Breakthrough negotiations for defendants don’t come from thin air, says Fairfax criminal lawyer

Breakthrough settlement negotiations are key in criminal defense. As a Fairfax criminal lawyer, I know that merely going through the motions without the attorney’s putting their heart and soul into it can be as effective as trying to break a glass with a wet noodle. In a notable movie scene, bargaining Party A tells party B he would have settled for as low as $X, after the parties settled for a good amount more. Much wealthier Party B replies that he was ready to settle for as high as twice the amount for which they settled. Negotiating is not about avoiding buyer’s remorse over such a post-negotiation conversation, but to obtain as much justice for the criminal defendant as is realistically possible with the information and circumstances at hand in the moment.

Settlement negotiations (ideally pursuing a dismissal or ultimate dismissal rather than a conviction) in a criminal case or any other dealings can come down to a game of chicken (for lack of a better word), gamespersonship, psychological warfare, and risks of one or both parties modifying their last offer to a worse one before the other party accepts, and even walking away from negotiations. Obtaining breakthrough negotiations is not about wishful thinking, praying for the non-arrival of an essential prosecution witness, nor about playing a popularity contest, but about showing up trial-ready, without sweating, and ready, rearing, and delighted to proceed to trial in the event that negotiations fall through. (Of course, another alternative to not reaching beneficial negotiations is to seek a trial date continuance, if that is possible within the bounds of the law and lawyers’ ethical obligations, and if a continuance might help obtain a favorable settlement, whether with a change in the prosecutor or prosecutor’s mindset, with further self improvement and self rehabilitation by the defendant, obtaining further evidence and more witnesses that were not otherwise known (when that might assist with settling) or otherwise.)

Breakthrough Virginia settlement negotiations need to consider the sometimes competing interests of assistant commonwealth attorneys, alleged victims, judges, police, and other prosecution witnesses

In criminal defense, an alleged victim (for instance in assault and aggravated DUI and hit and run cases with alleged severe injury or death) (with the help of a private lawyer or not) may voice opposition to a party-agreed sentence or sentencing cap as too lenient, and many Virginia judges then will not agree to the party-agreed sentence, at least if the judge also is not otherwise sold on the parties’ agreed sentence. As a Fairfax criminal lawyer, I know that alleged victims’ rights are extensively supported by Virginia law. Virginia Code § 19.2-11.01.   For breakthrough negotiations, your Virginia lawyer needs to consider the interests and inclinations of the prosecutor, opposing witnesses (whom a prosecutor might prefer not complain to the press or the chief commonwealth’s attorney about how the prosecution is proceeding), alleged victims and judge.

Sometimes a prosecutor will agree to a deal without knowing or else recognizing one or more factors that would have made the prosecutor seek a harsher deal. When that happens, I tell my client whether it is best to accept the most current settlement offer deal rather than pursuing even more favorable negotiating if that will give the prosecutor an opportunity to learn that critical information and to withdraw from the offered deal. Informing how to proceed for breakthrough negotiations in that circumstance is what the risk is that the prosecutor and judge will learn about the currently unknown adverse information, and how significant is the difference between the prosecutor’s last settlement offer and what might be possibly achieved if pursuing a more favorable outcome.

Fairfax criminal lawyer on a counteroffer extinguishing the last settlement or plea offer

I tell my Fairfax criminal defense and Virginia DUI clients that each defense counteroffer legally extinguishes the last prosecution offer and that the prosecutor does not need to warn of canceling their last settlement offer if it is not accepted yet. I tell my clients my estimation of the risk level of a defense counteroffer making the prosecutor unwilling to renew their last offer. Such unwarned non-renewal has not been common in my clients’ cases, but it can happen in the process of pursuing breakthrough settlement negotiations.

Aiding breakthrough settlement negotiations for the defense is using the Getting to Yes approach of negotiating on settlement goals versus positions, having the defendant engage in relevant self improvement / self rehabilitation, and obtaining a relevant psychological evaluation or object evaluation (for instance getting one’s speedometer calibration checked in a high speed reckless driving case) and to be ready relevantly to sweeten the deal. Deal sweetening can include taking the defendant’s last offer and adding higher active or suspended fines or suspended jail (beware the danger thresholds to security clearances, immigration status and otherwise even when it comes to certain suspended incarceration sentence lengths), adding community service and adding AA meetings and other self improvement.

How can accord and satisfaction negotiations help me obtain a breakthrough dismissal of my Virginia prosecution?

Virginia law allows defendants in misdemeanor prosecutions involving an alleged private victim to bypass the prosecutor by negotiating a breakthrough settlement of any civil claim with the alleged victim, and for the alleged victim as a condition thereof to successfully ask the judge to dismiss the prosecution. Virginia Code § 19.2-151  (That is not available for domestic assault prosecutions.) That is known as satisfaction and discharge (SD) or accord and satisfaction. Make sure your lawyer drafts a well-worded settlement agreement that is specifically and sufficiently spelled out to avoid a parallel civil lawsuit against the defendant on a matter that may have been otherwise missed.

Sometimes waiting until the trial date to start breakthrough SD discussions is advisable. Regardless of when such discussions begin, the criminal defense lawyer first needs to know whether the complainant has a lawyer related to the case or for a potential or actual parallel civil case, in which circumstance the Virginia criminal defense lawyer needs to deal with the complainant’s lawyer. The criminal defense lawyer also needs to know if their client has another lawyer to handle a possible civil action, and to collaborate with that civil lawyer. If the complainant has no lawyer, I commonly hand the complainant the briefly worded SD statute, to show that such negotiations are permitted by law, and to get the SD negotiating process rolling.

When I offer the complainant a dollar amount for breakthrough SD negotiations, I underline the extent to which that amount is immediately available, in that when a complainant asks the judge to dismiss the prosecution through the SD process, the complainant must acknowledge in writing having received satisfaction for the alleged injury, which can be easier to say when payment will be immediately paid versus promised for a future date. The foregoing approach can also help limit the dollar amount for which an SD matter settles.

What if my Virginia criminal trial judge rejects my lawyer’s achieved satisfaction and discharge dismissal agreement?

No complainant nor judge is obligated to accept an SD disposition. Money can be a powerful breakthrough SD dismissal incentive in some situations, but an insult in others (whether the complainant thinks too little money has been offered in settlement, or thinks the defendant has an attitude of privilege to work to buy themselves out of a prosecution jam, or any jam for that matter.) The SD negotiation stage is an opportunity to show the complainant how contrite is the defendant (without admitting culpability), to show the extent to which the offered dollar settlement amount is a real financial sting to the defendant, to show all the relevant self improvement/ self rehabilitation in which the defendant has engaged, and to add such non-monetary benefits as a promise of no future contact by the defendant with the complainant.

All breakthrough settlement negotiations need to be from a position of strength and defense trial readiness. The criminal defense lawyer needs to be ready to articulate to the complainant and prosecutor the bets both sides have to hedge, without doing so in an unnecessarily alienating fashion. Sometimes, I tell a prosecutor “I want to give you a conviction, but to the” amended down charge of reckless driving (and even improper driving), for instance, rather than DUI. That gets the prosecutor a conviction (or adverse judgment in the case of an infraction disposition) rather than the risk of an acquittal.

May I appeal from a Virginia District Court guilty or no contest plea if I have buyer’s remorse or otherwise?

Virginia criminal defendants need to know that even with a guilty or no contest plea in District Court, they still have the right to timely and correctly appeal therefrom for a new trial in Circuit Court, unless the defendant waives their appeal right as a District Court plea condition. Granted, such an appeal should expect the risk that the original criminal counts will return (and maybe even additional counts) and that the prosecutor may refuse to negotiate on appeal. (At the same time, applicable breakthrough SD negotiations may proceed forth on appeal from District Court to Circuit Court.) On top of that, it is arguably wise for the criminal defense lawyer who handled the District Court negotiating to not represent the defendant on such an appeal. If nothing else, a new defense lawyer in such an appeal will avoid any distracting prosecutorial wrath otherwise directed at the original defense lawyer, and the new defense lawyer can articulate to the prosecutor the extent to which the new lawyer thinks the original defense lawyer had a negotiating blindspots.

Fairfax criminal lawyer Jonathan Katz pursues your full court press against Virginia felony, misdemeanor and DUI prosecutions. Secure your free in-person confidential consultation with top-rated Virginia criminal lawyer Jon Katz about your court-pending prosecution, at 703-383-1100, Info@BeatTheProsecution.com or (text) 571-406-7268.