Archive for the ‘Trial Lawyers’ Category

A Look at Spontaneity and Anxiety

December 4, 2012

It did not surprise me to learn that anxiety disorders are the most prevalent disorders in our society. Further, when I think about my life, it did not surprise me to hear that it is not anxiety disorders that are most often treated by therapists. This lack of attention can have detrimental effects on our society. Problems or consequences of untreated anxiety, specifically, untreated social phobia disorder and avoidant personality disorder, can be profound. There are ways to prevent or overcome anxiety disorders.

Anxiety is defined as “an abnormal and overwhelming sense of apprehension and fear often marked by physiological signs (as sweating, tension, and increased pulse), by doubt concerning the reality and nature of the threat, and by self-doubt about one’s capacity to cope with it” Anxiety. 2012. In Retrieved from Anxiety is believed to be unique to humans and unlike other animals, we are able to use our memory and imagination. Anxiety. 2012. In The Free Retrieved from Since we have that ability, it will take more effort to live “in the moment” for most of us. During a personal interview, Kathy St. Clair, a psychodramatist from Roanoke, Virginia, noted that “fear is always “future” related.” (St.Clair, 2012) Fear about the future probably involves memory of the past and imagination of the future. Of course, some anxiety is normal and probably natural and necessary. (Morrison, 1995, p. 247) Anxiety is an element of almost all mental disorders and it can rise to a level that requires treatment. (Morrison, 1995, p. 247) Fear, and the anxiety associated with it, seems to be the main component of Social Anxiety Disorder and Avoidant Personality Disorder. Some of the criteria for social phobia are “…persistent fear of one or more social or performance situations…” (Diagnostic and Statistical Manual of Mental Disorders, (4th ed. text rev.), 2000, p. 456) Some people with a social phobia may also have an Avoidant Personality Disorder, which is more severe than a Social Phobia. (American Psychiatric Association, 2000, p. 455) It involves a pattern of social inhibitions and abnormal sensitivity to feeling inadequate and possible criticism. (American Psychiatric Association, 2000, p. 721) Regardless of the level of anxiety, it has the likely potential to affect our ability to be present and in the moment at any given time in our life.

J.L. Moreno has said that there is an inverse relationship between anxiety and spontaneity. As we become more spontaneous, the anxiety will decrease. Moreno defines spontaneity as “an adequate response to a present situation.” (J.L. Moreno, 1953, p. 336) But he also takes into consideration the novelty of the situation. (Moreno, 1955, p. 108) Are we talking about a new situation or an old situation? As an example, I’m walking down the hall and a friend says, “How are you doing?” As many of us usually and automatically do, I respond, “Fine, how are you”. I would call that an unnovel response to an unnovel comment and not very spontaneous or creative.

When I first began looking at this issue, I focused on anxiety as being very negative and initially thought that if I had less anxiety, I would be more spontaneous. But, Moreno says to look at the cause of the problem. “Anxiety sets in because there is spontaneity missing, not because “there is anxiety” and spontaneity dwindles because anxiety rises.” (J.L. Moreno, 1953, p. 338) Moreno originated the “twin concept” of spontaneity and creativity as a part of all human beings and their relationships to others. (Moreno, 1955, p. 105) Moreno views creativity, not as a talent, but as a “spontaneous-creative process”. (Nolte, 2008, p. 106) Creativity is the potential we have had and will have. Spontaneity is what makes being creative possible. (Nolte, 2008, pp. 107-108) Moreno believes that creativity applies to all things that have been created, will be created, and those that might be created, but will not be. (Nolte, 2008, p. 108) If we are not reaching our potential because we lack spontaneity, how do we get it?

Even if we are generally spontaneous, there are many times in our life when we go through the routine and use very little, if any spontaneity. I think of growing up in our church as a child listening to the long winded men saying the prayer only so they could hear themselves talk. Those types of prayers meant nothing to me. Moreno gives an example of repeating a prayer that has been recited many times. The speaker can choose to merely repeat it or give it life with his own spontaneity. (Nolte, 2008, pp. 112-113) Spontaneity cannot be stored up like some forms of energy. It is available in the moment and the “here and now”. (Nolte, 2008, p. 114) The warm up process is a part of the creative process and essential to being able to be spontaneous. Warming up is similar to an athlete preparing or warming up for an event. (Nolte, 2008, p. 128) Moreno uses the word “conserve” to refer to a product of spontaneity and creativity. (Nolte, 2008, p. 120)

Many of our conserves have served us well, but the way we relate to our conserves can be positive and negative. The repeated prayer or song, like the Star Spangled Banner, may be good products of the originator’s creativity, but if they are not repeated with the individual’s own spontaneity, they will probably come out dull, lifeless, and meaningless. (Nolte, 2008, pp. 122-123) If we become controlled by the conserves, we risk becoming dull, boring, and mechanical people. (Nolte, 2008, p. 126)

Looking back, I remember struggling with anxiety in my early teens. I suppose that I knew it was excessive, but was either too embarrassed to ask for help or did not think it would make a difference. Initially, I tried to control it with alcohol. Later, I began to combat it by facing it, but it was not until I began to participate in psychodrama workshops that I was able to overcome it.

For many, psychodrama is a big part of the solution. Psychodrama was developed by Jacob L. Moreno. He defined it as exploring the truth by dramatic methods. We live in the same world with each other, but we all experience it differently. My truth or perception of this world is different than yours and anyone else’s. Psychodrama explores an individual’s perception of the world or universe (Nolte, Guide to Training, 2009, p. 1). Some people are leery. If we can get people past the name, “psychodrama”, and into the action of a drama, potential critics will soon see the benefits. After all, we do not have a problem with the word, “psychology”, even though it begins with “psycho”. Getting past the closed minds in this world is important, but it is possible if we begin earlier in the life process. For a lot of people, the older we get, the more closed minded we become. Many may be content living a controlled conserved life rather than a more spontaneous one. (Nolte, The Psychodrama Papers, 2008, p. 126) Psychodrama is therapeutic and uses parts of many therapy theories. To me, psychodrama uses concepts of Person-Centered, Existential, and Gestalt therapies because it promotes genuineness, empathetic listening, non-judgmental sharing, and the premise that most people have it in them to find the solutions to their issues. It could be the best way to become more self-aware of who we are, and why. When we become more self-aware of the unconscious awareness, or the dark side, or shadow, we are able to make better choices in life (Ken Wilber, 2008, p. 43). Using psychodrama techniques early would help people understand themselves and others better in the developmental process. Carl Rogers’ three conditions to creating a growth promoting climate for our children might be key for causing change and growth earlier in life (Rogers, 1980, pp. 115-116). Imagine if we taught children that it is safe to be genuine with each other? What if our children had less of a desire to put up fronts or facades with each other? What if our children learned to accept and care for each other unconditionally? What if our children are taught to listen without judgment and really understand their classmates? I am thinking back about the possibility of feeling free to share my feelings of inadequacy and anxiety without fear. I am sure I would not have been the only one with those feelings. Instead, I kept them inside and felt alone in my struggles. If we are free to express and share these issues, the process would build self-esteem and self-confidence, which would go a long way in preventing drug use and other destructive actions of youth and adults. With psychodrama, we are able to free ourselves from blocks to our spontaneity and creativity. (Nolte, 2008, pp. 127-128) When we are more spontaneous and creative, our lives become more enjoyable.

Our society has it backwards. We are not preventative; we are, instead, more punitive. Money is not an issue when we jump on the punishment wagon. Put a bandage on it and go on with our lives. Our society does not have the “we” attitude. It is more of the “me” and “mine” attitude. A more preventative society is extremely necessary, especially with identifying and treating anxiety. To do that, we have to be informed and educated in the mental health field. We have to be a more empathetic society. Teachers and educators have to be those that genuinely care about our students and be more aware of the harmful effects of anxiety and the possible dangers of strict compliance with our societal conserves. Educators are in prime positions to influence our youth and should be valued by our society. When we help others to be more spontaneous and creative, they will be more able to overcome anxiety and reach their potential and live more enjoyable lives.


(n.d.). Retrieved October 30, 2012, from Merrium-Webster Web site:

(n.d.). Retrieved October 29, 2012, from Free Dictionary Web site:

American Psychiatric Association. (2000). Diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev.). Arlington: American Psychiatric Association.

St.Clair, K. (2012, October 26). M.S.W. (T. Vitz, Interviewer)

J.L. Moreno, M. (1953). Who Shall Survive?, 2nd Edition. Beacon, New York.

Ken Wilber, T. P. (2008). Integral Life Practice. Boston & London: Integral Books.

Moreno, J. (1955). Theory of Spontaneity-Creativity. Sociometry, Vol. 18, No. 4, Sociometry and the Science of Man, 105-118.

Morrison, J. (1995). DSM-IV Made Easy. New York: The Guilford Press.

Nolte, J. (2008). The Psychodrama Papers. Hartford: Encounter Publications.

Nolte, J. (2009). Guide to Training. Retrieved February 14, 2012, from National Psychodrama Training Center:

Rogers, C. R. (1980). A Way of Being. New York: Houghton Mifflin Company.


It might be a million dollar case

July 19, 2012

          What is a person’s job worth, especially in this economy?   When Walter was arrested for Driving While Intoxicated (DWI), he knew he was in jeopardy of losing his job as a salesman even though he was the top salesman in the company.  This arrest was not only about Walter and his job, it was about his ability to support his wife and their (3) children.   There was no doubt that a conviction for this type of offense would mean termination of his employment and a major detour in this family’s life path. 

           Walter trusted the breath test and the officer to get it right, but he and the jury found out that the officer and the machine were on a different team and it wasn’t a team for Justice.   Walter’s breath specimen produced an alcohol concentration result of .149 on the Intoxilyzer 5000 about an hour and twenty minutes after the officer stopped him.  (A .08 or higher is considered intoxicated)  Walter admitted to (7) drinks and that “maybe he had two too many”.  His field sobriety tests weren’t too bad, but he hopped a bit to retain his balance and wasn’t able to stand in place with one foot in front of the other.  The bottom line is that Walter’s actions on the video could be explained and they were not the result of being intoxicated.

            We always want to know how another lawyer won a big case.  We get questions like, “How did you overcome the presumption of intoxication?” or “Who was your expert?” and others.   I can share some of how we won this one, but there isn’t any one reason.  Many lawyers don’t understand what it takes to win.  We go into the courtroom with the culmination of life experiences that we use.   It is caring about our clients, and being genuine that make the difference, not how much law or science we know.  I think trials are like football games.  While they aren’t games at all to most of us, every inch can be the difference.  Momentum is also very important.  We’ve got to grab it and keep it as much as we can until the trial is over.  We begin with ourselves in jury selection.      

Jury Selection

             As I sat there while the prosecutor was attempting to conform the jury to his way of thinking, I was, as usual, trying to blow it off and act like I didn’t care what he said.  Reality is that I was a little bothered by all the tactics the prosecutor used to try to win.   Sometimes, I have a difficult time coming up with words to describe my feelings.  I have to be able to slow down and find the feeling because I know I’m prone to skip right over the feelings and the reasons for them and run to anger.  So, I asked the jurors, “What is going on with me right now?”  They knew it.   Ms. White said, “It’s written all over your face”.   I responded, “You must have been talking to my wife because that is what she says”.   “What do you see on my face?”  “You look irritated”.   “Yes. Anyone else?”   The word, “Frustrated”, comes out.  “Yes, I get frustrated”.  “Why am I irritated and frustrated?”   If they don’t answer, I give them some examples to assist them a little.  “It bothers me when I constantly hear the words, “this defendant” or “the defendant” from the prosecutor”.  “This man has a name and it is Walter….”  “Phrases like “Police officers let people go all the time that aren’t intoxicated”, and “we aren’t talking about drunk; we are talking about intoxicated”.  These comments make me feel helpless to help Walter because I want to win for him.    

            The biggest issue in this case was the breath test result, but there are several sub-issues that are also important.  I have a list and try to cover them during the Voir Dire process and trial.  i.e.  Not performing perfectly on the field sobriety tests.   I used something I stole from a lawyer, named Stuart Kinard.  Years ago, I would use a thick poster board with the words, “If the government bought it…” with the answer hidden behind some butcher paper taped below it.  After the jurors would come up with answers like, “it cost too much” to finish the sentence, I would rip the butcher paper away to reveal the answer- “It must be O.K.”.  Well, I admit that I used it again, but with power point this time.   But, I did tell them the story about the butcher paper so it didn’t come off as being too slick, corny or tricky.   All I wanted them to know is that Walter is not guilty even if there is a breath test result above the legal limit.                                                              

Opening Statement 

            I knew Walter’s story and I told them everything and more.   “This is a case about being exhausted, not intoxicated”.  “It is about the war on drinking and driving and the innocent casualties that always come with war”.    

Cross Examination

            I was just having fun with it.  Sometimes we get too serious and can’t be ourselves or we think that we can’t say certain things in the supposed solemn courtroom.   Thanks to psychodrama and other personal work, I’m beginning to know myself and not afraid to be human.  The cross was simply telling our story with the state’s witnesses.  

            We know what we need to win the case and we know what the state’s witness wants the jury to believe.  I can’t control the state’s technical supervisor or the police officer.  The sooner we learn that we can’t control anyone else, the better we will be.  I know they want to win and that they believe that the breath machine and their opinions are absolutely correct.  The state’s technical supervisor is a strong, good looking female.   I know I’m not going to beat her with her science, but I have to constantly remind myself not to fight and argue with her answers.   The first question/statement to her is something like, “You’re pretty good at this”  and “I’m certainly not going to fight with you”  I hope I didn’t, but I think I might have said, “You’re better looking than me or not bad looking either”.  Sometimes, she would go into a long narrative about how great the machine is.  Instead of objecting and looking like she was hurting us, I might acknowledge her narrative with a question.  “It’s hard to answer questions with a simple yes or no, isn’t it?”   “By the way, did you know we can go to eBay and buy one of those intoxilyzers for about $250.00?”   “If I buy one, can I hire you to come set it up and get it going so I can use it at my party?”   Just be yourself and have fun with it.        

            Walter’s story came out and the jury knew that it would take a lot of alcohol for a person to really have a .149 alcohol concentration.   At a minimum, the jurors had doubts about the accuracy of the machine and they didn’t want to hurt him.    


            We’ve learned that we can’t win it in closing and I believe it.  We started winning this case at the beginning when the jurors were telling me how I was feeling and why.  At the same time, we never really know what the jurors are thinking and we certainly don’t want to lose it in closing. 

            I always like to repeat our “power statement” or theme as much as possible without wearing it out.   I just talked to them about what I’ve been thinking about lately.  “It seems that our world has become so competitive.  We’ve got all these teams that want to win.  We’ve got the Republicans vs. the Democrats; neither wanting to agree or say anything positive about the other for fear that they might lose some edge.  We’ve got the police team, the prosecutor team, and we’ve got our team.  This isn’t a game to us.  It isn’t about winning or losing, it is about Walter’s life.  Why can’t John (the prosecutor) say the name, Walter, especially when he knows his duty “is not to convict, but to see that justice is done”?  They’ve got their white board in their office that lists all the cases going to trial that will display the results for everyone in the office to see.  What they need is a column entitled, “Justice was done” with a place for yes or no.”       


            Sometimes we become numb to consequences of convictions or marks on our clients.  We are sometimes sucked into the money man’s propaganda.  We don’t think about what it is really like to spend (5) years in prison or be under a probation officer’s thumb for even a year.  What would it feel like to be required to give a urine specimen while someone is watching it fall from your urethra to a cup?   How does it feel to be under that thumb?  We might not allow ourselves to think about our client’s struggle to keep or get a job and support their family.  Think about your law license and what you might do if it is taken away.  We are the only ones who have the ability to fight, teach, and educate the people about what is going on.  If we can’t see what is happening, we will not be able to get the people to see.  Is it really all about the money for you?

Overcoming Tough Issues in Trial, Our Story

January 6, 2012

Our Story-One Size Doesn’t Fit All

The story has already been told in jury selection and opening statement. And really, the jurors already know what they will do or at least know what they want to do. Now, I just need to tell it again in cross examination and in direct with Carolynn. This was a case about a young girl who was drinking and driving in the middle of a war, a case about a girl who trusted a machine to tell the truth. Tim Evans told us at Rusty Duncan and few years ago about how practicing law has changed over the years. Apparently, lawyers didn’t have to deal with all the wars years ago. This war on drinking and driving is unfair to the people because in war innocent civilians are sometimes injured or killed. To win consistently, we need themes, theories, power statements, and our story. One size doesn’t fit all though.

Carolynn’s story didn’t just come to me on the morning of trial. You’ve heard them say, “C’mon, it is just a DWI case”. No, Carolynn’s story and her case, like a fingerprint, is different than any other DWI you’ve seen. While there can be similarities, Carolynn’s story includes her life experiences, up to the time she walked in my office. It includes what she has been through and what she is going through in her life. We’ve got to spend many hours outside the courtroom to get to know our clients and their stories and the issues that concern us about their case. The concerning issues are key in jury selection. I begin making my list when I meet clients for the first time.

If someone can tell you what happened, they can also show you. By using psychodrama techniques, Carolynn can show us scenes from her life and from the day of her arrest. Through this process, we get to know and care about our clients. We are able to find the “bad guy” that Dan Hurley has told us about. Remember, it doesn’t have to be a particular person; it can be society, the government, or anything. We learn how the propaganda war may have affected Carolynn. She felt guilty about drinking and driving and being arrested. We see what really happened after the video was turned off. We see that she is telling the truth about the Trooper not being in her presence for 15 minutes prior to the test. Also, her memory of the events in the jail, are relevant to her mental and physical faculties. We are able to see the inside of the jail. We see the colors, we hear the sounds, and we can smell it. “We” is everyone in the courtroom. If we don’t care about our clients, why would a jury? If we don’t know our client’s story, how can we tell it?

The worst thing we can do in a trial is to bore the jury. From time to time, I entertain the possibility of becoming a judge one day. I quickly change my mind after thinking about being trapped up there on the thrown every day. Usually we don’t realize it or care about being boring because we are too busy asking our next great question. I understand that none of us will ever be David Guinn funny, but that is alright because we have to be ourselves to be genuine. We can only dream about the possibility. I’ve learned over the years, and still have to constantly remind myself, not to fight with the witnesses. Again, I have to resist the urge to lose control of myself. I make my points and move on. Since I knew the issues in this case, I didn’t waste time arguing about the angle of the stimulus and the speed in which it passed and other irrelevant matters. I tell my story in cross knowing that the witness’s answer will often be disagreeable. Sit in the Trooper’s shoes and feel what it is like to be in his position. What is behind the standard testimony that comes out so freely on direct examination by the prosecutor? What is true about him that he doesn’t want to admit or say?

I didn’t want to fight with the technical supervisor or show him how smart I was either. When we fight with the state’s experts, we will lose with the jury even if we win a point or two in the process. I simply got what I needed that was relevant to win this case and got out.

Closing and Conclusion

If the case isn’t won by closing argument, it’s probably too late, but I believe it certainly can be lost there. It is again time to give the control to the jury. We give them the power and reason to help our clients. It isn’t really about Carolynn anyway, it is about the jury. How can their decision help Carolynn and them at the same time? Maybe they don’t want the “bad guy” to get them or their family. Maybe they don’t like betrayal. After a few days in trial, the jury found Carolynn Not Guilty of DWI despite strong breath test evidence. Several of the jurors wanted to hug her. Why? You could call it love, but they cared about her.

The jury changed when I gave up my control and shared a part of me. By being genuine and acknowledging them and their beliefs, we became a group for justice.

Overcoming Tough Issues in Trial- Jury Selection

December 31, 2011

The issues in our story, jury selection

I’ve never had a jury panel as unfavorable as this one seemed to be.  Carolynn and I are sitting at a table alone, while the prosecutor is doing his best to minimize his burden and instill fear in the minds of the potential jurors.  We hear the jurors talk about relatives injured or killed by intoxicated drivers.   One of the jurors begins to cry as she tells us about her husband being killed by a drunk.  Before I stand up, all kinds of thoughts and feelings are racing through my head.  “What am I going to do with this?”  “I should have found a way to put this trial off for another day”.  “I was ready at the last setting, why couldn’t I have tried the case then”.  “I’m blaming myself, because I shouldn’t have asked the judge for a continuance in July so I could go to Wyoming”.   “We don’t have a chance to win this now”.  “If the case in front of us wouldn’t have pled, we wouldn’t be here now”.  “Why does Carolynn have to be the unlucky person to get this jury?”   Remember, my typical response to feeling helpless and how anxiety can get in my way?  Since I can’t run or come back another day, I stand up and walk around the table and face them.  After all, if it goes bad, I can always blame the jury later.

If I had not taken the time to look at myself and work on my issues, I would probably have become overly nervous, anxious, and would have allowed the feeling of helplessness take its control.  I probably would have resorted to some of the useless, harmful phrases and questions that came so easily over the years.  “As Carolynn sits here, she is presumed innocent”.  “She doesn’t have to produce any evidence at all”.  “Mr. Jones, if we stop now and you hear nothing else during this trial, what does your verdict have to be?”  It is embarrassing as I type and think about using those words of the past.  I probably would have argued with the jurors who disagreed with me while trying to control their responses for fear that any more bad answers would surely kill my efforts to help Carolynn.  I would have become tied the seemingly important legal questions I wanted to ask.  Their answers would mean nothing really since I had to move on to my next great question and I would not have heard them.  How are we doing?  Are we making progress with this panel?  When we conduct this type of “Voir Dire”, we may feel pretty cool, smart, or slick, but the momentum isn’t moving to our side.  How does the juror feel when we ask him the clever or trick question?  How do the jurors feel when we attempt to control them?  How do the other potential jurors feel as they watch this take place?  How do we feel, when we are in their seats?  Carolynn would be better off if we spent the 30 minutes talking about a recent football game.

Instead, I face the panel.  Internally, I ask myself, “What is really going on with me as I stand up?  What am I feeling? What is the jury feeling?”  I acknowledge what I’m feeling in that moment i.e. feeling of anxiety and/or the helpless feeling and realize my potential to lose control of myself, the part of me, that I’ve struggled with in the past.  I’m still not warmed up to this task and the jury isn’t warmed up much either, certainly not to me.  I look around at the panel a moment and ask them if anyone has an idea about what’s going on with me right now?  Does anyone have an idea of how I’m feeling now?  There is a little bit of silence, but they are working on it.  Sometimes, we don’t like silence, and feel like we have to talk, and of course then, we usually ruin it.  One juror near the middle of the panel speaks up, says something like, “you’ve got a problem”.   I might say, “Tell me what you mean?” or “Yes, with all this about drunk drivers, it isn’t looking very good for Carolynn is it?” or maybe, “I heard that too, but we’ve got these rights- presumption of innocence, right to remain silent, state’s burden to prove their case beyond a reasonable doubt.  We’ve got nothing to worry about, right?” (Semi facetiously)  Basically, I listen to this juror and acknowledge him in some way.  We use our judgment to decide how we want to acknowledge their answers.  It might be as simple as “Yes”, a nod, or “I imagine you were frustrated”

Although it has been a part of my training for the last twelve (12) years, I didn’t realize that I was using what Carl Rogers believes is key to creating a climate that benefits us.  When we are genuine, or real, our body language will be congruent with our words.  Instead of arguing with the jurors, we accept them where they are.  Finally, we listen to their answers and sincerely acknowledge them rather than hurrying to our next great question.

Well, we’ve used our time wisely and discussed the issues important in Carolynn’s story and managed to gain a little momentum, but we’ve got a long way to go.  The state will give their brief opening statement and call their witnesses that will surely say that Carolynn is guilty beyond a reasonable doubt.

Overcoming Tough Issues in Trial- Knowing Ourselves

December 26, 2011

Exploring who we are.

Today, we are the person we have become as a result of our individual life experiences and our choices.  Those life experiences include the good, the bad, and maybe, something we think is unspeakable.   Many will go through their entire life without thinking or looking at why they think, act, or react in this world.  Why is it important?  Why should we care?  Besides, isn’t it easier to ignore it and keep living life the same way we’ve been doing it?  Change isn’t easy, especially changing something that has been ingrained in us as a child.   I relate to Alfred Adler’s view, “there can no longer be any doubt that everything we call a body shows a striving to become a whole”. [1](Rogers, 1980 p. 113)  We lawyers all have that paper on our wall that says, “Attorney and Counselor at Law”.  Is that all we need to win?  What if we really listened to ourselves, our gut, and continued our search for ways to get better?

In 1975, John Ackerman was searching for better ways to teach lawyers.  While President of the National College for Criminal Defense, Ackerman was not satisfied with lecture style of teaching students, and was searching for a way to help lawyers become more creative, spontaneous, and intuitive so that they would be better able to deal with the constant changes in the courtroom.  He talked with John Johnson, a social worker, who after thinking and researching, came up with psychodrama. [2] (Nolte, 2008 p. 264-265)

Similarly, sensing I needed something more, I began searching for answers.  Everything I knew about lawyering came from other lawyers, many of which were doing it wrong.  Do you remember phrases like, “Can you be fair and impartial?” or “I take it by your silence that you can”  They were silent because it wasn’t real or genuine.  Jurors are intuitive and they can see right through the facades, and tricks, that we sometimes feel the urge to employ.  It isn’t productive and we know it.  Again, Gary Trichter was teaching and he said something like, “all lawyers need some psychotherapy”.   After searching the internet for “psychotherapy”, I found the Trial Lawyer’s College (TLC) in Wyoming founded by Gerry Spence in 1994.  Fortunately, Ackerman, with the help of John Johnson, had introduced psychodrama to his friend, Spence, who incorporated it into his Trial College from the beginning.  I think he saw psychodrama as a way to teach others what he had discovered in his journey.

Psychodrama was developed by Jacob L. Moreno.  He defined it as exploring the truth by dramatic methods.  We live in the same world with each other, but we all experience it differently.  My truth or perception of this world is different than yours and anyone on the jury.  Psychodrama explores an individual’s perception of the world or universe. [3] Although you can read about it in a book, psychodrama is learned best by experiencing it.  For me, it has helped me recognize and understand why I am the way I am and provides a way for me to explore other ways to live.  As an example, I now know that my well-bred reaction to feeling helpless is losing control and I now know why.  In addition, I’ve explored how anxiety, has gotten in the way of really being present in the courtroom, and in life.  At times, anxiety has been debilitating.

I told Carolynn to kick me if I started to lose my temper during the trial because I knew that the helpless feeling would come.  I knew that my own anxiety might get in the way, if I allowed it and  I knew that if it did, I wouldn’t be fully present with the jurors and would be unable to really hear them.  How does any of this apply to jury selection?  The panel is in front of us, and prosecutor is up doing what he was taught and it is looking ugly for us right now.

[1] Rogers, C. R. (1980) A Way of Being. New York: Houghton Mifflin Company

[2] Nolte, J. (2008) The Psychodrama Papers. Connecticut: Encounter Publications

[3] National Psychodrama Training Center,

Ready for Trial

November 7, 2011

We were ready and willing to try Kyle’s DWI case today and had a good chance for a Not Guilty. The state made a great offer that would prevent the possibility of a DWI conviction. Offers like that aren’t given to “plea lawyers”. Prosecutors know which lawyers will “Tee it up” and the ones that never will.

Some of the ones that “never will” say things like, “Everything will be O.K.” or “I’ve got it under control”

Pay That Ticket?

November 6, 2011

Recently, I tried a case to a jury in a local Municipal Court. It really didn’t take long at all and the jury’s decision was Not Guilty. Why would someone want to spend their time and money and contest a ticket?

I initially thought that Don wanted me to get him “Deferred Disposition” to keep the citation off his driving record because that is what most people want. It is easy, relatively inexpensive, and avoids the risk of conviction. I’m glad Don insisted on a trial in his case.

Don was charged with driving through a business parking lot to avoid congestion, as were many other citizens. We all know that we aren’t supposed to cut through the corner gas station to avoid the intersection, but Don’s situation was different. Yes, Don wanted to avoid the congested intersection. Don’t we all want to do that at times? I’d rather drive all over town for an extra 30 minutes, than sit still in traffic. Anyway, Don turned into a marked left turn lane to take a left off of a major roadway onto what appeared to be a public roadway. Once he turned left, the only options he had were two make a U-turn and go back or turn right in front of a Montessori School. It appeared that a road for “thru traffic” will be completed in the future.

At trial, we learned that many people were doing the same thing and the Montessori school had been complaining about it. It looked like a public street and there were no signs notifying the public otherwise. By the way, if you ever decide to cut through a parking lot, make sure you come to at least one complete stop during the crossing then it won’t be an offense. As the Court was excusing the jurors to deliberate, one of the jurors asked, “How many other tickets were issued to others at that location?” The judge couldn’t answer, but I appreciated his question. I wonder how many of our citizens received the same citation and gave their money to the city?

All of us should seriously consider using our resources to contest charges in Municipal or Justice Courts, especially, when we feel the accuser made a mistake. Like George Roland said, “If you keep doing what you’ve been doing, they’ll keep doing what they’ve been doing.” Regardless of the jury’s decision, our accusers will be held accountable. Our system works better when “the people” run the show.

Is it really just a ticket?

Letting Go of the Baggage and Trial Lawyering

June 1, 2010

Number three on the list of (5) things we can live without is “Letting Go of the Baggage”. This weeks message was from Hebrews 12:1-3. It talks about “throwing off everything that hinders”…. “Let us run with perseverance the race marked out…”

What hinders the trial lawyer? We’ve mentioned fear, anxiety, and stuff earlier. I think throwing off everything means to throw it all off. But, what interested me was letting “self” go. What is this image of “self” all about? Are we really supposed to be perfect? When we get hung up on our image and perfection, we can’t be real. Fear of failure limits us. It prevents living and taking important risks required to find truth and, therefore, win.

What race is marked out for us? I’m thinking that the race marked out is different for each of us. We realize that we all have our talents and we’ve been given the choice on how we use them. If the race is not to get more money and more stuff, what is it?

Many of us know our race, but seem to veer off the track from time to time. I know I feel a lot better when I stay on the track. Patience comes to mind. I should have more patience.

If you want to hear Jeff Warren’s series on 5 things you can live without, check out the podcasts where “Letting Go of the Baggage” is archived.

All of our “Stuff” and Trial Lawyering

May 30, 2010

Number two on Pastor Jeff Warren’s list of (5) things we can live without is “Less Stuff”. And so, I’m thinking about how that relates to the trial lawyer or any of us. If we have lived on this earth long enough, regardless of our faith, we have probably learned that money and “stuff” doesn’t make us happy. It reminds me of my late friend, George Roland. George was a very good lawyer in Collin County and was a positive influence on many of us. He loved to write poems and make up (or steal) “Rolandisms”. One of his quotes was about “things” or, in this case, stuff. “The things in life that make you happy aren’t things”.

Jeff talked to us about “The Myth of More” based on Ecclesiastes 5:10-17). He talked to us about, “The more you have… the more you want,…the less you are satisfied,…the more people will come after it,…the more you realize it does you no good,…the more you have to worry about,…the more you can hurt yourself by holding on to it. Some of us learn it early, but I’m guessing that most of us “live it” first. King Solomon lived it. He had it all and tried everything. I’m thinking that he is telling us to learn from his mistakes.

I know all this “stuff” relates to the Lawyer, but as I was thinking about how to put it in words, the song, “Money, Money, Munnnee” came to mind. I haven’t really listened to the words, but I imagine it has something to do with getting more things. For me, as I’ve aged, I have seen what King Solomon wanted me to see in Ecclesiastes.

Since this is a blog, and not a book (and I am behind one week), I will force myself to close. Having a bunch of stuff doesn’t fill the soul. It gets in our way and bogs us down. We become a slave to money, and the stuff, and all that comes with it, like debt and our mental and physical resources. And when that happens, money and greed can get in the way of doing what is necessary and right. When we are not really free, it affects our ability to use the God given talents required to help others.

If you want to hear Jeff Warren’s series on 5 things you can live without, check out the podcasts where “Less Stuff” is archived.

Living with Fear/Anxiety and Trial Lawyering

May 22, 2010

I went to Church last Sunday and heard Pastor Jeff Warren talk on “You can Live Without Fear”. I’ve been known to skip church on occasion, but was glad I didn’t skip this sermon. Dealing with “Fear and Anxiety” is something I’ve been trying to figure out since attending college and law school in the 80’s. I was interested because I’ve struggled with it. Although fear and anxiety affected other areas of my life, it hit the hardest at times when I had to present myself before people for any reason. Although I fought it, I didn’t begin to really explore it until 1999 at the Trial Lawyer’s College in Wyoming.

As I listened to Jeff, I thought about how the message related to lawyers. Not only have I struggled with it, I have seen, and heard about, many lawyers who have abused alcohol and drugs in their effort to cope with it. In the face of fear and anxiety, many lawyers “fold” to avoid a jury trial. Yes, like folding your cards in a card game. Unlike a card game, where folding might be beneficial in the long run, we are dealing with someone’s life. And yes, we can justify anything in our minds. In the face of fear many of us hide behind many different kinds of masks. It might be a fancy suit, the choice of words, constant joking, or maybe even a $3,500.00 Louis Vuitton briefcase. “Look, it’s a person, it’s a human, no, it’s Lawyerman”. The problem is that jurors are not stupid and can see right through it. What is “it”? “It” is fake. “It” is artificial. “It” is not real. When the lawyer is unsuccessful in folding before the jury trial begins, the fear and anxiety remains and the lawyer must address the jurors. Rather than talk with the jurors, he may lecture them instead. The anxiety causes him to turn to what feels comfortable and safe, and he may make a worthless statement like “Can you be fair and impartial?” or “I take it by your silence that you would be fair and impartial” when more than likely, the silence comes from frustration or boredom. But more important than being a useless statement, this type of communication hurts the client.

I have talked to lawyers about how I’ve dealt with fear and anxiety. The first year out of law school, I felt the need to face this fear in order to conquer it. Although I wasn’t a prosecutor at heart, I acted like one for about a year, forcing myself to get up in front of judges and jurors. Since then, I have talked to lawyers about making the trial about the client and not them. I’ve talked to them about the phrase I first saw in ’99, on the back of a T-Shirt, in Wyoming, “Without Fear, there is No Courage” and about the next step, “Feel the Fear, Find the Courage”. I love those quotes. What do we fear in trial? Some of us have a fear of losing, some of us worry about looking stupid, and sometimes, it is just the fear of the unknown. It could be just a lack of faith and trust. Who will we trust? Many times, we lawyers don’t trust the jury and many lawyers just don’t care about the client. It is all about “me” and trying to perform. What will these people think of “me”, the lawyer? I agree with Gerry Spence that “it begins with me”, but I have to add, “but, it is not about me”.

Preacher Jeff reminded me that the Bible talks about Fear and Anxiety in many places. Imagine that. The Bible has all of the answers that I’ve been searching for. As a child, I heard the phrases on Sunday- Have no fear; Do not worry; Fear not, but it didn’t stop me from trying to do it my way or on my own. I think many of us make life tougher than it should be because we leave God out of our lives until things get out of “our” control. Jeff’s verse for the day was: “Do not be anxious about anything, but in everything, by prayer and petition, with thanksgiving, present your requests to God.” Philippians 4:6

I don’t believe that “Peace on Earth” means that the fighting on earth will stop. I think that God is willing to give us peace, but some of us refuse to take advantage of the gift. Instead, many of us lack the faith and trust necessary to live in peace. Ironically, Paul was in prison when he wrote about peace and joy in the book of Philippians.

Although able to walk, talk, and breathe, living with Fear and Anxiety, isn’t really living at all! When we struggle with fear/anxiety, we are unable to listen, be in the moment, or otherwise be real. Fear and anxiety shut us down. It stifles creativity and spontaneity. And so, it appears that we can choose to merely exist on this earth or we can live. How do you feel about it?

If you want to hear Jeff Warren’s series on 5 things you can live without, check out the podcasts where “You Can Live Without Fear” is archived.