adverse to the lawyer than the opposing lawyer.

They see judges more concerned with their dockets, with moving their cases forward, with controlling the courtroom and the lawyers, with making decisions that will be acceptable to their constituents and that will not be badly reported by the media. True, most often lawyers do not see judges as overtly dishonest or even consciously in the pocket of power. But they see them as the possessors of power who too often exercise it wrongly, insensitively, in forwarding their own agendas, and ultimately functioning to the detriment of the litigants. This is not to say that there are no caring, fair, even loving judges in this country. Many, but not enough, do great honor to the bench. In the end, a majority of judges are seen by most people’s lawyers as a power source of harm.

As for me it is harmful to look up to a judge who has ignored the poor and bowed to the rich, to show such a judge respect when he is not worthy of respect, to show such a judge deference when he reveals an underlying indifference to the human condition, to give such a judge honor when he has lived a life on the other side protecting power and money. Yet I am troubled by these judgments.

COMING SOON, Part 3 of 3: “The judge. Who is this tyrant?”

How to survive the tyrant Judge (part 1 of 3)

PART 1: Understanding the self

I preach endlessly that it all begins with you.

We’re afraid of judges because they’re power-persons, which harkens back to our experiences with our first power-persons – usually a parent. Most often we don’t understand that psychic connection while we stand miserable and quaking before His Honor. Instead of a judge the psychic eye sees a raging father or a scolding mother. The psychic memory has not forgotten the child’s helplessness before such a power-person. Nor has the survival instinct let the psychic mind forget that should the child be cast out, the child will face the ultimate horror—death. And what if the judge should reject us?

We are introduced at an early age to the relationship between power and helplessness.  Beyond the fear of the parent power-person we are taught to fear the ever-watching God—the ultimate power. Why do judges peer down on us from on high? Why do the remnants of ancient belief systems still have us “praying” to his Honor? From the earliest times we learn the art of beseeching that is often gilded with resentment—the deaf, unresponsive God of Job. And always we long for our own power.

At a recent seminar conducted at Trial Lawyers College, participants were asked to complete any unfinished business they might have with a parent, living or dead—one participant taking on the role of the child, another the parent and the two reversing roles as necessary to permit the full story to emerge. The results of such exercises are universally astounding. The participants are touched in deep places, some to weeping, some to silence and others to anger. But none leave the exercise unmoved. Why, I have wondered, is there such a high quotient of parent-child conflict?

My own supposition, formed empirically over the years, is that more children than we suspect have been abused. I am defining abuse from the child’s perspective of powerlessness. To the child, abuse feels like the inexorable, assertion of raw, undeserved power. It may include perceived unjust punishment, deprivation or a sense of abandonment directed to a child who is unable to fight back or to protect himself or herself. It is the painful exercise of power by often innocent parents that imposes injury.

Parents are not equipped to judge their conduct through the eyes of the child. No courses are offered for Parenting 101. Often abuse grows out of the parent’s own experienced abuse as a child—so the biblical admonition that “the sins of the father are visited upon the child.” Some parents who feel powerless themselves are the first to exercise unwarranted power over their children. The abused child, as I have defined him or her will become the lawyer most likely to be abused by the judge.

“The abused child, as I have defined him or her will become the lawyer most likely to be abused by the judge.”

At the above mentioned seminar I was drawn to a young woman, a beginning lawyer, who presented herself as childlike. She had a small, sad, perpetual smile on her face, and if I shut my eyes and listened, her voice sounded like that of a five or six-year-old. Physically she looked like a little girl with a chubby body and a round doll-like face. Naturally she was adored and protected by the other participants at the seminar. She had had limited experience in the courtroom. But the few cases she’d tried before several judges left her with the impression that judges were kind and helpful. I thought, yes, who but a sadist bent on injuring children could possibly treat such a child with anything but kindness. I found myself wanting to protect her, and this lawyer, still as child, was taken under the wings of the judge, the same judge, I discovered, who had been the judge from hell for another participant in the same seminar.

My own parents were often bewildered as to how to deal with their rambunctious, raucous, rebellious offspring. I was never spanked nor sent to a corner. I do not remember any particular punishment at all. When those mutinous adolescent years came along my parents simply threw up their hands in surrender, and I left home at sixteen to conquer the world, which I viewed as a probability. I rebelled against the strict, religious teaching of my mother and absorbed the anger of my father against the “upper crust,” the moneyed class, who, were represented by the callus authority of his employers. I loved my father and hated the boss, that malevolence on high who could abuse that good, brave man. Early on I saw authority as the enemy and vowed never to be captured by power, and, of course, that included the power of the judge. My life with judges has not always been easy.

I have never heard a judge admonish a lawyer, “I am not your father, Mr. Jones. I am the judge.” Nor have I met a lawyer who has walked into the courtroom saying, “Remember, this man is not my father or my mother, this is not my father’s boss nor some heartless, demanding teacher. The relationship of judge and lawyer rolls on, year after year, the judge as the power-person, the lawyer as child, the lawyer struggling in the courtroom against the power of the judge and neither understanding much about the seeds of their relationship.

COMING SOON, Part 2 of 3: “The Dangerous Disease of Power”

The defense of Geoffrey Fieger (or How to win against towering odds)

As many of you know I recently defended Geoffrey Fieger, that “scurrilous rebel” who dared take on this administration, who, in fact, took them all on, from the President of the United States to the Supreme Court of Michigan—even Michigan’s Attorney General, and who, as might be expected, given the record of this administration for using the Department of Justice to rid itself of its political enemies, faced an indictment (the last official act of Attorney General Gonzales) containing ten felony counts including those catch-all entrapment charges of conspiracy and obstruction of justice.A federal court jury acquitted Mr. Fieger on all ten counts.

Even before the opening statements the federal district judge instructed the jury that what Mr. Fieger had freely admitted, namely, reimbursing his employees, his friends and family for their contributions to John Edwards’ campaign for president, was illegal. Yes, illegal. That should do him in since the only defense remaining was that he did not act knowingly and willfully when he made these reimbursements that were in excess of $100,000. Mr. Fieger, by consensus the most brilliant trial lawyer in Michigan (and perhaps in America), had run for governor and must have known very well what the law was and chose to violate it.

The government spared no horses to eradicate this pest once they were provided a starting place, which turned out to be one of Fieger’s former employees who claimed he was fired because he refused to play the reimbursement game. The government came down on their target with many questionable subpoenas to the banks of those who had contributed and been reimbursed, after which the government, in the dark of night, descended on the Fieger employees with 80 or more FBI and IRS agents, threatened them, interrogated them, hauled them before a grand jury for further interrogations that covered more than two years, and finally charged Mr. Fieger with the ten felony counts mentioned above.

They had him. They had his employees as their witnesses, nearly all of whom had been given immunity. They charged his partner, Ven Johnson, with most of the same felonies believing he would flip on Fieger to save his own hide. They had an air-tight case, one they visualized would produce the bloody hide of Geoffrey Fieger as a trophy for the prosecutors’ wall. What happened?

The Fieger team, David Nevin, my great associate, Geoffrey Fieger and myself will present a two-day seminar, “Anatomy of a Trial,” at my ranch on September 5, 6. The ranch is located nine miles east of Dubois, Wyoming, in the mountains. We will discuss the defense, the tactics, the overriding philosophy we teach at Trial Lawyers College in the defense of a criminal case. You will hear from Geoffrey Fieger on how it is to be a defendant in criminal case, to lose all control, to put one’s self into the hands of another lawyer. You will also hear from me and David Nevin on how it is to defend a fellow trial lawyer of the will and nature of Mr. Fieger. The trout fishing is good too.

“ANATOMY OF A TRIAL” seminar

  • September 4-7, 2008
    (with seminar presentations on Sept. 5,6)
    Thunderhead Ranch
    Dubois, WY
    Call 800.688.1611 to register
    Seminar fee: $2,500 – proceeds support
    Trial Lawyers College, a 501 3c non-profit institution

In response to Kit (aka Peregrinus)

I am proud of you, Kit. I have told my students at Trial Lawyers College—where we teach practicing people’s lawyers how to be real, how to win by caring, how to be honest in the presentation of themselves—that if they take care of their clients, no matter how meager the compensation, that the money aspect of the practice will eventually take care of itself. That is a promise.

The voice of silence

This morning I am at the Thunderhead Ranch east of Dubois Wyoming where–along with a volunteer staff of brilliant and talented trial lawyers–we conduct the Trial Lawyers College each summer. It is early. The sun is still in hiding.

The exercise for the day is silence—blessed silence. We met in the loft of the big barn at five o’clock. Once we entered the barn all was silent except for the instructions I gave. We should meet with Mother Nature. Every part of us came from her, and will one day return to her. We should go in silence and listen to her and see what, if anything she has to say to us.

Are we not harassed by noise? Are we not attacked by its pollution? In the cities we cannot escape it, the sound of gasoline engines belching and growling, the vibrations above of airplanes roaring and whining, the incessant chatter of the radio and television that seems to be a requirement for life without which we are lost and lonely. Even in the house the incessant sounds abound, the whir of the refrigerator, the tromping of the family’s feet, the babble of children and the louder babble of their parents—the noise of life. There is no way to escape it.

“I instruct the lawyers, we call them warriors, for these warriors fight for the rights of people against the daunting power of corporations and government…”

I instruct the lawyers, we call them warriors, for these warriors fight for the rights of people against the daunting power of corporations and government—I instruct the warriors to go into the hills that surround the ranch. Find a place that is yours, where you can see no other person—perhaps by one of the huge old rocks discarded by retreating glaciers, or down by the stream. Nothing here will harm you. The wild animals, the deer, the antelope, the coyotes, the moose—they are all friendly. Even the mountain lion is shy and will slip away to avoid the noise of your feet.

When they find their place they should lie down on the earth and listen. Perhaps there will be a message. Perhaps the warrior has something to say to Mother Earth. Perhaps the warrior will ask questions like: What is the history of my life? Who am I? Where have I been all of these years? What roads have I traveled? And, having heard the answers to those questions, perhaps he or she will have a better idea of the road ahead.

Then these lawyers will come in and have a silent breakfast. Not a word will be exchanged among them. And after breakfast they will meet again in the big barn where they will paint. Paint? Lawyers painting? They will be asked to paint who they are, to paint a portrait of their soul. They will find in that exercise something of themselves that most have never encountered. And they will paint in complete silence.

After that we will have a silent lunch and at two in the afternoon we will again meet in the big barn and break the silence. We will share with one another what we have learned. What we have experienced. What it has been like to see the sun come up, to break the darkness. What our conversations with Mother Earth have been. What was revealed to us in our painting.

Already, every morning we meet in the big barn and first off we give time to the warriors to read their poetry to us. Most have never written a poem. Each warrior is required to sing a solo. The warrior mounts an old picnic table and looks down on his fellow warriors. It is frightening—to sing a song like that in public. But we must learn to use the voice, to acquire a comfort in speaking to juries. We must learn the rhythms of poetry in our arguments to the jury. We need to learn the composition of our speech that is found in song and verse. We should better understand who we are in order that we can better know our clients and the judge and jurors, yes, and even our opponents.

We have already been in other exercises that are calculated to help us to become acquainted with the self. We are teaching and learning together. It is a program that lets the warriors experience successful ways to choose their juries, to present the evidence and to make their arguments. It is a new kind of education that lawyers never get in law school—how to be a human being. We believe that if we are to successfully argue to other human beings in a courtroom—to jurors—we must first learn to be human beings ourselves.

I am writing this while the warriors are about their silent tasks I have assigned them. I am thinking about how much courage it takes to participate in those tasks. I am also listening to the stream outside my window. The sun has burst out in its perfect glory. The day is upon us. And silence, as my mother used to tell me, is golden. I have learned much from it.