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Overdwelling on a perceived hailstorm on the horizon threatens to miss opportunities for victory

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A prosecutor I have dealt with many times does not seem to be a happy man, for a long time. And then he has a revelation, patting the back of a criminal defense lawyer whom he passes on the elevator, perhaps having palled around with him in college, before taking on the roles of prosecutor and criminal defense lawyer (and we do better by relating with each other from the soul level, stepping out of our roles);  offering a helpful suggestion to me that might get us closer to settling the case to everyone’s benefit, or speaking kindly to me when I excuse myself for interrupting while he is talking to a colleague I have a time sensitive matter to address.

And then on a subsequent day this prosecutor will start out all over again, like at the beginning of the day daily in 50 First Dates, again looking like an unhappy lump on a log, not exhibiting the presence of a heart. And there he goes like a ping pong ball — not with mood swings, mind you — by default apparently a rather unhappy person who wants to be happy, who seems to fraternize with his colleagues and like it, and who probably wishes his reputation among criminal defense lawyers was not one that evokes a response of “What the f__k did I do to deserve him as the prosecutor on my case?”

He is in most ways predictable. I have had no shouting matches with him, no conclusions that he was trying to throw dirt in my face, no tantrums from him, nor any seeming vendettas from him towards me or my clients (and if he reads this blog entry and recognizes himself here, maybe he will take this as encouragement to reclaim his humanity rather than to lash out over what I have written here, as I have no ill will towards him) . I simply do not want him to be a prosecutor, not until he has a proverbial heart transplant or heart relocation and jumpstart. Prosecutors have too much power and too important positions not to have hearts. Of course too many prosecutors, and too many judges and cops show little if any hearts. This prosecutor is the poster boy for that.

I treat this prosecutor diplomatically, and sometimes can get a breakthrough with him.

And once again, then, it all starts with me. There is no out there for the mind. And the magic mirror takes hold. And I am responsible to a large extent on the great things and even magic that I do or do not obtain for my clients.

So maybe this prosecutor has a heart, but I am not seeing it. Maybe he and I share a passion for jazz or the outdoors, but I have not learned that. Maybe he even meditates, and therefore might be added to the small handful of prosecutors (possibly only one) I have meditated with.

I know some area criminal defense lawyers who refuse to take cases in a nearby courthouse, finding the combination of arrogance among too many prosecutors, and issues with some of the judges as not worth the aggravation. From my viewpoint, my client did not choose his or her jurisdiction of arrest or prosecution. When I am hired, the battlefield jurisdiction already is chosen, and thoughts of the desirability of the battlefield, the judge involved, the prosecutor, or the opposing witnesses simply interferes with my readying my weapons and strategy, unless an ethically calculated change in judge or prosecutor might bring us a better outcome. If I avoid one courthouse because of the aggravation, other courthouses are awaiting with variations on the same aggravation themes. I can either work on myself in the current courthouse, in the next one, in all of them, or better yet, always, on the non-dualistic path. Since everyone and everything is connected, I might as well take my next developmental step right here, right now.

One will not do well as a military soldier to kvetch about brutal biting flies, heat rashes, leeches, and searing heat while overloaded with baggage in unfamiliar lands where the opposing fighters navigate and integrate with every inch of the terrain as easily and without excess baggage, as did the Viet Cong against the overladen American soldiers. To leave the battlefield is to withdraw in defeat, unless it is a temporary receding to regroup and strengthen, or a prelude to an ambush. If the baggage is too heavy, who said one had to carry too much baggage? If the biting flies are making one’s eye swell, is there DEET and less dangerous options for tasting revolting to the flies? If the rash is too much, are salves and looser and lighter cotton clothes available?

I have not vomited in over thirty years, save for one or two vomit burps a year, at most. I can stomach being in the room with a prosecutor, cop or judge spouting things that I would not tolerate if at a cocktail party. I can put up with those of my clients who constantly are stuck starting at square one rather than moving with me to the next quantum level in our defense. I can accept the reality of reporters who are too biased, too reluctant to understand the subject matter they are reporting on, and too unawakened even to realize they have no business sending their story in its current form to the presses. As I repeatedly say, if we do not get angry at a brutal tornado, hurricane or tidal wave, why do we miss even a beat in dealing with vicious-seeming people, other than knowing that they have the capacity to hatch evil plans, and that they know the difference between good and evil, but still choose evil?

A former prosecutor, unsolicited, recently offered me that when he would learn I was a defendant’s attorney in one of his cases, particularly when I had a court reporter in tow (because Virginia District Courts, as courts “not of record” do not provide recordation), he would expect a long trial. I asked him if that ever helped me with negotiations, to which he responded that it helped in my negotiations with him, because he was lazy as a prosecutor, as he described it.

So there you have it. Fight, fight, and fight. Never kvetch, and keep fighting. Or as very talented amateur pianist and professional Pittsburgh architect David Roth insisted as we took the Metro North train one 1985 morning to Manhattan, what kind of inane question is it to ask a music great how many hours the master practices daily? “You practice til you’re fucking great. Then you have a cup of coffee. Then you practice some more.”  And some more.

The late great blues slide guitarist J.B. Hutto let himself get sidetracked for nearly a dozen years into working as a funeral home custodian after a nightclub audience member smashed his guitar over a man’s head, but even he got the calling to return to the full-time stage, where he belonged, on his practice battlefield.

Not only lawyers, doctors, and dentists describe their daily doings as practice. The great living legendary taijiquan teacher Ben Lo asked me when last I saw him around six years ago: “How is your practice?” Spiritual practitioners (from the root “practice”) also talk of their daily practice. If you get sidetracked from your practice, get right back on the path.

For me, my daily practice is on the litigation battlefield. This is where I belong.