Magical thinking, the law and fragments
By Robin Shellow and Michael Danahey
Creating judges, prosecutors, clients and jurors who are kind, decent and don’t want to hurt others has been the backdrop to my legal practice for 29 years. It has required me to learn skill sets not traditionally utilized by lawyers. By quieting the stressors, I can free my brain to allow fragments to become sequences and sequences to become narratives and encourage people to embrace the better angels of our nature.
In my wee small hours, I improvise stories of pretend clients stored somewhere in the substrata of my mind, whom I know I can save. How it is that I know I can save them is simple, I have created them through an intuition bordering upon magic. The purpose of this paper and the talk which it will accompany is to try to teach others that through intuition we can create the stakeholders in our cases who will make decisions out of their own sense of well-being, joy and empathy. In order to be open to this formulation, it will require the participants to suspend traditional notions of the relationship between proof and truth and supplant it with exercises that create an educated intuition that brings out the essential good in all of the stakeholders and minimizes our obsession with bad facts, bad judges and bad clients. “Bad” can be made to disappear like the contrails of a jet. Leaving nothing but an empty blue sky; the blank canvas upon which we may project the change we wish to see in the world. It is upon this empty blue sky that we can manifest case participants in images none would want to hurt. The first step requires one to take an inventory of all of the times when we took a leap of faith and acted on our own intuition. As lawyers, we tend to put intuition into the category of acquiring knowledge through acute and often intense listening. For purposes of this discussion, intuition is an immediate form of knowledge in which the knower is directly acquainted with the object of knowledge. Intuition differs from all forms of mediated knowledge that utilize rational and analytical thought processes.
With respect to client creation, I ask questions about a situation, problem, or challenge. I use my conscious mind to discern questions I need answered. Most of the time I inform the client that I don’t know the reasons why I ask a question and that, as far as I am concerned, there are no bad answers. What are follows are a series of character sketches, which I call Fragments, approximating the identities of various clients who have crossed our threshold over the years, and from whom we have learned valuable insights into the nature of intuitive fragments.
Fragment – The Man Without A Name
Clients are as obsessed as their lawyers. What are the names of your children, Pauline, Paulette and Paulie. Your first name is Paul. Why did you name your kids after your first name? It is because they all have different mothers and I do not even know the man whose last name is the same as mine. The next words to flash across the blank blue sky are “Defendant and Criminal”. At the time, I didn’t know why the importance of a name was something stored in the unallocated space of my mind. But I knew it was there. Much like the drive of a computer, files that reside in unallocated space are those for which the table of contents has been destroyed and only fragments remain. Somewhere in my unallocated space lived the portion of a term paper I wrote or copied from a friend about either a play by Sophocles or Euripedes or both. This particular method of fragment retrieval is similar to the concept of confabulation– the combining of truths remembered and truths told or read, and accessing the confabulated fragment requires the suspension of truth and proof and a leap of faith.
Sometime after the client with the large magazine returned from the bathroom, a fragment emerged. Someone sent someone to a blind seer to solve a murder. Because the blind seer did not like his job as the trier of fact, the blind seer decided the messenger was the murderer who had committed a crime. A group, a gang, an army was going to take something important from him. The criminal, known as the accused, was outraged at the accusation, which he denounced as a hostile takeover. But in this story, a hostile takeover was avoided by a woman who abandoned her infant son so that the son should not kill the father—whose name the son does not know.
Put in the context of this fragment from my own unallocated space, the client who names his children after his own first name has been abandoned. Every juror and every judge and every one of us has felt that sense of well-being when they have saved and embraced an abandoned kitten. The sequence of this fragment begins with the importance of knowing your own name, and the feeling of total disconnection and abandonment that occurs when one doesn’t even know how one got one’s name. So what I have demonstrated is that trusting one’s own intuition requires us to be conscious of fragments—which some might call “half-truths”. I call them fragments. I am not afraid of fragments. Often it is very detrimental to our clients to attempt to retrieve the entirety of fragments. The part of the oath that witnesses take to tell the “whole truth” is complete bullshit. The concept of knowing the whole truth requires embracing an epistemological principle that the “whole truth is knowable.” So, my advice is to recognize the power of–and have faith in–fragments. How we re-sequence the fragments of our own lives, and to those whose lives we are entrusted, requires one to be attentive to and have faith in fragments—confabulated or not.
After we have begun the re-sequencing of fragments we listen to our heart, our emotional self, and ask, “Is this the right direction? Do I naturally feel attracted to this? Am I hearing truth?” The internal part of yourself, the voice inside, tells you when things feel right or wrong. For example, I equate my heart with how I am feeling about the partially re-sequenced set of fragments. Am I relaxed around the person I am asking the question about, or do I feel uptight and uncomfortable? Keep in mind that your body does talk to you. For me personally, if I feel shut down, tight, and on edge, I know something is not right. However, if I feel open, light-hearted, and relaxed, I trust that my “heart” is telling me all is well. You have to pay attention to the signals. In order to pay attention to the signals, linear thinking and chronology are of little help.
Fragment – The Flake
Flake was the only word I could think of for months after my client kept repeating “I spend a lot of time out of my body…I know it was a lot, but I can’t remember how much, so I cannot plead guilty to something I do not remember”. How a client could fail to recall such a salient detail as the amount of pot she loaded into a truck, was a complete mystery to me. Whether we admit it or not, we always ask ourselves the question “how am I different than my client and how I am the same?” If that question is asked with consciousness, one small sentence can be a mind-blower and/or a life raft for all those who read it or hear it. No, she wasn’t crazy. No, she wasn’t drug soaked. She was 2 years younger than I am and we both liked peppermint tea. But one of us lived in our body and the other did not. No amount of cajoling could get her to remember how much marijuana was in the truck she loaded in a marijuana-affirming state and drove to a non-marijuana-affirming state. Every time the conversation found itself at the “truck” my client left her body and began talking in the third person—as if she wasn’t there. “Danger, Danger” were the words flashing on my brain screen.
Decades before her foray into the non-marijuana affirming state that we call home, my client was one of the few known survivors of an infamous West Coast serial killer and rapist. After she convinced the rapist that he was a person who needed to embrace how much his family loved him, she and her dog Orange Sunshine were let out of the truck. She went to the police. She reported rape. She also naively thought perhaps she had changed him with her words and decided to forgo the prosecution. The man in the truck went on to rape and kill 49 other women. By leaving her body, she has been able to survive the guilt. Together, we were able to survive enough to obtain a sentence where she remained free and is still allowed to go out of her body when circumstances require it. Intuition allowed us to see and appreciate the significance of the words “Danger, Danger” and remember that our job is to alleviate suffering and to possibly teach others. What is successful for one client may or may not be successful for another.
Fragment – The Man With the Awkward Gait
Another example of how chronological thinking impedes the acquisition of intuitive knowledge occurred when a man and his wife came to talk about a criminal fraud kind of problem. The man was accused of stealing. He did not need the money. But, he did say he was terrified he would not live to make enough money to send his young children to college. The words “terrified of dying” were the first sequence written in the blank blue sky. My first question always requires caution as obtaining knowledge through intuition requires an element of trust and connectedness following invariably long first meetings. So, I followed up where he left off and asked, Where did you go to college? Williams, or maybe it was Amherst. Immediately my brain was soaring above the Berkshires on the most perfect autumn day. I have been to the Berkshires only one time. It was rainy and cold. We then had an obligatory discussion about the theft of the money which seemed bland compared to his days at college before I asked him to recount in detail his days at Williams or Amherst. “For four years every day was a ten. I cannot imagine that I will ever be one thousandth of that happy again.” I did a brief foray looking for signs of depression and none—not a one–existed. As usual, he asked for the location of the bathroom. In my office, a statement by anyone that they want to go to the bathroom is a signal that privacy is needed—for whatever reason. So, I watched him walk to the bathroom. Immediately upon his return to the table where we sat beneath our blue skies, I said you must go to a doctor—NOW! He said Why? I think I want to hire you. Violating the family rule of leaving money on the table I said, “I don’t know”. He said Why now? I said “I don’t know”.
Four hours later, a woman who identified herself as the prospective clients’ wife called to say her husband was undergoing surgery for a brain aneurism. I would not have been attentive to an oddity in the prospective client’s gait, if that is what I saw as he walked to the bathroom without having faith in my intuition that his reason for stealing the money resonated as emotionally truthful. The man referenced above got well and, by re-telling the story, charges were averted.
Fragment – The Lion
Leo is all heart. Leo’s name means lion. Leo the Lion-Hearted he would have been called in another time and place, the Age of Arthur and his Knights of the Roundtable. That time has passed, and Camelot is gone, however, so he is left to become Leo the Juvenile Diabetic, an errant Knight of the Roundabout in the Age of Ferguson. Still, Leo is all heart. Lancelot eat your heart out.
Leo is smarter than you think, his kindness mistaken for simplicity and preyed upon by real-life monsters. The Heartless Relative and The Heartless Girlfriend, both master puppeteers intent on pulling Leo’s heartstrings and manipulating him into a position favorable to their sole interest. The Heartless Friends, forever looking for a way to get over on Leo, get theirs and get out. The Heartless Streets that raised them all, taught them that love is a liability, and filled their hearts with its cold gray concrete. The Heartless Cop, shepherd of those same streets, patrolling their borders, always vigilant should someone stray too far. Though Leo may be a lion, his mane looks less and less like a crown these days and, to the Heartless, he is starting to look more and more like food.
You see, Leo’s heart is broken. Leo’s mother just passed away. Leo struggles mightily every day with his chronic illness, a heartless monster in its own right. Leo’s pack abandons him, the pride is gone, the shepherds take shots at him. Lonely and frightened, it is out of this wilderness that we found Leo. Despite his bite-marked heart, Leo finds time to go get lunch for those who need it; Leo drops off little presents to brighten someone’s bad day; Leo even brings insulin to a fellow brittle diabetic, a total stranger who had forgotten her own similar medication. And, when hearing that someone else’s parent has fallen ill, Leo stops by with his mother’s copy of “The Girl From Ipanema” after hearing that it was their favorite record. Leo finds a new pack to run with, a proper roundtable to sit at, and the pride returns.
Support is a two way street, and hearts are magnetic things. Maybe it is the iron in the blood and the magnetic poles of this spinning earth, who knows, but when you find your heart others will be attracted to it. While it is to be expected that we work tirelessly to support our clients, more often than not it is our clients who support us. Leo is one such example.
HeartMath – A Biology for Fragment Retrieval
Paying attention to one’s own signals requires the adherence to a breathing technique called HeartMath. Put very simply, scientists have discovered that the same types of cells that reside in the limbic system of our brains are found in the ventricles of our hearts. But the electrical signals that transmit information from our hearts to our brains are 50 times more powerful than the electrical signals that transmit information from our brains to our hearts. As a consequence we, like our clients, respond to the pounding of our chests when we are afraid or apprehensive. HeartMath utilizes a breathing technique that breaks stress in the moment it occurs. HeartMath is a breathing technique that has been utilized to assist students in increasing their SAT score, improve the accuracy of professional golfers, and reduce the stress on navy seals/army rangers, and by progressive law enforcement agencies to improve the quality of an officer’s interrogation skills.
If desired, I can demonstrate with participants how controlling heart rate variability, when taught to a client by a lawyer who also practices it, changes for the better both the quality of the information derived and the appearance and effect/affect of the testifying client. HeartMath is not hypnosis. But, it does contain some of the positive qualities that hypnosis produces by reducing heart rate variability. When the signals from the heart to the brain and the brain to the heart are synchronized, prosecutors are less likely to rattle our clients and our clients are better at answering the questions put to them. HeartMath has also successfully been utilized by me to present another set of tools for our clients to deploy when reacting to situations prompted by undesirable behaviors, as well as to decrease cravings in our treated addicts.
Police officers are also trained utilizing knowledge that criminal defense lawyers are unable to acquire, so it is only fair that you know what we learned about how police officers know what they know. Leo was not a criminal client, or a confabulation of criminal clients, as referenced in the other fragments in Part One. Leo was the only civil rights client whose case concluded after a trial. Waiting for civil verdicts is different than waiting for criminal verdicts. For me, who believes in the magic of intuitive connections coming to fruition, I have to stay as physically proximate to deliberating juries. While Leo and I were waiting for the verdict, he said to me, “why do you look so nervous? The worst thing that can happen is we both walk out of here with no money. No matter what happens I am walking out the front door. C’mon, I’ll buy you a coke.”
One of the reasons using varied methods of acquiring knowledge is so important is because, especially in criminal cases, so much is withheld. In civil cases–particularly civil rights cases based on excessive force and or Fourth Amendment violations–the discovery provides the “backdrop” for why law enforcement continues to abuse citizens unchecked. Instead of relying on fragments, we rely on personnel files, use of force reports, founded and unfounded complaints of citizens. Since one of the purposes of continuing legal education is for the participant to walk away with something tangible, the materials attached to this presentation represent mountains of information that is public and can be used to impeach over 40 police officers who work for the Milwaukee Police Department. For those of you practicing outside of the City of Milwaukee, I encourage you to search out an astounding piece of training material that is used to train many, if not all, law enforcement officers in Wisconsin and the United States (due to it’s prohibitive length and multimedia interface I have not included a reproduction here, though if anyone is interested please contact my office and we will assist you in securing a copy). The training document teaches police officers that those who defend criminals are “bottom feeders”, that the tactics employed by law enforcement would offend the American Civil Liberties Union, and that all street encounters with citizens should be considered ambushes. (see publicly filed Attached Documents 1-5)
The construct of fragment retrieval and re-sequencing is something that my co-worker and co-author Michael Danahey developed when we moved from a relationship of boss/employee to one that is better described as producer/director. During the 76 body cavity strip search litigation that overtook The Shellow Group, an internal metamorphosis occurred that has changed my life forever. The story of my co-worker’s re-sequencing is proof that what was not known to either of us would later be known to many as we created a new narrative for our working relationship. In his own words…
Over the course of the eleven years in which I have worked at the same criminal defense firm much has changed. Initially brought in as a “runner”, in essence I was little more than a glorified pack mule in ill-fitting and uncomfortable dress shirts. For the first 3-4 years, day in and day out, I would come in and set to the Sisyphean task of filing the ever-growing stack of papers into the appropriate files. Grab a document, scan for the client name, find the corresponding name on a file folder or box. I purposefully insulated myself from the real work going on all around me, partly out of self-preservation, though largely due to the fact that I had not fully committed myself. I viewed my job as merely a stop-gap measure on the road of my burgeoning music career. My heart wasn’t in it.
I can’t cite a specific day or moment when things changed, but a curious thing began to occur. Amidst all the countless conversations with family, friends or fellow musicians who invariably exhorted me with lines like “you gotta get outta there, man” or “that job just isn’t you”, suddenly I found myself emotionally invested in the work at the firm. Whereas before I may have bemoaned the long hours and stressful workload, I now was coming to the defense of the work being done, day in and day out, of which I had become a part. Those names on the ever-growing stacks of papers were not just names, they were real people with concerned friends who accompanied them to our office for moral support. They were the sons and daughters of terrified parents whose fears I did my best to allay when they broke down into tears on the other end of the phone.
Now, as I sit here over a decade later, I am hard-pressed to remember who I was before I walked through these doors. Sure, before working on behalf of criminal defendants, I considered myself sympathetic to the uphill battle which so many face when confronted with the criminal justice system, but my understanding was merely on an untested, philosophical level. I didn’t know what it meant to forego sleep because you couldn’t stop thinking about whether you had reviewed every last scrap of paper in preparation for a sentencing. I didn’t know what it felt like to put my arm around the shoulder of a crying family member who just lost a loved one to prison, and to tell them that I would continue to take every call, respond to every letter, and simply be there for their family member, our client. I didn’t know that, despite the Herculean weight borne by the minds of criminal defense lawyers and staff such as myself, much of the real heavy-lifting is done with the heart. I know now. -MD
In the Shadows of Wren
For those who know me, they know I still struggle with whether the words lawyer and Robin belong in the same sentence. I have come to realize that the struggle arises from the simple truth that I do not know why I know things about people that others will never know. As the years go on, I worry about it less and embrace it more.
Just in the last year, I have found that creating textured and kind judges and adversaries is no different than creating textured and kind clients. It is the same skill set. Listening for and discerning the fragments that give them joy and comfort and sorrow.
Before I tried out this magical thinking on lawyers, I tried it with jurors. Between 2009 and 2011 I hung six juries in a row. It occurred to me on the eve of that first long trial season l that I needed to select one out of the 12 who would love me and protect me from a proceeding that has always terrified me. After two of the six trials, I talked to the juror I had chosen as my protector. Both of them said exactly the same thing, “I could not let them hurt you”.
It has taken 25 years of practicing law to admit that, for me, trying a case is an overwhelmingly lonely experience and the only way to survive the battle was to create an imaginary protector and lover. It worked. For this I thank my parents, who taught me that knowing I am loved would show me how to love.
n.b. – This last line is a fragment of a letter my father sent me on the eve of my exams at Cambridge that I read on a bench in the shadows of a cathedral designed by Christopher Wren. -RS