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Friday, August 05, 2011

Negotiating From Weakness

President Obama’s recent miseries brought to my mind some of my own. 

I am always reminded that Obama is a trained lawyer, which means that he suffers the defect of being able to see both sides of any question. 

It also means that he understands and values the concept of "reasonable" choices, relative victories, and acting in the best interests of the client.

This often means that the result he can manage will satisfy neither his ungrateful client nor quibbling observers. He is stuck in the middle.

Here’s a hypothetical case for you consideration.

Let us say that I am defending a client who is accused of serious crimes. If I lose the case, my client’s maximum exposure is life in prison. There is evidence against him, but I also have arguments that support my client’s position. He asserts his innocence, but he knows that it looks bad and he fears the worst.

I have some choices in negotiating with the prosecution.

First, I can insist on the rightness of my position, demand a dismissal OR ELSE. The or-else is the dreaded jury trial. 

That of course is risky. Which side has more to lose? Even a partial win (acquittal on some counts) will leave my client vulnerable to a long sentence if convicted of other charges. The chances of a total acquittal are slim.

Forty years ago, as a young public defender, I was tempted to force every case to trial. The ethic of the nobility of the "lost cause" was my romantic ideal. I wanted to be Jimmy Stewart in "Mr. Smith Goes To Washington" or Al Pacino in "And Justice For All" (shout at the judge: "You’re out of order!"). Some of my friends acted that way. They gained quick experience at the expense of clients, and burnt out quickly.

Second, I can try for a compromise plea bargain, find a middle ground that might be acceptable for my client and the prosecutor.

This choice leads to others:

I can be aggressive, choose a bottom line punishment and stick to it: one time offer, take it or leave it.

Problem is, if I insist that I will stand fast, what is my or-else threat?

Answer: a jury trial. 

But as I noted, that is risky for my client. What has the DA to lose by a trial?

My second negotiating option is to be conciliatory, concede the strength of his evidence, while still urging my arguments in opposition, pointing out the weaknesses of his evidence and the risks he faces by going to trial, and showing that his goal (what he perceives as justice) can be attained by my suggested compromise.

The simple fact is that I am almost always dealing from a weaker position than the DA.

No matter how the relative strengths of the evidence seem to stack up, the reality is that the scales of justice are always balanced in favor of the prosecution. Ideal principles claim balance in favor of the accused: presumption of innocence, burden of proof beyond a reasonable doubt. But life in the big city belies these ideals. Judges and jurors presume guilt, not innocence of anyone accused. The more serious the crime, the lower the burden on the DA to prove guilt. Jurors fear criminals so much that they twist the old dictum: better to convict ten innocent persons than to let one guilty one go free.

I admit that all of this is contrary to the public perception that sly defense lawyers have the upper hand, that the system is a swinging door designed to apologize to the bad guys. That may happen in the extremely rare celebrity dream team trial, but in the day to day working of our judicial system, the accused is at a distinct disadvantage.

It doesn’t feel good to always be on the defensive, to be conciliatory rather that aggressive. But the defense lawyer’s duty is to act in the best interests of the client, not his own. If that means swallowing hard and making a bitter deal, the best that can be made, so be it.

That is why I sympathize with Obama.  The sniping from all sides, must hurt like hell.