Satellite meeting location: ARLINGTON, VIRGINIA 2111 Wilson, Blvd., Suite 700, 22201.
Jon Katz on RTV (June 25, 2014) on requiring warrants to search cellphones.
Jon defends in the state and federal courts in Fairfax, Northern Virginia, and beyond, including courts in Fairfax City, Arlington, Falls Church, Alexandria, Prince William and Loudoun County. Criminal defense is about defending people and upholding civil liberties. Se habla español. On parle français.
Just Say Know. See Jon Katz's additional YouTube videos.
Challenging Obama’s spying-gate. (Fox News, June 8, 2013).
National Association of Criminal Defense Lawyers member since 1991.
Marijuana's legalization is critical for advancing everyone's civil liberties. Defending marijuana clients since 1991, Jon fights pot prosecutions running from simple possession to marijuana trafficking to growing dozens of plants. On several occasions, he has pursued misdemeanor dispositions in marijuana cultivation prosecutions, sometimes with the assistance of a marijuana cultivation expert and medical marijuana expert. Here is how Jon became obsessed over marijuana legalization by 1990.
Perverting your tax dollars- Federal prosecutors monitoring attorney-inmate emails.
Wednesday, July 23 2014
8th Circuit follows 6th Circuit in denying 1st Amendment protection to morphing a child's face onto photo of an adult body in child pornography case.
Tuesday, July 22 2014
Police misconduct is too common. Here are but two more extreme examples.
Monday, July 21 2014
Beware saying "gotcha" if the prosecution misses key evidence upon resting.
Friday, July 18 2014
Today Washington, D.C., begins decriminalization of up to an ounce of marijuana.
Thursday, July 17 2014
Bush II judicial appointee rules California's death penalty system unconstitutional.
Wednesday, July 16 2014
Judges as both fallible and potentially excellent.
Tuesday, July 15 2014
Convincing prosecution witnesses to talk, through a third approach.
Monday, July 14 2014
Charlie Haden passes on July 11.
Sunday, July 13 2014
Thanks to the now-late Zalman Schachter-Shalomi
Sunday, July 13 2014
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Copyright Jon Katz, P.C.
CRIMINAL DEFENSE/ DWI / DRUG / MARIJUANA LAWYER FOR FAIRFAX & NORTHERN VIRGINIA.
703-383-1100, 10509 Judicial Drive, Suite 101, Fairfax, Virginia 22030.
Satellite meeting office: 2111 Wilson Blvd., Suite 700, Arlington, Virginia 22201
NOTE: CASE RESULTS DISCUSSED IN THIS BLOG DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE, AND DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY OUR LAW FIRM. Va. R. Prof. Cond. 7.1(b).
Tuesday, July 15. 2014
Judges as both fallible and ... Posted by Jon Katz in Persuasion at 00:00
By Jon Katz, a criminal defense and DWI defense lawyer advocating in Fairfax County/Northern Virginia and beyond for the best possible results in drug, sex, DWI, felony and misdemeanor cases. http://katzjustice.com
Judges are not deities. They are humans. They are selected through a combination of some or all of the following: Meritocracy, vetting for ability (with various sorts and quality of vetting), political considerations, and elections by the public. Even some of the most promising-seeming judicial candidates can turn out to be the opposite on the bench, because nobody has a crystal ball, judging can bring out the best or worst of different judges, and many people simply are unable sufficiently to tame the immense power involved in being a judge and sometimes simply cannot keep up with the job's demands, which can be said of anyone who possesses immense power.
I was recently before a judge who cut off a short argument I was making against a line of direct questioning by the prosecutor. I stood my ground with the judge by urging the importance of his hearing my short, critical explanation for my objection. He finally let me state my argument. He next still overruled my objection. However, when the prosecutor ultimately offered into evidence the exhibit that was the main purpose of this line of direct examination, the judge kept the exhibit out of evidence. In a short timeframe, I witnessed impatience, dismissiveness, openness, and wisdom from this one judge.
Those lawyers who want a rarefied, academic approach to using their law degrees are free to apply to be law professors or to seek to be among the small handful of lawyers who repeatedly argue before the Supreme Court (but I get exasperated plenty of times over Supreme Court opinions). Trial law can get messy. It is battle and often war. Not all opponents fight fair. Not all judge should be judges in the first place. Even plenty of the otherwise best judges will at times rule improvidently and unfairly. The law may exist as an alternative to having the law of the jungle, but trial work often still is like being in a jungle.
Why, then, do I focus just about my entire career on litigation? Because important battles for the side of the angels await to be fought, and if I refuse to participate in the battles, they will still proceed anyway. Moreover, as much as I regret how unjust the criminal justice system remains, I get as much of a rush today doing my share in achieving justice as I did in my first months in court. And, at the heart of it, I love to fight.
The taijiquan martial art that I practice daily helps keep me in the right frame of self and mind for doing trial battle for my clients. An effective fighter, warrior even, has no expectations that any parties to the fight will be fair or even care about the fighter or his client as humans, just as it is folly to expect that a hungry tiger in the wilderness will not kill and eat a lamb walking fifty feet away.
As much as the following examples are from fiction, they are good examples of getting and remaining on the path of effectively fighting without anger nor expectations of anyone, together with being fearless. In the Kung Fu pilot, Kwai Chang Caine brilliantly neutralizes a racist attacker in a bar as if he is but a pesky fly, with Caine resuming drinking his water after neutralizing each attack. In Abarenbo Shogun (see minute 38) the shogun, although often angry (which has no place in successful fighting and living) methodically neutralizes and slays (this is a shogun series, after all) the mob that seemingly outnumbers him near the conclusion of each episode. Then, in real life, we have taijiquan master Cheng Man Ch'ing sparring with as much playfulness as a child on a toy pony, while executing moves that could cause crushing injuries if he wanted.
Behold the patience of the foregoing three men (which of course is not meant to exclude great women fighters, who include Maggie Newman for martial arts, and, for trial battle, SunWolf, Judy Clark, and Lisa Wayne), both in developing their skills for their lifetimes, and in executing their skills.
Back to today's subject of the actions and quality of judges, my college ethnomusicology teacher Jeff Todd Titon had a great quote taped to his office door, that music does not require excellence, but delights in such excellence when it arrives. With judges, not all will always perform excellently, but I wish they would. When they do, I of course will welcome and revel in it.
Wednesday, July 9. 2014
Informed by dispassion when arguing ... Posted by Jon Katz in Persuasion at 00:00
By Jon Katz, a criminal defense and DWI defense lawyer advocating in Fairfax County/Northern Virginia and beyond for the best possible results in drug, sex, DWI, felony and misdemeanor cases. http://katzjustice.com
A key part of persuasion is getting the audience to listen to the speaker in the first place. If the audience feels uncomfortable, threatened or even frightened by the speaker, the audience will be distracted in trying to tune out from the speaker, defend themselves from the speaker and even escape the speaker.
Passion is an important ingredient of persuasion, for bypassing overintellectualization, for transcending boring-speak, for being in the moment, for sounding honest, and for getting to the truly peruasive heart of the matter. However, too much exhibited passion can turn off the audience and make the audience tune out.
Passion, therefore, needs to be informed by and sometimes countebalanced by dispassion. This of course depends partly on who one's audience is, but of course an audience of many rather than one can include many personalities; and many ways of receiving, filtering and processing ideas, arguments and information.
As a brief example, recently I was before a judge at a lengthy criminal suppression hearing. At a few points early on in the hearing before this judge before whom I had never appeared, I made some impassioned objections, and the judge sometimes just as firmly cut me off and insisted that he was going to let most of the testimony be made, and would decide which evidence to consider and which not to consider. Some judges cut a lawyer off just to make clear who is in control of the courtroom. I decided to switch gears by cloaking my passion with some more elements of dispassion, in my tone of voice, in my body languge, and in my speaking pace, including at least two times when I asked the judge to reconsider an evidentiary ruling, where instead of insisting that he already had ruled, the judge did reconsider, and ruled in my favor.
Dispassion, then, can be a kind of trojan horse, to get one's passionate arguments to the audience without the audience realizing that it is receiving a passionate argument, or too passionate an argument.
Of course, one of the best ways to persuade an audience is to make the audience see the persuader as one of them. That will not happen if the speaker is using brute force to try to convince the audience, versus genuinely trying to help the audience reach what the audience feels is the right result, so that audience members do not awake the next morning proclaming "Aw sh*t!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! I made the wrong decision there, didn't I?"
Thursday, July 3. 2014
Transcending the blockages of anger, ... Posted by Jon Katz in Persuasion at 00:00
By Jon Katz, a criminal defense and DWI defense lawyer advocating in Fairfax County/Northern Virginia and beyond for the best possible results in drug, sex, DWI, felony and misdemeanor cases. http://katzjustice.com
An interesting mating dance is often done between criminal defendants and the lawyers they are considering hiring. They want to know a lawyer's fee, the lawyer's quality, and the lawyer's devotion to them and their case if hired. Some feel pressure (for instance to visit a lawyer the relative has heard of) and questioning from relatives or friends, as well. My view is that a criminal defendant needs to feel comfortable with his or her lawyer, for starters, and needs a lawyer who will serve the client well. This is about the defendant, not about whether s/he will hire me; to approach the matter otherwise likely will get a lawyer fewer clients.
Along this mating dance path, I sometimes get some particularly direct questions, including:
- "I am very comfortable with you. However, I will be visiting another lawyer you have praised online, who was recommended by my friend. I was wondering what input you might have on this lawyer." I rarely get a question like this. I followed my gut, told this potential client that the other lawyer is very good, and invited the potential client to call or email me as he wished. Three days later, this person hired me. Would he have done so if my answer showed selfishness about my wanting only to be hired?
- "What is your win-loss record?" I frequently answer that success is defined in many ways, from acquittals to dismissals to great negotiations to great sentences. Sometimes I refer them to my online anecdotes about my victories.
- "You are quoting me much more money to defend me than the other lawyers I have met." Sometimes I answer that a criminal defendant for the most part only has one chance to get the best results, and I bill to give my full firepower, backed up by my support staff. I do not have pricing for less than full firepower. Some of these people hire me; some do not.
The first time I heard each of the above questions, I felt some irritation. Then I caught myself. These people are asking these questions not to irritate, but to figure out how to get themselves out of the mess they are in.
Anger and irritation are blockages that never help anyone. They are also dualistic for being reactive mechanisms rather than proactive approaches. I tell my clients and witnesses to be honest with me and on the witness stand, and underline the penalties of perjury and other blockages of being untruthful, and that nothing is more powerful than the truth. If the truth is going to harm my client's cause, their only choice to avoid that harm is to stay off the witness stand, not to prevaricate.
To be angry or irritated and to be untruthful all are blockages to a successful and powerful life. None other than my teacher Ram Dass underlines that, through his teachers command to love everyone and to tell the truth. When we love ourselves and everyone else, we are being non-dualistic, make anger and irritation unlikely, and will tell the truth
I at least know that I am at my strongest, most persuasive, and happiest when I love everyone and answer their questions without feeling irritation nor judging the questions in the interim.
Wednesday, July 2. 2014
Great lawyer Judy Clarke's magic in ... Posted by Jon Katz in Persuasion at 00:00
Judy Clarke stands behind the late Wyoming Chief Justice Bob Rose (wearing an eyepatch). I am standing here, in pre-gray wavy hair, two men to the left of Bob Rose. (1995, Thunderhead Ranch, Dubois, Wyoming.)
When I transitioned from a Washington, D.C., 25-lawyer corporate law firm to criminal defense in 1991, I looked for role models to help me maintain my idealism and passion for switching to criminal defense while learning to be the best criminal defense lawyer I can be.
Enter Judy Clarke, who was first a role model for me in excellence in indigent criminal defense, and remains a role model for me in criminal defense. Judy is so focused on serving her clients that she repeatedly declines comment to the news media.
Judy and her husband, Speedy Rice, come across as the kind, selfless couple everyone wishes to live next door to. Judy does not dress nor act in the role of a hippie, radical, nor anti-government activist. She is an advanced human humanizing her clients. For instance, during her death penalty phase arguments to the jury for Susan Smith, who stayed off death row, Judy told the jury: “When we talk about Susan Smith’s life, we are not trying to gain your sympathy... We’re trying to gain your understanding.” Judy further told the jury: “This is not a case about evil but a case of sadness and despair." "She made a terrible decision with a confused mind and a heart without hope. Hopelessness is not malice.”
Judy's opposing prosecutor Tommy Pope in the Smith case confirms Judy's magic at persuasion through perseverance: “It started out as Susan the monster and evolved into Susan the victim" "One of the things she did was humanize the defendant. I anticipate she will do something similar in the [Dzhokhar Tsarnaev] Boston [bombing] case.”
In 1995 at the Trial Lawyers College (see here, too), I returned from a several miles long run to greet Judy soon after her arrival. She gave me a hug despite my telling her the obvious, that I had just come back from a run. Two days later, we ran together in the thinner air in the Western Wyoming mountains. Each step she ran and each breath she took, she was the real McCoy, no ego included.
Deeply thanking and bowing to Judy Clarke.
Tuesday, June 24. 2014
What if we treated clients as family ... Posted by Jon Katz in Persuasion at 00:00
How many doctors and lawyers do you know who keep their patients and clients at arm's length? I see it all the time. Does it come from habit, training, observation of colleagues, assumptions, wrong analysis, or a combination of some or all of them.
For me best to assist my clients -- and for me to perform my best as a lawyer and live the best as a human -- I must engage with clients, with everyone else, and with every aspect of life. That is the only way truly to know what is going on in life and to be effective in dealing with work and life. So many people disengage by turning to aloneness, and by turning to abuse of alcohol, drugs, the Internet and other self-abusive behaviors.
Many clients and potential clients tell me they have never consulted with a lawyer before, and are not sure how to behave with a lawyer. I believe strongly in dealing with my clients as human to human, not in the role of lawyer in a rarefied office dealing paternalistically or all knowingly with the client. My clients are essential for me to know what I need to know in order effectively to defend them. How else can I truly relate to them, know what they want out of my services and their cases, and have a better picture of what really happened in their cases, as well as how they arrived to that point in their lives, where they came from before the day of their arrest, and where they might and will go from here?
Do some clients and potential clients take more comfort in what they perceive as a more traditional learned lawyer-compliant client role? Initial comfort may come with familiarity. However, good criminal defense often is about unconventional warfare from the defense side. Some great guidebooks, videos, and seminars might exist on becoming a better lawyer, but at the end of the day, a good outcome in criminal defense requires in-the-moment combat and preparation for that combat.
Law school heavily teaches conventionality, being cerebral at the expense of the heart zone, thinking dispassionately, and arguing both sides of a dispute with equal effectiveness. Good criminal defense calls for a lawyer to be fully human; to immerse himself or herself fully into the defense and the client's cause; to summon full passion, compassion and empathy; and to find the extra, powerful oomph from knowing that the lawyer is on the side of the angels. Consequently, with law school, as with everything else, it is best to take what works, and leave the rest.
How blessed I am to be my own boss, following my own passion and gut without looking over my shoulder in case a boss tells me I am bonkers to care so much about my clients, to engage so closely with them, and to treat them with as much respect, caring and openness as I would with family members.
How much more meaningful is my life that I treat each client as a whole, unique person, to learn from, to work with as a team, and often to enjoy each other's company. We are all connected. When we live and work with an understanding of and engagement with that connectedness, many apparent barriers in life will disintegrate, and success in work, for clients, and in life will grow exponentially.
Sunday, June 15. 2014
Achieving victory through ... Posted by Jon Katz in Persuasion at 00:00
Achieving victory through visualizing success, proceeding from a strong framework, storytelling, enchantment, and unfoldment.
A few times in my high school trigonometry class, I would sit down with my teacher during her office hours to assure that I was understanding one or the other challenging concept. Our meetings were short, because she would distill our discussions to such simplicity with just a few strokes of her pen, as if we were discussing something as simple as mere addition and subtraction concepts.
Five years later, I worked for a year between college and law school as a financial auditor with one of Manhattan's largest commercial banks, involving detail, detail, more detail, and analysis. In law school, we dealt with rules, discovering rules, competing rules, applications of rules, exceptions to rules, differences among appellate courts and appellate judges, and often lengthy opinions. Data, data and more data. I had to avoid getting bogged down by all this data, and to rise above it.
Even the most complex and data-filled challenges must start with simplicity. Like my trigonometry teacher, my amazing teacher SunWolf also personifies starting from simplicity in challenging complex criminal defense. She has spoken with me about a few of my more challenging then-upcoming felony jury trials, and within minutes has offered her thoughts on appealing to jurors' basic views, thought processes, and instincts. Even when I have had well over one thousand pages of printed discovery and hours of taped discovery, SunWolf, without having more than my general relevant summary of the case, has offered great pearls for persuading the jury, often adding: "Isn't that simple?" SunWolf comes across as a magical and enchanted being, and her writings and devotion to storytelling underline her devotion to magic, reality being no obstacle to victory, and enchantment. With enchantment, SunWolf has co-authored an article entitled "Towards the re-enchantment of psychotherapy: The container model of storytelling in treatment."
On storytelling, as I previously wrote, good storytelling gives direction to one's oral presentation, rather than having the speaker wander around in wilderness and fog. It reminds me of the ah-ha I experienced one day over thirty years ago playing improvisational trumpet with a music group. Instead of my focusing merely on sounds and the meaning of the words to the songs, with the trumpet I took my listeners on a storytelling journey, with the trumpet conveying some of the sounds I heard and feelings I felt and sights I saw during that journey -- while conversing back and forth and in tandem through my trumpet along with the other musicians and singers -- the first such journey being like a huge bird in a jungle with rushing skyscraper-height waterfalls, the wind rushing all over the lush greenery, and birds singing all along. Insodoing, each note more smoothly flowed into the next note, taking me away from focusing so hard on making up music that would work, and having it work more effortlessly. That is how a good story works. It flows, it gives direction to the talk, and it removes the speaker from any fears of talking in front of an audience, and removes the speaker from the temptation to use language with lockstep thesaurus-spitting precision. Such storytelling comes from the heart, rather than having the head filter everything out in an overly-intellectualized or pseudo-intellectualized filter.
When I approach the courthouse for trial or a pretrial hearing, the roadmap to victory includes, but certainly is not limited to, the following:
- Starting from a simple framework that will withstand opponents' efforts to rattle it, so long as I do not let myself get distracted nor rattled in the process, making this a solid and Teflon framework as to keeping off any feces thrown its way.
- Adding flesh and skin to the framework through thorough preparation (including full preparation of my clients and our witnesses), immersion into the case, and full immersion in and command over the evidence, applicable law, and arguments to be presented in each case.
- Persuasive storytelling and persuasive and developmental unfoldment.
- Visualizing victory, thus bringing me closer to victory. Dwelling on the possibility of a lousy outcome in court distracts me from having my necessary weapons of success at the ready to use to the best advantage.
- Being at home in the courtroom and every step of the way, and setting the stage for the judge and jurors to feel similarly comfortable on the road to doing their best.
- Powerfully treating the courtroom as my playground.
- Shedding the ego and all agendas, except for keeping victory on the agenda.
I deeply thank SunWolf, my trigonometry teacher, and all my other teachers who have helped me become and remain a more effective and persuasive trial lawyer.
Tuesday, June 10. 2014
Re-owning time and space through ... Posted by Jon Katz in Persuasion at 00:00
Before he ever became self-employed, a fellow law firm trial lawyer friend of mine said of an irritating opponent: "Just like us, he juggles his workday, trying to decide what work obligation to tackle next." One day I bumped into a very able civil trial law firm co-owner against whom I had litigated against. He asked me how my workload was going. When I answered how well it was going, I asked him how his was going, he said "I have no time.
To really know how well one can manage time and stress, a good way is to become a self-employed trial lawyer -- as I am -- handling the scheduling demands of judges, the need to assist many clients in one day, the need to manage law firm administration and staff, and the need to find a way to bring new clients in the door.
I have repeatedly blogged on the great personal and professional results that I derive from mindfulness and meditation, which for me go hand in hand. Many people may say they do not have time for such pursuits. To them I ask: Do you take time to sleep, brush your teeth, wash your clothes, and eat your meals? The basics of mindfulness can be learned quickly. Mindfulness can be practiced in each moment of your day. Try it and see the amazing benefits that result.
Time is a constant challenge for trial lawyers and most other people. Judges move along litigation calendars sometimes at seemingly dizzying speeds. Opposing lawyers are prioritizing their workloads in ways that often have them not give much consideration to settlement negotiations until farther off in time. Clients have questions and concerns and want to get timely responses.
By starting each day with quiet mindfulness practice, the sediment in our mind settles, opening up time abundance in handling the day's challenges and not feeling stress from being in the spatial presence of stressed drivers, pedestrians, and others. Taking time for quiet mindfulness practice before going to sleep helps assure an uncluttered and deep sleep, so as to wake up refreshed and ready for the next day, rather than groggy from waking in the middle of the night from feelings of constant challenges.
Once we feel that we own our time and the space around us, then instead of viewing as an imposition each demand from a judge, phone call, and previously-seeming urgent mails and emails, we can better welcome each challenge as a new moment to be enjoyed and for further practicing our mindfulness, and see requests from others as being as welcomed as requests from ourselves. Then the abundance and magic of our power unfolds from one moment to the next.
When we feel in harmony with time and space -- not feeling frazzled and stressed, and not judging ourselves, others, nor events -- that is contagious for others, including the judge or prosecutor who does not feel similarly calm and harmonious.
Part of all of this is to be ready to work -- wisely with one's time and emotions, while making time for rest and relaxation -- on oneself, on one's personal relationships, on one's personal development, and at one's job. The work is to be welcomed. As taijiquan master Chang Man Ch'ing once pointed out to his students in motioning towards a cemetery, there is a later time for additional resting.
Friday, May 30. 2014
In persuading, remember that people ... Posted by Jon Katz in Persuasion at 00:00
Good criminal defense lawyers talk about judges and prosecutors, because an important part of persuading is knowing the people we are persuading and battling.
However, the judge, prosecutor or anyone else we see today is not the same one we see tomorrow nor saw yesterday, nor are we. People and life are ever-changing (and ever-developing, if on the right path), like rivers, with changes in the flow speed, the flow path and erosion of the river floor and river banks, the influx and departure of fish and other water life and riverbank life, the direction of molecules, and the constant movement of the molecules from their original starting point. Then the water evaporates into clouds or freezes into ice. The water molecule might then come down as rain, this time in a different location, with a new path and with new opportunities.
Life is impermanent, yet people too often try to hold onto their youth, others, their past, their wealth, their perception of wealth, their position, and their very life, knowing that at some point our hearts stop beating, and with many or most not sure what happens next, and whether we ever will have consciousness again after our heart stops. Life in our current bodies is so fleeting that we should be celebrating every day and every moment in our bodies, rather than making ourselves miserable pursuing safe college majors, safe graduate degrees, safe jobs, safe friends, and safe lifestyles all in the hopes of never lacking for money to pay the bills, people to make us not feel lonely, and activities that will not make us suffer boredom, feelings of meaninglessness, and derision, gossip and ridicule from others. That is not living. That is being undead at best.
That is not to say that we should live recklessly and with full abandon, without regard to the potentially adverse consequences of risky choices. That does not mean that we should only do what is pleasurable to avoid the blisters of pulling weeds to make room for the plants that give us food for our nutrition and flowers to brighten our days. I do say that finding what gives us joy and pursuing the joyful path is the only way to go, will make otherwise dull-seeming and unpleasant-seeming tasks and work be easier and less effortless to handle and do well, will make life unfold in a much more fulfilling way, will make us much more productive and successful in our work, and will make us of more benefit in helping others for both the sake of helping and in the course of our careers.
Nevertheless, already having known all of the above and having put much of it into concerted practice for years, my teacher Ram Dass still went into deep depression over his massive stroke in the late 1990's. Ultimately, though, he recognized the stroke as fierce grace reminding him of the essential path of non-duality, including that we are not our bodies, nor even individuals at all, as much as we feel we are individuals. When I finally met Ram Dass for the first and only time in 2003, he firmly took hold of my hand with his still-working hand, looked me straight in the eye, and encouraged me along life's path. Ram Dass seeks not to be revered, but to serve everyone. He is inspiration personified.
If as highly advanced a being as Ram Dass went from high enlightenment and joy to deep depression and then back to high vibrations, then more ordinary people are at least as subject to those ups and downs.
How many people wake up each morning wanting to be somewhere else, with someone else, or in a job somewhere else (or better yet, on a wonderful vacation)? How many people want to be someone else? Yet, most people wake up each morning, with many simply going through the motions to survive another day and not be marginalized by others should the person alienate them, while on the other end of the spectrum are those that greet each day with gratitude and look forward to what lies ahead for the day and for the rest of their lives.
Then, like a constantly changing river, something may happen in the joyful person's life that triggers him or her into a gray abyss, and something might happen to the feeling-down person to feel on top of the world, for a sustained period of time, and not in the form of mood swings.
Recently, an ordinarily likeable prosecutor from an office that has plenty of arrogant and abrasive-acting colleagues, apologized if he appeared to be cutting me off in conversation that morning, so that he could get to a few more pressing obligations before the judge. I told him that is fine, and that he has never offended me. He quipped that maybe he is not doing his job effectively enough, then. Then, as if to lampoon his quip, after lunch that same day with another case that was set for trial between us, he did for the first time irritate me, seeming to be all on a high horse about an evidentiary issue, and then walking away. I then did a double-take, recognizing that intervening before his walking away was my passionate admonition: "If you want to approach it that way, I will move to exclude your witness's testimony." We both quickly got our wits about us, and proceeded to trial in a civil manner, and he proactively gave me a desirable settlement offer mid-trial in this DWI case.
This prosecutor, and I, just like all people at all times, were like rivers, which sometimes thrash the shore in storms, sometimes easily glide downstream, sometimes stagnate, and sometimes whirl and dance.
The judge and prosecutor that can irritate the most are not automatically those with well-earned reputations of heartlessness, injudiciousness and uncaring, but the ones who usually seem to be the opposite, but then fall into the behavior of seeming heartlessness, injudiciousness, and uncaring. We can more effectively and quickly get that river back on the right path by not taking the others' seeming trespasses personally, and by not fanning the flames coming out of their mouths, heads and ears, even if they are trying to harm us. At best, we can find points of common ground with them to inspire them to do things to help get great results for our clients.
If I am a judge all jaded by litigants no more happy to be in my courtroom than to be in the dentist's chair, and all complaining, whining, and bickering all the way, I am going to perk up when a lawyer or pro se litigant gets before me at once ready effectively to present his or her cause (and certainly not to kiss butt) and gives me the information, arguments, and benefit of the doubt to do the right thing.
All people and life are like ever changing rivers. Never forget that. It is time to dive, swim, bathe, drink from, and dance in that river.
Thursday, May 22. 2014
Challenges versus problems. ... Posted by Jon Katz in Persuasion at 00:00
In many ways, my blog is a tool for my self exploration and self development, and to remind myself of the best ways to get and stay on the right path. If I do not write down and crystallize my key ideas, those ideas will clutter in my mind and not crystallize. I share my ideas with others by blogging, just as I appreciate when others share their beneficial ideas with me.
Many of my blog entries are about persuasion and trial battle, including being fully prepared, being fearless, having no anger, not reacting, applying taijiquan to trial battle, being at zero limits, being non-dualistic, seeing reality as no obstacle, deflating and neutralizing and disintegrating opposing forces, practicing in the moment, and directing matters to unfold from one powerful moment to the next. Persuasion starts as an inside job.
My wife and son are two of the most inspiring people for me to stay on the above path. They delight when I am high, and remind me to return to that path when I allow a detour to get in my way. My eight-year-old son refuses to see anything as a problem, only as a challenge. When he reads a book aloud and comes upon the "stupid", "dumb" or "hate" words that often pepper even children's books, he replaces it with "s-word", "d-word" and "h-word". My wife reminds me to keep good energy, lest I drag myself and others down with negative energy.
I know that many of my clients and potential clients, witnesses, and plenty of others believe in being able to feel others' energy, without needing others to say a word nor move a muscle, regardless of my view of it. I am big on positive vibrations.
When I vibrate highly and am unflappable, opponents will tire of flinging feces towards me, because it will just boomerang back into their mouths, and judges will think twice before wailing on me without cause, particularly when they see I am well prepared, credible, not an unnecessary threat to them, and calm in pointing out to them why they are mistaken or premature and improvident in their irritation. My positive energy will neutralize, deflate and exhaust their negative energy, and they may ultimately learn that the negative energy just wears them out, whereas the positive energy is self perpetuating.
Alan Watts has said that "all life is a magnificent illusion, a playing of energy, and ... there is absolutely nothing, fundamentally, to be afraid of." Whether that is so, I do know that I am the only one who should set the agenda of my mind, and not to let other people or other things schedule nor cause me upset.
The battlefield of court and the arena of life are to be my playground, and not places to fear, dread, nor tiptoe carefully around. As Ringu Tulku says: "Although we see that others are suffering greatly, we know that their suffering is almost needless. They are not doomed to be in pain, because their suffering just comes from a wrong way of seeing and reacting." Ringu Tulku, Daring Steps Toward Fearlessness: The Three Vehicles of Buddhism at 58 (Snow Lion Publications, 2005).
As Geshe Kelsang Gyatso says: "A controlled mind will remain calm and happy no matter what the conditions." How to reach that controlled mind that will remain calm and happy? For me, it starts with finding fulfillment from inside me, and not from the vagaries of the weather, time, and public opinion. To find fulfillment from inside, one must find peace. Meditation and mindfulness are an important part of that, whether the moving meditation of taijiquan or sitting meditation. So is following the path of zero. There is no out there for the mind. Everything unfolds from finding internal fulfillment.
Why do so many writers, artists, and musical composers revel and get so excellently absorbed in their creative works? One possible reason is they are able to create their own worlds. Each of us can create our own worlds from moment to moment, not by escaping reality, but by creating a new relationship with reality that keeps us on target with a harmonized and more fulfilled life.
There is no out there for the mind. Everything starts from within.
Friday, May 16. 2014
Lessons from today's Compassion ... Posted by Jon Katz in Persuasion at 00:00
After yesterday's two-day trial finished in one day, this morning I attended the second morning of the three-day Compassion and Wisdom Conference in Washington, D.C., which nearly reached a full capacity crowd of over 200 people. I very much wanted to attend yesterday's morning session with Roshi Joan Halifax and the rest of today's conference. However, I had trial yesterday, and ordinarily am better at attending conferences when they are out of town rather than in town when I am more tempted to handle matters in court and for existing clients.
Here are my shorthand notes of what I learned and re-learned at and from today's Compassion & Wisdom conference and from myself, mainly during Frank Ostaseski's presentation, except where indicated otherwise:
- Some experts on children say it is not natural for children to be plugged into smartphone screens. (From Barbara Fredrickson's talk).
Thank you deeply to all confernce participants I have mentioned above.
Wednesday, May 14. 2014
Negotiating from the getting to yes ... Posted by Jon Katz in Persuasion at 00:00
Soon after starting college, I sat transfixed as Roger Fisher gave a talk about negotiating on goals versus positions, in any conflict from global to local to litigation. It all makes sense, but many prosecutors seem not to have heard of such an approach to negotiations, or else not have taken it seriously.
Negotiating on goals versus positions is essential. I know some of my opposing prosecutors read my blog, so I give them an opportunity in today's blog entry to learn more at their leisure about the this goal-oriented getting to yes negotiating approach.
- Most important is to read Fisher and Ury's Getting to Yes: Negotiating Agreement Without Giving In.
- A conflict training group summarizes Getting to Yes.
- Here is my 2006 article on the getting to yes approach.
- Getting to Yes's William Ury's TED Talk.
- Article on applying getting to yes, to litigation negotiations.
- William Ury's negotiations page.
- OAS manual on ten questions about getting to yes.
- Criminal defense lawyer Luke Newman on the increased challenge of getting to yes after a "no".
Getting to Yes talks about reminding the other party about our
negotiating-related obligations to our relevant community. For instance, Nasser
Trials may provide for more fascinating viewing and newspaper articles. However, no trial should go forward without all parties giving full time and attention to try to resolve the conflict through settlement negotiations.
Monday, April 28. 2014
The difference between handling ... Posted by Jon Katz in Persuasion at 00:00
Thanks to San Francisco lawyer Jeena Cho (albeit in an interview title that joins the overuse and dilution of "Zen") for pointing out this great 2013 Twitter reply from Deepak Chopra to a barb that he is full of dung: "@DeepakChopra: But shit recycles as life ! RT @MTickle: @DeepakChopra @RichardDawkins Deepak, I just think that you are really full of shit #atheism"
Without taking away from Dr. Chopra my praise for his reply, he replied from the distance of space and time from the Twitter attacker. Dr. Chopra's calmness, optimism, and lack of rancor in his reply certainly is an inspiration for my responding calmly, optimistically, compassionately, and in command when anyone throws dung my way when I am in the courthouse battlefield with my client at my side. However, in the battlefield, we do not have the luxury that we do online of simply pressing the delete key.
Dr. Chopra's foregoing Twitter reply is an important alternative for me to consider to my recent reply to a courthouse sheriff's deputy/bailiff last month who said after I would not give into his pressure to decide whether my client and I were going to proceed with a felony preliminary hearing (the deputy urged that "a different judge and prosecutor are ready right now to do the hearing") -- because the parties were still negotiating what became a great settlement at a later date -- "I don't know where you are from, but you are a jerk." It might have been better for me just to have replied "Sorry for your misimpression of me. I will let the judge and prosecutor know myself when I am ready to proceed, after talking with my client about the settlement offer I just now received." Instead, wanting to put a stop to this second interruption by courthouse personnel to my critical attorney-client discussion behind a closed witness room door, and to keep my client on even footing with me, I declared "That badge gives you no authority to speak with me that way." He insisted he would have said the same thing without the badge, and I got my desired result of no further interruptions.
After we got our hearing continued by mutual agreement, I said to the deputy "Deputy, I am sorry if I offended you. I look forward to turning a new leaf with you one day." The deputy seemed stunned that I would offer an olive branch, and seemed to force a smile as an alternative to ignoring me in the face of the observing prosecutor and a few others in the courtroom. I offered the olive branch to the deputy after I had already accomplished my hearing continuance. Doing so at that time was not weakness, and was partially calculated to express my unflappability.
Numerous times in front of my clients, various judges, prosecutors, and even courthouse personnel will say and do things that might put a wedge in my client's mind between me and my client. Deepak's reply might work from the reflective and calm setting on his computer keyboard, but being mindful, calm and compassionate is all the more challenged when such wedge threats are thrown at the attorney-client relationship. I can try to be as compassionate as I want -- and certainly should feel no anger --to a dog who is trying to bite my jugular vein, but if I cannot get away from or deflate the dog's threat, I will do what I need to neutralize the dog, even if that means my harming the dog in the process. As opposed to dealing with the attacking dog, in defending my clients, of course, the only harm I will inflict on others is of the non-violent kind.
On the Buddhist lawyers Facebook page (I am into Buddhism, but do not label myself a Buddhist), I recounted the foregoing story and ideas, and asked what others do in such challenging situations. Denver lawyer Sean Lindsay, a senior associate general counsl at Century Link, aptly replied "Compassion and wisdom take many forms. Manjushri carries a sword." A Manjushri website describes his sword as follows: "Manjushri is often depicted with his right hand holding a double-edged flaming sword and his left hand holding a lotus flower on which rests the Prajnaparamita (Great Wisdom) Sutra. He is often seen riding a lion. The Prajnaparamita Sutra on the lotus flower symbolizes wisdom as pure as lotus. The sword represents the sharpness of wisdom that [sic] to cut through illusion. The lion is called the king of a hundred animals, and this symbolizes the stern majesty of wisdom."
As with all my discussions of dealing with obstacles and efforts to persuade, an essential ingredient is to remember that persuasion begins as an inside job.
Monday, April 14. 2014
When your ideal judge disappoints. Posted by Jon Katz in Persuasion at 00:00
Depending on the judge I get for my case, my response runs from hoping I have misread the judicial assignment, to figuring the judge is better than some and worse than others, to raising my hands in joy to the sky.
When one of the first two categories of judges rules well for my client, I am particularly pleased, because I did not have high expectations of them. When a judge in the final category repeatedly rules contrary to law or sound reason, I need to catch myself before shaking my head in disappointment.
I have appeared several times before one particular judge who was a local folk hero when a private criminal defense practitioner, for fighting effectively for his clients based on principle and a deep devotion to civil liberties. Depending on the case or the day, though, he is at numerous times indistinguishable from the second category of judges. Another judge whose assignment to my client's cases would always make me smile, had me not smiling as much recently when I had my first trial before him, where I felt he was ruling incorrectly on some of the most basic rules of criminal procedure. I did my best not to respond in frustration, but to respond with as much persuasiveness and equanimity that I pursue with the first two categories of judges.
Ordinarily , the final category of judges are preferable to the first two. The bottom line is that judges are humans, humans make mistakes, and sometimes they make huge mistakes. That is among the reasons for shrinking our criminal justice system, by legalizing marijuana, prostitution and gambling; heavily decriminalizing all other drugs; eliminating mandatory minimum sentencing and the death penalty; and eliminating per se blood alcohol content rules in the drunk driving laws.
Nearly two decades ago, my great mentor Steve Rench had already given me the answer about dealing with difficult judges and other difficult people involved in my cases (and which I revisit here): They will not make an effort to rise higher than I give them trust to rise to; and a difficult judge or prosecutor is like a boulder on the highway, which we can either choose to move in the course of sustaining a hernia, or drive around.
As for me, nobody forced me to become a criminal defense lawyer. I relish the work, but must never delude myself that my favorite judges will not sometimes disappoint, and disappoint big. To approach the matter otherwise is weakeningly dualistic.
Thursday, April 10. 2014
Kindness to all is persuasive ... Posted by Jon Katz in Persuasion at 00:00
Around seven years ago, during a short trial break in the middle of my defending a client charged with a second DWI offense within five years (carrying a minimum of 20 days in jail if convicted, which he was) and additional mandatory jail time for an allegedly elevated blood alcohol level (not convicted of that, because the prosecutor did not get the certificate of analysis entered into evidence before he rested his case), the prosecutor walked over to me and asked in a low voice for only me to hear: "How much longer is this bullsh*t going to continue?" What bullsh*t? My defending my client to the hilt to protect his liberty (resulting in delaying the prosecutor from starting his lunch?)? My ultimately going to sentencing without receiving an extra mandatory jail sentence for an elevated blood alcohol level? My achieving a sentence that allowed my client to serve seven days in jail per month to save his job?
Around two months later, this "bullsh*t"-spouting prosecutor had switched sides, opening a law firm close to his prior prosecutor's office. I vowed to myself to treat him as a non-entity, never speaking with nor acknowledging him. He seemed to know I was doing this, and doing so intentionally, and has never made any efforts to communicate with nor otherwise engage me.
How small and counterproductive of me. The only thing I can try to say in my defense is that he is the only person in over twenty years whom I have intentionally ignored, and the only one since grade school whom I have intentionally ignored for years. That is right, I ignored this prosecutor for years.
I finally, late, grabbed and shook myself by the shoulders at my smallness and misguidedness when, thanks to my limited ability often to recognize people many yards away, I greeted him recently with a broad smile, mistakenly thinking he was someone else. He ignored me, or made like he was ignoring me, and I started rethinking all the unnecessary energy that I had been putting all these years into vilifying this ex-prosecutor with whom I have never needed to have any interaction since he spouted "bullsh*t" to me. I already told him during that trial break that his "bullsh*t" comment was uncalled for. I said it with anger, though, which is never empowering.
Leave it to my teacher Baba Ram Dass to set me straight soon after I accidentally smiled broadly at this ex-prosecutor (or was it an accident?), quoting from J.D. Salinger's "Teddy", where a man asks a ten-year-old boy who seemed to be like a reincarnated knowing lama: “'When did you first realize that you knew how it was?' And Teddy says, 'Well, I was 6 years old. I was in the kitchen and I was watching my little sister in her highchair drink milk. I suddenly saw, that it was sort of like God pouring God into God, if you know what I mean.'” Ram Dass concludes: Well, that’s exactly the same thing as that Sanskrit mantra. You’re pouring energy into energy for a matter of energy in honoring energy. So big deal, so nothing’s happened."
In other words, we are connected to everyone and everything. When I go through the day smiling broadly at those I hold dear, and giving a straight face to those I feel have crossed my path or the path of virtue, I am expending excessive energy on a weakeningly dualistic path. When I am truly happy and fulfilled, even the most sinister tyrants cannot interfere with my feelings of well being.
By having stayed for all those years in the habit of treating this ex-prosecutor as a non-entity, I had been seriously blocking my path to being stronger for my clients and me. It is not easy to see prosecutors, judges and cops who urinate on the Constitution. Ignoring such behavior is a disservice to my clients and humankind. Reacting out of anger simply weakens me. Dealing with such behavior effectively and with compassion is the way to go.
When clients, opposing lawyers and opposing witnesses, judges and everyone else know that I go through each day in powerful equanimity, they will pay more attention to my words and messages, rather than checking to assure that their body armor and shields are in place to deal with any bows and arrows coming from me. When I show powerful equanimity and compassion to and in front of my clients, they feel better and that equanimity is contagious.
Friday, March 28. 2014
The importance of being tough as ... Posted by Jon Katz in Persuasion at 00:00
Not long after I posted yesterday's blog entry on the persuasive power of treating the battlefield as a playground, I benefitted again from keeping those principles in mind when maintaining equanimity when an unanticipated arrow was sent my way, disintegrating the arrow into a spot of dust.
Court first and foremost is a battleground. No matter how many rules and procedures are set up to make court -- and any other aspects of life -- fair, we always will encounter people doing things that might derail us, whether or not that happens while playing within the rules or not, and whether or not they are actually trying to derail us.
For better or worse, by the time I was eight, I was always ready to fight. I had my first fistfight by that age. I sharpened my tongue to deal with peers and teachers who taunted me or tested my limits, or who judged me for my being one of the less accomplished athletes. For so many years, much of life was less than a joy than a bunch of ups and downs, being ready to pounce at perceived threats even when in my otherwise most happy and blissful moments. I kept a coat of armor on at most times that, until my early thirties, I did not shed for anyone other than a handful of people I trusted the most.
Therefore, when I speak of persuading and living by being compassionate to myself and others, I am not speaking of some sort of syrupy Barry Manilow or Tony Orlando approach to life, but instead an essential approach to life. At my best, I apply the power of mindful compassion and joyfulness in tandem with being as tough as nails in a taijiquan martial arts sense, A key aspect of taijiquan achievement is to be so powerfully soft in the way that water can be at once powerfully soft (punching water gets one nowhere) and deadly if in a tidalwave, and that wind can be powerfully soft by nothing being able to overcome the wind, which can cause mass disaster in the forms of hurricanes and tornadoes.
As taijiquan master Ben Lo reminds us, taijiquan relaxation is about active relaxation, not collapsing, and certainly not being stiff nor brittle. Therefore, when an opponent in court tries to blindside me, or an opposing witness tries throwing sand in my eyes, I cannot simply stand there like a deer caught in the headlights (collapsed). Nor can I react merely to react (stiff and brittle). Nor can I let myself get angry (stiff and brittle). Taijiquan is about getting to and staying in harmony (active relaxation), whether that mean keeping a harmonious status quo, or inflicting damage of varying degrees on opponents to get to harmony. The more fine tuned that approach, the better.
When people act rotten, sometimes that is an expression of their suffering. Regardless of their motivation for being rotten, I have no obligation to let their rotten actions take me and my clients into disharmony any more than I have an obligation to deal with a burning building by staying there rather than putting out the flames from a safer position. If my response needs to cause suffering to my opponent, so be it, so long as I do not inflict suffering for the mere sake of inflicting suffering, do not revel in inflicting suffering on my opponent, but instead revel in getting me and my client to harmony.
The late John Johnson, who lived the power of softness, reminded me to have my bows and arrows at the ready when kindness alone does not cut it. Those arms will always be with me, along with softness. Softness does not preclude being well armed, and being ready to use those proverbial and/or actual arms. None other than television's Kung Fu underlines such an approach to trial battle and all other battle, through Master Kan: "Perceive the way of nature and no force of man can harm you. Do not meet a wave head on: avoid it. You do not have to stop force: it is easier to redirect it. Learn more ways to preserve than destroy. Avoid rather than check. Check rather than hurt. Hurt rather than maim. Maim rather than kill. For all life is precious nor can any be replaced." (Emphasis added.)
An achieved fighter does not get rattled by other people, by forces of nature, nor by the fighter's not yet having reached a higher level of achievement, so long as s/he continues on the path of achievement. S/he does not obsess over baring fangs to scare off possible attackers but remains prepared for effective battle, and insodoing makes the opponent think twice about whether to attack at all. The achieved warrior revels in life, and has no anger, even when an opponent smashes a proverbial beer bottle and tries to cut the fighter's neck with it. The achieved fighter can smile at opponents and even joke around with them, but must always remember that the opponent is out for the opponent's self, and might be an opponent who will even resort to underhanded efforts in the battle. The achieved fighter prefers the olive branch, but will not hesitate to fight when necessary. The achieved fighter is fearless and effective.