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Criminal Defense – Negotiating with a poker face and battling with equanimity

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Just about every criminal defense case includes negotiating, always backed up with readiness to go to trial battle.

The negotiating does not always involve seeking a guilty or no contest plea deal. It might involve an agreement to dismiss the case in exchange for a certain number of hours of community service or an agreement not to have contact with the complainant. It might involve dismissal for restitution.

Negotiations with guilty or no contest pleas might include seeking to amend the charge to a less adverse possible result, to drop some charges in multi-charge cases, and/or to agree on a sentence or sentencing cap that is less adverse than otherwise.

A poker face is preferable with negotiations, so that the opponent does not see when the criminal defense lawyer is flinching or exulting. A good example from cinema — because we usually do not see others’ real-life negotiations — is in Pretty Woman, where Richard Gere’s and Julia Roberts’s characters arrive at an agreed price for her services for a certain number of full days. After the deal is closed, she says he offered way more money than she needed to close the deal, and he said he was ready to pay even more than that. They both kept poker faces for the negotiations, and then learned that they could have come out further ahead had they simply held out longer.

Related to the poker face in negotiations is the importance of equanimity in the entire battle. In fact, the most persuasive poker face is a genuine poker face. Too much excitement over a successful volley can distract from being powerful in the next one. Getting upset at losing a point can be distracting and can tend to throw the fighter even more off his or her game.

In fact, we do not always know how much fortune or not a new circumstance will present, as is well underlined in the “We’ll See” Zen story. Here, a farmer’s horse run’s away, and his fellow villagers express sympathy at his “bad luck”. “We’ll see,” replies the farmer. The horse returns the next day with additional wild horses, but that possible fortune takes a turn when the farmer’s son breaks a leg from being thrown from one of the horses. “We’ll see”, says the farmer again. The army arrives the next day to draft young men, and bypasses the son because of his broken leg. Equanimity replaces overexcitement at seemingly good fortune and freaking out at seemingly bad fortune.

Prosecutors and police can go nuts not being able to rattle their opponent to the point of trying to taunt them and even paint them in a negative light. How great it would be if all of us could respond to taunts and slander with a simple “Is that so?,” as with Zen master Hakuin, who purportedly raised no protest when falsely accused of adultery, and simply replied “Is that so?” and, when told to give back the baby because he was not in fact the father, again replied “Is that so?”

Going forth with a poker face and equanimity against prosecutors is not about being detached from one’s feelings nor from feeling for the client. It is about reaching powerfully harmonious balance to focus on the battle, and not on any debilitating anger nor on any distracting over-excitement. That equanimity backed up with skill, strength and full battle preparedness can scare the opponent into a favorable negotiation or into courtroom missteps much more than any fang-baring or growling will do.