To win, you must not be afraid to lose

This week noted chess columnist Shelby Lyman writes about his amazement that United States chess champion, 21-year-old Hikaru Nakamura, is not afraid of losing. Mr. Lyman argues that is one of the traits that makes him a champion. He writes that one loss doesn't have a negative impact on skilled performers because they realize there's always tomorrow.

The same applies in the theatre we know as the courtroom. To be a successful trial lawyer you can't be paralyzed at the thought of losing. I had a prominent criminal defense attorney tell me one time that in order to be your very best, you have to be willing to lose big. Only if you're willing to lose big will you be able to cast aside your inhibitions and self-doubts and put everything into the fight.

Defense! Defense!

The best offense is a good defense.

That's true not only in the sporting arena but also in the well of the courtroom.

"Good defense demoralizes the opposition while raising the confidence of the team or individual under attack." -- Shelby Lyman

As chess guru Shelby Lyman points out in his weekly chess column:

"...the defender may be actually quaking under the table, but the better and more determined the moves he makes under duress, the bigger and tougher he looms behind the board."

The same applies in the courtroom. Oftentimes you find yourself up against two prosecutors -- the one sitting at counsel table and the one wearing the robe. It takes a certain chutzpah to stand up and challenge either one in the heat of battle, but the harder you fight when backed into a corner, the more respect (and fear) you will reap down the road.

Regardless of the result, the very act of standing up to defend your ground is a glorious defense of the Constitution. 

Position yourself

In chess, as in life, position is everything. 

Shelby Lyman notes that:

"Position is the irreducible bedrock of our lives. We spend our years positioning ourselves educationally, financially, socially and intimately."

We do the same thing when handling a case for a client - whether it be a DWI, a robbery, a divorce, a slip-and-fall or a speeding ticket. 

When someone walks through my door who's been arrested for DWI, the first thing we do is talk about the process. We talk about challenging the license suspension, we talk about the various options we have to resolve the case, we talk about the possible consequences 

of each. Then we talk about the arrest. Where did it happen? When did it happen? What are the driving facts? What did the officer do? What happened at the scene? What happened at the station?

When we go to court I get a copy of the video so that I can study it and so that, if necessary, I can have an expert study it as well. I then send my investigator to inspect the scene and speak to any witnesses listed in the offense report.

"From good positions good things flow, from bad ones continuous dismay and trouble."

I do this to set up our position on the case. Do we focus on the stop itself? The field sobriety tests? The breath test? The blood test? The attitude of the officer? Does the breath test result "agree" with the video? I want to be in the best possible position when it comes to fighting the state.

Lyman does note, however, that sometimes you can win from the lesser position:

"The fog of war allows miraculous victories with inferior resources and force. Both Napoleon and Robert E. Lee were geniuses at reading a battlefield configuration, marshaling lesser forces at vulnerable points and then routing the opposing army."

Incidentally, both Napoleon and Lee were chess enthusiasts who were often found playing the game in their tents. But Lyman also notes that, with the exception of time pressure, "chess generals" don't have to contend with the "fog of war" as the board is open for all to see.

The same holds true (in large measure) at the courthouse. Build your position early, don't allow yourself to be boxed into a corner.

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.