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| Lorne Sabsay |
These days, I try to “send the elevator back down,” a phase coined by George Clooney, to those coming into the legal profession after me. I have “judged” many moot competitions to help younger lawyers, and those who want to become lawyers, craft their skills for court. I have also taught many advocacy programs where I teach the same skills.
I have realized that both BJJ and karate have taught me many valuable lessons that have served me well as a criminal lawyer. I believe they have also sharpened my skills as a civil litigator. Like any field of endeavour, the more you do it, the better your skills get. Or, the corollary: “the harder I train, the luckier I get (there is actually a sign on the wall at Toronto BJJ that says this)!”
Here are lessons that apply equally to BJJ and karate. Perhaps they will make you a better trial lawyer, too:
“Do nothing that is of no use” (Miyamoto Musashi from the Dokkodo, or 21 Precepts).
In both martial arts and law, strategy is paramount. But sometimes less is more. Sometimes the best cross-examination is no cross-examination. Some lawyers use the strategy of “throwing everything and the kitchen sink” into their questioning and arguments just to see what sticks with the judge or jury. This consumes a lot of effort, energy and confuses many. The judge (or judge and jury) then must decide what evidence is germane and what priority to give it.
Asking too many questions shows a lack of strategy, like throwing Jello at a wall and seeing what sticks.
The job of the trial lawyer is to set out the strategy long before s/he sets foot in the courtroom. That’s why people in trouble have hired you. In many instances, the simple and coherent story that is easy for most people to follow is a good strategy.
When a criminal lawyer “just tries things” without thinking them through, the results can be equally sporadic. Criminal defence strategy and litigation strategy require training, practice and discipline to win. Mostly discipline. There is an old Samurai saying that is also applicable to law: “the victory was assured in the training.”
As a criminal lawyer or a civil litigator, you must have a plan for the examination of witnesses and cross-examinations. The strategy to win in BJJ, karate and the courtroom is: “to close all the doors” or “box the witness in.” Leave zero doubt what the answer is. It happens during a fight with a skilled opponent.
No skilled opponent, or savvy witness, gives up a submission willingly. On the mats, you need to close all escape routes before trying the submission. In the dojo, you may need to feint or fake to create the opening for a strike. In the courtroom, equally, if you give a witness a means of escape, the attempted submission, or impeachment likely won’t happen.
Trial lawyers are paid to listen to the witness
Roger Dodd, who might be described as the guru of cross-examination, has noted that lawyers are not paid to talk. They are paid to listen. Further, many criminal law cases are won in the cross-examination of the opponent’s witnesses. It’s been said before, but you learn more by listening than talking.
And real listening is hard. Most people don’t listen, but rather are preparing what they want to say next. Mistake!
Look for the opening. Or, make an opening
My BJJ professor calls it “map-questing.” Part of this is sizing up your opponent. No one ever won a fight with a skilled opponent by just forging ahead with one technique or another. The best martial artists choose their techniques based on how their opponent reacts to the things they do.
“If I do this, what is s/he likely to do next?” The same principle works for both criminal lawyers and for civil litigators, too: find an opening — a hole — in the witness’s testimony or make an opening for yourself by constructing a different argument. Maybe the facts fit in a different sequence? Maybe there are time discrepancies?
You won’t know where the openings are unless you are feeling, or listening, instead of just doing what you think is right, regardless of the reaction of the opponent, or the hostile witness.
Learn to read body language. Make eye contact
When I am getting blank stares from either a witness or the judge, I know I am not getting anywhere. Time for a different line of questioning.
The lawyer I articled for, the great Earl Levy, used to say to me, “When the pen goes down, it’s time to move on,” I know I have the right strategy to explain the argument to a judge or jury. And it was understood. The judge has stopped taking notes.
Either that, or the judge isn’t buying that argument at all. Either way, it’s time to move on.
Think two or three moves ahead
Like in chess, you need to be able to plan two or three moves ahead of the witness (or opponent). You need to think in terms of contingencies. “If s/he does this, I will do this …” or, “If I ask this, the witness could respond with “A” or “B” or “C.” And I need a plan for each reaction/response. Just like I do on the mats. As it is in karate/jiu jitsu, so it should be in court. Play chess. Not checkers.
Use all your resources to size up an opponent
In BJJ and karate, we have a lot of tournaments where you can see opponents in action. What are their favourite moves? At what point in the match do they like to make their move? Many tournaments are recorded these days and watching the playback is very helpful to get a sense of your opponents.
As your trial date approaches, you can call other lawyers in your network and ask some pointed questions about lawyer so-and-so. What are his/her favourite moves/arguments? In what sequence? How does s/he behave in the courtroom, etc.? Anticipate the counter-attack, so you can be ready, and prevail.
Lorne Sabsay is the owner of Sabsay Lawyers and has been practising criminal and civil litigation for 35 years. He is a member of both Toronto BJJ and Northern Karate Schools. He holds a fifth-degree black belt in karate, Shihan-level teaching title in karate and a blue belt in Brazilian jiu-jitsu.
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