by Harold G. Christensen
Reviewed by Cathy Roberts
In his book Samurai Lawyer, Harold G. Christensen describes a colleague who paced the hall of the courthouse, smoking one cigarette after another while the jury deliberated. Every time this attorney walked out of the courtroom after a trial, whether he had won or lost, he said he felt as if he had left a part of himself at the counsel table. “He died at a young age without realizing he was trying to do the work of the jury,” Christensen writes.
Christensen, too, felt anxiety every time the judge or jury was handing him a “report card” at the end of a trial. But he believed that if a trial lawyer could put aside his ego and simply do his job without worrying about the judge or the jury, then litigation could be survivable. An interest in Eastern religions led him to discover a useful survival guide for the trial lawyer in the tenets that once guided Samurai warriors. These tenets, also known as Bushido, the “Way of the Warrior,” have provided him “direction in [his] practice, restraint in victory, and solace when things didn’t go as expected.” The book is short, but do not let its brevity fool you. In it, Christensen dissects the practice of trial law with the razor-sharp blade of a medieval Japanese sword.
The skilled, well-armed, well-educated Samurai were members of a warrior class in feudal Japan. Warlords relied upon them when their advisors – poets, priests, tax collectors, and bureaucrats – failed to solve problems. The Samurai’s guiding tenets included honesty, courage, respect, compassion, and justice. Christensen asserts that trial lawyers are like Samurai, because when negotiation fails, they must go to battle, acting in harmony with a personal code of conduct.
Six years ago last October, the Utah State Bar established the Utah Standards of Professionalism and Civility. These standards, based on the lawyer’s obligation to the administration of justice, provoke the following question for some litigators: aren’t we fighters, rather than lovers? My clients, indigent criminal defendants, whose liberty, and sometimes lives, are in jeopardy, ask me, “Are you willing to fight for me?” Whether we litigate felonies, contentious divorces, vindictive contract disputes, or multiparty litigation class action suits, our clients usually prefer the sight of flashing swords and the sound of thundering hooves to the sight and sound of us discussing vacation plans or football scores with “the Enemy.”
Christensen, who, in addition to his private practice at Snow Christensen & Martineau, has served as Utah State Bar president, charter president of the first American Inn of Court, Deputy Attorney General of the United States, and law professor, advises trial lawyers to seek actual combat at every opportunity, after providing the client with an honest appraisal of the likelihood of a victory. I asked him what a Samurai warrior would do to his enemy, constrained by standards of professionalism and civility. “He’d lop his head off, but he’d probably apologize first,” said Christensen, with a laugh.
The cover picture, of a samurai carrying a sword in one hand, and a briefcase in the other, sets the semi-humorous tone of the book. In his quest to reconcile the competing interests of the fear of combat, and the need for combat, Christensen has gathered advice from a wide variety of sources, including Mark Twain, Lao Tzu, famous football coaches, horse trainers, and other Zen masters. His own guides to trial practice are worth the price of the book. Samurai lawyers, he writes, like Samurai warriors, can learn from the Seven Principles of Bushido:
Be acutely Honest throughout your dealings with all people. Believe in Justice, not from other people, but from yourself. To the true Samurai, there are no shades of gray in the question of Honesty and Justice. There is only Right and Wrong.
Related to the precepts of Lao Tzu, and Tao Te Ching, litigation tactics seem more inspired, but this is not just common-sense advice clothed in Asian mystique. Samurai warriors’ swordsmanship, violent and lethal, was the reason they went to battle. Going to battle with a blunt sword would be unthinkable. Lawyers’ words are their swords. Truth-seeking, when confronted by mendacious witnesses and confusing laws, often feels like chopping down the thorns around Sleeping Beauty’s castle.
If the rules of civility fail the Samurai lawyer, then what? Should they curb their tongues to avoid being uncivil? Christensen leaves the application of his seven principles to the individual attorney.
A curious omission is any mention of women Samurai, although there was at least one famous female Samurai warrior, Tomoe Gozen, around 1000 AD, who rode into battle and fought as skillfully and valiantly as any male samurai. Women litigators, presumably, may follow the male Samurai lawyer’s guidelines, although the author’s advice that we should meditate for thirty minutes before getting up in the morning may be challenging for attorneys with young families.
This book is both thought-provoking and timely, as Utah lawyers re-examine their roles under new rules which some members predict will require significant changes in current methods of advocacy.
Samurai Lawyer is available at the King’s English Book Store and at Amazon.com.