|
|
|
|
|
Warrior-Lawyer is a trial strategy and a progressive law manual. It was published in 1991 by Paul Harris, recognized as one of the country's top trial lawyers. Although limited to less than a thousand copies, it received outstanding reviews. The Los Angeles Daily Journal wrote "As always, Harris' knowledge and experience and the lessons he has to teach are useful to one and all." Mark Soler, Director of the Youth Law Center said, "Paul Harris shares his extraordinary ability to see the evidence from the jury's point of view." Well known criminal lawyer Susan B. Jordan called it "Both inspiring and helpful." Harris has decided to make this short treatise (62 pages) available to the readers of this website at cost.
If you would like a copy send $10 (includes shipping) cash or check made out to Paul Harris, with your address to:Paul Harris 20 Quickstep ln. #1 San Francisco, Ca 94115The following are excerpts from Warrior-Lawyer.
Introduction
Another title for this guidebook could be: "Breaking Myths, Building Power and Winning Cases." In order to reach these goals you must strive for your ideals as well as develop your skills. If you fail you will end up reproducing existing injustices. You will also lose yourself. The dreams that took you to the law school, that drove you through the insanity of the Bar Exam, that allowed You to stand against arbitrary judges, will fade away. Money, status, and individualized success will replace your original goals. Cynicism or a weary pragmatism will fill your practice. You will be alienated from yourself. Heart will be separated from mind. You may not quit, you may even be successful, but you will be out of balance, you will be less effective.
Law practice will not give you the happiness, nor harmony you desired.
This guidebook will help bring you home. It draws on three writings: English novelist J.R. Tolkien's Lord of the Rings, in which justice and injustice are at war, and the small and seemingly insignificant play a role in the transformation of this continual struggle; the works of Latin American revolutionary Che Guevara in which men and women are urged to live today according to the values that they hope to make a reality tomorrow; and A Book of 5 Rings by Japan's most revered samurai, Miyamoto Musashi, in which the warrior strives to be one with his/her vocation, prepares with great discipline to achieve his Way of Being. If you believe in these basic assumptions regarding the world and our life's work, you may find aid and comfort in this guide.
I have divided the book into six sections: six paths which lead to home, which help us achieve a Way of Being--the Warrior Lawyer. All of the examples are from real cases; some of the names have been changed. Most of the examples are drawn from criminal cases, although many are applicable to civil litigation. The last four sections have numerous examples from civil cases.II. THE PATH OF STRATEGY
Strategy, not tactics, is the key to victory. The difference is well known in military history: strategy is the overall plan, while tactics are the specifics used to achieve the goal. Most lawyers get stuck in tactics. They think their pounding cross-examination carried the day, unaware that their voir dire was unenlightening and direct was boring. they give a powerful closing emphasizing the inconsistencies of the police testimony, but fail to see the jury's attention to the circumstantial evidence.A. Theory of the Case
Strategy is the highway, toward which all other paths merge. Its primary focus must be a theory of the case. All lawyers have an approach, such as sit back and wait to hear the state's evidence, then formulate your case; or, the approach is to keep the defendant off the stand and hammer on reasonable doubt. A theory of the case is more than an approach. It involves a way of looking at the entire case, its social context, the strengths of your plaintiff or defendant, the emotional and political reality of what took place, and the best method of getting your vision across to twelve people. The theory, in a criminal case, explains how an innocent person ended up arrested and now sits next to you charged by the "People" or by the "United States" with a crime. The more "facts" the theory encompasses with an innocent interpretation, the better your theory. The closer your theory is to a common sense explanation, the better it is....A theory will often change how you proceed with certain evidence, at times turning negative into positive. A 40-year-old small Latin man, Robert Avila, is arrested for drunk driving by a large, authoritarian Anglo motorcycle officer. the defendant's car was rear-ended by a white man. A witness says the defendant was driving erratically, and stopped suddenly. The police man initially talks to the witness and the driver who rear-ended Avila, while Avila is busy dealing with sparks coming from under the hood. The policeman, unable to get an immediate response from Avila, gets irritated and angry, at which point Avila says, "Why are you bothering me? That son-of-a-bitch hit me!" The cop says that he's siting him for an illegal lane change and asks for his license and registration. Avila begins to curse at the cop as he fumbles through his glove compartment. He calls the cop a bigot, an asshole, suggests that his family should die in an airplane crash and says, "Your mother will die a terrible death." The cop then cites him for drunk driving, noting his bloodshot eyes, slurred speech, and wet pants. At the station Avila refuses a blood-alcohol test, saying that he was the victim of a reckless driver.
What is the theory of the case? Musashi talks about "Becoming the Enemy": "To become the enemy means to think yourself into the enemy's position. In the world people tend to think of a robber trapped in a house as a fortified enemy. However, if we think of 'becoming the enemy', we feel that the whole world is against us and that there is no escape. He who is shut inside is a pheasant. He who enters to arrest is a hawk."
Perceiving from a prosecutor's view, the cursing is evidence of Avila being under the influence and it creates sympathy with the jury for the beleaguered police officer trying to put up with this shit while just doing his duty. But defense counsel can turn this evidence around. Viewing the case with the common sense of a juror, not the professionalism of a lawyer, the theory of the case is the arrest is the result of an understandable, very human, angry interchange. The defendant is justifiably upset that he was rear-ended, that the cop talked to the other driver first, and is now treating him like a criminal.
The cop is exasperated by the defendant's behavior and angry at the insults. Given this theory, the key element is to prove that the officer wrote the traffic citation before the swearing started and did not arrest the defendant for drunk driving until after the insults. Understanding the position of the enemy, the defense theory turns the negative swearing into positive evidence and obtains and acquittal. (Avila's case will also be discussed in the sections of direct and cross examination.)E. Loss of Balance: Preparation
"Many things can cause a loss of balance. One cause is danger, another is hardship, and another is surprise. In large-scale strategy it is important to cause loss of balance." You can cause an immediate indecision in the spirit of your adversary by out-preparing him. This shows him, and the Judge, that trial against you will be a hardship.
Surprise is your enemy. In a murder case where self-defense was the approach, the defendant had surrendered and given a taped statement. I was co-counsel and had read the transcript but had not listened to the tape. When it was played in court, I was surprised and shocked by the belligerent and loud tone of our client. I lost my balance because of weak preparation.F. Spiritual Bearing in Strategy
In strategy your spiritual bearing must not be any different from normal. Both in fighting and in everyday life you should be determined though calm. Meet the situation without tenseness yet not recklessly, your spirit settled yet unbiased. Do not let the enemy see your spirit."
You will be wounded during trial, do not show the pain. You will be surprised. In a drunk driving case, an important defense point was the short period between the time the defendant got off work and the time the accident occurred. But on cross-exam, defendant admitted the time was three hours, not thirty minutes.
Then, nervous and confused as to language, he said yes to the question, "did you intend to lie to this jury?" Defense counsel was on the third floor of City Hall next to an open window. He considered jumping, but seemed completely calm. Later, in chambers, the Judge asked him incredulously, "how did you stay so calm and not react negatively when your client gave those answers?" Even if you are sick to your stomach, try to stay determined and calm.G. To Forestall the Enemy: Opening Statement
Ken No Sen (to set him up) is based on attacking. This means you decide to give opening directly after the DA instead of waiting until his/her case is completed. Opening is the only time, except at the end of the trial, that you can speak for a significant period of time without interruption. It allows you to organize the evidence for the jury, to present your perception of the case and to suggest a defense theory.
Tai No Sen means to wait for the initiative. This means you do not give opening until the DA rests; "when the enemy attacks, remain undisturbed, but feign weakness."
How can you decide which tactic to use? Weigh the following elements:
- If prosecution has a very strong prima facie case give your opening immediately.
- If their witnesses are impeachable because of priors, or bad character (snitch), or it's a retrial, you can give opening first and forewarn the jurors of these defects in their witnesses. Or you can wait, and rely of cross-exam to bring out the facts favorable to your case. But remember that cross-exam is over-rated and opening is under-rated.
- If you have a unique theory you want to spring on the prosecutor, reserve opening.
- Reserve opening if you strongly believe the police or prosecution witnesses will change their stories of the DA understands your defense and explains its ramifications to them...
J. Objections
There are only two reasons to object. Primarily, you object only if such objection furthers the theory of the case. This entails allowing some objectionable questions to be asked, because they are irrelevant to the outcome. Secondarily, early in the trial make sound objections to show the judge and opposing counsel you know your evidence and to deter the DA from running the show.
Jurors want to hear the witnesses, not the lawyer's objections. Don't object to feed your anger or ego.
"The Smacking Parry" means that when you meet his attacking cut you smack his sword and quickly cut him. when objecting, or when meeting an objection, cut him by letting the jury hear your justification. Some judges will say, no arguing objections; this is difficult, but do not accede gently; you are always in a power struggle with the Judge.>K. The Benefit of Weapons in Strategy: Jury Instructions
"There is a time and place for use of weapons." Jury instructions are an underrated weapon, available for your use. They can help you win a trial or help you win an appeal...
Time after time lawyers do not argue the important instructions persuasively. There are three steps. Do all three. First, read the instructions to the jury; read the actual instruction the Judge will give; read it slowly with emphasis on the important phrases. Two, explain the significant portions in common sense, normal-usage language. Three, argue how the facts fit the instruction. Do not forget this last step. Do not just read the instruction on self-defense and assume the jury will link it to specifics on the case. With practice, linking facts and law is easy. This is very persuasive to a jury.III. THE PATH OF EMOTIONAL REALITY
Behind the legalities of a case there is an emotional reality...
The final example shows how the sensitive lawyer can find the emotional truth even when it is hidden to the client. A Samoan community artist became a frequent client of the Community Law Collective. Over the years each attorney defended him for traffic violations and drunk drivings. A senior attorney worked out a deal after he was involved in a major altercation between Samoans and police. A new attorney won him an acquittal on a charge of assaulting police when he allegedly threw a cop across a restaurant. Our client, a huge, quiet man, seemed to be getting more frustrated and angry, and drinking more.
One day, for no reason, he started viciously punching a bus driver. Patrick Guillory, who had done some of the defendant's prior incidents, took on the case. pat is Native American, has a Masters of Social Work, and approaches a client as a whole person, not just a legal problem. As the case progressed pat felt there was a volcano inside this talented and unusually gentle man. After hours and days of counseling, the defendant's Vietnam history was revealed. A native-born San Franciscan and an athlete at a local catholic High School, he went to Vietnam where he, as so many others, saw death without purpose, violence shrouded in hypocrisy. he came back, expecting to be treated well, but ran into hostility against him as a Vietnam Vet and discrimination b4ecause he was Samoan. Pat saw that he was suffering from post-traumatic stress syndrome and got him into counseling with other Vietnam Vets, and also into an alcohol treatment program.
The understanding of this man's emotional reality was persuasively communicated to the judge, and he was granted probation.
The defendant, who was confused and ashamed at having beaten the bus driver and who was scared by his increasing loss of control, finally understood the social causes of his problems. He realized he was not alone. This recognition and the help of peer counseling changed his life. Ten years later he holds a good job, does not drink and continues his artwork. The insight of his lawyer did more than an acquittal would have.
Sometimes we can lose the case, but win the human being.You may contact Paul Harris at harris@guerrillalaw.com
To order a copy send $10 cash or check made out to Paul Harris (includes shipping):Paul Harris 20 Quickstep ln. #1 San Francisco, Ca 94115
Information | Workshops | Articles | Profiles | Contact us | Links | Reviews | Home
