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Negotiations: Stinky cigars, risks of walking away, and the ah-ha effect

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Jury acquittals are among the most exhilarating part of criminal defense practice. However, a criminal defense lawyer disserves his or her client by not seeing whether the case can settle rather than going to trial. When I say settle, I do not automatically mean seeking a guilty disposition. Settlement can include getting an outright dismissal, or a dismissal with such conditions as community service, restitution, or completing educational programs for drugs or alcohol, anger management, psychological factors, or theft. When a client does community service and programs on his or her own accord in advance of negotiations, I sometimes can be all the stronger in negotiating on my client’s behalf.

I was none too pleased to learn from my law school civil procedure professor about how tiny a percentage of lawsuits actually get to trial. However, he had travelled the rarefied halls of big law firm and law professor life. I learned on my own that I would get plenty of jury and bench trials doing state-level criminal defense (criminal defense long has represented the vast majority of my law practice) and representing injury victims (which I stopped doing much of many years ago, in favor of criminal defense and some fun First Amendment defense). With criminal defense. when my clients opt for trials, sometimes we win, sometimes we get a better or same outcome as if a guilty plea had been entered, and sometimes the prosecutor makes a better settlement offer or dismisses the case.

I learned early on the agony of defeat in the courtroom, representing two clients in two separate deportation trials when with my law school’s immigration clinic. With my first deportation trial — both before administrative law judges employed by the Justice Department — my client had a green card and faced deportation for his federal conviction for possession with intent to distribute over two kilograms of powdered cocaine. His chances of beating deportation were tiny, which was a few years before the federal law was updated to make such chances even smaller. We did not prevail with our defense that my client’s deportation would prove a serious financial and personal hardship to my client’s U.S.-resident sister and child with whom my client was living before his drug arrest.

My second deportation trial arose from my client’s denied political asylum application. Had my client come straight from his native Ethiopia (in the mid-1980’s) to the United States, he would have prevailed at his deportation hearing, having received a State Department opinion that he had a well founded fear of persecution if returned to Ethiopia, which I of course characterized to the administrative law judge as being run by a Marxist government during the time of the highly anti-Marxist Reagan administration. Unfortunately for my client, he first found refuge in Zimbabwe, and immigration law did not favor shopping for the ideal nation of refuge. We lost the hearing.

Each time a good lawyer represents a new criminal defendant, s/he gets better instincts and abilities at determining the best battle plan and battle execution, at reading the possible outcomes depending on such variables as the lawyers and parties involved, the judge and jury, and the witnesses and evidence on both sides. Backed up with strong litigation and trial skills, a quality criminal defense lawyer comes to the negotiating table from a position of strength and clarity, rather than from a position of fear and uncertainty.

Negotiation settings run from many hours to but a few minutes at most in misdemeanor court with a prosecutor who will not get through his or her docket to spend more negotiation time than that, unless, of course, spending insufficient negotiating and case investigation time translates into even more time consumption with a multitude of trials for the prosecutor.

A skilled contracts negotiating lawyer once told an interesting fish tale of shoving certain contract conditions down the other sides’ throats — but later learning that those conditions did not guarantee against later litigation –and about delaying feeding visiting parties from out of town, in an effort to get closer first to closing the deal. When I told another corporate lawyer about this starvation tactic, he laughed and recalled a contract negotiation that was getting stalled until one of the lawyers unwrapped and licked a cheap cigar on the way to lighting it. The thought of being caught in such a stink unstalled negotiations, so the fish story goes.

When I negotiate with prosecutors, I am usually dealing with clients who are fish out of the water on criminal negotiations. Many of my clients are brilliant and very skilled and accomplished in their professions and lives, but that does not always fully translate to them being any more skilled working with me on case negotiations than any other client.

I tell my clients that negotiations in criminal cases can be as uncertain as negotiating to buy a used car. Negotiations are an effort to get to yes on terms and conditions that are as favorable as possible to my client. One kink along the way can be whether the judge will go along with or deviate from the parties’ negotiated agreement. Therefore, I work with the prosecutor as needed on talking points that both sides can use with the judge to convince him or he to go along with the settlement.

When prosecutors tell me that their offer is final or that they will not deviate from "standard policy" on not extending a better offer than X, I sometimes remind them that each case is different and should be negotiated on its own circumstances and merits. Moreover, I also sometimes remind prosecutors that negotiation, like rivers, involve circumstances that are ever changing and should be considered. That means that prosecutors and I are best advised for us to put our heads together to overlap our goals as best as possible and to think outside the box, rather than unnecessarily to cement ourselves into unnecessarily intransigent positions.

We change our decisions all the time based on changing circumstances and new insights. How often do you expect to order item A at a restaurant when making a reservation, but instead order item D after perusing the menu? How many people cancel their weddings after the invitations have been sent and the caterer hired after waking up in the middle of the night realizing that the decision to marry this person was not right? As a less extreme and more common example, how many people radically change their vacation plans based on weather, calendar availability of their friends, and even social and political instability in the places they originally wanted to visit? Everything in life is like a river, constantly changing, and moving from here to there. Stand at a river bank, and the water molecules that are six inches from the riverbank at this moment will be downstream just a minute from now.

I remind my clients that their final negotiation decisions can seriously impact them for the rest of their lives. I do my best to provide them with sufficient information and relevant ideas so that they will not have an ah-hah moment too late that they made the wrong decision. I want my clients to make the right decision for them at the right time.

Time is a commodity and patience is a virtue in negotiating. Recently in a DWI case, I worked hard along with my client in obtaining an amended charge of reckless driving. Our negotiating efforts were not a shoe in. The prosecutor said no several times. Counter to the general idea of not negotiating against yourself, here I had nothing to lose in continuing to sweeten the pot, because the prosecutor was not moving in negotiations. In stages, we offered to pay a higher fine, to agree to no driving in Virginia for six months (my client is licensed and domiciled out of state), and to do a few hours in the jail’s holding cell. Interspersed with our sweetening the negotiation pot was my talking more with the cop, introducing the prosecutor to our witness who would testify to our client’s benefit, and pointing out that we both had risks as to which party would prevail on my arrest suppression motion. I pointed out that the preliminary breath test result with my client was significantly lower than the breathalyzer result. I said that this discrepancy called into question the validity of the breathalyzer result. The last point was intended by me not only to be a point of persuasion with the prosecutor, but also as a talking point for the prosecutor to have ready if questioned by his supervisor about why the prosecutor offered to amend the DWI charge to reckless, which the prosecutor ultimately offered.

Just as I try to get fluidity in my favor from prosecutors in negotiating, I sometimes need to seek fluidity from clients in being open to negotiation approaches and terms and conditions that they may previously not have wanted or considered. All this is part of realpolitik.

Speaking of realpolitik, I sometimes have clients who refuse on principal to certain negotiation terms and conditions. Even some of them soften or adjust their stance as I point out to them the various impacts they may face if they decline certain negotiating terms and conditions.

In the end, I am serving my clients in negotiations and in proceeding to and conducting trials. Although the above-described contract negotiating lawyer once spoke of shoving negotiating terms down throats, he correctly was talking about doing so with the other parties, and not with his own client. A lawyer is obligated to help his or her client make informed decisions, and to follow those client decisions.