Essence, Not Size, Determines Significance.

During a recent visit to Yosemite National Park I learned that significance does not depend on magnitude or size. The main attractions in Yosemite are arrayed along a twelve-mile loop through the Yosemite Valley. Half Dome, El Capitan, and Yosemite Falls are without dispute, awe-inspiring. But to me, the most striking feature in the valley is not the soaring grandeur of the rock edifices, but rather a small, insignificant spring at the end of the 12-mile loop. It is so insignificant that it does not have a parking area, but only a small turnout from the road.

I pull my car into the turnout more from my mother’s influence (she always wanted to read every exhibit card in a museum and see every sight on a trip) than interest in the roadside feature. I park, turn off my car, and get out to read the sign posted by the national park service. A small sign says, “Fern Spring.”

Fern Spring - the Source of Life

Fern Spring – the Source of Life

A larger sign nearby says the waters flowing from Fern Spring originate from snow melt at the top of the valley rim and filter through hundreds of vertical feet of rock to the spring’s location on the valley floor. The description continues:

“Native Americans consider Fern Spring a site of spiritual significance and call it ‘the source of life’.”I pause. I read the sign again. I wonder how long does it take the water to get from valley rim to this spring. I wonder at the powerful appellation of “source of life” appended by those more in touch with the earth and its mysteries than I. I think, what can this teach me?

Continue Reading →

Tragedy at the Waterfalls

Going to trial can be like walking on the brink of a waterfall. I thought of this today as I was climbing boulders in Yosemite National Park to get to the base of a waterfall. It began with a short hike to the viewpoint for Bridal Veil Falls. At that point many people scramble up the boulder strewn creek bed below the falls trying to reach the base of the falls.

Yosemite warning re dangerous rocks approaching Bridal Veil Falls waterfall

Yosemite warning re dangerous rocks approaching Bridal Veil Falls waterfall

DANGER climbing and scrambling on rocks and cliffs is dangerous they are slick wet or dry many injuries and fatalities have occurred

Close up of the sign

Most who begin the climb turn back without finishing. This is because they slip and slide on the water polished surface of the boulders. For hundreds of years the creek’s eroding flow has polished the boulders’ surface so they have little traction for even rubber bottomed shoes to grip. Imagine trying to ascend an ice-covered slope and you get an idea of the intimidation factor in scrambling over these boulders. I accomplished the climb by choosing a route that offered the greatest traction and because I had spent some of my youth in the Alps rock climbing.

Tragedy taught me to be wary of waterfalls.

When I was eleven years old, and not old enough to be a boy scout, the scoutmaster in my boy scout troop died while on a boy scout hike because he did not appreciate the danger that waterfalls pose. The outing was a typical weekend “overnighter.” The scout troop departed the scoutmaster’s home Friday in the late afternoon and planned to return Saturday afternoon. The scout master was the only adult, and five scouts crowded into his car with their backpacks. They drove to the mountains above our town, parked the car, and began the planned three mile hike.

The route took the group across a small stream in Farmington Canyon at a point where the stream went over a waterfall of no great consequence. As the scouts were crossing the stream near the brink of the waterfall, the young scoutmaster stood on the verge of the falls to insure that none of the scouts ventured too close to the edge. Unfortunately, the scoutmaster apparently did not understand that the stones at the verge of the falls are polished to a near glass-like smoothness by the water rushing over the falls, and he slipped from his position and fell over the falls, landing in knee-deep water.

The group of scouts rushed to help their scoutmaster. He was still conscious and told them, “Don’t move me. I’ve broken my back.” The scouts followed orders so he lay in very cold, snow melt water at the base of the falls.

Continue Reading →

Your Client is Your Best Weapon (Video)

Legal Counselor

There is a very fine line that runs through preparing a client to testify at trial and manufacturing a story for the client. Many times–and I’ve seen this happen–attorneys, who for some reason have this need to control everything, think that the story is one thing, and they try to shoehorn everything into it, and force the client’s answers to conform to the attorney’s story.

The problem with that is it’s the CLIENT’S story, and the attorney is missing something. If there is this struggle between client and attorney as to what the case is going to be, my experience is, the attorney needs to take a step back and gain greater understanding of what his client knows, has experienced, has lived with.

Watch the video of the rest of the interview on Legal Counselor: Your Client is Your Best Weapon

The Power of Stories (Video)

I believe that facts and law really don’t matter in trial. What does matter is the story. A story trumps facts and law every time. I’ll tell you why I feel this way. The decision making process that everyone goes through, whether they know it or not, is based upon the person’s principles and values. They make a decision, and THEN they go looking for facts and law to support that decision.

What Sitting Bull Would Teach Those Who Want to Be Trial Lawyers.

Sitting Bull was a Hunkpapa Lakota holy man who led his people as a tribal chief during years of resistance to United States government.

Sitting Bull was a Hunkpapa Lakota holy man who led his people as a tribal chief during years of resistance to United States government.

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.”

Continue Reading →