The Lakota warrior and chief known as Tatanka Iyotake, and as Sitting Bull to the white man, did not display heroism and leadership throughout his life. When he was a young member of the Teton Sioux, he was awkward and bore the nickname, “Slow.” Despite Slow having killed his first buffalo by age ten, he remained a boy because the Plains society required that he achieve success in battle through a courageous act.
When Slow was fourteen, he watched as his father and others left camp to attack their traditional enemies, the Crow. Slow was still small and too young to be skilled in the use of weapons, but he was anxious to win the respect due to a warrior. Deciding for himself it was time to become a man, Slow mounted a pony and pursued the war party. When he caught up, he announced to his father, “Today I will become a warrior.”
Slow’s father, not wanting to restrain his son’s spirit, welcomed him, instructed him on bravery and wisdom in battle, and handed him a coup stick with which he could strike an enemy and gain honor.
The Sioux set an ambush for the Crow. As the Crow party approached, Slow burst from cover and charged the Crow party. The surprised Crows retreated. Slow overtook the slowest Crow warrior, who dismounted and shot at Slow with his bow and arrow. The warrior missed, and Slow hit him with the coup stick, knocking him over. The rest of the Sioux arrived and killed the Crow warrior and routed the other warriors.
Upon returning to the camp, Slow’s father placed Slow on a strong horse and paraded him through the camp shouting, “My son has struck the enemy! His is brave! I name him Sitting Bull.”
The name was not a coincidence. Sitting Bull’s father had encountered a talking buffalo during a hunt. The buffalo recited the names of the four stages of the buffalo’s life, after which the Plains people modeled their own lives. The sitting bull was the first and youngest stage, and a name of great honor. Slow’s father had taken the name Jumping Bull after the experience. The “new name” bestowed on Slow represented that he had passed from boy to warrior.
I want to suggest to you that law school specifically, and society in general, fail to prepare one to step into the courtroom as a warrior. Unlike the Native American culture where major life changes were celebrated through elaborately staged ceremonies marking rites of passage, we graduate law students barely prepared to attend a bar review course and expect them to know how to try a case. Choruses bemoan that attorneys have lost the skills of the trial lawyer when an attorney, particularly in large firms, rarely goes to trial more than ten times during their entire career.
The rites of passage in Native American culture that marked the emergence of the candidate from training and established challenges to prepare him (it was always males) for rebirth as a new person – possessed of a new status, new wisdom, new identity, and a new name, commemorated the birth of a new member of the culture.
I suggest we adopt a changed vision of what trial is, and how we train people to step into the warfare we call trial. We attend law school with law school professors telling students how to try cases by reciting rules born of fear and the need to control: “Don’t ask a question you don’t know the answer to.” “Ask questions that can only be answered ‘yes’ or ‘no’.” “Always appear strong and in control.”
I call, “Bullshit.” I call “Double Bullshit.”
I have never conducted a trial where I followed the rules laid down by the law professors who have never tried a case. In every trial, I must ask questions I don’t know the answer to. I allow witnesses to explain, even on cross examination, because my opponent will elicit the same information on redirect so the explanation will come out anyway. I prefer to let the witness explain and then poke holes in the story to show how ridiculous it is rather than waiting hours if not days for the chance to do so after redirect.
I want you to know that whatever you do in trial is okay provided you understand why you are doing it and what the purpose is. Learning tricks or methods does not make you a trial lawyer. To make the transition, you must become self actualized. You must learn to be aware of who you are and how you feel in the midst of this blood sport we call trial. It is only when we stand confident in the courtroom, knowing ourselves and what we want to accomplish, that we can be “in the moment,” absorbing the developing trial and steering it to the final conclusion we seek.
In my last trial, which ended a week ago after nine weeks, the defense argued that the company that was the subject of the legal malpractice case was a “tiny, little company” with little prospect for success so Plaintiffs could not show that the defendant caused the loss because it was going to fail anyway. I wracked my soul for a way to overcome this most effective of arguments that my opponent had no doubt repeatedly used to amass an overwhelming win / loss record.
As I rose to speak, I focused on the phrase, “tiny, little company,” and began, “We heard Mr. Defense Attorney complain that this was a tiny, little company. Well I have to tell you, a tiny little company is just as entitled to an ethical, competent attorney as the biggest company out there – and much more in need of it.”
Conversations with the jury after their eight figure plaintiffs’ verdict affirmed that the jury felt that the brief statement in my final, final argument swayed the fence sitters on the jury. The argument was the product of my being in the moment, and feeling the outrage of an unfair attack on a good business for the sole purpose of avoiding responsibility. When I focused on those feelings, it was easy to form the argument that sent the jury into the jury room with a clear vision of where I wanted them to go.
Sitting Bull became who and what he was, through the desire to be in the fray and the courage of his commitments. Those wanting to be warriors on the courtroom battlefield will do well to understand that what we are and how we feel about what we are doing is far more important than the rote rules foisted on us in law school. To be a trial lawyer, you must have courage to become who you really are and the determination that regardless of the odds against you, you will go to trial, you will love your clients, and you will win the day for them. Unless you have the courage to commit as Sitting Bull did to becoming a warrior, you will never become a warrior in the courtroom.