Reviewed by Anna Burr
Originally published in the Oct/Nov 2018 issue of Trial Talk, the bi-monthly magazine of the Colorado State Trial Lawyer's Association.
Of all the trial strategy resources available to attorneys, connecting with the jury may be the most important one. We enter courtrooms as perhaps the least credible of everyone present, and as quickly as possible, we must establish a rapport with the six skeptics in the jury box. Ideally, we accomplish this feat while also crushing defense experts, villainizing defendants, appeasing the judge, and highlighting our worthy clients. It’s a lot. In the new book, The Zen Lawyer: Winning with Mindfulness, Michael Leizerman and Jay Rinsen Weik suggest we become exceptional trial attorneys when we strive to be “awakened.” By this Leizerman intends us to be “loving, knowledgeable, compassionate, and wise while directly experiencing reality.” He asks us to shift our courtroom experience into a nonjudgmental awareness of everything that is happening both in the courtroom and within ourselves. While it sounds complicated, Leizerman breaks down this approach into five “cores” to help develop an awakened approach to the practice of law.
Each Core, Physical, Emotional, Logical, Motivational, and Zen, is then subdivided into six aspects, including the Core’s location within the body, what skill the Core helps to develop, and how each Core impacts the jury experience. By mastering each of these Cores, we can create a more authentic experience for the jury, causing them to understand and accept our clients’ stories for themselves, as opposed to merely adopting (or not), what we as lawyers have to say.
The first Core, perhaps the easiest to grasp, is the Physical Core. This Core relies heavily on the practice of meditation for centering the mind and the body. It focuses on the physical five senses (sight, hearing, touch, smell, and taste), to help the jury realize the physical truth of the client’s case. In practice, accomplishing this element involves applying fundamentals of good story-telling to help the jury experience the physical reality of the situation.
The second Core is the Emotional Core. It asks us to feel the case. For those lawyers who have successfully shut off their emotions when guiding clients through the legal process, this section of The Zen Lawyer suggests we turn those emotions back on. Leizerman takes this further, though, in asking readers to be mindful of the negative emotions we often experience while practicing law. First, he discusses the “three poisons,” which are greed, anger, and ignorance. If we hold any of these three emotions within ourselves, they impact our effectiveness in legal practice. Instead, we should recognize the presence of the emotion, take a moment to regret the harm it’s done, and then release it, or let it go. The emotion of anger can easily take control of a situation. In cross-examination, for example, allowing anger to control will impact the effectiveness of the cross, and could cause the jury’s focus to shift away from the witness’ faults and onto the out of control attorney. By acknowledging the anger and letting it go, it allows emotional space for the jury to feel their own anger towards the witness – a more meaningful experience for the jury.
The third Core is the Logical Core. It asks what we think about the case and what the jury thinks about the case. By paying close attention to our thoughts regarding a case, we can identify logical gaps, and find a way to communicate the case simply. This section of the book spends a great deal of time on avoiding legalese, simplifying concepts, and drawing clear conclusions that are easy for jurors to understand. This section proposes we distill the case down to one or two “core truths” (rules), and maintain focus on those core truths throughout the trial. Through mindfulness, we can recognize when thoughts are pulled away from that core truth, and then redirect the case back toward those case fundamentals we’ve identified. Through focus on those truths and frequent repetition during trial, the jury adopts them as well.
The fourth Core is the Motivational Core. This core is located in the breath, and involves developing compassion for our clients to encourage the jury to take action in our favor. The first step in mastering this Core is to identify our own motivations as lawyers. In other words, we must identify our “why.” Is it greed—one of the three poisons? Or do we have Zen motivation—a desire to reduce suffering and create good in the world? By being mindful of our motivations (and having the right motivations) first, we can then expand the practice into exploring the motivations of others who are involved in the case. This is derived from what is called “metta” practice, which is translated as goodwill or loving-kindness. By first practicing goodwill towards ourselves, we then turn that outwards to others. First, we extend goodwill to our loved ones, then gradually out further to include neutral people and even those we perceive as our enemies. Through mindfulness we can better place ourselves in the positions of others, understanding their positions, and from there begin to prepare deposition testimony and witness examinations.
The fifth and final core is the Zen Core. “Be the Case.” This last section of the book answers the question of how to be present in the courtroom—how to engage the jury and truly make them a part of the case. We do this by bringing all of the first four cores together into one mindful experience with everyone in the courtroom. Earlier in the book, Leizerman introduces a Zen concept of Koan (KOE-an). Koans are situations that initially seem unsolvable, but through meditation, the answer becomes clear. Koans rely on centering and a focus on the breath to see through the problem and arrive upon a solution. “Being the Case” is similar. When our minds are open to everything equally, insights come. By bringing all of these elements together—senses, logic, emotion, the meaning of a verdict—the jury experiences the case rather than just hearing the case. And by experiencing the case, they have an internal desire to help our clients.
Many of the concepts of this book are difficult to summarize in a couple of pages. While many of the practices seem similar to those written by other great trial lawyers, Leizerman connects them together in a unique way. As logical thinkers, it’s easy to dismiss some of these concepts as too “woo-woo,” but I think we do ourselves a disservice by not considering them. The benefits of mediation and mindfulness are undeniable even if we’re not always good at pinning down the “why.” By taking time to quiet our minds and become truly immersed in our clients’ cases, we better present their stories to juries and we become more effective trial lawyers. The Zen Lawyer contains some concepts that can be immediately implemented, and others that will likely require a lot of practice. By taking that time to practice, though, we stand to gain personally, professionally, and on behalf of the people we represent. The Zen Lawyer contains a lot of good strategies for any trial lawyer, presented in a unique and compelling way.