Listen to your gut if you sense danger and to your nose if you smell toxicity

Highly-rated Fairfax County criminal lawyer on the essential practice of always being battle-ready.

Apr 05, 2016 Listen to your gut if you sense danger and to your nose if you smell toxicity

We inherit our instincts from our cave-dwelling era ancestors, who would not have survived without their instincts.

When I point out the importance of maintaining no anger against, no paranoia with, arms-length distance to, compassion for, and non-duality with our opponents, that does not mean to avoid our common sense against playing with fire, turning our backs on someone who will try to harm us in the process, nor letting our clients or ourselves be harmed in the process of having compassion for the opponent. The same goes with my belief that criminal defense is about harmonizing an imbalanced situation, with the need to go in increments from avoiding first, checking next, then hurting, then maiming, and then killing, all of course proverbially.

Just as we would not allow a swarm of wasps flying right at us, a cancerous growth, nor gangrene in our limb to go unchecked and untreated, we need to know, plan around and adjust to our surroundings, battlefields and opponents. For that reason, as much as he saw the potential Buddha nature in everyone, Bodhisattva Never Despise — whether or not an actual person — gave himself a safe distance to plenty of people to whom he bowed, lest he find himself with a bashed-in head in the process of bowing to some of them.

Because everyone has the capacity to do good, evil, and a combination of the two, we cannot write off anyone as pure evil, but neither can we afford to put on rose-colored glasses to lie to ourselves about the true nature, actions and risks with a person in the current moment. We can motivate people to be at their best, and if they do good, they may continue on that path or recoil back to their old and dangerous ways.

We well empower ourselves by dealing with equanimity and non-anger in everything we do, in all interactions with others, and in all contemplations about and engagement in conflict. I do not need to bare fangs at my opponent to gain advantage in a battle. I need only to be ready for battle, fight a good battle, and be ready to adjust to all changes during the battle, whether they be changes in personnel, actions, threats, supplies, terrain, sickness, wounds, or weather.

All these considerations are very important to my continuing on the path of successful litigation and court battle. I have had some prosecutors wonder why I would invest so much time, resources and energy in battle when a guilty plea will likely get my client a “slap on the wrist”. Since when is a guilty finding a mere slap on the wrist? Since when should a defendant plead guilty when s/he is not likely to fare worse if s/he asserts his or her Constitutional right to proceed to trial and to win unless and until the prosecutor proves guilt beyond a reasonable doubt?

How pathetically droll that one day when a prosecutor — a newer one, granted, who did not stay with his office long enough to learn the ropes better — complained to me how his time for the day was being eaten away because other defendants, and my client (on my advice), were not pleading guilty, where with my DWI client the prosecutor had steadfastly refused to accept my offer to plead guilty to an amended charge of reckless driving instead. Upon my winning the trial, I very much had to resist the temptation to rub the victory right into the prosecutor’s eyes. Variations on this theme have played themselves out so many times, with prosecutors trying to play mind games and psychological warfare to try to make me and my clients feel unsettled for the defendant’s not accepting the prosecutor’s most recent settlement offer. This scenario has played itself out so many times, and I resist telling prosecutors how often my clients come out better, or no worse, by following my advice on case negotiations.

In sum, when engaging with threatening opponents, do not let your guard nor joy down. Do not engage the opponent any more than needed. Listen with all senses. Neither be paranoid about, angry at, oblivious to, obsessing over, nor fearful of those presenting dangers. They are simply there to be dealt with, and to be dealt with well.

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