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Chapter 1, The Tao of Criminal Defense Trial Lawyering

Qalmlea at A Musing Taoist has been dedicating a post to each chapter of Lao Tse’s Tao Te Ching, along with her own commentary. The version of the book that she’s using is Stephen Mitchell’s, which I recommend highly. Qalmlea also provides a link to the text of Mitchell’s version online, but it does not include Mitchell’s commentary. Buy the book. (She also links to Red Pine’s translation, Tam Gibbs’s translation, and Thomas Cleary’s translation.

I’ve quoted Lao Tse here before, and mentioned the Tao Te Ching as providing one possible path to understanding the Art of War. In fact, had I reflected further on the subtitle of this Blawg I might have called it “Defending People: The Tao of Criminal Defense Trial Lawyering”. I may yet.

Inspired by Qalmlea’s posts, I’m going to try to walk through the Tao Te Ching, commenting on its applicability to trial lawyering. I am not a Taoist master. I have not spent years studying Lao Tse. If there is Taoist orthodoxy, I don’t know what it is. Therefore, with apologies to Robert M. Pirsig, a disclaimer:

What follows is based on actual occurrences. Although much has been changed for rhetorical purposes, it must be regarded in its essence as fact. However, it should in no way be associated with that great body of factual information relating to orthodox Taoist practice. It’s not very factual on trial lawyering, either.

Chapter 1

The tao that can be told is not the eternal Tao The name that can be named is not the eternal Name.

“The ___ way” of trying cases is not the Way. If you’re trying cases someone else’s way — the TLC way, the NCDC way — you’re not following the Tao.

Mitchell explains that the verb and the noun on the first line are the same: “the tao that can be taoed . . . .” He provides a couple of other versions: “the way that can be weighed . . .” and — my favorite — “the force that can be forced is not the eternal Force.

The unnamable is the eternally real. Naming is the origin of all particular things.

When you put the river in a bottle, it’s no longer a river. When you try to institutionalize a way of trying cases, nailing it to a name, you don’t capture the way.

People name things to so that they can sell them. They will try to sell you their way of trying cases; learn what you can from them, but remember that what they’re selling is not the Way.

When you find your Way of trying criminal cases, you won’t be able to name it or sell it to anyone else. (It’ll be what it it’ll be.)

Free from desire, you realize the mystery. Caught in desire, you see only the manifestations.

You’re not going to find what you desire. If you set about looking for a better way to try cases, you’ll only learn tricks. (Tricks alone won’t get you far; in the words of Gerry Spence’s Uncle Slim, “Ya can’t get nowhere with a thousand-dollar saddle on a ten-dollar horse.”) To be a better criminal defense trial lawyer, look for something else entirely. . .

Yet mystery and manifestations arise from the same source. This source is called darkness.

Darkness within darkness. The gateway to all understanding.

. . . or, better, realize that you don’t really know what it is that you’re looking for. Most lawyers, to be effective, have to unlearn something — what they learned in law school, what they did on mock trial teams, what they saw in the DA’s office, or what they did in the unaware past. The gateway to all understanding is the understanding that we really don’t understand. Darkness within darkness — acceptance of the fact that we don’t know anything about anything. Understanding of both the tricks and the essence of your Way of trying cases begins with that acceptance. If you are open to the possibility that you can learn something about trying a criminal case from every person and every experience you encounter, you’re on to something.



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