Persuasion

 Image from Library of Congress's website.

Lately, several lawyers have pondered about my finding time to blog. My response is: Do you take time daily to eat, brush your teeth, and get dressed? Do you take the time to read court opinions, expand your persuasion abilities, and self-reflect? Can you write well and quickly directly onto the keyboard without needing to use a pen first? If so, there is time to blog, especially after eliminating wasted time on television, instant messaging, websurfing and listservs. 

My days start and end with a round of t'ai chi. In the middle come spending some morning moments with my family before heading out to fight for my clients, handling work at my office, and spending time with my family in the evening.

I spend an average of fifteen to twenty minutes daily blogging. When I come across an idea or court case to blog about, I save the idea to my BlackBerry. By the time I start writing, the framework of the blog entry has already grown in my head, so it then just becomes a matter of putting my thoughts onto the keyboard. Sometimes I type a few blog entries in advance, and save them in draft form until I am ready to release them into cyberspace. My blog software lets me program blog entries to be released for a pre-designated day. This way, although my blog entries come out daily, I am not blogwriting daily.

To some, like I, writing is as essential as breathing. The late great Pramoedya Ananta Toer was was deeply emotional when he said in 1999 that the Indonesian government's decades-long effort to ban his books was like trying to cut off his life. Writing was so vital to Pramoedya that he told his masterpiece Buru tetralogy orally through a chain of prisoners on Buru prison island during the time he was denied pen and paper. Past issues of Index on Censorship show the risks writers repeatedly have taken against censorious governments to keep their written voice going, including getting their writings smuggled to other countries, to be published and finally read.

By now, Underdog gets several hundred visitors daily, on top of additional daily readers viewing archived Underdog entries. The world remains more unjust and brutal than the opposite. Accumulated feathers can sink the boat of injustice and inhumanity. At the very least, my blogging is hopefully part of those accumulated feathers.

So I blog to get on a bully pulpit for justice, and to discuss court opinions and persuasion approaches from an angle of fighting for justice daily.

My brother lawyer and blogger Marc Randazza has pointed out how quality bloggers often are among the busiest people, and says of his own blogging: "I have very little time on my hands. I make time to blog.  It also helps that I am an insomniac." Whether or not Marc jests about insomnia, I blog without it.

Asking me how I have time to blog is like asking how I have time to eat. Jon Katz

When someone says "I want to get it over with," is the person doing nothing but merely chasing after an illusion?

Let us consider the ultimate effort to get it over with: suicide. My spiritual guru and friend Jun Yasuda told me that one day a man walked up to her teacher, the late Nichidatsu Fujii Guruji, and proclaimed that he was going to kill himself. Perhaps against the advice of those at suicide helplines, Fujii Guruji laughed, and said something along the lines of: "You think it is that easy to get away from your problems?" Of course, Fujii Guruji and Jun-san believe in reincarnation. I did not learn whether this man ultimately decided not to kill himself; because of their belief in reincarnation, I do not know how much that question mattered to Jun-san and Fujii Guruji.

Whatever the inclination might be for people to confess their suicidal plans to Nipponzan Myohoji clergy, on a separate occasion, a man approached Jun-san, telling her his plan to kill himself. Her verbal reaction was along the lines of: "Great. If you are going to kill yourself, you will no longer need food, so you might as well fast." He did fast, and he returned to Jun-san telling her that during his fast he decided not to kill himself after all.

We are so cluttered up with excess junk, psychologically, physically, and spiritually. When a person fasts -- and the fast can be enhanced by a vacation from the Internet; phone; all other technology driven by electricity, batteries, and petroleum; and newspapers -- s/he has no choice but to slow down due to the reduced physical energy caused by the fast. With such slowing down comes the opportunity to empty the excess mind junk and spiritual junk. Competing with the benefit of slowing down is the tug-of-war often presented to -- but avoidable by -- trial lawyers with the constant demands to drive to all sorts of court appearances (and then often to wait and wait in court); to visit clients in jail and to meet with them in the office and offsite; to meet merciless court filing deadlines for motions, opposing motions, and appellate briefs; and to investigate and prepare for clients' cases, while still meeting the demands of the lawyer's personal life. The trial lawyer's time and personal challenges are well capture by my late friend John Johnson in his poem "A Meeting with Mother Earth," including this line: "The life of lawyering is filled with noise and turmoil. Peace is hard to find - even in seeking after justice. Modern mankind runs amok in anxious pursuit of an elusive technological happiness..."

No matter how much stagefright a lawyer might have about a case -- and it is critical for lawyers to adjust their lives and relationships with the world and themselves to diminish those fears -- a criminal defense lawyer's client is likely to be more fearful than that. The more the lawyer earns the client's trust, confidence, and comfort, the more the lawyer will help not only to reduce the client's fears, but to help the client make decisions from a position of strength, patience, and full willingness to share all ideas, concerns, questions and fears with the lawyer. For a lawyer to reach such a quantum level with his or her client, nothing substitutes for spending quality time with the client, with the lawyer listening empathetically, actively, respectfully, and deeply, and responding empathetically and with the best and directly gentle of bedside manners while seeing the client as the lawyer's equal. Investing such time and energy is a commodity that too many lawyers fear investing, lest they have insufficient time left to do their other work and to earn a living. However, nobody ever said that being a criminal defense lawyer is an easy ticket to financial stability. Moreover, the lawyer who puts clients ahead of money will earn more money or other good fortune in the end than the lawyer who does the opposite.

My t'ai chi teacher Len Kennedy once said: "When you are fatigued, do t'ai chi." On another occasion, I learned the following from Len: Internally, during one of "those meetings," the t'ai chi practitioner does t'ai chi, through relaxing and sinking into one's chair or into the ground if standing; by relaxing actively through being fully aware of what is happening around the t'ai chi practitioner without getting sucked into nonsense; and by emptying the mind and body of stress and wasted energy in order to deal with the matter at hand.

Len Kennedy learned t'ai chi from Robert W. Smith, who was t'ai chi megamaster Cheng Man Ch'ing's first Western student. Recently, I found this response to nihilism from Professor Cheng, as recounted by Fred Lehrman:

"I remember sitting one morning several years ago with Professor Cheng and several students in the Asian Library at Columbia University. The Club of Rome Report had just been released by MIT, and one of the students had bought in a clipping from the New York Times outlining the hopelessness of solving the compounded problems posed by overpopulation, food shortage, energy resource depletion, atmospheric pollution, radioactive waste, etc. The student was quite upset, and asked professor Cheng what he thought of the situation, and how we could get out of it. The Taiji master turned the question around and asked the questioner what his ideas were. The student gave his answer, and sat expectantly, awaiting correction from the Sage. Instead, Professor Cheng turned to another student at the table, and asked, 'What do you think about what he said?' This continued until each student had commented on the others ideas, and it was clear that the subject had been exhausted. There was really no way to solve the problem. Professor Cheng went back to reading his book.

"After a pause, the first student, more upset than ever, asked again for some word from the teacher. Professor Cheng leaned forward, and put his book down next to the cup of hot tea which had just been refilled for him. 'What will happen to the world? I don’t know. Look at this vapor; it comes from the tea, it goes into the air, and right about here' – he pointed in the air – 'you don’t see it anymore. Where does it go?' He sat quietly for a moment while we pondered the empty space left after the world had destroyed itself. 'Don’t worry about it,' he said, 'Nothing gets lost.'"

Read the rest of Fred Lehrman's powerful essay here.

Such lessons from Cheng Man Ch'ing keep me inspired to practice t'ai chi, doing the form morning and night without fail, and applying the t'ai chi principles to everything I do. Tea anyone? Jon Katz. 

During my first summer in law school, working in the regulations and legislation division of a federal agency, I mentioned my interest in becoming a litigator. One of the staff attorneys -- who had paralegaled at the ACLU, which was one of the places I wanted to work -- exclaimed: "Don't you know that is the legal path that causes the most ulcers?"

Ulcers shmulcers, I reasoned. I went to law school intent on learning better how to fight for civil liberties, and preferred -- and still do -- an ulcer doing work I enjoy than having a less meaningful life without stress.  

Of course, ultimately I found the path to being calm even in the eye of the most virulent trial storm, as I describe here. Before reaching that path, though, many times in my first two years of practicing criminal defense I would walk into the courthouse feeling my heart sink to my stomach, obsessed over how much injustice was being done every minute in any courthouse I walked into. Ultimately, I reversed that view to seeing every visit to court as an opportunity to add more justice to the world and to reverse all the world's injustices, although the opposite view still tugs at me.

Ironically, I probably would not have found this path of calm in the eye of the storm had I not met the eye of the storm so many times as a trial lawyer fighting tooth and nail for my clients' liberty.

Too many people lose touch with the child within them as they get farther away chronologically from childhood. Look at the adults to whom children gravitate at holiday gatherings, at weddings and other big celebrations, and on boring shopping trips with their parents, and you are bound to see adults very much in touch with the positive child within. The division between work and play needs to be dissolved, for each living moment to be part of a harmonious, powerful and enjoyable whole.

Two people who bridge the gap between work and play, and adulthood and childhood are the late Ella Fitzgerald and Thich Nhat Hanh. Who else but Ella could have elevated "A Tisket A Tasket" from a droning kindergarten-required song to the masterpiece seen in this video, and even more so when I experienced Ella and Oscar Peterson separately on stage on a magical summer evening in 1982? The only thing better would have been for Thich Nhat Hanh to have joined them onstage.

A few years ago, I found the following passage from Thich Nhat Hanh, which brought me all the more closer to living and lawyering fearlessly and in the moment:

Contemplation on No-Coming and No-Going
By Thich Nhat Hanh

This body is not me
I am not limited by this body.
I am life without boundaries
I have never been born,
And I have never died.

Look at the ocean and the sky filled with stars,
Manifestations from my wondrous mind.
Since before time, I have been free

Birth and death are only doors through which we pass
Sacred thresholds on our journey
Birth and death are a game of hide and seek.

When googling for some further information on t'ai chi master Cheng Man Ch'ing, I happened upon an intriguing blog entitled Native American Taoist. The site's blogmaster is Thunderhands, who answered a blog comment about his Cheng Man Ch'ing posting with the closing phrase "Mitakuye Oyasin".

This being the first time hearing the phrase, I researched further to learn that it is Lakota for "all my relations" and, by extension, "we are all related." I e-mailed Thunderhands my thanks for his blog and for his railroad illustrations; trains and elevators are my son's favorite machines. He replied to my inquiry about the phrase: "Mitakuye Oyasin is Lakota and it means all my relations, including all living things. Winged creatures, two legged's, four legged's, crawling, reptiles. etc. Of course yes we are all related, we are all one, but live in a delusion that we stop at our skin." That would throw out the window my being able to make an exception for the way I approach and talk about cops, prosecutors, and probation agents.

Interestingly, a person named Atuuschaaw maintains a blog entitled with the same phrase, Mitakuye Oyasin. Learning about Mitakuye Oyasin reminded me of Baba-Kundi Ma'at-Shambhala, an inspirational man I met last year at the Whole Foods parking lot. As it turns out, two months ago, he started a blog entitled Essence Blogeshere, which frequently amplifies on Mitakuye Oyasin, without saying the phrase.

Mitakuye Oyasin.

 Jon Katz.

Some people reach ecstasy by seeing their favorite band live, as have I, when experiencing such superhumans as Return to Forever, Dizzy Gillespie, and Cat Anderson. Yesterday, I reached ecstasy by interacting more directly than ever with t'ai chi Master Ben Lo.

Frequent readers of this blog know that I believe strongly in applying the principles of t'ai chi to the practice of law and to the rest of my life, and that two lawyers inspired me most to practice t'ai chi.

Curiously, Master Lo -- who focuses his students on the power of being mindfully relaxed and soft -- playfully tells me that lawyers and salespeople tend to be stiff. Maybe he thinks their minds are subject to too much intellectual clutter. Wishing to hear this megamaster rather than debating him, I did not bother suggesting that such stereotypes do not work, in part considering that all lawyers were non-lawyers at some point in their lives.

Yesterday was my fourth class with Master Lo since 1995. Master Lo visits the District of Columbia area from his California home around once or more annually. He started off the weekend session by asking why people came to the class. One attendee said she was there to learn t'ai chi from him. His ultimate response as we proceeded was that it is easy to learn about t'ai chi, but much more difficult to apply it. He then proceeded to emphasize the importance of learning t'ai chi at one's own pace, while he pushes students into his teaching realm of "no burn, no earn/no pain, no gain," or, as his teacher Cheng Man Ch'ing once pointed out to his students while on a walk that they have plenty of time in the future to rest (gesturing towards a cemetery) but that much is left to be done while on this Earth.

In the summer of 1971, at the age of eight, I learned two indispensible things. First, I learned about Mad Magazine, which I read and subscribed to religiously for many years, and whose offices I got a tour of three years later, mesmerized as Associate Editor Jerry DeFucio led me down hallways filled with amazing art, drawers filled with such priceless gems as the original Godfather cover artwork, and Bill Gaines's office with a papier-mâché King Kong ready to burst in through the window; and as Sergio Aragones inked original drawings for me on the inside covers of his books. Second, I learned how to fold my eyelids inside out, which I can still do today.

How does this connect with the practice of law? First, the most effective and fearless fight -- be it in or out of the courtroom -- is accomplished by maintaining the wonder and fearlessness and never-ending joyful self-discovery of a child. Second, people will be more riveted to your courtroom presentation if you remain real without constantly dwelling on your law office's financial bottom-line, just as Mad under the late William Gaines never bothered surveying its reader demographics but still earned a bundle in the process, while doing things as outrageous as bringing the staff to Haiti to visit the magazine's sole subscriber to convince him to renew his subscription. Third, you can be successful without being co-opted by people and issues you do not want to be co-opted by, just as the William Gaines gang refused advertising, lest that water down Mad's satirical sharpness (today, post-Gaines, Mad is riddled with advertising and its previous sharp pen is much less sharp).

Now is the time, before you turn in for the evening, to summon the fearless and wondrous child within you. Go ahead. Throw water balloons out your window (just not in anybody's direction); make milk come out of your friend's nose; go on a roadtrip until sunrise. How did that feel?  Jon Katz

For fewer than two years between leaving the Maryland Public Defender's Office and becoming my own boss, I worked at a civil trial law firm. I learned many good things there. However, I realized that I would be able to spread my wings the farthest by being my own boss. Without a boss, no longer did anyone urge me to wear my suit jacket when meeting with clients, nor to work in a gray-feeling and cramped building with an uncomfortable winter draft whirling through my basement townhouse office for months on end; that is not what I am about. Employers, take heed: Such unnecessary formalities and physical discomfort do not make for the highest performing staff.

Before we even had furniture delivered to my duo practice with Jay Marks, we already had potential clients coming through our doors. It was August 1998, and I was energized, and am all the more energized as the positive karma continues flowing. All that was needed was to leave behind the fear of having to succeed without a duplicated weekly paycheck.

How to enjoy practicing criminal defense when my clients typically are in varying degrees of disharmony? I welcome the challenge to help return harmony to them. It can be as small as a recent misdemeanor trial date when my client was tremendously nervous about the unknowns of his case. Before our case was called, a Mr. Price's case was called, for some sort of non-jailable moving violation. The judge completed Mr. Price's case almost as quickly as it has started. I wrote a large note on my legal pad to my client: "Does Mr. Price hang out with Bob Barker?" For a brief moment, my client was caught up in juxtapositional laughter, briefly forgetting his fears. Ultimately, the prosecutor dismissed the case.

A year ago, a client had a District Court trial scheduled in extreme Western Maryland. He took the train from home a few states away and inquired about our driving there together. I agreed so long as he got a hotel close to my home so that I would not be waiting for Godot at some desolate uncertain meeting place. We had a blast during our over two hour drive each way. My client is a fascinating person, is an artist to boot, and shares my strong support for a world with much less war, more justice and human rights, and the elimination of a police state mentality and reality. Beyond me was why the prosecutor had me and my client drive all the way out there to tell me what he already knew, which was his plan to dismiss the case after I had made efforts before the trial date to obtain a dismissal.  

With the case dismissed, my client and I took in a walk around the interesting downtown surrounded by mountains and waterways, near the railroad tracks. On the drive back, we stopped at an unusual grocery store that included a strangely-named British dessert in a can, and we tried to make heads or tails of it. A year later, we bumped into each other at the September 2007 prelude to a peace march that assembled across the presidential palace and caught up with each other.

Last month I learned that Arnold Toynbee had excellently described the foregoing interactions with myself, and with my clients: "The supreme accomplishment is to blur the line between work and play." Employers, take note. Employees, take note.

Thanks, Mike Garofalo, for focusing on the need to keep play in work. Jon Katz

It is human nature to avoid unpleasant people and to seek out pleasant ones. That is why I avoid Barney and am transfixed by the Dalai Lama. No matter how much I myself could not stomach prosecuting or being a cop, I have to deal daily with those serving such functions. 

Consequently, in trying to persuade cops, prosecutors, judges, juries, and opposing witnesses, I try to find points of commonality between me and them that set aside the professional role and humanize me, them, and my clients. 

I have a good friend whom I first met when we were public defender lawyers fifteen years ago. He is like a kindly Hawkeye who cared about his criminal defense clients. He can turn a lunch at a diner into an Ernie Kovacs extravaganza. One day we acted like sophomoric hyenas jumping up and down on our desks, chairs, and floor performing our own a capella air guitar version of Led Zep's 1970 song "Whole Lotta Love."

Then my friend moved many states away, with a job not only on the opposite side, but with a prosecutor's death penalty appellate division, fighting to keep the state's death chamber doors wide open. I do not think he chose the new job out of any ideology.

My friend invited me to read a brief he had written, and later asked what I thought of it. When I replied that I had not read it, he asked why. I told my friend that I still considered him a friend, with our friendship having started before he started advocating for executions, but that I doubted it would have been easy for me to have become his friend if I first met him now, and that I felt no comfort reading his brief. I feel more comfortable that his prosecutorial appellate work no longer includes death penalty cases.

How did I remain friends with this man who ultimately worked hard to keep executing people, when I expect it would be hard for me to start a friendship with such a person if I first meet such a person when s/he already is doing such work? Part of the answer goes back to people's inclination to gravitate to those they find pleasant and those they find unpleasant. The death penalty is beyond unpleasant for me, to the point that it will take substantially extra effort for me to be willing to deal with death penalty prosecutors beyond their death penalty advocacy hats. Yet, I recognize that if I am going to persuade them, I still need to try to find points of commonality with them. With my friend who spent some time arguing death penalty appeals for the prosecution, he was already beyond humanized in my mind and being, and appeared to be engaged in a hopefully temporary aberration. I still struggled with having a friend doing such work.

Consequently, I try to find genuine points of commonality with those I try to persuade, without forcing it, but by recognizing that we are all interconnected. Being a father helps me find that commonality more easily. Who knows if my two year old boy one day will become a prosecutor, a cop, or a Phil Collins groupie? Then again, that will not foreclose his option to switch any of those roles later on. More immediately if my son becomes friends with any children of such folks, am I going to refuse to go into their homes or to invite them to mine (but what does that say about my advice never to voluntarily let a cop into your home unless you are reporting a crime?)?

A few years ago, I spoke with a lobbyist for the adult entertainment industry who talked about finding points of commonality with legislators by saying: "Let me help you ease your burden on this piece of legislation with the experience and knowledge I have gained." Only so many hours exist in a day and a week, and such an offer is very non-confrontational and non-pushy, letting the offeree use or not use the help.

Often criminal defense lawyers walk into court with many fewer cases than the pro