UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer - Persuasion

The illusion of "I want to get it over with" / Giving clients the confidence to be more patient than that.

nospam@example.com (Jon Katz) — Wed, 19 Nov 2008 00:15:00 -0500

When someone says "I want to get it over with," is the person doing nothing but merely chasing after an illusion?

Let us consider the ultimate effort to get it over with: suicide. My spiritual guru and friend Jun Yasuda told me that one day a man walked up to her teacher, the late Nichidatsu Fujii Guruji, and proclaimed that he was going to kill himself. Perhaps against the advice of those at suicide helplines, Fujii Guruji laughed, and said something along the lines of: "You think it is that easy to get away from your problems?" Of course, Fujii Guruji and Jun-san believe in reincarnation. I did not learn whether this man ultimately decided not to kill himself; because of their belief in reincarnation, I do not know how much that question mattered to Jun-san and Fujii Guruji.

Whatever the inclination might be for people to confess their suicidal plans to Nipponzan Myohoji clergy, on a separate occasion, a man approached Jun-san, telling her his plan to kill himself. Her verbal reaction was along the lines of: "Great. If you are going to kill yourself, you will no longer need food, so you might as well fast." He did fast, and he returned to Jun-san telling her that during his fast he decided not to kill himself after all.

We are so cluttered up with excess junk, psychologically, physically, and spiritually. When a person fasts -- and the fast can be enhanced by a vacation from the Internet; phone; all other technology driven by electricity, batteries, and petroleum; and newspapers -- s/he has no choice but to slow down due to the reduced physical energy caused by the fast. With such slowing down comes the opportunity to empty the excess mind junk and spiritual junk. Competing with the benefit of slowing down is the tug-of-war often presented to -- but avoidable by -- trial lawyers with the constant demands to drive to all sorts of court appearances (and then often to wait and wait in court); to visit clients in jail and to meet with them in the office and offsite; to meet merciless court filing deadlines for motions, opposing motions, and appellate briefs; and to investigate and prepare for clients' cases, while still meeting the demands of the lawyer's personal life. The trial lawyer's time and personal challenges are well capture by my late friend John Johnson in his poem "A Meeting with Mother Earth," including this line: "The life of lawyering is filled with noise and turmoil. Peace is hard to find - even in seeking after justice. Modern mankind runs amok in anxious pursuit of an elusive technological happiness..."

No matter how much stagefright a lawyer might have about a case -- and it is critical for lawyers to adjust their lives and relationships with the world and themselves to diminish those fears -- a criminal defense lawyer's client is likely to be more fearful than that. The more the lawyer earns the client's trust, confidence, and comfort, the more the lawyer will help not only to reduce the client's fears, but to help the client make decisions from a position of strength, patience, and full willingness to share all ideas, concerns, questions and fears with the lawyer. For a lawyer to reach such a quantum level with his or her client, nothing substitutes for spending quality time with the client, with the lawyer listening empathetically, actively, respectfully, and deeply, and responding empathetically and with the best and directly gentle of bedside manners while seeing the client as the lawyer's equal. Investing such time and energy is a commodity that too many lawyers fear investing, lest they have insufficient time left to do their other work and to earn a living. However, nobody ever said that being a criminal defense lawyer is an easy ticket to financial stability. Moreover, the lawyer who puts clients ahead of money will earn more money or other good fortune in the end than the lawyer who does the opposite.

Continue reading "The illusion of "I want to get it over with" / Giving clients the confidence to be more patient than that."

"When you are fatigued, do t'ai chi."

nospam@example.com (Jon Katz) — Wed, 12 Nov 2008 00:00:00 -0500

My t'ai chi teacher Len Kennedy once said: "When you are fatigued, do t'ai chi." On another occasion, I learned the following from Len: Internally, during one of "those meetings," the t'ai chi practitioner does t'ai chi, through relaxing and sinking into one's chair or into the ground if standing; by relaxing actively through being fully aware of what is happening around the t'ai chi practitioner without getting sucked into nonsense; and by emptying the mind and body of stress and wasted energy in order to deal with the matter at hand.

Len Kennedy learned t'ai chi from Robert W. Smith, who was t'ai chi megamaster Cheng Man Ch'ing's first Western student. Recently, I found this response to nihilism from Professor Cheng, as recounted by Fred Lehrman:

"I remember sitting one morning several years ago with Professor Cheng and several students in the Asian Library at Columbia University. The Club of Rome Report had just been released by MIT, and one of the students had bought in a clipping from the New York Times outlining the hopelessness of solving the compounded problems posed by overpopulation, food shortage, energy resource depletion, atmospheric pollution, radioactive waste, etc. The student was quite upset, and asked professor Cheng what he thought of the situation, and how we could get out of it. The Taiji master turned the question around and asked the questioner what his ideas were. The student gave his answer, and sat expectantly, awaiting correction from the Sage. Instead, Professor Cheng turned to another student at the table, and asked, 'What do you think about what he said?' This continued until each student had commented on the others ideas, and it was clear that the subject had been exhausted. There was really no way to solve the problem. Professor Cheng went back to reading his book.

"After a pause, the first student, more upset than ever, asked again for some word from the teacher. Professor Cheng leaned forward, and put his book down next to the cup of hot tea which had just been refilled for him. 'What will happen to the world? I don’t know. Look at this vapor; it comes from the tea, it goes into the air, and right about here' – he pointed in the air – 'you don’t see it anymore. Where does it go?' He sat quietly for a moment while we pondered the empty space left after the world had destroyed itself. 'Don’t worry about it,' he said, 'Nothing gets lost.'"

Read the rest of Fred Lehrman's powerful essay here.

Such lessons from Cheng Man Ch'ing keep me inspired to practice t'ai chi, doing the form morning and night without fail, and applying the t'ai chi principles to everything I do. Tea anyone? Jon Katz.

Blue skies, smiling at me.

nospam@example.com (Jon Katz) — Fri, 07 Nov 2008 00:00:00 -0500

During my first summer in law school, working in the regulations and legislation division of a federal agency, I mentioned my interest in becoming a litigator. One of the staff attorneys -- who had paralegaled at the ACLU, which was one of the places I wanted to work -- exclaimed: "Don't you know that is the legal path that causes the most ulcers?"

Ulcers shmulcers, I reasoned. I went to law school intent on learning better how to fight for civil liberties, and preferred -- and still do -- an ulcer doing work I enjoy than having a less meaningful life without stress.

Of course, ultimately I found the path to being calm even in the eye of the most virulent trial storm, as I describe here. Before reaching that path, though, many times in my first two years of practicing criminal defense I would walk into the courthouse feeling my heart sink to my stomach, obsessed over how much injustice was being done every minute in any courthouse I walked into. Ultimately, I reversed that view to seeing every visit to court as an opportunity to add more justice to the world and to reverse all the world's injustices, although the opposite view still tugs at me.

Ironically, I probably would not have found this path of calm in the eye of the storm had I not met the eye of the storm so many times as a trial lawyer fighting tooth and nail for my clients' liberty.

Too many people lose touch with the child within them as they get farther away chronologically from childhood. Look at the adults to whom children gravitate at holiday gatherings, at weddings and other big celebrations, and on boring shopping trips with their parents, and you are bound to see adults very much in touch with the positive child within. The division between work and play needs to be dissolved, for each living moment to be part of a harmonious, powerful and enjoyable whole.

Two people who bridge the gap between work and play, and adulthood and childhood are the late Ella Fitzgerald and Thich Nhat Hanh. Who else but Ella could have elevated "A Tisket A Tasket" from a droning kindergarten-required song to the masterpiece seen in this video, and even more so when I experienced Ella and Oscar Peterson separately on stage on a magical summer evening in 1982? The only thing better would have been for Thich Nhat Hanh to have joined them onstage.

A few years ago, I found the following passage from Thich Nhat Hanh, which brought me all the more closer to living and lawyering fearlessly and in the moment:

Contemplation on No-Coming and No-Going
By Thich Nhat Hanh

This body is not me
I am not limited by this body.
I am life without boundaries
I have never been born,
And I have never died.

Look at the ocean and the sky filled with stars,
Manifestations from my wondrous mind.
Since before time, I have been free

Birth and death are only doors through which we pass
Sacred thresholds on our journey
Birth and death are a game of hide and seek.

So laugh with me,
Hold my hand,
Let us say goodbye
Say goodbye to meet again soon.
We meet today
We will meet again tomorrow
We meet at the source every moment.
We meet each other in all forms of life.

Thich Nhat Hanh, Chanting and Recitation from Plum Village. Page 188.

In the above-displayed video, Thich Nhat Hanh talks of being mindful, happy and in the moment with each passing second. Not only is such an approach essential, but, when applied, it helps one concentrate on the task at hand, even if the person prefers being elsewhere in time, place, health, and experience. Many talk of time management, but overly thinking about the future in an effort to manage time will boomerang against the time manager if s/he cannot be here now.

A big challenge to keeping work as play is to transcend the feeling of imprisonment being in a stuffy, windowless, courtroom where one cannot even enliven the experience with an I-Pod. Then again, before the days of electronics, electricity and batteries, people found a way to do that without I-Pods, and I will endeavor to do the same.

As the week comes to a close, I have posted the above videos. The first video presents Ella Fitzgerald in Berlin singing Berlin's "Blue Skies". The second video presents Thich Nhat Hanh bringing the benefits of mindfulness/being in the moment, to life. Thanks to a listserv member for the link to the latter video. Jon Katz

ADDENDUM: After posting the forgoing blog entry, I finally listened to the rest of the above clip of Ella Fitzgerald to see that the song is actually "On a Clear Day" after Ella starts off with the first line of "Blue Skies". I found no close rendition of "Blue Skies". Here is one by Willie Nelson.

Learning at the zoo.

nospam@example.com (Jon Katz) — Sun, 02 Nov 2008 00:00:00 -0400

Zoos keep captive animals for the entertainment of humans. Yes, some zoos may have a higher educational and preservationist purpose. However, if attendees' entertainment motivation for going to zoos were eliminated, few would be visiting zoos, and many of those on display would no longer be put on display.

Nevertheless, my 2 1/2 year-old-son loves the zoo, and I admit having enjoyed myself immensely with him at the National Zoo for many hours today. One day he will know about the animal rights movement's opposition to zoos and circuses and make up his own mind.

Our primary motivation for driving to the zoo today was to visit the apes. All of the apes there exemplify the essential life and lawyering approach of being here now, as lived and taught by such philosophical giants as Bhagavan Das and Ram Dass, and as exemplified in the following story:

"A man is chased in the wilderness by two tigers, only to be forced off a cliff, hanging for life from a vine. One tiger waits above and the other waits below for a human meal. Two field mice gnaw away at the vine. The man sees a wild strawberry growing from the side of a cliff, reaches for it, tastes it, and -- with his life hanging in the balance -- thinks of how delicious the strawberry tastes."

Here is another being here now story from the same websource: "A Japanese warrior was captured by his enemies and thrown into prison. That night he was unable to sleep because he feared that the next day he would be interrogated, tortured, and executed. Then the words of his Zen master came to him, 'Tomorrow is not real. It is an illusion. The only reality is now.' Heeding these words, the warrior became peaceful and fell asleep."

As the apes moved about above our heads effortlessly along ropes, as they ate and drank, and as they sat in the moment, they were being here now, as was my son, who was moving forwards in the moment. Jon Katz.

We are all related.

nospam@example.com (Jon Katz) — Mon, 27 Oct 2008 00:00:00 -0400

When googling for some further information on t'ai chi master Cheng Man Ch'ing, I happened upon an intriguing blog entitled Native American Taoist. The site's blogmaster is Thunderhands, who answered a blog comment about his Cheng Man Ch'ing posting with the closing phrase "Mitakuye Oyasin".

This being the first time hearing the phrase, I researched further to learn that it is Lakota for "all my relations" and, by extension, "we are all related." I e-mailed Thunderhands my thanks for his blog and for his railroad illustrations; trains and elevators are my son's favorite machines. He replied to my inquiry about the phrase: "Mitakuye Oyasin is Lakota and it means all my relations, including all living things. Winged creatures, two legged's, four legged's, crawling, reptiles. etc. Of course yes we are all related, we are all one, but live in a delusion that we stop at our skin." That would throw out the window my being able to make an exception for the way I approach and talk about cops, prosecutors, and probation agents.

Interestingly, a person named Atuuschaaw maintains a blog entitled with the same phrase, Mitakuye Oyasin. Learning about Mitakuye Oyasin reminded me of Baba-Kundi Ma'at-Shambhala, an inspirational man I met last year at the Whole Foods parking lot. As it turns out, two months ago, he started a blog entitled Essence Blogeshere, which frequently amplifies on Mitakuye Oyasin, without saying the phrase.

Mitakuye Oyasin.

Jon Katz.

Learning one cookie at a time.

nospam@example.com (Jon Katz) — Sun, 26 Oct 2008 00:00:00 -0400

Some people reach ecstasy by seeing their favorite band live, as have I, when experiencing such superhumans as Return to Forever, Dizzy Gillespie, and Cat Anderson. Yesterday, I reached ecstasy by interacting more directly than ever with t'ai chi Master Ben Lo.

Frequent readers of this blog know that I believe strongly in applying the principles of t'ai chi to the practice of law and to the rest of my life, and that two lawyers inspired me most to practice t'ai chi.

Curiously, Master Lo -- who focuses his students on the power of being mindfully relaxed and soft -- playfully tells me that lawyers and salespeople tend to be stiff. Maybe he thinks their minds are subject to too much intellectual clutter. Wishing to hear this megamaster rather than debating him, I did not bother suggesting that such stereotypes do not work, in part considering that all lawyers were non-lawyers at some point in their lives.

Yesterday was my fourth class with Master Lo since 1995. Master Lo visits the District of Columbia area from his California home around once or more annually. He started off the weekend session by asking why people came to the class. One attendee said she was there to learn t'ai chi from him. His ultimate response as we proceeded was that it is easy to learn about t'ai chi, but much more difficult to apply it. He then proceeded to emphasize the importance of learning t'ai chi at one's own pace, while he pushes students into his teaching realm of "no burn, no earn/no pain, no gain," or, as his teacher Cheng Man Ch'ing once pointed out to his students while on a walk that they have plenty of time in the future to rest (gesturing towards a cemetery) but that much is left to be done while on this Earth.

Continue reading "Learning one cookie at a time. "

Earning a good living without focus groups: It can be done.

nospam@example.com (Jon Katz) — Thu, 23 Oct 2008 00:00:00 -0400

In the summer of 1971, at the age of eight, I learned two indispensible things. First, I learned about Mad Magazine, which I read and subscribed to religiously for many years, and whose offices I got a tour of three years later, mesmerized as Associate Editor Jerry DeFucio led me down hallways filled with amazing art, drawers filled with such priceless gems as the original Godfather cover artwork, and Bill Gaines's office with a papier-mâché King Kong ready to burst in through the window; and as Sergio Aragones inked original drawings for me on the inside covers of his books. Second, I learned how to fold my eyelids inside out, which I can still do today.

How does this connect with the practice of law? First, the most effective and fearless fight -- be it in or out of the courtroom -- is accomplished by maintaining the wonder and fearlessness and never-ending joyful self-discovery of a child. Second, people will be more riveted to your courtroom presentation if you remain real without constantly dwelling on your law office's financial bottom-line, just as Mad under the late William Gaines never bothered surveying its reader demographics but still earned a bundle in the process, while doing things as outrageous as bringing the staff to Haiti to visit the magazine's sole subscriber to convince him to renew his subscription. Third, you can be successful without being co-opted by people and issues you do not want to be co-opted by, just as the William Gaines gang refused advertising, lest that water down Mad's satirical sharpness (today, post-Gaines, Mad is riddled with advertising and its previous sharp pen is much less sharp).

Now is the time, before you turn in for the evening, to summon the fearless and wondrous child within you. Go ahead. Throw water balloons out your window (just not in anybody's direction); make milk come out of your friend's nose; go on a roadtrip until sunrise. How did that feel? Jon Katz

Work as play/ Play as work.

nospam@example.com (Jon Katz) — Tue, 21 Oct 2008 00:00:00 -0400

For fewer than two years between leaving the Maryland Public Defender's Office and becoming my own boss, I worked at a civil trial law firm. I learned many good things there. However, I realized that I would be able to spread my wings the farthest by being my own boss. Without a boss, no longer did anyone urge me to wear my suit jacket when meeting with clients, nor to work in a gray-feeling and cramped building with an uncomfortable winter draft whirling through my basement townhouse office for months on end; that is not what I am about. Employers, take heed: Such unnecessary formalities and physical discomfort do not make for the highest performing staff.

Before we even had furniture delivered to my duo practice with Jay Marks, we already had potential clients coming through our doors. It was August 1998, and I was energized, and am all the more energized as the positive karma continues flowing. All that was needed was to leave behind the fear of having to succeed without a duplicated weekly paycheck.

How to enjoy practicing criminal defense when my clients typically are in varying degrees of disharmony? I welcome the challenge to help return harmony to them. It can be as small as a recent misdemeanor trial date when my client was tremendously nervous about the unknowns of his case. Before our case was called, a Mr. Price's case was called, for some sort of non-jailable moving violation. The judge completed Mr. Price's case almost as quickly as it has started. I wrote a large note on my legal pad to my client: "Does Mr. Price hang out with Bob Barker?" For a brief moment, my client was caught up in juxtapositional laughter, briefly forgetting his fears. Ultimately, the prosecutor dismissed the case.

A year ago, a client had a District Court trial scheduled in extreme Western Maryland. He took the train from home a few states away and inquired about our driving there together. I agreed so long as he got a hotel close to my home so that I would not be waiting for Godot at some desolate uncertain meeting place. We had a blast during our over two hour drive each way. My client is a fascinating person, is an artist to boot, and shares my strong support for a world with much less war, more justice and human rights, and the elimination of a police state mentality and reality. Beyond me was why the prosecutor had me and my client drive all the way out there to tell me what he already knew, which was his plan to dismiss the case after I had made efforts before the trial date to obtain a dismissal.

With the case dismissed, my client and I took in a walk around the interesting downtown surrounded by mountains and waterways, near the railroad tracks. On the drive back, we stopped at an unusual grocery store that included a strangely-named British dessert in a can, and we tried to make heads or tails of it. A year later, we bumped into each other at the September 2007 prelude to a peace march that assembled across the presidential palace and caught up with each other.

Last month I learned that Arnold Toynbee had excellently described the foregoing interactions with myself, and with my clients: "The supreme accomplishment is to blur the line between work and play." Employers, take note. Employees, take note.

Thanks, Mike Garofalo, for focusing on the need to keep play in work. Jon Katz