Sunday, May 10, 2009

Avoiding the fear of defeat

Shelby Lyman is a noted chess author and commentator who pens a weekly column on chess. In his most recent column, Mr. Lyman writes about performance psychology.

He points out that in the game of chess there are numerous occasions that victory may seem assured, or that all hope is lost. But, inevitably, because chess is such a fluid game, that certain win may be just out of grasp or that hopeless position may be turned around. His point is that there is almost always the chance to pause, look at your situation and devise a new strategy rather than just throw your hands up and admit defeat.
Even between top grandmasters, a game often has to be retrieved or won numerous times as the advantage shifts, however slightly, from move to move.

Chess teaches us that in our everday life, there is always a chance to regroup rather than admit premature defeat.
In a DWI case, just because your client blew twice the legal limit, or just because the video isn't good or just because there are some bad driving facts, doesn't mean you should run the white flag up the pole and immediately try to get the best plea agreement you can.

Are there any reasons, other than being intoxicated, that could account for the bad driving facts? Could it be that your client, like many others on the streets, is just a bad or careless driver? Flip on the radio during the morning or afternoon rush hours and you will hear updates alerting listeners where accidents have occurred. Accidents happen - that's why they're called accidents.

What were the conditions under which your client performed the field sobriety tests? Were they conducted on the roadside or at the station? What was the weather that evening? What were traffic conditions? Was your client nervous? Does your client have a medical condition that affects his coordination? Is your client overweight? Old? Was he given an opportunity to practice the exercises? We all have varying degrees of balance and coordination. There's a reason that some folks are professional athletes and the vast majority of us are just weekend warriors.

As far as the breath test goes, does the result "match up" with what you saw on the video? How often is that machine used? When was maintenance last performed on it? Has it ever been taken out of service? Who calibrated it? How many drinks would your client have had to consume in order to raise his alcohol concentration to that level? The "science" behind that machine is questionable at best and can be challenged - if you know what you're doing.

At some point you may determine your case is hopeless; but don't just throw your arms up when the case lands on your desk because it seems unwinnable. Work with it, play around with the facts, use some creativity. There just might be a winning position under there if you look hard enough.

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