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Whether and when a criminal defense lawyer should show his or her hand and power

Oct 20, 2014 Whether and when a criminal defense lawyer should show his or her hand and power

An excellent civil trial lawyer in Chicago prefers to downplay his abilities pretrial so that the opponent will not be prepared for the tidalwave of power that the lawyer will bring to the courtroom. He is not alone.

My general approach is not to focus the spotlight on me, but for my opponent to know that the entire defense team is completely prepared to pursue a great and effective battle in court.

When opposing lawyers know my strength and trial preparedness, that can help me obtain better results during settlement negotiations. When a judge knows I know effectively how to try a case without wasting time, the judge may be more likely to give me more room and leeway in trying my case, which of course serves my client.

If a potential client does not know my strength, why would s/he hire me? If potential clients know my strength, how do prosecutors not know about my strength, as well?

Sun Tzu might counsel downplaying our opponents’ assessment of our strength when great, to catch the opponent unprepared, and exaggerating our strength when under-resourced.

Another way in which a criminal defense lawyer might end up showing his or her hand and power to prosecutors is through the lawyer’s presentations at continuing legal education events and through writing (including through my Underdog blog). Where should criminal defense lawyers draw the line at not sharing winning approaches with opponents? Should we stop publishing books and blogs?

If I limit my sharing to criminal defense lawyers alone, who is to say that one of those criminal defense lawyers will not one day become a prosecutor, or share my insights with his or her prosecutor or police friends?

Do any secrets really exist among criminal defense skills? Wolfe Lowenthal says his teacher taijiquan master Cheng Man Ch’ing said there are no secrets in taijiquan.

What is the secret to winning trials? Are there any secrets beyond finding, tapping into, and applying the vast reserves of strength and ability within each of us, supplemented by welcoming the beneficial teachings from everyone and everything around us? Are they really secrets, or is it more a matter of knowing the roadmap to winning, and finding a way to apply the roadmap and to improve upon it? Is it any different than my t’ai chi teacher Len Kennedy’s view that the principles of t’ai chi are simple to learn but profound to apply. Is it any different from knowing how to slim down and actually doing it?

Wolfe Lowenthal’s biography of t’ai chi legend Cheng Man Ch’ing is entitled There are No Secrets, in which Lowenthal says Professor Cheng professed that t’ai chi has no secrets, but that “if there were a secret it is [that the hands do not move when doing push hands].”

Cheng Man Ch’ing’s senior taijiquan senior student Ben Lo boils his own teachings down to “relax and practice”. Ben Lo also counsels “No burn, no earn,” “No pain, no gain,” and “My name is Ben Lo, as in ‘bend low'”.

In the same vein, there probably are not any secrets to winning trials, but there are skill sets to learn, revelations to find, new levels of caring to attain for clients, more fearlessness to gain, more internal and external journeys to take, more joy to experience on the path, more ego to shed, more willingness to collaborate with other lawyers and non-lawyers in seeking the path to victory, and more of the tapping of the joy, fearlessness, and giggling of the child within.

My trio on this winning path is the overlapping lessons and practices from the Trial Lawyers College, t’ai chi, and the peace and harmony experienced even when walking into the eye of the storm I am also helped along the path when imagining at various difficult times in court that I am accompanied by different combinations of SunWolf, Steve Rench, Jun Yasuda and Cheng Man Ch’ing. My path also is helped through my daily writing, when I often expect to go in one direction, and then often take a very different path and often reach a different destination.

My focus, then, is not on squirreling away any secrets, but to share what I have learned with criminal defense colleagues who wish to know, and to continue on the path of never-ending improvement.

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