SETTING THE MIND FOR WAR. Preparing ourselves for our individual battles is like a nation preparing itself for war. The requirements for winning are many, the most important of which is the state of mind we take into the battlefield. We hear our leaders claiming our cause is just. The enemy is an abominable beast and the safety of the nation, yes, the world, rests upon our victory. Both sides make mirrored claims. We are not afraid—Roosevelt pronouncing from noble heights, “We have nothing to fear but fear itself.” God is on our side—God and justice and reason and honor and human rights and dignity—all are on our side. No honest arguments can be made by our opponent. We will win because we are right and power is on the side of right.
But we’re afraid. It’s dangerous to launch ourselves into any war—wars in the world, at home, at work, or in the courtroom—because all wars seek to alter the status quo and power will fight us down to its toenails. In the civil courts it’s risky to attempt an extraction of money from a corporation for its negligence—to challenge the power of billions of dollars and thousands of employees, its army of lawyers and its corps of experts. We could lose, and the cost of such a war is immense in time, money, and the expenditure of human resources. But more than the costs, if we lose the battle, our reputations, our dearest asset, may be irrevocably damaged and our client’s life will be left broken with disappointment and perhaps with a devastating, unfulfilled need.
If we are employed by a corporation it’s risky to face management for whatever reason. Management is not people-friendly. It is money-friendly. Management has no beating red heart. Its heart is dead, green from the stain of dollars. The people who make up management are also afraid—afraid of their loss of power in intramural wars. Justice is only a word. Fairness is only another word. Workers are but digits that can be replaced with other digits. Those who have power feel it down to their gonads. It’s the stuff that runs businesses and conquers competitors in and out of the organization. Power pushes one up the ladder to the top (where one is eventually toppled). In short, power is beautiful, lush, and wonderful (and a great aphrodisiac), and those in power do not wish to lose it—not any of it—nor to share it—not any of it—nor to risk it—not any of it.
But power is also fragile. It can be conquered by dangerous ideas—for example, that the organization should care more about people than about money, that it should be driven by what’s good for society, not profit alone, that the condition of workers is more important than figures on the profit and loss statement. Such ideas can cost profit, and since in this society money is seen as the ultimate power, and since justice is often equated in dollars, power’s panicked grip on money will never be loosened except in the rarest of circumstances—most likely where a little money will eventually save the organization a lot of money.
Beseeching the power structure for money, for any change in policy that requires money, for recognition that might encourage the further expenditure of money, yes, for fairness or justice that is expressed in terms of money, is risky because those who support such a change will be seen as a threat to power, and those who threaten are seen as the enemy and are put at risk. They risk their jobs, their acceptance by the power structure, and their reputations as worthy members of the organization (not to mention their promised invitation into the local country club). In the end, we are always afraid in various degrees of confronting power.
What about approaching politicians for help, for change? That too is dangerous. Politicians are constantly looking over their shoulders at their human constituency while they slip their hands into the pockets of their nonhuman constituency, their corporate sponsors. Politicians have power, but it has been bought with false promises to the people, and much of it has been paid for with corporate money. Politicians are at once in conflict, since the interest of the people is often antithetical to the interest of the corporation that subsidizes the politician.
“Write your congressman” is the unremitting cry of the impotent. The politician will not change his vote, no matter how many letters, if his underlying power—money—is diminished a dime. The letter writer keeps the U.S. Postal Service in business and provides employment to bored congressional assistants who send out thousands of form letters in response.
The conflicts of power are endemic in the system. We go to war for oil and corporate profit, not liberty. We destroy the people’s pristine forests so that the corporation may sell old-growth redwoods to Japan. We desecrate our wilderness, the precious property of the people, to line the pockets of business. We pollute our rivers, lakes, and oceans—the people’s jewels—for corporate enrichment. We poison our air to secure the right of the corporation to make money. We injure workers to save dollars for the corporation. We die in hospitals from the neglect of hospital managers whose first concern is paying dividends to the shareholders. The conflict between the people who elect the politician and the corporations who buy such elections is configured in the system in such a way that money wins.
It is dangerous to stand up against an illegal, immoral war, to call one’s country to task for its wrongdoing. The danger is that we’ll be seen as unpatriotic. Those who have the courage to speak out, to lay down their bodies to save the environment, to march and to protest, are seen as kooks and fools and some are held up as dangerous and put in jail. When we fight to save our rivers and our lakes and our air we are often confronted by workers whose jobs are threatened if the pollution of the corporations is shut down. When we sue large corporations they sometimes countersue and put our personal assets at risk. When we take on the negligent doctor who has injured us, we face legislators, controlled by the insurance industry, who put caps on our ability to get justice. But no caps are put on the profit that negligent caregivers can make and none are put on the insurance industry to curb its greed. Every attempt to get justice, to change the status quo, to make the slightest indent in the armor of power is dangerous. We are afraid of taking on wars we may lose. Futile endeavors may deliver ulcers and heart attacks and the pounding of creditors at our doors, and we envision ourselves standing in the unemployment lines questioning our worth.
As I walk into the courtroom I feel the urgency of a spastic bladder that demands emptying in response to ancient genes that are preparing me for physical combat. I sweat in that air-conditioned room. What if I lose? What if I must watch them drag my innocent client off to some damnable hole called a penitentiary? What if, in a civil case, my client will endure the rest of her life without medical help, strapped to a wheelchair, a helpless victim of not only the negligent company that I am suing, but also of my own failure as a lawyer?
In the case of the presenter who wants something from the company, a raise, better conditions, shorter hours, a different system—or in the case of the citizen who forwards a just cause or a salesperson whose product must be sold or he’ll be chucked as excess corporate baggage—what if he fails? What if the person confronting power loses his job or is seen as one of those wackos who stands only one rung above the idiot preaching on the street corner? What if he brings shame on his family, or is humiliated in front of his peers? What if none of the above occurs and his rejection confirms what he has always suspected—that he is not worth a tinker’s damn to anyone, not to himself, his boss, or even his family. For the person undertaking these small wars, wars that are all-consuming to him, the stakes are exceedingly high.
Understanding their fear. So we’re afraid? Well, so are they. The mirror is still at work. In every war the powermonger is afraid. It knows the fear it causes in the other nation, which will cause that nation to also become aggressive and dangerous in its defense. Both sides are soaked in fear and both sides proclaim how unafraid they are. So it is in every battle. Again we hear the battle cries, “The enemy will be destroyed. We cannot be beaten. We are right. God is on our side.” But behind it all is a mutual fear.
How do we measure the fear of our opponent in the courtroom or elsewhere? We begin by measuring our own. If we can simply be in the moment, put aside all of the racket from both inside and outside, and in that moment of turning inward feel our fear, we will begin to understand the fear that is powering the enemy. He may not show it. He may look calm. He may laugh and joke. He may threaten. He may puff up like a challenged dog or raise his tail like a cornered skunk, but he is afraid. And we can measure his fear by our own. We both risk the same stakes. A loss on our side that results in damage to our position, our reputation, our financial health, or our emotional well-being reflects the same urgent feelings of our opponent. If we increase the intensity of our attack we only increase the fear level of our opponent and raise the level of his response.
We had hoped he would run. We had hoped he would pay, or give in. We had hoped he would lie down on his back like a whipped pup with his feet in the air. But humans, and particularly groups of humans in the form of government or corporate clusters, do not typically react to their fear by appeasement or surrender. I have never seen a corporation equipped with feet with which to flee nor any government entity with legs with which to retreat.
But the persons manipulating these organizations are afraid. Despite their power, what if they are beaten? What if they win but lose stature? What if the public is turned against them? What if they are criticized for judgments that prove harmful to the organization and they lose some or all of their power? What if they lose the most precious of all things—that lovely green?
How we deal with our fear is the only concern. How the opponent deals with his is his problem—one that he will likely not handle as well as we handle ours. He will likely use more force, expend more money, threaten us more, attempt to injure our standing in the courtroom or elsewhere, which only further motivates us. The more our opponent becomes frightened, the harder our task of winning will become. I say never intentionally set out to frighten an opponent. If we can hold our opponent’s fear to a minimum it will be that much easier to defeat him.
Dealing with our fear. I’ve always been afraid. From the time I was a little boy I was afraid. I thought I was a coward and I felt like one. My father was a brave man, a gentle man, but to me he seemed fearless. I knew I could never be totally loved by him because I wasn’t brave like he was. How could a brave father love a son who was such a sissy at heart? Even after all these years, when I go into a courtroom I still feel fear. People’s lives and my career are in my hands. I’m afraid I’m going to fail. Indeed, now as an old man I am completing the circle of fear. I am as afraid as I was when I was a young man trying my first case. I am only better at admitting it. And the question for me has always been, how do I deal with that fear?
To me, fear is one of the most painful of human experiences. It is an ugly, raw emotional ulcer that stains everything I think and do. I cannot run from it. I cannot shed its prickly shroud. I cannot expel the feeling of dread. My chest is tight and my belly is in spasm. I would rather smash my thumb in the car door than go around all day suffocating in fear.
Yet over the years I’ve found that my fear can be a powerful gift. First, I’ve never known a dead man who was afraid. Fear reminds me I’m quite alive. I’ve never known anybody who cared, who was facing something difficult, who wasn’t afraid—afraid of failure. If we aren’t afraid it means we don’t care. Fear leads us to the better parts of us.
Although I’d rather suffer most physical pain than the pain of fear, I need to feel it—to take it into myself. Fear is like a pack of dogs—it chases us, and if we try to run or hide from it the dogs will continue their chase until finally, exhausted, we fall and are devoured. But if we turn on the dogs, turn on the fear, concentrate on it and feel it, we’re taken into a different world. Something happens to the dogs when we face the dogs. They begin to slink away. Embracing fear we leave fear powerless. Fear becomes afraid of us.
When we’re afraid and do not own it as a legitimate, useful tool, when we hide from it, fear tends to put on different masks. My own response to unattended fear is to attack, to become aggressive and hostile. Afraid, the lion attacks. Like the rabbit that runs to its hole, some people evade. The frightened killdeer hops along crying, acting as if it has a broken wing so that we may follow it away from its nest. It misleads. We distrust people who evade or mislead, and we reject them. We see witnesses who react to their fear in much the same ways—as do we. The only appropriate method to deal with fear is to own it.
When it came time for me to make my closing argument in the defense of Randy Weaver in the Ruby Ridge murder case the judge peered down at me and said, “Mr. Spence, you may begin your argument.” My heart was pounding. The jury was watching, waiting to finally judge me, my client, and our defense. Could I answer the United States attorney? His argument had been powerful. To listen to the D.A., Randy Weaver was this vicious skinhead, this murderer who had conspired to kill a United States marshal. Would they believe what I knew was true—that the government, not Randy Weaver, was the murderer? My throat felt tight. My mind was blank. The juices of the fear drowned out all wisdom and clouded the eyes. I was afraid and I reverted to the animal. I wanted to attack the opponent. Damn the fear!
I looked down at my feet and tried to locate exactly where my fear lay. There it was, where I could always find it—high up along the ribs in my chest. I felt it, all of it that I could take into myself. Then I looked up at the jury.
“Ladies and gentlemen of the jury,” I began. “I wish I weren’t so afraid.” I could hear my own words as if I were listening to another person in the courtroom. “I wish, after all of these years in the courtroom I didn’t feel this way. You’d think I could get over it.”
I thought some of the jurors looked surprised. Here was this lawyer who had taken the United States government head on, who’d cross-examined more than fifty mostly hostile government witnesses—the FBI, the marshals, the government experts—and he was now confessing his fear?
“I’m afraid I won’t be able to make the kind of argument to you that Randy Weaver deserves,” I said. “After nearly three months of trial, I’m afraid I won’t measure up. I wish I were a better lawyer.” Every word I said was true. And I knew that the jurors themselves were afraid—the mirror. After confessing my fear I spoke to them about their fear. They, too, must be afraid. What if they convicted an innocent man? What if they missed important clues in the evidence? What if, at last, they failed to render justice?
The jurors and I connected. I could feel it—the symbiotic relationship that we shared—and my fear began to melt away. I saw the jurors’ faces relax, their arms and legs begin to unfold. Soon my argument took on its own life, one gilded with my feelings. And because I was in touch with my feelings I could be both angry and humorous. The jury was invested in my argument and listened intently to it despite its flaws—the false starts, the errors in syntax, the trails that wandered off and finally came back again. They listened to my argument because it was real and because I was real, and the jury acquitted Randy Weaver, who was indeed an innocent man.
Some would say it was because of the oratory. Cicero was the great teacher of oratory and argument. His view was that to speak from the heart was a foolishness not befitting a public speaker. He approached his argument by first identifying his goal. Then he asked himself, what does my audience want for themselves? His next question was, how can I manipulate their minds and their psyches to believe as I wish them to believe, to act as I wish them to act? How do I hide my weak arguments and bedazzle them with my language and its music?
But in a world in which value is placed on justice above oratory, on truth above rhetoric, the Ciceronian is soon discovered. He is too skillful, too unmoved by the soul, too pretty and distant, too clever and beguiling. Who would trust a dangerous rascal who could argue either side of the case with equal skill but without an honest commitment of his own?
In the Randy Weaver case my oratory, as it were, was of a different sort—one that arose from the heart, the head merely its guide. Besides, the jurors had lived with me and I with them all of those months. They’d seen me in every possible situation. They’d seen me say I didn’t know, when I didn’t. They’d seen me admit that I was confused when I was, that I was wrong when I’d been wrong. They saw that I cared for Randy Weaver, and that I was outraged when the prosecutors attempted to unfairly demonize him by attacking his religious beliefs—beliefs I didn’t share. By the time of the final argument I’d long ago established credibility with the jury, both by telling the truth about my case and about myself. Had Cicero made his arguments before a modern jury, I take it he would have been greatly admired for his skill, but the jurors’ psychic tentacles that seek out the pretender would likely have revealed him along the way, no matter how sharply his skill had been honed.
In the Weaver case my quest for credibility began early on—with my consciously feeling the pain of fear and dealing with it. The fighter in the ring is marinated in his fear and energized by it. He enters the ring sweating, his heart pounding. He tries to look confident. He waves at the crowd and attempts to stare down his opponent. He is bursting with power he never dreamed of. His reactions are quicker. His instincts take over. In the same way, the fighter in the courtroom absorbs fear into himself, and out of that painful cauldron his creative juices come boiling out and cause him to react intuitively and powerfully. The adrenaline that urges us to fight or flee nourishes our energy and empowers us, and it is the principal ingredient that makes up the winning stuff of courtroom drama.
In the same way, when we face the boss—that powerful overlord who can write the pink slip as fast as the slaughtermaster cuts the throat of the lamb—a fever of fear takes over. “My God! What am I doing here? I really could do without the promotion. He’s going to put me in the troublemaker file, and when the next cuts come, I go. I need to feed the kids.” But up the line, the vice president is feeling the same way. The top guy topples. The board, the president, they are all vulnerable and can be dumped by the turn of some unforeseen event that’s lying there like a land mine in their path. Management dances on a slippery floor.
It is all right to be afraid. One cannot be brave without fear. Those young fools who love danger and feel no fear are only fools. Courage comes when we recognize our fear, face it, and hurl ourselves into the battle. I think of Captain Ahab, in Moby Dick, who said he wanted no men on his ship who were not afraid of the whale—which means that he didn’t want any fools around him. The line between courage and foolhardiness is narrow.
At last we see fear as our friend. It warns us, protects us, and prepares us for battle. The sages were never afraid of fear. They embraced it, learned from it, grew from it, and survived to become old sages.
As we already know, the risks we face are great. But the greatest risk of all is doing nothing when something needs doing. The organism that does nothing soon dies. I see it everywhere, every day, men and women who have lived their lives inside their own locked closets of fear. Like plants in the dark, they wither, turn yellow, and die. Is it not better that we should have lived fully, bravely, and died in the sun?
Withholding permission to be beaten. There are those few who can never be beaten. We call them champions. We see them as superheroes—like Muhammad Ali, who, although decisions went against him both in and out of the ring, was never beaten. Something different, something shiny, vibrant, heroic, creates an aura around this kind. Something unconquerable. I say we cannot be beaten without giving our permission to be beaten.
We can deal with the prospect of defeat in several ways. We can accept our defeat, make excuses for it, and call upon the astounding ability of the human mind to rationalize it. We can run and become encased in a different kind of pain, the throbbing realization of cowardice, which is more painful than the pain of having fought and lost. Or we can simply refuse to give our opponent permission to defeat us.
I remember how painful my first loss in the courtroom was—watching a mother walk out of the courtroom with her young crippled son on crutches at her side. The jury had given nothing and had found in favor of the negligent railroad. Found against justice. Found that the boy could never be awarded the funds necessary to pay the medical bills for the operations he would need for many years. I wept. The weeping did no good. I was angry. I turned the anger inward and I hated myself, loathed my incompetence, and felt the ugly sting of guilt.
Other defeats followed, four others in a row. I would never become a trial lawyer. I would never win. I remembered as a child how I was afraid of the bully on the school grounds who chased me home. Breathless, I ran to the safety of the house only to meet my father who had a different idea about bullies. “They can only win if you let them,” my father said matter of factly.
“He’s bigger’n me,” I said. “He’s tougher’n me.”
“Well, when he knocks you down, just get up again,” my father said, as if the solution were as plain as anything. “And then when he knocks you down again, get up again. Pretty soon he’ll understand that he can’t beat you. Just keep getting up and he’ll finally give up.” I didn’t think that was a very good approach. Getting beaten up didn’t appeal to me, and I continued to run and cower. But over the years the pain of secretly acknowledging my cowardice proved to be far worse than the beating I might have taken.
As a young lawyer there came a time when the lessons of my father came seeping up through my wretchedness. Did I need this pain of defeat? I had stood up in the courtroom and been knocked down. I had gotten up again, only to be knocked down again and again. Was the pain of defeat a necessary part of my life? For the hungry hawk there must be a prey. It is our choice: We can continue to play the role of prey or refuse that role.
Once I understood that simple shift in paradigm from one who gives his permission to be defeated to one who withholds it, everything about me began to change—my voice, my posture, my self-esteem, my confidence, even my walk. One is either prey, victim, sufferer, wounded, loser, and casualty, and is devoured, or one is unconquerable.
So one becomes full of the self? Yes. The perfect, indomitable self that can feel fear and love as well. My opponent may win the case, but he has not defeated me. My appeals will follow. The gift of surrender will not come. The submission as prey will not come. The prophet can be hung, the saint executed, the true believer jailed, the leader assassinated, but they are not defeated. A life’s sentence in prison against Nelson Mandela, the South African statesman and first black president of South Africa did not defeat him. The murder of Martin Luther King Jr. did not defeat him. And the crucifixion of Christ only insured his immortality. None of these men have been defeated to this moment.
Changing one’s vision of the self gives birth to a new person. The question is no longer why am I being defeated? No question is asked. The indomitable self radiates from the person and beams out in a sort of invisible halo of power. It is more than charisma. It is awesome to behold, like a roaring river. It need not take on the thunder of the orator. It is often quiet and easy, but the power is there—a sense that to conquer the person one would have to kill him with an ax.
Things change in the presence of such a person. Doors open. Respect is given as automatically as a smile returns a smile. Possessing such power, the person can be humble, and gentle, and loving, because refusing to give permission to be defeated, a simple, transforming state of mind, no longer requires the false accouterments of power—bravado, arrogance, and conceit. This power which is achieved by retaining what has belonged to us all along—our refusal to give our permission to be defeated—is complete and perfect in itself.
Yet we also give ourselves permission to lose a battle to win the war. Often I meet people who are intransigent concerning some minor issue in their lives. When, as it were, their ship has taken a broadside hit we find them fussing over a leaky faucet. We must choose our battles and where we will fight them and when. I do not preach against losing every battle. I only say we shall never deliver our permission to be beaten in the war.
Preparing the witness against fear. If we are afraid, how then does our client feel? How does the witness feel who must take an oath to tell the truth but who also knows he will be attacked by the opposing counsel in order to display him as a liar? One may encounter nearly every danger in the courtroom, but few are as potentially destructive as the witness’s reaction to his own fear.
We have already seen that when we’re afraid, we tend to revert to our animal state in defense of our fear. We attack or run or hide or evade, and we have seen that none of these reactions to fear are acceptable to the jury. We do not trust a witness who is hostile, or one who will not be open with us, who hides. We are leery of the witness who fudges and hedges. So, if the witness is left to deal with his fear according to his natural instincts, we will likely present a witness who will disappoint us.
As we have already seen, there is no way for either us or our witness to deal with fear effectively except to face it head on. But how? I sit down with the witness, even the veteran witness, and lay the issue out on the table. I begin by saying something like this: “You know, being a witness is not an easy task. It’s hard because we know that we are being tested, that the jury might not believe us, that the other side will attack us. Lots of things to be afraid of.” But remembering that we can never ask another to own his fear if we do not own ours, I might then say what is true for me. “I know what it is to be afraid. I never go into a courtroom without feeling fear. And when I put you on the stand I will be anxious. I’ll think, I wonder if I can ask the right questions and whether my questions will be objected to by the other side and their objections sustained? Maybe the judge doesn’t like me. Maybe he will hold against me and embarrass me in front of the jury. I’m afraid I won’t be able to think fast enough, that my mind will stall. It’s just the same old stuff I always feel in a courtroom—its common name is fear. And it’s all right. It hones me. Actually it’s my friend.”
Then, and only after I have owned my own fear, do I begin to talk about the witness’s fear. To a lay witness my conversation might continue as follows: “Robert, when you get on the stand you will feel the same thing. Remember, it’s all right to feel fear. Because by feeling it we are going to be able to deal with it in a way that will work for us instead of against us.” I have the witness’s attention.
I might continue, “And when you take the stand I’m going to ask you about your fear. I want you to feel it first, and then to be totally honest with me about it.” I may rehearse what I will ask him about his fear, so that the questions do not frighten him. I may take him to the courtroom at a time when it is vacant and put him on the stand. I will show him where the various members of the court will sit so that he can see the scene before he’s suddenly faced with it for the first time as a witness.
When Robert is called to the stand at trial here is what the examination might sound like: “Robert, how are you feeling right now?” I have instructed him that when I ask such a question that he take the time, yes, all the time he needs to actually zoom in on his feelings. Now his answer will truthfully be, “Afraid, I guess.”
“I want you to tell me everything that you’re afraid of.” The judge is leaning over the bench. Opposing counsel is about to object, but he isn’t quite sure that his objection will be well received by the jury who wants to know why the witness is afraid.
Robert may say, “I’m afraid of them.” He points to the jury.
“The jurors?”
“Yeah.”
“Why are you afraid of them?”
“I’m afraid they won’t believe me. I’m afraid they’ll think I’m lyin’.” Robert is telling the absolute truth. Nearly every witness who takes the stand takes it with a small ghostlike voice inside that whispers, Will they believe me? What do I have to do, what do I have to say, and how do I have to say it to make them believe me?”
We might continue with our questions about fear. “Well, Robert, is there anyone else you’re afraid of here?”
“Yes.” He points at the judge.
“Why are you afraid of him?”
“I don’ know.”
“Try to answer my question.”
Then, to my surprise, he replies: “You told me you were afraid of him, too.” A small, guilty smile is all I can give. “Who else are you afraid of, Robert?”
He points to the prosecutor.
“Why are you afraid of him?”
“He’s gonna ask me a lot of questions and he is smarter than me.”
“Anyone else you are afraid of here?”
“Yes, I guess so.”
“Who?”
“You.”
“Why would you be afraid of me? I care about you. I’m here to defend you. Why would you be afraid of me?”
“I never had anybody else in charge of me before.” He looks helpless.
It makes little difference how we deal with fear in the courtroom or any other room. Once it is dredged up from the murky, roiling depths and spread out in the sunshine it changes. It becomes something that can be dealt with because we have given ourselves permission to face it, and magically it loses its power. Once we understand that to be afraid is not synonymous with being a coward we can put its power to work for us. It will explode into action, into spontaneity, into emotional muscle, and into the caring and commitment we gather to win.