Jun 06, 2014 Beware turning your back on prosecutors and wrestling opponents – Don’t be paranoid, either
How much compassion should I show for someone directing a meat cleaver at the throat of me or my client?
Even with my over two decades of experience defending over three thousand criminal defendants, I still witness new ways that some opposing prosecutors and witnesses try to push my reaction buttons and, with some (with prosecutors, a certainly small minority), even stoop to new lows.
I write plenty about having compassion for opponents — no matter how actually or seemingly vicious — and knowing that there is no out there for the mind. However, at the end of the day, when an opponent is about to pick up a proverbial meat cleaver or spear to use against me or my client — or, worse, already has the meat cleaver or spear in hand, ready to throw at me or my client — that underlines why being unflappably battle ready and executing well-made battle plans and battle defense must never be undercut by compassion nor by devotion to a non-dualistic approach. When I am compassionate to others at the expense of myself and my clients, I disserve me and my clients, and am not being sufficiently compassionate to me and my clients. For my own strength and benefit for my clients, I must always be compassionate, but must not turn compassion on its head so as to weaken me.
With that, following are some ideas that I add to my many blog entries on dealing with prosecutors and opposing witnesses:
– In all battle, have no anger. Maintain tolerance and a clear viewpoint.
– Remember this great fly meditation. I am at my best when I deflate, neutralize and reverse irritations and assaults that come my way.
– Focus on acting rather than reacting. When a fist comes my way, my job is to neutralize, deflect, or deflate it, not to get bent out of shape.
– Don’t be paranoid about opponents, nor let them lull you into a false sense of security, just as you wouldn’t sit on cactus hidden in a blanket.
– Do not assume an opponent will be honest, honorable, nor reliable, but always display such characteristics yourself, and hold open the possibility that your opponent might do the same.
– Beware opponents who are like mercury or, worse, venomous snakes. Don’t be angry at the mercury nor snake, but don’t touch them with your bare hands, nor turn your back on them.
– An opponent’s raising his voice at me might just be wind, until the opponent knowingly does that in front of my client, which can amount to unethical communication by one lawyer to a represented opposing party about the case.
– Determine when and how to address an opposing lawyer’s transgressions. Recently, a prosecutor too loudly complained to me, with my client in the courtroom and the judge off the bench, that he was "pissed off" that I was asking not earlier for discovery from his breath technician — who did not want to do so without the prosecutor’s involvement — even though I had just then seen the breath technician there. Rather than my acting in anger, I told the prosecutor that such behavior did not bode well for my relationship with him, and the breath technician — witnessing all this — then let me read all his notes without necessitating the prosecutor’s involvement. I saw the prosecutor the next day, and said: "Let’s smoke the peace pipe, Joe." He answered: "I have no problem with you." I replied: "Why do you need to raise your voice at me when my client is present?" He looked at me. I then proclaimed: "You’re a pip, Joe." As he processed that, I added "And so am I." That broke the tension. He smiled and said: "At least you admit it." Knowing this particular prosecutor, that may have solved matters, at least for awhile.
– A prosecutor or cop do not act nastily for no reason. It can arise from going through tough times, having had a bad experiene with another lawyer, having prejudices, being sore at the criminal defense lawyer for something the lawyer did or supposedly did, or for a whole host of reasons. Be ready to talk it out with the prosecutor if that might diffuse the situation to the benefit of the criminal defense lawyer or his or her client.
– Those who don’t want the vagaries of the battlefield do not belong doing criminal defense in the first place. Battlefields are often strewn with snipers, landmines, booby traps, and even body parts and spattered and spilled blood. By seeing the courtroom in such a way, you will less likely feel debilitated when a cluster bomb gets thrown your way, and you will then be better able to dodge and redirect or neutralize that bomb.
– Uncivil opponents and everyone else deserves compassion, but not at the expense of our well being. Do not give up your power.
– An opponent who tries using a flameflower on me bears the risk of getting burnt as I move to stop, douse, or even reverse the direction of the flames. Those who play with fire risk too much.
– If I get a splinter in my foot, I will inflict pain on myself if necessary to remove the splinter with a needle. An opponent sending potential harm (to me or my client) my way needs to be handled with just as much resolute firmness. Of course, at all times I talk figuratively when addressing violence in litigation.
– Don’t get any angrier at a human opponent than at a tidal wave, hurricane or tornado, even though humans have the capacity for compassion and evil, while tidalwaves and hurricanes have no will nor agenda.
– Compassion is not balanced against staying strong. I can at once move to pin my opponent on the mat while having compassion for him or her.
– Do not expect an opponent to cut you slack, to keep your words untwisted, nor to watch your back. A hurricane would not do that either.
– See the friends off the playing field going for the jugular on the battleground. It’s okay to be friendly with some opponents, to a point.
– Having compassion for others — just like forgiving them — is a matter of strengthening ourselves and not letting them set our emotional agenda. Doing otherwise weakens us.
– You can put opponents at ease — and sometimes off guard — while still being on guard yourself.
– Always refraining from calling others a**hole and other angry words, helps assure we do not do the opposite out of anger, only to regret it.
– Never be angry. Never act out of anger. External circumstances should never adversely affect our happiness and sense of well being.
– When you talk to an opponent, speak as if being recorded, with the recording being broadcast in real time.
– In this day and age of little kept secret, watch out saying anything that you would not want your opponent to hear.
– Do not assume an opponent will not stoop below any particular point. Opponents might stoop so low in part to shock and weaken you.
– If a nasty opponent claims s/he has no need for compassion nor love, that is the person perhaps crying out for it the most.
– See yourself as powerful enough to direct and change the course of events, and as too powerful to be toppled.
-The magic mirror always is at work.