Wednesday, August 27, 2008

The Horse You Rode In On

I’ve written before about Laurence Gonzales’ Deep Survival, his book about “Who Lives, Who Dies, and Why.” Reading it recently, I was reminded of an analogy Gerry Spence frequently uses in describing lawyers and what he tries to teach at Trial Lawyer’s College in DuBois, Wyoming. From the Publisher’s Weekly review of his book “Win Your Case:”

Spence's cowboy Uncle Slim once said, "You can't get nowhere with a thousand-dollar saddle on a ten-dollar horse." Noted trial lawyer Spence ( How to Argue and Win Every Time) applies this principle to anyone making a case, whether to a jury, a customer or a boss. Tricks and techniques are the high-priced saddle, he says; more important is the person making the case. Thus his method focuses on "the power of being genuine."

So the idea that “tricks and techniques are the high priced saddle” and that we should focus more on the horse- on ourselves as lawyers- is one that is taught at TLC and at seminars across the country: The jury won’t buy into your and will in fact see right through your “tricks and techniques.” But if you’re genuine, if you work on the “horse” and work on really caring about your client and do so in a genuine way, you’ll carry your client more successfully is the teaching.

Gonzales book on survival contains a similar horse example but he equates the “jockey” on the horse to reason and the “horse” to emotion. As humans, we’re the combination of these two forces. Guess who’s in charge?

The human organism, then, is like a jockey on a thoroughbred in the gate. He’s a small man and it’s a big horse, and if it decides to get excited in that small metal cage, the jockey is going to get mangled, possibly killed. So he takes great care to be gentle. The jockey is reason and the horse is emotion, a complex of systems breed over eons of evolution and shaped by experience, which exist for your survival. They are so powerful, they can make you do things you’d never think to do, and they can allow you to do things you’d never believe yourself capable of doing. The jockey can’t win without the horse, and the horse can’t race alone. In the gate, they are two and it’s dangerous. but when they run, they are one, and it’s positively godly.

They both are, or at least should be. Lack of survival (becoming dead) happens, in Gonzales’ view, when the “horse” of emotion takes over for the jockey completely, which is a typical reaction when we’re confronted with our own imminent deaths.

He describes search and rescue teams recovering scuba diving accident victims drowned with full oxygen tanks on their backs. The reason? When panic sets in, an instinct to remove all things from the mouth kicks in, and these panicked, “horse” (pure emotion)-driven victims pull their own breathing apparatuses out, controlled completely by emotion as they pull out their sources of survival and suck in huge breaths of water.

It’s easy to know what to do when you’re above the surface, however. The trick, the survival technique, is to not let the “horse” run wild. Easier said than done but still essential.

I wonder, however, if the analogy of the horse and jockey, of emotion and reason, helps us as lawyers as well. Our training tells us, and the courtroom procedures are built on the belief that, people arrive at decisions using only their intellect. Consider the judge instructing the jury to “disregard” certain testimony, as if their intellect could simply erase that factor from their purely rational analysis. Isn’t that indicative of a system that pretends the “jockey” is alone, that the “horse” is simply ignored by rational people? Isn’t that naive, however, to believe that emotion won’t play a part or that the jury will simply disregard the witnesses’ mention of something that wasn’t supposed to come up?

Don’t we, as people, arrive at decisions on the horse of emotion and then justify our arrival as if we got there rationally? Don’t we get there on the horse and then, once we’re there, pretend our emotions weren’t the driving force?


Mark Bennett said...

Have you finished the book? Gonzales says we need a balance of horse and jockey. All intellect and no emotion will kill us as surely as the inverse.

Mark Bennett said...

Incidentally, I think Gonzales's horse and rider are parallel to Spence's: Humanness / emotion versus technique / intellect.

Glen Graham said...

Mr. Bennett is right. I would like to read the book. You are both superior in your book reading and review of books.
My experience has been that prosecutors like to try to inflame the passions of the jury or to get them angry. Some prosecutors are "angry" and emotional and upset. They say things like "send a message" to the defendant. That is not one of the juries duties according to the jury instructions.
The jury instructions say make a reasoned judgment free of sympathy and prejudice. Obviously, people are human and a judgement without some human emotion might be inhuman but a run-away mob lynching is also not a good thing. I guess there should be some balance. A reasoned judgement free of prejudice and sympathy according to the instructions.

David Tarrell said...

I probably didn't make clear that Gonzales stresses balance as the way to survive. Remember STOP? (stop, think, observe, plan. I think he says later that it should be Stop, Observe, Think, and Plan, but that isn't quite easy to remember)

I think lawyers rarely need to be reminded to use their intellects as almost all our training pushes this, but I guess the test is to balance the two when it counts, to fall back on your training and balance horse and jockey.

I think of your analogy about having your head bounce down the temple steps if you're too focused on the thinking and not being in the moment.

Glen, your comment reminds me of Scout in To Kill a Mockingbird, who sends the mob home after asking one man, "Tell cecil I said, "hey."

It also reminds me of the quote she put it at the beginning of the book: "Lawyers, I suppose, were children once."

I think that's what Spence's training tells us. If we're as credible as a child we can overcome the mob. If we manage our own "horses", but still let them run free, being managed but not held back by the intellects, the result can be incredible.

However, it's easier said than done. Kind of like being "in the moment."