SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia criminal defense and DUI lawyer Jonathan Katz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_01 0:31

Hello, everybody. This is John Katz. I'm a criminal defense lawyer and DWI defense lawyer in Fairfax, Northern Virginia. This is episode 12 of Beat the Prosecution. And as always, except for one exception, we had Rachel as our guest. We have our podcast master, Abigail Sweigart. Abigail, what are we talking about today?

SPEAKER_00 0:51

Today we're talking about not losing sleep over your case and being strong and ready for court.

SPEAKER_01 0:57

Well, I mean, wouldn't everyone be like that anyway?

SPEAKER_00 1:01

Some people, it's a scary thing. It's their life is on the line, so there could be a bundle of nerves beforehand.

SPEAKER_01 1:06

The fact of the matter is, I've even had clients tell me how nervous they are when they just come with me to court for a scheduling conference. And I say to them, if you're nervous over a scheduling conference, wait until your trial date. So I tell my clients, don't wait until the court date to tell me you're losing sleep. Don't wait until the court date to tell me how nervous you are about the case. I'm here to help you with that. I have techniques for that. And what's one of the first techniques for doing that?

SPEAKER_00 1:35

Oh my goodness. Mindfulness?

SPEAKER_01 1:38

That's one of them. But follow the form mindfulness is getting the right lawyer for you.

SPEAKER_00 1:44

Right, absolutely.

SPEAKER_01 1:46

And having the right lawyer for you. And making sure your lawyer is busting their butt for you, and making sure your lawyer is working with you, and making sure that your lawyer is respecting you when you come up with ideas, and is respecting you when you tell your lawyer how nervous you are, and that your lawyer is not giving you some sort of false promise. Hey, don't worry about it. This is your life. It's not the lawyer who's uh risking that. But let's talk about mindfulness. So back in 1994, I contacted a Laura who I who was at least about 30 years older than I, uh, who I know knew had uh practiced the Chinese martial art of Tai Chi Chuan. And uh I forget how they came up. We were probably at a criminal defense lawyer's cocktail gathering before uh the main event with a continuing legal education. And for some reason I found out that he practiced the martial art of Tai Chi Chuan, which I've now been practicing for over 30 years. So I met him uh a little more than 30 years ago. And when he gave me the names of some Tai Chi teachers at my request, he sent a note along with the names of these folks saying, uh, the doors that are about to open are amazing. When I'm at my best Abby, I do Tai Chi Chuan every day. I did it this morning, and Tai Chi is an internal martial art and it covers everything that a lawyer needs to do to be prepared for trial, uh, mentally, physically, spiritually, health-wise, because my form of Tai Chi was developed by a man named Chang Man Shang. He uh altered what he learned a bit, and he was a Chinese physician. So, what he did with this uh Tai Chi is he uh focused on keeping the movements that are similar to the benefits of acupuncture and acupressure. And uh so what Tai Chi does is it helps about calmness, calmness, calmness, and about strong calmness, not and about so and about persuasive softness. We're not talking about limpness, we're not talking about brittleness, okay? So uh the story goes that one day one of Chiang Man Chang's students comes back from Italy where he was doing a um a film production and he was very worried about finances, and guess what? One of the first things was, or the only thing was, that his teacher Chiang Man Chang told him Don't worry about it. Relax. Relax. And uh we do Tai Chi sparring to test how uh achieved we are with Tai Chi. And when I was doing sparring with my opponent, he said you've got to relax when you get pushed. You don't resist, you relax and sink into it, so that way you can go ahead and discharge and kick the butt of the other side. So, how does this translate to helping my clients? Well, I'm not here to insist that they learn Tai Chi. I mean, I've been doing it for over 30 years. It's not for me to insist they do other types of mindfulness. I mean, Tai Chi is about mindfulness because it's about being in the moment. And you can choose mindfulness that has no religious uh underpinnings. Yes, a big part of the mindfulness movement uh does spring from uh Buddhist lessons, but you don't have to be a Buddhist to be into mindfulness. So I think one of the best uh books uh and videos on mindfulness is from a man named John Cabot Zinn. He spells his name John just like the way I do my nickname, J-O-N, Cabot, K-A-B-A-T, hyphen Zinn, Z-I-N-N. And he's got this great book called Mindfulness for Beginners. It's a quick read, it's a good one. And he also has a great video on YouTube where he's talking at Google. So if you just type in John Cabot Zinn at Google, uh you'll benefit from that uh very much as well. So, Abby, the key things to not losing sleep over court and to be powerful in court, both as a defendant and as a lawyer, besides what we've been talking about, you gotta have good diet, rest, and exercise. So if already you've got heart disease, if you are 500 pounds overweight, whatever it is, it's never too late to start. I remember uh our paramedics teacher in high school saying, even if you smoke four packs of cigarettes a day, if you stop smoking today, all of a sudden your lungs start repairing. It's the same thing with weight. If you're eating wrong, start eating right, start eating better at least. If you're not exercising, walk at least two minutes a day. Increase it to five minutes a day on average by next week. Work your way up to 30 minutes a day. How many people can just exchange time they're wasting, surfing the web, watching TV for just walking or doing some sort of exercise, an average of five to thirty minutes a day. When people say to me, How do I have time to do Tai Chi? I say to them, Do you brush your teeth? How much time do you spend brushing your teeth? To brush your teeth right, how much time do you spend brushing your teeth?

SPEAKER_00 6:49

Two minutes.

SPEAKER_01 6:50

Okay, well, two minutes of Tai Chi, two minutes of walking is better than not. So I'm not saying replace your brushing with that, but just add some exercise and and uh exercise to that and uh spiritual practice and good eating and then rest. Okay, some people say, well, I can't get a good night's sleep. So I heard a more practical thing than ever from somebody about getting a good night's sleep. One thing, of course, is just exhaust the heck out of yourself. How do you exhaust the heck out of yourself? Well, if you do a lot of exercise over the weekend, uh really vigorous exercise that makes you sweat and stink like a pig, you are going to sleep. You're gonna have no choice. Another one is don't eat more than two to three hours before going to bed. Don't drink more than one or two hours before going to bed so you don't have to be getting up and urinating. Keep that cell phone and your other devices as far away as you can. Do not look at any screen time. Ideally, during one to two hours before going to sleep, stay off the phone one to two hours from going to sleep. Some people suggest not even reading during the first several minutes before going to sleep. You can read, but then at some point just uh just be resting there. And if you can't get any sleep, at least get yourself a regular bedtime, a regular going to bedtime and waking up time, even if you're just uh lying down there. Do you have any thoughts beyond that, uh Abby?

SPEAKER_00 8:12

Well, I mean, I think you know, you know your routine as an individual and know that it's a big day the next day for court. So yeah, you don't want to stress yourself out, and maybe you have to have different habits, but you want to be the best bushy-eyed, bright-eyed that you can be for court, especially if you know you're going to be anxious and nervous.

SPEAKER_01 8:32

That's right. And so uh why when uh when I was in my public school uh musical bands, elementary school, junior high school, high school, and during my freshman year of college, do we do dress rehearsals and not just dress rehearsals, but rehearsing, rehearsing, rehearsing? Because then you're more confident. Don't make your child date the first time you're coming into that courthouse. Don't make your child date the first time you're going to that courtroom. If you can, have your Laura accompany you to show you around the courthouse, to show you into the courtroom, to show you the lay of the land.

SPEAKER_00 9:06

And know what you can and can't bring into the court, because some of the courthouses you can't bring your cell phone, and so that might throw people off too. Oh, I have to leave my phone in a locker or something. Just knowing all that stuff beforehand, where to park, things like that.

SPEAKER_01 9:18

No, all those logistics. And we have when someone has court with us in Fairfax, where do they park?

SPEAKER_00 9:23

They can park right in our parking lot with a parking free parking pass.

SPEAKER_01 9:27

Which is how far from the courthouse?

SPEAKER_00 9:29

Just a few just a minute walk to the courthouse. Very convenient.

SPEAKER_01 9:33

Like I like to tell people, our office is so close to the Fairfax courthouse that I can throw a baseball through a judge's window. Do you think I should try that?

SPEAKER_00 9:41

Probably not. Maybe not.

SPEAKER_01 9:43

Unless it's maybe a nerf ball. Uh, but in any event, do I have a couple of anecdotes about uh sending this message home about being in the moment, not overdwelling on the future, being in the moment for winning your case with your lawyer.

SPEAKER_00 9:58

Yeah, I think you have some court ones that you've told me, some court experiences as well as some uh wise words that what are like parable type examples.

SPEAKER_01 10:10

Right. So in one instance, I was in front of a very difficult judge with a DWI case, and uh he was known to have a lot of trouble putting the word not in front of guilty. We had a break, and uh I said to the judge, well, I see we're back from the break, and the interpreter is not here yet. Uh this was a Vietnamese interpreter. I said, My clients already heard the video that we're going to next, so I'm gonna uh not ask to have the interpreter back for the for the video part, but my client will need the interpreter for the rest of it. And the judge said, uh, if I didn't know any better, I'd think you were blowing smoke up my butt over that issue. Uh, which I thought was curious, because uh it's very hard for anyone who speaks English as a second language to fully understand English. I've been speaking French for over 45 years, and and I wouldn't be able to understand everything going on in court in French. So I said to him, I understand what you're saying, Your Honor, but I spent enough time with my client to know that his English is not sufficient to go without an interpreter. Uh so at the end of the trial, uh, in the moment, I was in the moment and answering uh what he said about interpreter rather than saying what I really felt, which was uh, how dare you uh decide whether my client needs an interpreter or not? And uh in closing, I focused heavily to the judge being in the moment about, you know, my client didn't take the breath test here. Uh he did do field tests, and they really weren't bad in the scheme of things. They weren't perfect, they didn't have to be. And in pronouncing my client not guilty, uh, this judge was not the most uh uh athletically able-bodied, it would seem, he said, I call them field athletic tests. I said to myself, oh my gosh, I've never heard a judge called them that, and he found them not guilty. In another instance, more in the moment uh than that, uh, my client was caught doing 96 miles an hour, allegedly, in a 45 zone on the George Washington Parkway. We're in federal court where the judges are no nonsense there, and at that time the judges were known to often give one day in jail, often for each mile an hour over 90. So my guy was maybe facing six days in jail. So we worked out a deal where the prosecutor was not seeking jail, and I said to the judge, well, you know, my client just bought a new BMW. He didn't seem to really understand uh how powerful it was. And I knew I was gonna say that, but in the spur of the moment, in the moment, I said, maybe you should have gotten a Ford. And not only did the judge uh fine him uh just give him a suspended jail sentence, but my client said to me, Did you see the judge was covering his his mouth that he was laughing? He didn't seem to like it that you made him laugh. Uh so the the the judge was in the moment too. He couldn't resist uh laughing, and when they laugh, when it's genuine, what does that do? That opens up the people's ears, the judge's juror's ears, and it makes them more receptive to our arguments. I do have a couple of anecdotes here. One is about strawberries. Uh we'll start with that one. So the story goes: a man is in the wilderness and he finds himself being chased by two tigers. And uh they chase him to the side of this cliff, and with his life in the balance, he sees, oh, there's a vine on the side of the cliff, so maybe I'll save myself. And he starts going down carefully down the vine, and he thinks he's in temporary safety, but no sooner does that happen than he looks down, he sees the other tigers at the bottom of the cliff, one on top, one on the bottom. And if that wasn't bad enough, two field mice start chomping on that uh start chomping on that vine. With his life in the balance, he sees growing out from the side of the cliff this beautiful looking strawberry. And with his life in the balance, he grabs onto the strawberry with one hand, puts it in his mouth, and all he can think of is how delicious is that strawberry. Abby, do you think people are satisfied with uh having the story end there?

SPEAKER_00 14:13

I don't think so. I think they want to hear another one more.

SPEAKER_01 14:16

Well, we'll go to the next one, but the next one's gonna be on the same theme. That's where the story ends, because it is in the moment. It is about strengthening yourself by being in the moment. If you keep worrying about what might happen that might that doesn't happen, what good is that for weakening yourself? So the other one is there's a samurai that gets caught by the opposing army, gets thrown in a cell, uh, he's tallest and turning, he can't get to sleep at night. An apparition of his teacher comes to him and says, uh, so uh Akido, or whatever his name is, uh, why aren't you sleeping? And Aikido says, How can I sleep? I'm gonna be beheaded tomorrow. And the apparition of his teacher says, Only today is real, tomorrow is not real. Get yourself some sleep. He sleeps. And so, do you think people are satisfied for the story to end there?

SPEAKER_00 15:00

Probably not.

SPEAKER_01 15:01

It ends there. It's be in the moment. And the final thing about a samurai. The samurai who is thinking about his next move rather than being in the present is more likely to have his head lopped off. Aha! So not only does being in the moment help strengthen you, but being in the moment also helps avoid you having your head lopped off. What else do you think people might want to hear about on this topic of strengthening yourself for court and not losing sleep over court?

SPEAKER_00 15:31

Well, maybe while you're in court um showing anxiousness or you know, seeing them sweat, how should your demeanor be in the courtroom if you're anxious?

SPEAKER_01 15:44

So uh your opponent can smell blood a mile away. Of course, the prosecutor and cop know that you have some level of nervousness, but at least, at least make sure that uh that your lawyer's not sweating. At least make sure that uh no one's uh smelling blood from your lawyer. At least make sure that the prosecutor and cop and judge know that you and your lawyer are a united front. And this is why it's so important uh for your lawyer not to be someone who just keeps some sort of uh physician type of uh uh of distance so that the physician doesn't get involved emotionally in your case. Your lawyer should be ready to fully engage you, fully engage in your case, fully believe in your cause, which is to do what?

SPEAKER_00 16:32

Beat the prosecution as much as possible.

SPEAKER_01 16:35

And regarding that, how do people reach us?

SPEAKER_00 16:37

You can give our office a call at 703-383-1100. Our website is beatheprosecution.com. Our texting number is 571-406-7268. And you can send an email by emailing us at info at beatheprosecution.com.

SPEAKER_01 16:56

I forgot to do a disclaimer. Disclaimer, none of this is legal advice on any of our material, our podcasts, our written material, anything that's online unless you're a client or paying for a consultation. Prepare, prepare, prepare. That's related to this whole thing about dress rehearsals. Prepare, prepare, prepare. That will make you all the more good and all the more ready. Uh I went up against Bill O'Reilly once on the uh what do they call that? What factor? The O'Reilly factor and the radio factor twice, and then against John Kasich, I guess after he was I think it was in the Senate at the time or about to run for governor or whatever, whatever it was. And each time I watched how I performed, especially one that was particularly tough, where I was in a hot seat where I rally was all hot and heavy about having uh this terrorism suspect uh retried where the jury uh acquitted him on most counts but hung on uh two or three of them. And when I watched the uh the replay each time, especially in that biggest hot seat one with the alleged terrorist, the terrorism defendant, I saw how good a job I did. And it wasn't necessarily that I had so well prepared for that particular episode, but I was fully prepared for it because I knew all the lingo about the criminal defense, and I had a I had a lucky situation with this one with the uh terrorism defendant case, where I actually reached one of his two lawyers. It was a six-month federal trial down in Florida, and she actually spent 30 minutes on the phone with me. I was more prepared than O'Reilly. I wondered if he had some heads roll there, or at least uh shouted at some of his folks for not preparing him better. Where he got to the point where near the end, before he gave me the last word, he said, I understand where you're coming from, counsel. It's not totally unreasonable that you think that this case shouldn't be retried. I'll give you the final word. Your lawyer is supposed to ideally have so much experience that your lawyer will not flinch about defending you. That doesn't mean that your lawyer is ready for just anything because there's always new stuff that comes in. But the more prepared your lawyer is, the more experienced your lawyer is, the more that your lawyer takes seriously on beating the prosecution as best as possible for you, the better shape you're in. Abby, anything else we should cover?

SPEAKER_00 19:32

I don't think so. I think, you know, you want to make sure you have an attorney that you hired an attorney that you feel empowered with, and that they're not gonna, you know, feed off your anxiousness that they're gonna be cool, calm, and collected in the courtroom, and that you feel comfortable expressing if you are feeling stressed or anxious so they can walk you through the whole process and that you're not afraid to ask them questions of what court's gonna look like or how should I prepare. You want to have that open communication with your attorney.

SPEAKER_01 20:01

And for mindfulness, how about I should I throw in about one to two minutes of tidbits about how easy it is to start? You don't have to be, I'm not gonna have any liable suits against me, uh naming the organizations, but you don't automatically have to be paying hundreds of dollars or thousands of dollars to learn any of this in the DC area alone. There's the Insight Meditation Community of Washington where you pay what you want or nothing else to go to some great gatherings of mindfulness meetings. And I told you about John Cabot Zinn, you can find him on uh YouTube. You can have these mindful moments. It can be as easy as when you walk from your office over to the water cooler. Well, I don't know, I'm I'm not gonna drink that kind of water, or from the office to the restroom, and just focus on your breath. Your in-breath, your out breath. It's as easy as that to folks in the moment. Just focus on your breath for starters. Uh sitting meditation and do wonders. Uh there are apps out there to go ahead and uh ring a bell when you start and to ring the bell when you want to finish after five, ten minutes, twenty minutes. One of my great meditation teachers, he uh he likes a stick of incense, and when the incense uh dissipates, he knows that about uh 20 minutes have passed. Just be in the moment, be in the moment, and do KFA, which stands for what?

SPEAKER_00 21:23

Um, you know. Kick something.

SPEAKER_01 21:28

Kick butt. Thanks again, Abby, for being with us. Once again, this is John Katz, a criminal defense lawyer and DWI defense lawyer in Fairfax, Virginia. Once again, nothing on this podcast or any of our other our other online material is advice, legal advice that only comes from meeting with me in person uh through a consultation or hiring me. Uh Abby, do we have anything to tell people about giving us stars on Apple Podcasts?

SPEAKER_00 21:56

If you are joining us by listening through Apple Podcasts, feel free to uh leave a five-star review if you feel like we earned it. And just any comments, questions, or things, feel free to add those to the review. Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. We welcome you contacting us at infobeatheprosecution.com by calling seven zero three three eight three one one zero zero or texting us at five seven one four zero six seven two six eight.