Trial Aikido and Bringing Balance to the Courtroom

by Mike Ehrenstein on Mar. 25, 2020

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Summary: Bringing Balance to the Courtroom

Every trial lawyer brings his or her own unique life experience and perspective to the trial practice. Much or my perspective and my practice in the courtroom have been forged in the world or the martial arts. I started training in martial arts in the 10th grade and never stopped. From Kyokushin karate I learned the value or self-improvement, discipline and hard training-enduring punishment and fighting hard-harden your body, harden your bones, harden your mind.

After  law school, I took up Gōjū-ryū, which literally means hard-soft. Classic Gōjū-ryū is fierce, but like it name foretells, includes soft elements in its technique and philosophy. It’s been almost three decades now, and I have trained consistently in this style with my teacher Joseph Kelljchian. He further developed the style and incorporated elements of many other arts, including aikido.

Aikido translated from Japanese means “the way of the harmonious spirit.”  In general terms, the aikido master applies “soft” technique to redirect an opponent’s strength, use it against him, and find the right balance to turn the tide in the master’s favor. One of the most memorable lessons Master K taught me was to always let my opponent dictate the beating he deserves. He wasn’t being macho or boasting, but instead was teaching me to allow my opponent’s strength to determine his defeat.

Recently, I gave a talk on “Trial Aikido,” bringing some martial arts wisdom to the 11th Annual Renaissance Symposium on Dec. 1 at the Harvard Club of New York City. The Renaissance Symposium is the Litigation Counsel of America’s exclusive annual advanced trial series, where top attorneys speak before and learn from peers in a small group setting. The first time I witnessed Trial Aikido in action was during my law clerk days. I remember the way in which the lawyer I clerked for handled an unexpected surprise that could have sunk our case. He went with it, let it build and then suddenly changed direction by turning the witness’ own testimony against him. That was the first time I remember thinking about aikido in a trial setting, and it taught me a valuable lesson.

My instinct has always been to resist surprise in trial, to be in total control in the courtroom. But I learned that sometimes rather than resisting surprise, it’s better to flow with it, develop its energy, and then suddenly redirect it. We, as attorneys, naturally resist letting our opponents develop their arguments unchallenged in the courtroom (especially when those arguments come as a surprise).  Aikido requires that you override the urge to reflexively resist change and summon the courage to temporarily submit to the will of your opponent.

Many of  us use this principle in one way or another. How often do we permit the opposition to introduce objectionable evidence because we know it can offer our client some advantage if it comes in? How often do we take an opponent’s demonstrative exhibit and use it to prove our own point? That’s Trial Aikido.

The art of being a trial lawyer, like all martial arts, and indeed all arts, is just that: it’s an art, and a not science. There are no absolute answers, only options. Using the right option at the right time requires refined judgment honed over years of experience and not mechanistic robotic responses. In the end, it’s about finding the balance that works for you.

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