Category Archives: Advocacy


WE NEED WU WEI Wu wei pronounced “ooo-way” is the Chinese term for what we might call “effortless action.” Dr. Slingerland a professor of Asian studies at the University of British Columbia has written a book “Trying not to Try: The Art and Science of Spontaneity” which explores this ancient Chinese concept. The whole concept has very broad application, but my interest was in how it applies to us in trying lawsuits. We all would like to not be self-conscious and nervous, but rather natural as well as spontaneous

The Confucian approach to achieving wu wei uses willpower and rigid adherence to rules, traditions and rituals. The idea was that one would learn proper behavior so well that it became second nature and be spontaneous. The Taoists, on the other hand, rejected the effort with the Confucian approach which they thought was in conflict with the whole idea of not trying. They emphasized personal meditation instead of formal learning behavior. In addition, there are other variations of this idea among Zen Buddhist, Hindu and even Christian philosophers.

The aspect of wu wei I’m interested in is the idea that when we simply “go with the flow” we avoid analysis and overthinking which results in paralysis of thought and action. When we are acting in a spontaneous manner without conscious self-evaluation we are more attractive, impressive and charismatic. Think of it like the idea of an athlete being “in the zone.”

Dr. Slingerland argues that the best strategy involves a combination of approaches. Conscious effort is necessary to first learn a skill. Training one to follow certain actions for rules conserves energy for conscious performance. However, as the Taoists recognized, trying can become counterproductive. In a psychological experiment subjects were asked to hold the pendulum and not allow it to move. It demonstrated more effort that was put into trying to keep it to move caused it to move even more.

He suggests that we need to be able to transcend our training can relax completely into what we are doing for getting ourselves in the process. A fourth century BC Chinese philosopher recommended trying, but not too hard. The whole idea is well known in athletics. The basketball player who suddenly seems incapable of f missing a basket and so on.

In the book “Flow: The Psychology of Optimal Experience” the experience is described as being completely absorbed in an activity. During this ‘optimal experience’ they feel “strong, alert, in effortless control, unselfconscious, and at the peak of their abilities. Some of the characteristics that put one in this state of mind, after appropriate preparation, involve: (one) complete absorption in the activity (two) clear goals in mind for the activity in question (three) total concentration on the task at hand (four) a loss of self-consciousness and (five) a sense of active control over the situation. Trial lawyers should strive for the same state of mind through thorough preparation which produces confidence and total absorption in their job at the time.

Too often we are really thinking about what the judge, jurors or others are thinking about us and trying to impress others. We need wu wei in our professional work.


David Garth has died at age 84. He was a pioneer in running political commercials to elect politicians. He was renowned for elevating virtual unknowns into upset victories and helping politicians turn around damaging information. Garth was the model for the media hustler in Robert Redford’s film “The Candidate.”

He was an innovator in having candidates use a video camera for training. He could sum up a campaign theme in two words. In one election his campaign slogan was “enough is enough.” A New York Mayor was facing election after failing to provide adequate snow removal equipment during the city’s biggest snowfall. The public was outraged.  Garth had the mayor admit it a TV ad even though it was at a time when candidates simply didn’t admit mistakes. His candidate, however, said on TV:  “I guessed wrong on the weather before the city’s biggest snowfall last winter, and that was a mistake. But, I put 6000 more cops in the street, and that was no mistake.” The candidate won.

Mr. Gore once explained the secret of his success was that: “I sometimes think our real strength  is in under producing, in stripping away all of the political clichés like blue shirts for TV.” In other words, in simplicity and honesty. Lessons for us all.


I’ve written several times about storytelling and its essential involvement in every trial lawyer’s advocacy.  My most recent post was:  A recent article reminded me again  about the importance of storytelling to trial lawyers.

We have all heard about how we should present our cases as stories. We know the emphasis Gerry Spence has put upon telling our case as a client’s story. He has rightfully observed that humans are “hard wired” for stories. Yet, it has been my experience that when the subject is storytelling the great majority of trial lawyers only see it as simply one of many tools available. They think that it is probably helpful but not that it is required as the best possible way to present their case. They echo the significance of storytelling, but rarely make an effort to do so. The necessity of storytelling, however, isn’t lost on the scientific and business community.

The December 13th New York Times featured an article by Alina Urgent: Storytelling Your Way to a Better Job or a Stronger Startup. The article advocated storytelling as best way to present your case for something you want. It described how advertisers incorporate storytelling into their commercials. The idea is important enough that there are people who are story coaches for business leaders and others. One coach works with companies including American Express, PBS and Random House charging $1800-$3500 for workshops and $500-$5000 for one on one training. Another charges $6000-$25,000 for speeches and training for corporations about storytelling. Clearly the business world and others are convinced about the value of storytelling.

Human beings have communicated by stories since they first could communicate.  Storytelling has been called “a strategic tool with irresistible power” by the Harvard business review. The power of storytelling to attract and even manipulate is well-known and well established. However the reason for its appeal has not always been clear. Research now suggests the answer is that storytelling promotes a hormone in the brain that unconsciously creates empathy.

Studies indicate a connection with storytelling and the production in the brain of a hormone “oxytocin.” The hormone is produced by the hypothalamus in the brain. It plays an important role in the neuroanatomy of intimacy, specifically in sexual reproduction of both sexes. It is often referred to as the “trust hormone” that is involved in social relationships. New research suggests that oxytocin plays a crucial part in promoting trust and empathy towards others and has also been called the “bonding hormone.”

Research shows that storytelling promotes the release of oxytocin in the brain. One study involved Paul Zak, professor of economics, psychology and management at Claremont graduate University. He studies oxytocin. To see the impact of storytelling on oxytocin, Professor. Zak conducted an often cited experiment. Participants had blood drawn measuring the level of oxytocin first and then watched videos of stories about things like giving to charities. After watching the videos they had their blood drawn again and another measurement made of oxytocin levels. All of the participants had a significant increase in oxytocin after watching the video stories.

In another study the question of what makes a good story was conducted by a professor at John’s Hopkins University. It involved his graduate students in reviewing two years of Super Bowl commercials. The team coded each of the Super Bowl commercials with a well-known outline for successful stories, Freytag’s Pyramid. In 1863 Gustav Freytag analyzed stories and novels for a common pattern and created a pyramid of steps or acts. Act one, scene setting; Act two rising action; Act three, the climax and turning point; Act four, the reversal and falling action; and Act five the conclusion or moment of last suspense. When the analysis of the Super Bowl commercials was finished it was found that there was a direction correlation of liking or not liking the commercials by TV watchers and the pyramid outline. The most popular followed the outline and the least popular only some of it. They reviewed how consumers had rated the commercials on social media. Using this study they were able to accurately predict the most popular commercial for the next Super bowl.

The story has to be told right to be compelling. A well told story has a structure with a defined beginning, middle and end. Experts say the reason many stories we tell don’t work is that as adults, we tend to judge, analyze and explain and experience, rather than simply tell what happened. Good stories are detailed, honest and personal. Stories we particularly like usually involve some sort of vulnerability without too much emotion. The article points out that: “You can have a multimillion dollar movie that bombs and a brilliant five acts story in 30 seconds”

We need to learn how to tell compelling stories that will invoke a trust or bonding response. There are defined ways of doing this. We all should be familiar with Joseph Campbell’s “The Hero with a Thousand Faces” because it is the proven outline for successful movies, screenplays and novels. In fact, producers evaluate novels and screenplays for probable success using the outline.

A quick example of his recommended story would consist of an ordinary person who is called upon to save the village with a magic elixir that is in a cave in a faraway country guarded by a dragon. At first refusing, the hero meets a mentor who provides guidance convincing the reluctant hero to accept and start out on the journey. The hero is tested on the way, arrives at the cave, has another crisis of faith, but enters and kills the dragon. Carrying the magic elixir back to the village, the hero is again tested on the journey home resulting in a better stronger person. The hero returns to the village with the elixir, saving the village and is given a hero’s welcome. Campbell’s actual outline can be summarized by a story following these steps in this order:

  1. The hero in his or her ordinary world
  2. The call for a hero to save the situation e.g. find the magic elixir
  3. The refusal by the hero to accept
  4. The hero meets the mentor who advises the hero
  5. The hero decides to leave the ordinary world for the unknown
  6. The hero is tested on the journey and survives
  7. The approach before the challenge
  8. The ordeal of confronting death or greatest fear by continuing
  9. The reward where the hero takes possession of the treasure or elixir
  10. The road back to the ordinary world
  11. The resurrection after another severe test with the hero achieving a higher level
  12. The return with the treasure as a hero

In the above outline the hero of this story would likely be the jury rather than your client. Think about your jurors who arrive at court as ordinary people who asked to do something extraordinary from their ordinary lives for the good of the community. They become convinced by lawyer “mentors” and start on the journey to do the right thing in justice. They face the challenge of the jury room in deliberations. Their verdict is the treasure they bring back for the community. Your story can be framed so that it is presented to them with them in the role of a hero asked to do something extraordinary and outside their daily lives. The most important thing they will ever do and will be proud of for the rest of their lives.

It can be applied in other ways as well including, of course to the client who was suddenly and unwillingly thrust into a crisis situation in their life. They are tested and overcome great obstacles deserving of hero’s reward through a just verdict. Story telling applies at every stage of case, jury selection, opening statement, direct examination cross examination and summation. The opening statement should be in a story form and not a chronological narrative of events. It must be told in the present tense as if happening before the jury now.  It can be told in the 1st person as a participant or observer of the events. It can be told from alternative viewpoints including that of the defective product that caused the injury. It should always begin with the defendant and not the plaintiff’s actions for reasons previously outlined in this blog.  Whatever the choices, make it a compelling, personal story well told.


I don’t recommend books often, but two friends of mine have written books that are impressive dealing with plaintiff’s trial practice. One is by the incredible Randi McGinn, the first woman to be selected as president of the Inner Circle of Advocates, the leading plaintiff’s trial organization limited to one hundred members nation wide. As  a New Mexico trial lawyer she heads an all woman law firm and has had amazing verdicts. She is known for her great jury selection skills  and her creative trial skills. The book is Changing Laws & Saving Lives – How  to take on Corporate Giants & Win.

This is not just a “pat myself on my back” biography, but one  where the examples from her trials and her suggestions are both unique as well as informative. I know her to be one of the most creative trial lawyers and she illustrates  that in her book. She offers helpful advice and she gives encouragement to us with her morale building suggesstions. You  will be entertained as  well as  informed.

For example, in  her  chapter on cross esamination she describes the trial with the defense medical expert she cross  examined. She used yellow  sticky notes on the doctor, after asking  his permission, to show all the areas  of the body where the undiagnosed cancer could go resulting in the expert standing in front of the  jury with yellow sticky notes all over  his suit. The book is available from:   http://

Bill Bailey and I have been friends for many years. Like Randi he was a very creative plaintiff’s attorney and his record like verdicts were the result. He made good plaintiff’s law for us and had many years as an active plaintiff’s attorney before devoting his abilities to teaching, He is now a professor at the University of Washington Law School in Seattle and remains active in the plaintiff bar as well. He and the director of the Washington State Patrol, Seattle Crime Laboratory collaberated in writing  Law, Science & Experts Civil and Criminal Forensics by William S. Bailey and Terrence J. McAdam. This book is also  available  from

What I like about this book is the combining  of Bill’s trial ideas and  the explanations of the scientist about such things as DNA, fingerprints and science and law interacting  generally. While it discusses criminal evidence it has direct application in many ways to civil trials as well. In addition, Bill’s practical advice about taking  depositions and general trial skills is invaluable too. It comes  with a CD.  There is a very good illustration of the cross examination of a defense medical expert  from an actual case that is worth the price of the book itself.

I like practical books with practical, clear advice and  both of these books offer this.