Settlements are earned but not owed

Settlements can only be earned, but are never owed to you. As a Fairfax criminal lawyer, I know that Virginia defendants often expect to be offered a plea deal, and want it to be a desirable plea deal. However, nothing in the law requires a Virginia assistant commonwealth’s attorney (prosecutor) to make a plea offer, nor for the accused to do anything other than proceed to trial. This article illustrates a successful plea negotiation that can be of help to you and your Virginia criminal defense attorney. With this settlement, we started out with a Virginia DUI / driving under the influence of alcohol prosecution alleging a blood alcohol concentration (BAC) over 0.20, which carries a mandatory ten days in jail. I reached an impasse with the prosecutor about going lower than the mandatory minimum five days in jail for a reduced BAC in the 0.15-0.20 range.

Sometimes settlements start with a no.

Settlements sometimes start with a “no”. For instance, your Fairfax criminal lawyer might offer solution “A” to the prosecutor, to which the assistant commonwealth’s attorney may say “no”. That “no” is a crossroads for your Virginia criminal defense attorney either to rise to the occasion by probing further about how your case may settle to your satisfaction, or to throw in the towel and walk away. The latter option is self defeating. The former approach can yield great results.

If your Virginia criminal lawyer does not negotiate from a “Getting to Yes” approach, s/he is already setting themselves up for failure with settlements

With this 0.22 BAC defense, I asked the prosecutor if he had read Roger Fisher’s and William Ury’s Getting to Yes on negotiated settlements, which emphasizes negotiating on goals versus positions. The prosecutor indicated to having some familiarity with the book, which then provided me the opportunity to discuss with him the greatness of Getting to Yes. With that, I emphasized to the prosecutor how my client’s goal was to avoid active incarceration, to reduce risks to his job security. I provided documentation of all the great things my client had done for self improvement, and also handed the ACA my client’s alcohol evaluation from a substance program, showing he is a non-problem drinker. The prosecutor kept remaining stuck on a plea offer for the mandatory minmum five days in jail.

Make sure your Fairfax criminal lawyer colors outside the borders when needed

One of my childhood photos shows me at three years old holding open a coloring book, having drawn plenty outside the borders of the characters and objects in that book. Similarly, your Fairfax criminal lawyer needs to be ready to push the envelope and go outside the box for every aspect of your Virginia criminal defense, including pursuing favorable settlements. Here, seeing nothing to lose, after the prosecutor remained stuck on a five days of mandatory minmium in jail (unless my client took the risk of having each party free to ask for any sentence they wanted after fully striking the BAC), with the four police witnesses in the room with the prosecutor, I mentioned that the sooner we reached a plea deal in this case, the sooner the police witnesses would be back on the street or on their off duty time. I still got nowhere further. Then, through being inspired in the moment, I stood up, called out the names of the two lead police officers in my case, told them the great self improvement my client had pursued,  explained why his livelihood was at stake from the prosecutor’s plea offer, and asked them for ideas on how we could settle this case without active jail. Without missing a beat, the arresting officer suggested three years of the ignition interlock device. The prosecutor went along with that, adding to complete forty-five community service hours. All that was left was to convince the judge to accept our negotiated agreement, and he did.

Make sure your Fairfax criminal lawyer negotiates with the backup of the threat of a defense-successful trial

You know from your own negotiating experience that you are more willing to reach settlements if you know that your adversary is capable, experienced, intelligent, and ready to proceed to trial. In my instance, the mere fact of my well organized thick client file can sear into the ACA’s mind that I am fully ready for trial. That threat of a Virginia criminal defense lawyer who is fully ready and capable of victory at trial is a critical part of successful Virginia plea negotiations. Here, I transcended this negotiating impasse either because the police officer was interested or even entertained by what I was saying, felt empowered by my own encouragement, or simply wanted to finish in the courthouse.

Fairfax criminal lawyer Jonathan Katz approaches your defense against Virginia felony, misdemeanor and DUI prosecutions with a full court press that assists with settlement negotiations, without weakening your trial posture. Call 703-383-1100, Info@KatzJustice.com, or (text) 571-406-7268. 

Hear more on this subject on our weekly Beat The Prosecution podcast.