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Being ever-prepared for trial is essential for strong negotiations and for not getting caught with pants down

Jan 24, 2014 Being ever-prepared for trial is essential for strong negotiations and for not getting caught with pants down

Prosecutor: “Jon, you are a private practice lawyer who is willing to waste time.” Translation: “You put time into defending your clients without concern whether doing so will not be financially profitable to you.”

One of the more upstanding local prosecutors recently said that to me before court started for the day. I ascribe the above translation to his comment, and think it is great for prosecutors to know that once hired, I ready my full guns for battle. If I learn that I underbilled a client out of mis-anticipating how much time it would take to prepare for and execute the battles, so be it. I become a better lawyer and person with each client I defend, so any underbilling becomes like an investment in my becoming better for each battle, imperfectly akin to investing in attending great trial law seminars, and in great books and videos on improving as trial lawyers.

I was not fond of Ronald Reagan’s focus on nuclear weapons buildup, nor on his invasion of Grenada nor bombing of Libya. I am not fond, either, of North Korea’s nuclear weapons emphasis, and all the less fond because its government seems less likely to keep nuclear weapons holstered than other nuclear powers. Despite my foregoing differences with Reagan and the North Korean government, the willingness of each to amass and use powerful weapons made them stronger at the negotiating table, being taken all the more seriously, even if with resentment and disdain towards them.

Let prosecutors know that I delight in today’s battle and victory as much as with my first criminal defense battles and victories over twenty-two years ago. Let them know how personally disappointed I often get at a settlement’s preclusion of my getting a chance to go to trial battle and to see the outcome. Let them know how energized and invigorated — rather than the opposite — I get from preparing for each battle, executing each battle, and even driving to the battlefield and waiting in the courtroom battlefield for my case to be called. Let them know I am not bluffing that I am fully prepared for battle if we do not settle the case. Let my clients know the same, so that their settlement decisions come from a position of strength rather than from a feeling of not being prepared for battle.

As I remind my clients, preparing a case for trial makes it more likely to settle. Preparing  a case to settle makes it more likely to go to trial.

To be prepared for trial, prepare well, continuously prepare, and prepare early on. That way, you come to the trial battlefield as confident and strong, well rested and refreshed as possible, and you are all the more ready to deal with such last moment preparation as reviewing voluminous prosecutorial evidence dumps that come by judicial rules or orders allowing such last moment disclosures. and sometimes solely by prosecutorial actions.

Trial victories are exhilarating. However, for the client, the exhilaration sometimes comes in part as a counterpoint from the fear of the unknowns about going to trial. Particularly because so many of my clients have committed the acts they are accused of committing, and particularly because many of them are at high risk of losing arguments to exclude evidence and at high risk of damning evidence being presented at trial, settlement negotiations are a substantial part of my litigation practice, always backed up by being prepared for trial and with two decades of repeatedly going to trial.

With the foregoing backdrop, here are examples of two recent excellent settlements obtained in the process of being fully prepared for trial:

1. A RESULT FIT FOR A DREAM: DWI REDUCED TO RECKLESS DRIVING, WITH A SUSPENDED SENTENCE.

Last year, I helped save my client’s so-called DREAM Act/Deferred Action for Childhood Arrivals (“DACA”) status, by convincing a prosecutor to amend a drunk driving charge to reckless driving, entering a breath test refusal guilty plea, doing agreed jail time and substantial community service, and paying a higher than usual fine.

In the foregoing scenario, I came to the prosecutor armed with the Obama Administration’s DACA policy and a written opinion letter from my client’s immigration lawyer. I appreciate the attention the prosecutor paid to my client’s situation in offering a DACA friendly settlement.

A few months ago, I again achieved a DACA-friendly result in a DWI case, this time with even more of a negotiations fight on my hands. This time, I came to court with an even stronger immigration lawyer’s letter, together with confirmation on no news of any deviation by the Obama Administration that a DWI conviction means no more DACA eligibility.

In this instance, we were in a court where negotiations take place well before the trial date. We had a smart prosecutor with a heart. He checked out my immigration law assertions with another immigration lawyer, and this prosecutor initially was not convinced that my client would be at an immigration law disadvantage with a DWI conviction. Fortunately, after at least three conversations with the prosecutor on the matter, I was finally able to convince him of my client’s immigration risks from a DWI conviction based not only on our immigration lawyer’s excellent opinion letter, but also with the benefit of my own many years of experience spotting and arguing immigration issues arising from criminal prosecutions, aided by the dozens of times that I have worked in tandem with immigration lawyers for my criminal defense clients.

With this second DACA client, we ended up with a great result of amending DWI to reckless driving, with a suspended sentence.

With both of the above DACA-related cases, the prosecutors knew that I was trial ready if we could not reach a DACA-friendly result. I think that the prosecutors’ fair mindedness was a big part of our obtaining DACA-friendly results, but it was also important that they knew that each of my clients were going to trial if not in receipt of a DACA-friendly plea offer.

2.  REDUCING A SOLICITING PROSTITUTION CHARGE TO DISORDERLY CONDUCT, WITH NO JAIL.

Recently, I told a client he had no need to be embarrassed telling me the full details of what led to his arrest for agreeing to meet a “woman” (who turned out to be an undercover cop) he met online, for a “good time” so long as he brought some weed with him. My client responded good naturedly: “Why would I be embarrassed? I am a guy.” We had a good laugh over his response. However, such tendencies of so many men make them easy targets for cops running sex-based sting operations.

Recently, my client got caught in a prostitution solicitation sting. From a public policy and civil liberties standpoint, such stings and prosecutions waste scarce police resources, unnecessarily strain limited governmental financial resources, and oppress adults seeking nothing other to engage in consensual sexual activity, here for pay.

As with so many of my clients charged with sex-related offenses, my client had much to lose career-wise with a prostitution solicitation conviction. Certainly, it would have been great for my foregoing client and above-referenced DACA clients to have thought about all they had to lose by committing crimes, but such pontification is not my role. My role is to get my clients back to as much harmony as possible.

In this instance,  I went to court knowing that some defendants in similar sting had been offered to plead guilty to an amended charge of disorderly conduct, which here would have been a career-friendly result for my client. However, my client got offered nothing better than a prostitution guilty plea. The prosecutor told me that his supervisor told him not to offer better than that in such cases.

Having received discovery in the case a significant time period after the court-set deadline, I obtained a trial postponement to deal with discovery. In the interim, I composed a very direct letter to the prosecutor’s supervisor (the prosecutor okayed doing that, as well) about why my client should not suffer from missing a disorderly conduct offer by having had his original trial date postponed pretrial, why we might win the trial, and that his career was at risk here, and that this was a prosecution over something that is not even criminal in so much of the Western world.

We showed up for the second trial date, and this time an essential prosecution witness had an issue interfering with getting to court that day. The prosecutor offered my client to plead guilty to disorderly conduct for no jail time. My client took the deal. Had my client not taken the deal, I think the prosecutor would have obtained a postponement and gotten his necessary witnesses to court, or would have recharged the case and still gotten his witnesses to court.

In all of the foregoing cases, the prosecutors knew I was fully prepared to go to trial, and probably knew how committed I was to getting the best possible results for my client, with my being fully engaged for my clients and never detached.

It also remains essential to be ever-prepared for trial, because the client who today says s/he is accepting the guilty plea offer might change his or her mind at the eleventh hour, leaving the case to proceed to trial as scheduled, absent a judicial postponement.

For criminal defense, then, full trial preparedness always is essential.

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