By Amy Singer, Ph.D., Diana Greninger and Kemberlee Bonnet
In our most recent article we discussed the sacred attribute of Binah, (Applied Kabbalah: 10 sacred attributes to integrate into litigation – Part two: Understanding, May 5, 2015) which translates to “understanding.” We specifically discussed the importance of unifying a juror with a case-specific situation that they cannot personally identify with initially, because they have never experienced that situation themselves. We have also previously discussed the sacred attribute of Da’at, which translates to “knowledge,” and the importance of not simply providing information to jurors, but connecting them with case-specific facts. Now we will discuss the third attribute of Kabbalah, Chokmah, which translates to “wisdom.”
The two attributes of “knowledge” and “understanding” are intellectual, and must appropriately combine to become “wisdom” in order to be useful, as intellect and analysis work up until a certain point. Once you know what to do with the information that you have, you are essentially entrusted with the wisdom to carry it out.
What is Wisdom?
Wisdom is often defined in an everyday sense as, “the ability to think and act using knowledge, experience, understanding, common sense, and insight.”  It allows one to determine right from wrong; having the wisdom to know the difference. The elderly are often looked upon as wise people due to the accumulation of life experience and knowledge they have gained over the years of a long life.
On a more spiritual level, according to Kabbalah, wisdom (Chokmah) is “associated in the soul with the power of intuitive insight, flashing lightning-like across consciousness” and also “implies the ability to look deeply at some aspect of reality and abstract its conceptual essence until one succeeds in uncovering its underlying axiomatic truth.”
In litigation, wisdom is what jurors acquire upon gaining the knowledge and understanding of the facts of the case. The attorney’s goal is for jurors to view their expert witnesses as wise individuals who know what they are talking about and can be trusted with the information provided to create knowledge, understanding and wisdom which jurors will use to make their decisions during deliberations. The expert witnesses carry the case and hold the key to the attorney’s success.
Wisdom in Experts’ Testimonies
While presenting your case to the jurors, the words and symbols you choose hold the potential to sway them in either direction. As an attorney, you apply your acquired wisdom in your presentation, as you have spent a considerable amount of time learning about the case. You have facilitated your own knowledge first by gathering the facts (knowledge) and then working to understand the facts. If an attorney ensures that jurors have the knowledge and understanding of the case as he or she does, through evidence and testimony presented by expert witnesses, then he or she is passing along their wisdom.
Jurors who know nothing about the case will look to the experts, as they consider them to hold the wisdom regarding the case-specific information. Most people respect those who they perceive as wise. It is important as an attorney and expert witness to present their wisdom in a respectable, non-arrogant manner, as haughtiness and arrogance can deter juror perception of their wisdom. Jurors will constantly be weighing in their minds which expert appears to be most wise, humble and honest when judging the facts of the case. Experts who appear unbiased and smart (think King Solomon) are perceived as wise.
It is the attorney’s job to hire experts who can share their wisdom with the jurors in order to provide guidance to the jurors which will help them judge the case objectively. Expert witnesses need to explain what the “rules of the road” are and how they apply in the particular case. In the book Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability, authors Rick Friedman and Patrick Malone discuss, among many things, how to get your expert to phrase things so they appear true without doubt in jurors’ minds. The goal in questioning experts is to identify what rule the opponent broke.
In an automobile accident case involving a pedestrian, for example, the plaintiff’s attorney might want to ask the defense expert witness, “Isn’t it true that you must stop before the crosswalk and look at the sidewalk prior to making a right turn on red? Isn’t it true you have to have a full view before proceeding to make a right turn on red?” Once the opposing witness has truthfully answered “yes” to all the indisputable questions, the attorney can come in and show how the defendant did not do the things they were supposed to do, they did not follow the rules of the road. The attorney should pair the expert’s testimony with powerful demonstrative aids to chart what the rules were, which rules were broken and what consequences resulted. The best way for an expert to impart wisdom is to tell the jurors the rule, explain the rule and how it applies in the particular case.
Defense attorneys can also successfully apply the teachings of this book to impart wisdom, with a little guidance and creativity. For example, with regards to automobile accident cases, many people are under the misconception that if you rear end someone, it’s automatically your fault. As we know, that is not true, there are extenuating circumstances. To illustrate that and instill wisdom, the defense attorney may want to ask the plaintiff’s expert witness, “Isn’t it true that you have to leave X car lengths between car #1 and car #2? Isn’t it true you have to check your mirrors and your blind spot before switching lanes? Isn’t it true that you have to yield to cars directly behind you in the next lane before switching lanes? Isn’t it true you are not supposed to cut someone off?” The goal is to ask the plaintiff’s expert about situations where the person with rear-end damage might be clearly at fault and work their way into how it applies in the case’s particular situation.
The key is to get the opposing expert to make admissions that will lead jurors to find fault or liability. By explaining the rules, experts can impart knowledge and by showing how one can apply the rules, experts can assist jurors in gaining wisdom.
The jurors need to be able to look at the facts presented to them with good intention and extract the truth from the “lie”…the right from the wrong, as they perceive it based on their newly gained wisdom about the circumstances involved in the particular case. The wisdom in litigation is having the ability to apply impartial judgments in keeping with the knowledge and understanding in determining the best course of action.
Wisdom in the Jury Room
Wisdom plays out in the jury room. This is the true hurdle, when each juror then becomes the advocate based on what wisdom he or she has attained. One juror’s acquired wisdom can affect other jurors and create a shift in knowledge and understanding; in which case, one can attain the wisdom of someone other than themselves. This can completely alter the outcome of the trial, simply by shared wisdom.
A juror who has gained wisdom will impart his or her knowledge to other jurors, perhaps jurors who are less sophisticated and did not fully comprehend all of the facts/evidence/testimony.
A great example is the jury in the movie, “12 Angry Men”, the 1957 film in which an all-white jury was to judge whether a Hispanic boy (wrongfully accused) killed his father. All jurors were ready to assign a guilty verdict from the beginning except for Juror 8. He held that the all evidence was circumstantial and was able to explain this in great detail, whereas the other jurors held to their beliefs about young Hispanics from the “slums.” After much discussion, Juror 8 opted to refrain from voting in the final vote, and said that he would be willing to convict if no one changed their vote to not guilty. Every single juror changed his vote to not guilty. Juror 8’s wisdom spread to the rest of the jurors who initially would not budge. In this case, wisdom trumped biases.
According to Kabbalah, once you have the wisdom, you can apply it to other situations and absorb knowledge and gain understanding more easily. Knowledge, understanding and wisdom become circular and build on one another over and over again.
As demonstrated, Chokmah is much more than just a hunch or a guess. In litigation it is a form of guidance for the jury to judge impartially, which can only be attained through knowledge and understanding.
The plaintiff’s attorney must ask questions to the opposing expert witness to impart knowledge (by illustrating what the defendant’s rules of the road were), then to create understanding (as to how they apply to the particular case) and finally, to create wisdom (by illustrating how the defendant violated those rules). The defendant’s attorney must do the same with their opposing expert witness to show how the plaintiff violated their rules. These are the “rules of the road” to cross examination.
You must facilitate the creation of wisdom in jurors because essentially wise jurors become counsel in the jury room; they become the advocate. One simple twist of the facts can affect a juror’s knowledge and understanding, thus the wisdom of that juror, and he or she may tip the scales of the other eleven on the jury panel.