Throughout the 1994 National Criminal Defense College’s Trial Practice Institute and 1995 Trial Lawyers College, we were repeatedly reminded and inspired to find, cultivate and execute our own personal magic in order to do great things for our clients. The idea is not for us to duplicate the personality of other great lawyers, but to be inspired by others’ greatness on the path of tapping into our own winning greatness.

I would return from such amazing seminars no longer surrounded on all sides by fellow lawyers cheering one another on this path of magic, but instead facing the same judges, prosecutors, and even plenty of jaded colleagues, who had not attended these seminars, and were the same as the day before I had started those programs. This left me to remember that we can only do great things for our clients out in the courtroom and litigation battlefield — and not by remaining forever in days-long seminar cocoons (only through emerging from the cocoon do we transcend seeming obstacles with our wings) — as bows and arrows and cannons are pointed in our direction, with our fighting for our clients while simultaneously blunting, deflecting, dodging, boomeranging and redirecting those opposing weapons.

My posting online about my victories against the odds leads more of my current clients to urge me to replicate those victories. The upside of that urging is to keep me focused on my teacher SunWolf’s proclamation that Reality is No Obstacle.

In that regard, in short order recently, and against the seeming odds — and all the more against odds in replicating the results in the matter of seven days –I negotiated no-active-jail Virginia reckless driving convictions for three driving while intoxicated clients who all risked severe harm to their careers and livelihoods had they been convicted of DWI. I easily could have told them all that a reckless driving result was far from likely. Instead, I at once acknowledged early on the major uphill battle to obtaining a reckless driving result, and made a pact with all of them for us mutually to bust our butts to seek a reckless driving disposition, and in the alternative to win at trial. For me, that meant both being fully prepared, as always, for trial and negotiations, including visualizing and effectuating victory. For my clients, that meant providing me documentation to show the prosecutor that my clients already were in an alcohol program, attending AA meetings, and done with a drive improvement class, plus community service for two of them. For one of my clients, that meant retaining a lawyer dealing in my client’s professional arena to give a legal opinion about the severe implications a DWI conviction would have on my client’s career.

All three negotiations were far from shoe-ins. They all involved sweat and being in the moment for me to be fully in tune with what might motivate the prosecutor to be satisfied with a reckless driving conviction, including, for two of them, elevated fines, elevated suspended jail sentences and no driving for several months, all in order for me to help save my clients’ careers and serve their remaining goals.

I post today’s entry to encourage both the defense and prosecution side to negotiate based on goals rather than positions, and to hold open the possibility for negotiation breakthroughs even when no such breakthroughs are thought likely.

Civil litigants in many ways are at an advantage to have all parties approach the negotiating table with flexible minds and hard work, because many courts mandate negotiation sessions for civil cases. Where I practice, it is not common for judges to push settlement negotiations in criminal cases Negotiations are usually worth it, and of course do not automatically require seeking a guilty plea. Moreover, trial intelligence can be obtained in the negotiation process, in the event that the case still must proceed to trial.

If the case does not settle, we are always ready for trial battle.