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Helping clients make informed decisions

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For better or worse, negotiations are an essential part of criminal and civil litigation, running from seeking dismissals of cases, to each party’s giving up part of the loaf. Criminal negotiations usually are not games of chicken, unless the police or prosecutors have done underhanded things, because when prosecutors and police play clean, they usually have little to be chicken about. Certainly, though, bluffing and other poker moves can go on by the parties.

A criminal defense client, let alone any litigant who is a fish out of water, often has a tough time figuring out how to address settlement offers and counteroffers. Often, a very limited amount of time is available to decide on such offers, sometimes on the same day of court, and sometimes with settlement offers only left open for a short time period. The criminal defense lawyer can help offset such short timeframes by helping the client anticipate the potential outcomes of going to trial, the potential settlement offers, and scenarios for making counteroffers.

For misdemeanor defense in particular, in most Virginia and Maryland counties where I practice, it often is best for me not even to contact the prosecutor about negotiations before the day of trial, lest I cue the prosecutor to be ready for trial. Not calling the prosecutor before the trial date of course means reducing the time period available for negotiations, for me to help my client make an informed decision, and to engage in counteroffers. Sometimes the court date can be rescheduled to consider negotiations further but not always.

It is essential that my client and I be able to speak in as quiet, confidential and comfortable setting as possible about negotiations. However, not all courthouses have enough available conference rooms, and the weather is not always nice enough outside to seek out a confidential corner there.

Ideally, by the time I am in court with my client, we are so well prepared for trial and negotiations that settlement discussions with my client will go smoothly. That is not always the case. For one thing, on top of settlement negotiations, I might be receiving more evidentiary information on the court date at the same time that I need to review and discuss with my client. I might learn that I have a visiting judge that was not announced in advance and that I need to get the lowdown on. One of our witnesses may have overslept. My client may be nursing a cold that s/he did not tell me about.

How often do we go to a restaurant expecting to order item A but instead order item R, and then wish we had ordered item C with a side of Z 1/2 and a strong shot of BC2? If we leave a restaurant regretting our choice of restaurant, appetizer, entree or dessert, or the quantity we ordered, consider how some criminal defendant’s minds might get dizzy and unclear from needing to make choices about settlement negotiations.

The criminal defense lawyer needs to help the client make the right settlement decisions for the client by helping to simplify the decisionmaking, by helping the client reach and decide through clarity, by being empathetic to the client rather than complaining when the client has trouble deciding, and by putting the lawyer into the client’s shoes in helping to figure out the best path for negotiations.

As with all client relations, the lawyer must work with the client as a team. Sometimes the client will want to include family and friends in the negotiations. That dynamic can be helpful when family and friends help the client reach greater clarity and sharpness and focus in settlement decisionmaking. That dynamic can also be counterproductive when the family member or friend tries to dominate the situation, look out for interests that clash with the clients’, and visit issues that the lawyer and client have already covered in great detail and sometimes ad nauseum over the course of weeks of months. Defendants incarcerated pretrial may feel frustration by not having access to speak to their friends or family members about negotiations on the day of court, due to courthouse security procedures and controls. I make clear early on with my clients that they are the only client, and that even if their family and friends are involved in some conversations with me and the client from time to time, the focus ordinarily is with me talking alone with my client.

Certainly, a defendant does not want to make a final settlement decision only to have an ah-hah moment within the next few hours, days or longer, that s/he should have made a much different decision on negotiations. Nor does the lawyer want to have an ah-hah (if not aw-sh*t) moment when it is too late, to realize things the lawyer could have done to advise the client better and to reach a better result.

Ultimate settlement decisions are always the clients’, of course. The lawyer needs to understand what the clients’ main goals are in helping the client make those decisions. Some clients are unwilling, for political purposes, to yield much or at all to the power structure that is prosecuting. More often, clients ultimately recognize that realpolitik and hedging bets is the way to go. Such an approach is only possible by being fully ready to go to trial in the event negotiations do not work.

In fact, sometimes I say to my client who will not make a decision on negotiations that my job is easy, because we are going to have a trial unless my client moves forward on negotiations. This is but one of the reasons that a lawyer needs always to be fully ready for trial.

Some people are better at making decisions than others. One person told me how her significant other drove her crazy by taking long periods of time merely to select a pair of socks to buy. Some people, as an extreme example, have such serious psychological challenges that they can feel debilitated making such simple choices as selecting orange juice or grapefruit juice in the morning, let alone making life-altering decisions in their criminal cases.

Through it all, the lawyer must be empathetic, engaged, and focused at every turn.