Apr 13, 2016 Negotiating with a guarantee rather than with amorphous ideas
When I bought my first new car, the salesperson directed me to sign my name to my dollar offer on the vehicle. Of course car dealers and other businesspeople want offers in writing, because they know they will have a binding contract if they sign off on the offer. As discussed below, written settlement offers can be beneficial for criminal defense as well.
Many times prosecutors start trying to tell me their settlement offer before knowing anything about my client other than the accusations against my client and my client’s prior criminal charges and results therefrom. I want the prosecutor first to know more about my client than that, including aspects of my client’s background that show him to be just regular folks similar to the prosecutor’s next door neighbors, and things they have done (for instance community service, and relevant educational programs or therapy sessions) to show they are less likely to commit future behavior similar to their alleged criminal behavior from my case.
Once the prosecutor makes a settlement offer, that offer becomes seared in the prosecutor’s mind. Sometimes it is better for the defendant to make the first settlement offer, in an effort to sear the defendant’s settlement offer in the prosecutor’s mind. Doing so, of course risks that the defense will make an initial settlement offer much less favorable to the defendant than the possible offer from the prosecutor. Then again, the persuasive power of delivering the prosecutor a desirable written and signed settlement offer may mean more for the defense than going tit for tat, back and forth on minutiae aspects of settlement negotiations.
With that backdrop, recently I defended a tough felony theft case in a county where the prosecution rarely amends such charges to anything but misdemeanor theft. Of course we simply could have gone to trial, but the reality of criminal defense is that the risks can sometimes or often be too high to go to trial without first working for a favorable settlement.
With my recent felony theft case, twice we went to court and received the same prosecutorial settlement offer of misdemeanor theft. Then, we came back to court several months later, for a third time, and I achieved a settlement breakthrough, starting with preparing a settlement offer sheet with my client, for an amended plea to misdemeanor trespass with no active jail time, and having my client sign the settlement offer sheet. We offered payment of a substantial fine.
I had so many good things to share with the prosecutor about my client and the serious life risks of a felony theft conviction, that as I kept talking, the prosecutor finally interrupted and signed my written settlement offer letter. The prosecutor perhaps had arrived at his stage of “enough already, I already agree with your offer, so will sign it and have you begone.”
This settlement for trespassing was Nirvana under the circumstances.
Negotiations, like all persuasive efforts, must be in the moment. In one instance, it might make sense for me to have a defense-written, pre-signed settlement offer before starting to talk with the prosecutor. In other instances, I want to feel out the prosecutor and strengths and weaknesses of the prosecutor’s case, including whether the prosecutor will face hurdles getting a particular prosecution witness to court. In other instances, I want to start talking about thing having seemingly nothing to do with my case. In all instances, I might at the spur of the moment shift gears, because that is what in-the-moment persuasion is all about.