May 10, 2013 When a prosecutor, cop, complainant, and witnesses all have a human conversation with me
A combination of high-volume caseloads, certitude, challenges seeing criminal defendants as individual humans, and sometimes (and with some prosecutors often) arrogance leads many prosecutors to close their ears to a criminal defense lawyer’s trying to humanize his or her client during negotiations or to offer novel negotiations.
Once a prosecutor has no concerns that the lawyer will be anything but trustworthy, respectful of the prosecutor’s time and caseload, not a time waster or irritant, not a droner or complainer, and not a beggar, the prosecutor may open up more to actively listening to the lawyer. (On the other hand, when a prosecutor sees the lawyer as being a pain in terms of all the time the defense lawyer legitimately requires the prosecutor to spend on the case, the prosecutor may be more willing to offer a favorable settlement, to save time.) The prosecutor may also open up more to listening to the lawyer if the prosecutor feels listened to, cared about, provided information and ideas that are important to the prosecutor, and in some instances even relevantly and briefly entertained (whether by an irrelevant well-placed joke to start the day, or by short tangential humor related to the case (the humor must not breach keeping the client in a respectful light)).
The magic mirror takes hold. As criminal defense lawyers try humanizing their clients to prosecutors, lawyers need to show that they see prosecutors, their witnesses, police, and everyone else as whole humans. Being human, prosectors and police sometimes will appreciate a criminal defense lawyer’s empathetic (and never butt-kissing) ear to hear their angst about the case and matters divorced from the case (for instance, about their feeling they have too high a caseload, or about illness in the family). When I say empathetic, I say genuine and not manipulative. Just see how many seconds it takes for such manipulative talk to boomerang back at the criminal defense lawyer and even the client. The more energy and other blockages that the lawyer removes from the conversation, the more that others will be at ease talking about the case and getting closer to yes and/or providing information that is vital to the defense.
Just as storytelling can be powerful for the criminal defense, everyone has their own story that they want to tell and be heard. Prosecutors, police and civilian opposing witnesses, then, have their stories. Those stories may be filled with pearls for the defense, or just a way to get the conversation rolling. The magic mirror takes hold again. If a lawyer wants the prosecutor to hear the client’s persuasive story, the lawyer must be willing to listen to what the prosecutor and others have to say, and to listen with as little judgment and irritation as possible.
Storytelling can be very important for trial lawyers to help themselves, their clients and witnesses become ready to testify and to prepare for the rest of the trial, and to move the case investigation forward (e.g., to get otherwise recalcitrant witnesses to talk, which might start as simply as talking about something entirely unrelated to the case, and drawing out the story (e.g.: "I am riveted by your calm demeanor," (if you dare be anything but honest and real in talking, watch out for the fallout), and see if that draws out the person’s story (e.g., "My grandmother was as calm as gently flowing waters. That always stayed wtih me").
All the foregoing is part of getting to yes, in negotiating based on the parties’ goals rather than their positions.
With the foregoing in mind, I give credit to the prosecutors, police and opposing civilian witnesses who often do listen — and not merely hear — what I have to say. For them to give me their time and active ear, I need to give them my forthrightness, preparation, and compassion. In a recent case for instance where I obtained a favorable resolution of the case with the prosecutor, I told him that I had a gift for him, in the form of documents confirming that my client had completed dozens of hours of community service and taken several other proactive measures to pay penance for his alleged crime and to demonstrate his devotion to not committing future criminal activity. There, my client, by having taken such proactive measures, automatically stood head and shoulders over so many other criminal defendants, many who do little to nothing in advance of trial to show they are serious about not committing future crimes.
I then offered the prosecutor to tell why my client acted the way he did on the day of the incident. Who does not want to hear a compelling story? The prosecutor not only welcomed hearing about this from me, but found it very important as a factor in deciding the approach he wished to take in negotiations. The lead police offcer in the case was present during this conversation — they can be a hurdle or help to negotiations — and seemed to appreciate my approach to the discussion, and joined in a bit on the conversation and did not pose a hurdle to negotiations.
Additionally, the complaining witness in the case and other witnesses were also very open to talking with me. None of them threw any hurdles in the path of me or my client.
In negotiations and all other challenges in life, there is no "out there" for the mind. Getting to beneficial places for my client with judges, prosecutors, opposing witnesses and everyone else all starts with me.