Being Present

In yoga, the focus is often on being present.  It’s about understanding what’s going on but not judging.  You should feel what your body is doing as you stay in the moment.

Most of us in the legal profession got here not by living in the moment, but through significant forethought and strong will.  Those aren’t bad qualities, but they’re only helpful in certain aspects of the practice of law.

Drafting a motion is one such aspect.  The motion doesn’t really exist in time, as the reader reviews it at his own pace.  It’s more like painting a portrait than performing a concert.  The reader is going to stroll through the gallery and control his own time when he gets to what you’ve created. He doesn’t have to sit down and watch the show on your time.

With legal writing, you are also typically dealing with facts that already exist.  There may be variables, but you must aver a certain set of facts on which you base your analysis.  You should know those facts may change at a motion hearing, but for the pleading itself, they are usually static.  Being present and experiencing non-judgmental awareness in real time is, for the purposes of writing a motion, more or less pointless.

In the courtroom, however, the moment matters. The skills that got you through law school and helped you write that killer motion aren’t alone going to be sufficient when the officer begins to testify. You should have planned and prepared, of course, but a strong ability to perceive on the spot and under pressure is what I’ve noticed seems to separate the best from everybody else.

Being present optimizes awareness. Indeed, when you’re simply being present, awareness is all you really have. By living in the moment and applying non-judgmental awareness, you’ll notice more than you ever thought possible. This is because your judgments don’t actually enhance what you’re perceiving. If anything, they cloud your thinking.

I recall the first time I noticed a prosecution witness make a blatant factual misstatement on the stand. I spent the rest of the direct examination so excited thinking about impeaching him on cross that I may have missed even better evidence. I would have lost nothing had I simply noted what I heard and continued listening with detached awareness. My excitement, a product of my judgment, in no way enhanced my performance.

Preconceived notions about a witness or exhibit also tend to detract from your ability to most effectively use it to your benefit. You will see every step more clearly and present every step more effectively if you’re able to perceive the evidence as it truly is. You don’t want to taint the evidence with a perspective your audience may not share.

How many times have you heard people who share the same ideology talking about some controversial position they share? How persuasive was that for you? If you’re like me, hearing tax-and-spend Democrats talk in perfect agreement about how we need to jump-start the economy with a bunch of new government spending just isn’t very persuasive. Hearing social conservatives agree about the disastrous effects of gay marriage on society is even less persuasive. The language and approach don’t work for me because I’m not starting out with the same set of judgments and beliefs. We all give a different sermon when we’re preaching to the choir. Too much judgment, and we start treating everyone like a chorister.

Too much judgment also leads to sloppy work. You know the witness’s prior statements, and you know how the story has changed over time. You have concluded that the witness is a liar. To really persuade someone that you’re right, though, you need a demonstration instead of a conclusion. I can call a witness a liar all day long, but in the end, the jury may not care. They probably won’t believe it without evidence, and they may end up feeling bad for the witness. If I catch that witness in a lie, however, it’s a different story. Telling someone your conclusion is no substitute for walking them through the steps you took to reach it. Show, don’t tell. Your personal judgment is largely irrelevant to the former.

When you judge evidence as it’s presented, you’re seeing things through a filter. You’re relying on your preexisting opinions, and those are often opinions the judge and jurors do not share. You can’t read minds, so the best way to convince your audience is to build your position from nothing. When every person experiences the birth and growth of the point you’re trying to make, that’s when you have your best chance of getting them to agree. Inserting your judgments only dilutes your effectiveness.

In the moment, what you notice may be better than what you were seeking. Even if it isn’t, at least you noticed it. You certainly aren’t missing anything. Your perspective is likely closer to that of the people you’re trying to convince, and your presentation isn’t going to come off sounding like biased ramblings from a nut job. When judgment is necessary, like when you hear something objectionable, you’ll be quicker to realize it and voice your position. There’s no drawback.

Determination is a great thing. Planning, judging, and trying to bend the world to conform to your will certainly have a place in the law. Although they may help prepare you for the courtroom, they won’t guarantee your success after you’re inside. The opposite set of skills, being present and carefully observing, will take you a lot farther after the witness takes the stand.