PROSECUTOR POST - Here is a helpful tip from a Texas prosecutor:
After years of practicing in criminal courts, I've seen numerous courtroom styles from criminal defense attorneys. One of the most prominent is the "grandstand" (a.k.a. Posturing). I would define the "grandstand" as attempted behavior exhibited by an attorney to establish dominance in the courtroom. Please note that word - attempted. From yelling to whining to stomping around and slamming things on counsel's table, I've seen it all. Sometimes this behavior isn't intentional but actual passionate investment, but more often than not I can see it's a show for the client.
The client wants the bulldog lawyer in the courtroom. At least that's what I hear. I think some of what I'm referencing is an attempt by these lawyers to be that bulldog by "grandstanding." However, in my experience, these attorneys that "grandstand" in court, end up looking like the yipping chihuahua instead of the bulldog. And it's funny to see the look on the defendant's face when he realizes he's hired the yipping chihuahua.
The more effective style I've seen is the old German Shepherd approach. The attorney that comes in and exudes that high level of comfort in the courtroom. He's professional to everyone (including state's counsel) and acts in a way that sends the message to his client - "yes, I've been here several times before." Does he "grandstand?" No. He establishes dominance by respecting the balance b/w the defense, the state and the bench. Does he bark? Sometimes. But only when there's cause. And when he barks everyone hears it and respects it.
Showing posts with label Prosecutor Post. Show all posts
Showing posts with label Prosecutor Post. Show all posts
Monday, March 26, 2012
Friday, February 3, 2012
Prosecutor Post: It's Not Personal...Really.
From our Texas prosecutor:
I had a discussion with a defense attorney today about the dynamic relationships that develop between prosecutors and defense attorneys. Relationships that, like it or not, become very intricate in the resolution of criminal cases. This conversation started after we had finished watching a heated exchange between a different prosecutor and defense attorney. He started by pointing out how there's not much to gain by creating a hostile relationship with a prosecutor. He described his fear of creating problems for future clients because of bad past relationship with a prosecutor.
I explained how prosecutors are aware of that fear and how our goal is to set aside the personal aspect of negotiations and not to punish a defendant on account of who he happened to hire as his defense attorney. We try and look at the case and defendant separately from the attorney. He agreed he didn’t feel most prosecutors seek to punish the unfortunate client of a defense attorney who recklessly handles business with the prosecution, but quickly added how subconsciously it might be an underlying factor when a prosecutor decides how he's going to handle a case. Again, I stressed we try not to behave that way, but then again, I can't speak for every prosecutor.
Common sense tells you that honey attracts more bees than vinegar and that pissing someone off on a consistent basis might render less than preferable results when it comes to working something out with that person. The personal aspect of dealing in an adversarial system is often too hard for some attorneys to set aside. So, they take things personally. Negotiations are bound to get heated when you deal with one party protecting something (in this case the liberty of their client) and the other trying to take it away. And it should! Criminal cases shouldn't be taken lightly by either side, but passion doesn't have to trump professionalism.
There's not really a how-to on not taking it personal. Just something you have to practice I suppose.
I had a discussion with a defense attorney today about the dynamic relationships that develop between prosecutors and defense attorneys. Relationships that, like it or not, become very intricate in the resolution of criminal cases. This conversation started after we had finished watching a heated exchange between a different prosecutor and defense attorney. He started by pointing out how there's not much to gain by creating a hostile relationship with a prosecutor. He described his fear of creating problems for future clients because of bad past relationship with a prosecutor.
I explained how prosecutors are aware of that fear and how our goal is to set aside the personal aspect of negotiations and not to punish a defendant on account of who he happened to hire as his defense attorney. We try and look at the case and defendant separately from the attorney. He agreed he didn’t feel most prosecutors seek to punish the unfortunate client of a defense attorney who recklessly handles business with the prosecution, but quickly added how subconsciously it might be an underlying factor when a prosecutor decides how he's going to handle a case. Again, I stressed we try not to behave that way, but then again, I can't speak for every prosecutor.
Common sense tells you that honey attracts more bees than vinegar and that pissing someone off on a consistent basis might render less than preferable results when it comes to working something out with that person. The personal aspect of dealing in an adversarial system is often too hard for some attorneys to set aside. So, they take things personally. Negotiations are bound to get heated when you deal with one party protecting something (in this case the liberty of their client) and the other trying to take it away. And it should! Criminal cases shouldn't be taken lightly by either side, but passion doesn't have to trump professionalism.
There's not really a how-to on not taking it personal. Just something you have to practice I suppose.
Tuesday, January 3, 2012
Pontifications of a Prosecutor
So much of our time in the criminal law world is spent in negotiations. A defense attorney was in my office the other day and we were sharing small talk after we had reached a resolution on a felony he was handling. I made some passing remark about him "wearing" me down because I had made an offer I didn't initially want to make. He quipped back about the result not being overly favorable for his client either (a felony conviction would now find a home on his record.) Then, he made an interesting comment. "The best resolution after fierce negotiations is one that leaves no one happy."Huh. Completely contrary to what I learned in law school. I thought the goal of negotiations was to find an agreement that made everyone happy? Maybe in the civil world, but after thinking long and hard about it, in criminal law, maybe it is the former...Maybe the goal in criminal law is simply a result that everyone can live with, but about which no one is particularly happy.
Monday, October 17, 2011
Prosecutor Prefers Punctuality
Below is a submission from one of our regular contributors, a veteran Texas prosecutor, on one of his pet peeves - the tardy attorney.
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"Better never than late." -George Bernard Shaw
It's funny that when you look back on your childhood, things make sense in retrospect. Remember school bells? Remember the kids that walked into class after the bell rang? No, not the student who came in with a note in her hand. Maybe she'd been in the nurse's office? And not the one who flew through the door with total desperation plastered on his face. "Mom got a ticket this morning!" No, I'm talking about the ones who, at least enough times to make you remember, waltzed in a couple of minutes after the bell and lazily took their seat. It's almost like their ears were immune to the sounds of the bell. Or more likely that they just didn't care about the rules. They were the tardy ones. Oooooh. That's right - ooooooh, because they usually got in trouble for their tardiness. Detention, principal's office, or whatever, there was always a consequence for being tardy. Were they the honor roll students? Of course not. They were the slackers. I wonder what ever happened to those kids?
Courthouses should have bells. Seriously. I've practiced law in numerous courts now, and it never fails. I see tardy lawyers just like the tardy students I remember from school. Not the lawyer who has four case settings in four different courts, who rushes in late, approaches the bench and notifies the court of his hectic morning schedule. Not the one who rushes past the bar with a ticket in his hand. "Your Honor, I apologize for being late." Nope, I'm still talking about the ones that walk in late, act like they own the place and pay no mind to the clock. The tardy ones.
Sometimes there are consequences for their tardiness, but very seldomly. My experience is that most of the time judges just turn a blind eye toward it. Sure, every now and then, a lawyer will walk in late and catch the judge on a bad day and reap a good butt-chewing, but it's usually just ignored - and that's unfortunate.
As a lawyer, regardless of who your client is, you owe a professional courtesy to the court, other attorneys, and most importantly, your client. I know a lot of the tardy attorneys I see think they're exuding confidence. "I'm my own person. I'll show up when I want to. I'll make make my entrance." Truth is, your entrance reminds everybody of the tardy kids in school. The slackers. And we know the reputation they garnered. You also help me realize the lesson I learned from having bells in school. That's right, I try to never be late for court.
Thanks for the soapbox.
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"Better never than late." -George Bernard Shaw
It's funny that when you look back on your childhood, things make sense in retrospect. Remember school bells? Remember the kids that walked into class after the bell rang? No, not the student who came in with a note in her hand. Maybe she'd been in the nurse's office? And not the one who flew through the door with total desperation plastered on his face. "Mom got a ticket this morning!" No, I'm talking about the ones who, at least enough times to make you remember, waltzed in a couple of minutes after the bell and lazily took their seat. It's almost like their ears were immune to the sounds of the bell. Or more likely that they just didn't care about the rules. They were the tardy ones. Oooooh. That's right - ooooooh, because they usually got in trouble for their tardiness. Detention, principal's office, or whatever, there was always a consequence for being tardy. Were they the honor roll students? Of course not. They were the slackers. I wonder what ever happened to those kids?
Courthouses should have bells. Seriously. I've practiced law in numerous courts now, and it never fails. I see tardy lawyers just like the tardy students I remember from school. Not the lawyer who has four case settings in four different courts, who rushes in late, approaches the bench and notifies the court of his hectic morning schedule. Not the one who rushes past the bar with a ticket in his hand. "Your Honor, I apologize for being late." Nope, I'm still talking about the ones that walk in late, act like they own the place and pay no mind to the clock. The tardy ones.
Sometimes there are consequences for their tardiness, but very seldomly. My experience is that most of the time judges just turn a blind eye toward it. Sure, every now and then, a lawyer will walk in late and catch the judge on a bad day and reap a good butt-chewing, but it's usually just ignored - and that's unfortunate.
As a lawyer, regardless of who your client is, you owe a professional courtesy to the court, other attorneys, and most importantly, your client. I know a lot of the tardy attorneys I see think they're exuding confidence. "I'm my own person. I'll show up when I want to. I'll make make my entrance." Truth is, your entrance reminds everybody of the tardy kids in school. The slackers. And we know the reputation they garnered. You also help me realize the lesson I learned from having bells in school. That's right, I try to never be late for court.
Thanks for the soapbox.
Thursday, September 1, 2011
"Mr. Prosecutor Can't Come to the Phone Right Now..."
One of our Texas prosecutors took a break from his cases to provide us this little insight into his world. Here's what he has to say.
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You might wonder sometimes how nice it would be to have the life of a highly-paid government lawyer (i.e. prosecutor) with one of the easiest and least demanding jobs in the world. No nagging clients, no trips to the jail, no requirement to return endless phone messages... Yeah, right. You may have a hundred clients, we've got a thousand cases and a thousand victims and thousands of witnesses and, of course, an endless array of defense attorneys. And what do all of these have in common (at least all of the ones that I work with)? They like to leave their message after the beep...
We always give due diligence when it comes to returning calls, but as you know, it can sometimes take a while not only listen to the messages, but then return them one by one. Here's my simple piece of advice. Put down the phone and open up the laptop. I had a defense attorney in my office yesterday and we had finished discussing a case. On his way out the door, I told him to call me with any other questions. His response? "I'll send you an email. I always get a quicker response from prosecutors that way."
There was a man who had a dog and Bingo was his name - oh! B-I-N-G-O!
The reason its easier to return an email is because of the numerous ways we access our email now. Clearly, you're not getting a prosecutor's cell phone number, but guess what he checks on his cell phone? That's right! Emails. He may be in court, in a meeting or even stuck at his desk. More than likely, wherever he is, he's checking his emails. And, almost as easily as we check them, we can respond to them. Sometimes you need a quick answer on something. Sometimes you just need to verify something said at a prior meeting. Whatever the reason you need to communicate with a prosecutor is irrelevant. What matters is nowadays you have 3 ways to communicate - 1) over the phone 2) in person (appointments only please!) or 3) or via email. Email is to phone calls what, well, email is to snail mail. Much faster and easier.
That's not to say you can never call a prosecutor. But think about this, if you communicate normally via email with a prosecutor and do end up with a pressing matter you need to call him about, how much more will your call mean? "Hmmm, this must be important, she always emails..." is probably the thought the prosecutor's having.
I don't know a single prosecutor who would rather make a call than respond to an email. But remember, if I respond to your email and it's clear in my response I need your response, treat me with the same respect I showed you and email me back. Don't leave me hanging or I might forego further emails with you and make you wait for the beep...
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You might wonder sometimes how nice it would be to have the life of a highly-paid government lawyer (i.e. prosecutor) with one of the easiest and least demanding jobs in the world. No nagging clients, no trips to the jail, no requirement to return endless phone messages... Yeah, right. You may have a hundred clients, we've got a thousand cases and a thousand victims and thousands of witnesses and, of course, an endless array of defense attorneys. And what do all of these have in common (at least all of the ones that I work with)? They like to leave their message after the beep...
We always give due diligence when it comes to returning calls, but as you know, it can sometimes take a while not only listen to the messages, but then return them one by one. Here's my simple piece of advice. Put down the phone and open up the laptop. I had a defense attorney in my office yesterday and we had finished discussing a case. On his way out the door, I told him to call me with any other questions. His response? "I'll send you an email. I always get a quicker response from prosecutors that way."
There was a man who had a dog and Bingo was his name - oh! B-I-N-G-O!
The reason its easier to return an email is because of the numerous ways we access our email now. Clearly, you're not getting a prosecutor's cell phone number, but guess what he checks on his cell phone? That's right! Emails. He may be in court, in a meeting or even stuck at his desk. More than likely, wherever he is, he's checking his emails. And, almost as easily as we check them, we can respond to them. Sometimes you need a quick answer on something. Sometimes you just need to verify something said at a prior meeting. Whatever the reason you need to communicate with a prosecutor is irrelevant. What matters is nowadays you have 3 ways to communicate - 1) over the phone 2) in person (appointments only please!) or 3) or via email. Email is to phone calls what, well, email is to snail mail. Much faster and easier.
That's not to say you can never call a prosecutor. But think about this, if you communicate normally via email with a prosecutor and do end up with a pressing matter you need to call him about, how much more will your call mean? "Hmmm, this must be important, she always emails..." is probably the thought the prosecutor's having.
I don't know a single prosecutor who would rather make a call than respond to an email. But remember, if I respond to your email and it's clear in my response I need your response, treat me with the same respect I showed you and email me back. Don't leave me hanging or I might forego further emails with you and make you wait for the beep...
Wednesday, July 27, 2011
Prosecutor's Top Ten List
One of our regular contributors, a Texas prosecutor, recently took a trip up to New York City. In addition to dodging all the fast-walking yankees on the sidewalks and yellow cabs in the streets, he took in a taping of the Letterman Show. Filled with the Letterman spirit, he created his own Top Ten List and emailed it to me. Some of these come from his experiences when he was first starting out and some are more regular violations that he oberseves. Here they are:
Top 10 things for a defense attorney NOT to say to a prosecutor:
10) How long have you been licensed?
9) Who peed in your cheerios this morning?
8) Your case is circumstantial.
7) Is there any way we could get a different prosecutor for this case?
6) You’re in over your head.
5) I’ve seen you in trial and, quite frankly, you suck.
4) Who is your supervisor?
3) Did that suit come from Goodwill?
2) Relax. A dismissal is easy to sign.
and the #1 thing a defense attorney SHOULD NOT to say to a prosecutor...
1) No, I don’t want an offer. I want a letter of apology to my client…
Top 10 things for a defense attorney NOT to say to a prosecutor:
10) How long have you been licensed?
9) Who peed in your cheerios this morning?
8) Your case is circumstantial.
7) Is there any way we could get a different prosecutor for this case?
6) You’re in over your head.
5) I’ve seen you in trial and, quite frankly, you suck.
4) Who is your supervisor?
3) Did that suit come from Goodwill?
2) Relax. A dismissal is easy to sign.
and the #1 thing a defense attorney SHOULD NOT to say to a prosecutor...
1) No, I don’t want an offer. I want a letter of apology to my client…
Monday, May 23, 2011
Prosecutor Post - Operating on a False Assumption
A word of advice from one of our Texas prosecutors based on one of the recurring blunders that he sees defense attorneys make:
My desk phone rings. It’s the receptionist calling to tell me that a defense attorney is here to see me about a felony indictment his client just received. The indictment came down last week and there is no trial scheduled yet, so I know he’s here to talk about an early dispo (pre-trial diversion, perhaps).
The defense attorney has had the “pregame” interview with his client and believes the client has told him everything about the case. The defense attorney has spotted two evidentiary issues during the initial interview and after further review, he feels he’s got a solid defense to walk into my office with and argue for a good deal - a really good deal.
Not only is my case not that great, so the defense attorney believes, but his defendant is clean. No prior criminal history. At least, according to his client.
After pleasantries, he lays out his defense and I don’t attempt a retort. Until he mentions “and he’s got a clean record, too.” Immediately, my face lights up with that “ah ha” look, revealing that I obviously know something he doesn’t.
I’ve been there many times. Sitting across from me as I flip through the file, several defense attorneys have discovered that their clients had been less than truthful with them about their criminal history. Maybe it’s only a misdemeanor or maybe it’s a pen trip. Either way, you’ve got to be careful when handling this particular area of the case.
Of course, I am always going to have access to your client’s criminal history; both state and national indices. So, when you waltz in operating on this false assumption, congratulations! You’ve just made my day!
I’ve caught you in a lie. Okay, it’s not really a lie on your part (or maybe it is), but now I know that either (1) you didn’t bother to ask your client about his criminal history and assumed he was clean, or (2) your client outright lied to you. Either way, I like my chances in this case with you as my opposition. By failing to check your facts, you’ve lost credibility with me. And your client has lost credibility because I pretty much know your knowledge was based on his lie.
My advice (take it or leave it) - Don’t rely on your client’s word when dealing with the prosecutor. I've got the upper hand until…get ready…ready? Until you ask the me (NOT THE CLIENT) what the criminal history is. Start with it when dealing with the prosecution. Get it out of the way. Pull that band-aid! Then? Maneuver from there. No history? Great way to start. Lots of history? It shows me you’re not hiding from anything and prevents you from operating on a false assumption.
My desk phone rings. It’s the receptionist calling to tell me that a defense attorney is here to see me about a felony indictment his client just received. The indictment came down last week and there is no trial scheduled yet, so I know he’s here to talk about an early dispo (pre-trial diversion, perhaps).
The defense attorney has had the “pregame” interview with his client and believes the client has told him everything about the case. The defense attorney has spotted two evidentiary issues during the initial interview and after further review, he feels he’s got a solid defense to walk into my office with and argue for a good deal - a really good deal.
Not only is my case not that great, so the defense attorney believes, but his defendant is clean. No prior criminal history. At least, according to his client.
After pleasantries, he lays out his defense and I don’t attempt a retort. Until he mentions “and he’s got a clean record, too.” Immediately, my face lights up with that “ah ha” look, revealing that I obviously know something he doesn’t.
I’ve been there many times. Sitting across from me as I flip through the file, several defense attorneys have discovered that their clients had been less than truthful with them about their criminal history. Maybe it’s only a misdemeanor or maybe it’s a pen trip. Either way, you’ve got to be careful when handling this particular area of the case.
Of course, I am always going to have access to your client’s criminal history; both state and national indices. So, when you waltz in operating on this false assumption, congratulations! You’ve just made my day!
I’ve caught you in a lie. Okay, it’s not really a lie on your part (or maybe it is), but now I know that either (1) you didn’t bother to ask your client about his criminal history and assumed he was clean, or (2) your client outright lied to you. Either way, I like my chances in this case with you as my opposition. By failing to check your facts, you’ve lost credibility with me. And your client has lost credibility because I pretty much know your knowledge was based on his lie.
My advice (take it or leave it) - Don’t rely on your client’s word when dealing with the prosecutor. I've got the upper hand until…get ready…ready? Until you ask the me (NOT THE CLIENT) what the criminal history is. Start with it when dealing with the prosecution. Get it out of the way. Pull that band-aid! Then? Maneuver from there. No history? Great way to start. Lots of history? It shows me you’re not hiding from anything and prevents you from operating on a false assumption.
Wednesday, December 15, 2010
The Overzealous, Inexperienced, Wet-Behind-The-Ears Prosecutor!
If the title didn't give it away, this post is from one of our friendly Texas prosecutors. No, he's not overzealous (okay maybe a little), inexperienced, or wet-behind-the-ears, but he remembers back to the days when he was. Here's some advice from him:
Raise your hand if you're tired of dealing with this guy? Most, if not every defense attorney can relate to having to deal w/a prosecutor half his age with about 1/100th the experience on a weekly basis. If you're experiencing difficulity in this area I have an easy solution...
Get over it!
We all know how well DA's offices pay, don't we? We also know how they are often limited to hiring green attorneys fresh out of law school and most often not the highly sought after editors of the law review. Short of Texas counties drastically raising taxes to increase its employees salaries, I don't see this changing. (Just checked the political climate tracker and Texas and nope, this ain't happening.) So, get over it! And learn how to deal with it.
Why? Because unless you're favorite phrase to hear from the prosecution is "set it for trial," refusing to respect and work with those young whipper snappers isn't going to get you anywhere.
I'm not suggesting you have to agree with them, or enjoy it. What I am saying is if you are truly in this business to help your client reach the best possible outcome, then you must find a way to maintain a professional relationship with any prosecutor you encounter.
How do you that? Another easy answer. Be courteous and show him or her respect. Regardless of the situation, this should always be your goal as a defense attorney.
I don't know how many times I've seen a defense attorney blow an opportunity for his client because of his own selfish pride. And ultimately what did they gain? Well, I made sure he knew who he was dealing with and that this wasn't my first rodeo!
Many, young prosecutors have a chip on their shoulder because...? Because they are young and deal with an adversary they know has more experience than they do.
It is only intensified when the defense attorney acts in an arrogant, belittling manner. Don't do it. Most, if not all, of those "snot-nosed kids" will respond better to your respect than your lack of it. As always, your reputation precedes you. Having the reputation of a respectful defense attorney should be highly desired. Unfortunately, its constantly forgotten.
Raise your hand if you're tired of dealing with this guy? Most, if not every defense attorney can relate to having to deal w/a prosecutor half his age with about 1/100th the experience on a weekly basis. If you're experiencing difficulity in this area I have an easy solution...
Get over it!
We all know how well DA's offices pay, don't we? We also know how they are often limited to hiring green attorneys fresh out of law school and most often not the highly sought after editors of the law review. Short of Texas counties drastically raising taxes to increase its employees salaries, I don't see this changing. (Just checked the political climate tracker and Texas and nope, this ain't happening.) So, get over it! And learn how to deal with it.
Why? Because unless you're favorite phrase to hear from the prosecution is "set it for trial," refusing to respect and work with those young whipper snappers isn't going to get you anywhere.
I'm not suggesting you have to agree with them, or enjoy it. What I am saying is if you are truly in this business to help your client reach the best possible outcome, then you must find a way to maintain a professional relationship with any prosecutor you encounter.
How do you that? Another easy answer. Be courteous and show him or her respect. Regardless of the situation, this should always be your goal as a defense attorney.
I don't know how many times I've seen a defense attorney blow an opportunity for his client because of his own selfish pride. And ultimately what did they gain? Well, I made sure he knew who he was dealing with and that this wasn't my first rodeo!
Many, young prosecutors have a chip on their shoulder because...? Because they are young and deal with an adversary they know has more experience than they do.
It is only intensified when the defense attorney acts in an arrogant, belittling manner. Don't do it. Most, if not all, of those "snot-nosed kids" will respond better to your respect than your lack of it. As always, your reputation precedes you. Having the reputation of a respectful defense attorney should be highly desired. Unfortunately, its constantly forgotten.
Thursday, August 19, 2010
A Paperless Defense Practice
A word from a Texas prosecutor on going paperless in your office:
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Paperless systems are becoming more and more prevalent. I had an attorney tell me the other day he “didn’t do email.” What? Is that even possible nowadays? Probably, but how far are you falling behind in technological advances? A whole heckuva lot. The same can be said of those still using paper to operate their daily course of business.
Paperless is cheaper, faster, and much easier than managing “hard copy.” Need to send a note to a client? Why not email it? Need to communicate a counter-offer with the prosecutor? Don’t call. Shoot him an electronic fax. Ooh, what about needing to get copies of discovery, say medical records? Remember paying .25 a page? Forget that! Have the D.A.’s office copy them to your thumb drive.
Many state offices are switching to paperless systems where they operate without hard files and, instead, access all information via their computer systems. Discovery, motions, judgments, etc. are being entered into their system from either email or scanning of the documents. Ultimately, prosecutors are not relying on paper anymore. Why should you? After all, you have to pay for your paper, the prosecutors get their from the tax payers.
As technology continues to replace the old, primitive way of our criminal justice system, you will start to see more and more attorneys become dependent on their laptops (or even electronic devices like the iPad or Kindle – yes, I’ve already seen it.) Granted, for the immediate, foreseeable future, there will still be some things for which we must use paper (e.g. anything we file with the court), but the bulk of the paper currently being used in attorney’s office is becoming unnecessary.
Some argue it’s too expensive to get up to date on these advances, but I would urge the opposite. Paper isn’t exactly cheap. Computers and other electronics have become much more affordable. And besides, do you really want to look like that old attorney sitting behind his typewriter pecking away on his motions? Or do you want to be the attorney who’s up to speed not only on the law, but the society in which we live?
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
I like the prosecutor's appeal to "green-up" the defense practice and I agree with him in theory. I also like the idea of cutting costs where possible. But I have to say, I really like to read things on paper. I am better able to spot errors and make notes when I have a hard copy of a document. Perhaps I'm behind in the times a bit?
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
Paperless systems are becoming more and more prevalent. I had an attorney tell me the other day he “didn’t do email.” What? Is that even possible nowadays? Probably, but how far are you falling behind in technological advances? A whole heckuva lot. The same can be said of those still using paper to operate their daily course of business.
Paperless is cheaper, faster, and much easier than managing “hard copy.” Need to send a note to a client? Why not email it? Need to communicate a counter-offer with the prosecutor? Don’t call. Shoot him an electronic fax. Ooh, what about needing to get copies of discovery, say medical records? Remember paying .25 a page? Forget that! Have the D.A.’s office copy them to your thumb drive.
Many state offices are switching to paperless systems where they operate without hard files and, instead, access all information via their computer systems. Discovery, motions, judgments, etc. are being entered into their system from either email or scanning of the documents. Ultimately, prosecutors are not relying on paper anymore. Why should you? After all, you have to pay for your paper, the prosecutors get their from the tax payers.
As technology continues to replace the old, primitive way of our criminal justice system, you will start to see more and more attorneys become dependent on their laptops (or even electronic devices like the iPad or Kindle – yes, I’ve already seen it.) Granted, for the immediate, foreseeable future, there will still be some things for which we must use paper (e.g. anything we file with the court), but the bulk of the paper currently being used in attorney’s office is becoming unnecessary.
Some argue it’s too expensive to get up to date on these advances, but I would urge the opposite. Paper isn’t exactly cheap. Computers and other electronics have become much more affordable. And besides, do you really want to look like that old attorney sitting behind his typewriter pecking away on his motions? Or do you want to be the attorney who’s up to speed not only on the law, but the society in which we live?
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
I like the prosecutor's appeal to "green-up" the defense practice and I agree with him in theory. I also like the idea of cutting costs where possible. But I have to say, I really like to read things on paper. I am better able to spot errors and make notes when I have a hard copy of a document. Perhaps I'm behind in the times a bit?
Thursday, June 24, 2010
Prosecutor Post - "I use Powerpoint" so Should You.
How does that Dylan song go? “The times they are a changing…” And you better believe it! Whether it be a constant streaming of CSI or unfettered access to an abundance of “interesting” reads on the internet, most people now have preconceived notions of what our legal system should be. Good attorneys recognize this. Heck, all attorneys should recognize this, but good attorney adapt to take advantage of it. Specifically, they are turning to technological advances and discovering new and innovative ways to connect with juries.
In regard to criminal cases, most prosecutors have equipped themselves with a very effective tool. PowerPoint. Okay, it’s not so new, but to many Texas lawyers it might as well have been invented last week. From voir dire to closing arguments, state attorneys have come to realize PowerPoint is so effective that they won’t try a case without it. Why is it so effective? Simple. Our society and the new generation of jurors are visual learners. Speaking alone is no longer the most effective way to reach people, regardless of how engaging or folksy you may be.
Visual presentation is a much more effective way of reaching others and, if you think about it, data and facts that appear in electronic form just seem much more convincing. You not only tell someone X and ask them to trust you, you also show them X on a fancy big screen TV. By accessing two of their senses simultaneously, you double the odds of reaching your audience.
I know, I know, you have probably imagined that if you use PowerPoint, the jurors eyes are likely to glaze over – death by PowerPoint, as they say. But, speaking from experience, it’s not true. Of course, if you put volumes of text on the screen and simply read from the screen, PowerPoint is likely not going to be very effective for you. You still have to bring your advocacy skills to the table – PowerPoint is simply a way to bring your argument to life.
You might be concerned about trying something new, but rest assured there are many who have faced the challenge of learning PowerPoint and found the ability to not only use it, but master it. Like anything else, there are numerous resources available to assist in learning the software. And yes, the software and any tutorial materials will cost money. But you can’t afford to opt out and stick with your easel and oversized flip charts.
What impression do you think is given when you walk into court with a marker board while the prosecutor has his laptop fired up and his PowerPoint presentation rearing to go? Don’t put yourself in that position. This tool is as accessible to you as it is to anyone. And yes, it may be new to you and a bit uncomfortable. But it will only stay that way for a little while. After using it a couple of times, you’ll probably find yourself wondering how you ever tried a case without it…
For those of you new to the PowerPoint game, here’s a few tips to make your presentation stand out:
In regard to criminal cases, most prosecutors have equipped themselves with a very effective tool. PowerPoint. Okay, it’s not so new, but to many Texas lawyers it might as well have been invented last week. From voir dire to closing arguments, state attorneys have come to realize PowerPoint is so effective that they won’t try a case without it. Why is it so effective? Simple. Our society and the new generation of jurors are visual learners. Speaking alone is no longer the most effective way to reach people, regardless of how engaging or folksy you may be.
Visual presentation is a much more effective way of reaching others and, if you think about it, data and facts that appear in electronic form just seem much more convincing. You not only tell someone X and ask them to trust you, you also show them X on a fancy big screen TV. By accessing two of their senses simultaneously, you double the odds of reaching your audience.
I know, I know, you have probably imagined that if you use PowerPoint, the jurors eyes are likely to glaze over – death by PowerPoint, as they say. But, speaking from experience, it’s not true. Of course, if you put volumes of text on the screen and simply read from the screen, PowerPoint is likely not going to be very effective for you. You still have to bring your advocacy skills to the table – PowerPoint is simply a way to bring your argument to life.
You might be concerned about trying something new, but rest assured there are many who have faced the challenge of learning PowerPoint and found the ability to not only use it, but master it. Like anything else, there are numerous resources available to assist in learning the software. And yes, the software and any tutorial materials will cost money. But you can’t afford to opt out and stick with your easel and oversized flip charts.
What impression do you think is given when you walk into court with a marker board while the prosecutor has his laptop fired up and his PowerPoint presentation rearing to go? Don’t put yourself in that position. This tool is as accessible to you as it is to anyone. And yes, it may be new to you and a bit uncomfortable. But it will only stay that way for a little while. After using it a couple of times, you’ll probably find yourself wondering how you ever tried a case without it…
For those of you new to the PowerPoint game, here’s a few tips to make your presentation stand out:
- Start with a black (or otherwise dark) background. Studies show that people can more easily read white text on a black screen than vice versa.
- Use effective titles on each slide – some jurors may only give your slide a few seconds of attention. What do you want them to take away?
- Pace each slide. Don’t present all your information at once. Proceed incrementally. This allows you to argue and it allows jurors to follow your argument as it progresses.
- Use symbols to portray data. Jurors can understand symbols much faster than listening to spoken word.
- Avoid messy and overcomplicated charts. Confusing!
Sunday, June 13, 2010
An Alternative Disposition for Drug Addicts
Our prosecutor contributors have been busy lately, but one of them took a break to offer an intriguing outlook on cases involving bonafide drug addicts. Here you go.
How often do you handle felony cases where drugs are clearly the root of the crime committed? I’m not just referencing the clear ones like possession or possession with intent to deliver. I’m also talking about the theft, burglary, or credit card abuse cases where you have a client who is stealing to feed their drug addictions. These are the clients who probably have a track record a mile long or have picked up 3 or 4 cases within just a few months.
These folks may come across as the ones who just want to do their time and get back to their addiction. They’ve maybe had defense attorneys before you who have gotten them the best jail or pen time available. They know the game and expect the same from you. Or maybe not?
Maybe you have somebody who has reached that breaking point and wants out of the drug world. Whatever the case, when you’re handling drug-related cases with an addict for a client consider this. They don’t have to go to the pen or state jail or even spend a couple of months in the county. Instead, the state has created programs to address the needs of these types of folks.
Rehab. That’s what it is. Plain and simple. Most jurisdictions have county-ran programs where offenders can go to fight their addictions. Some are lock-down programs while others allow participants to maintain full time jobs during the day. (Check with your local probation office on what types of program your jurisdiction offers) TDCJ offers their Substance Abuse Felony Punishment (SAFP) program which is a bonafide lock-down facility. There are programs offered through your local MHMR that usually allow for outpatient treatment. And never forget about private facilities for those clients who can afford it.
Whatever type of program is needed for your specific client, your role as counselor may necessitate this conversation with her. For example, she has been addicted to crack-cocaine for the past three years. She’s been to the state jail and pen and is currently actively incarcerated for her newest state jail theft case. Her first comment to you is? That’s right. Get me the shortest sentence so I can get out of here. Or maybe she possesses the more “I don’t give two rips” attitude. What if you sit her down and explain her options. Explain the availability of these programs to help address her problem. She may very well be responsive. You may need to be the one who encourages that initial step in the direction of recovery.
As for the prosecutor, every case is different. But in many situations, when you have a client who is willing to address his drug problem and agree to a rehabilitative program, the prosecutor is going to have a hard time saying no. It’s not very often the prosecution is approached with rehab. More often than not, it’s the prosecutor who sees the need and has to make the proposal. The defense attorney is in a much better place to make that suggestion, especially when considering how your client will receive it. “The prosecutor is saying you have to do this.” – probably won’t work. “I, as your attorney, think this is something you really need to consider.” – is much more appealing. Just something to think about next time you deal with a client who is an addict.
How often do you handle felony cases where drugs are clearly the root of the crime committed? I’m not just referencing the clear ones like possession or possession with intent to deliver. I’m also talking about the theft, burglary, or credit card abuse cases where you have a client who is stealing to feed their drug addictions. These are the clients who probably have a track record a mile long or have picked up 3 or 4 cases within just a few months.
These folks may come across as the ones who just want to do their time and get back to their addiction. They’ve maybe had defense attorneys before you who have gotten them the best jail or pen time available. They know the game and expect the same from you. Or maybe not?
Maybe you have somebody who has reached that breaking point and wants out of the drug world. Whatever the case, when you’re handling drug-related cases with an addict for a client consider this. They don’t have to go to the pen or state jail or even spend a couple of months in the county. Instead, the state has created programs to address the needs of these types of folks.
Rehab. That’s what it is. Plain and simple. Most jurisdictions have county-ran programs where offenders can go to fight their addictions. Some are lock-down programs while others allow participants to maintain full time jobs during the day. (Check with your local probation office on what types of program your jurisdiction offers) TDCJ offers their Substance Abuse Felony Punishment (SAFP) program which is a bonafide lock-down facility. There are programs offered through your local MHMR that usually allow for outpatient treatment. And never forget about private facilities for those clients who can afford it.
Whatever type of program is needed for your specific client, your role as counselor may necessitate this conversation with her. For example, she has been addicted to crack-cocaine for the past three years. She’s been to the state jail and pen and is currently actively incarcerated for her newest state jail theft case. Her first comment to you is? That’s right. Get me the shortest sentence so I can get out of here. Or maybe she possesses the more “I don’t give two rips” attitude. What if you sit her down and explain her options. Explain the availability of these programs to help address her problem. She may very well be responsive. You may need to be the one who encourages that initial step in the direction of recovery.
As for the prosecutor, every case is different. But in many situations, when you have a client who is willing to address his drug problem and agree to a rehabilitative program, the prosecutor is going to have a hard time saying no. It’s not very often the prosecution is approached with rehab. More often than not, it’s the prosecutor who sees the need and has to make the proposal. The defense attorney is in a much better place to make that suggestion, especially when considering how your client will receive it. “The prosecutor is saying you have to do this.” – probably won’t work. “I, as your attorney, think this is something you really need to consider.” – is much more appealing. Just something to think about next time you deal with a client who is an addict.
Monday, May 3, 2010
Specialty Courts - An Alternative Route to Justice in Texas
It has been a few weeks since we've heard from one of our prosecutor contributors. I know their caseload keeps them quite busy and I appreciate all of their contributions. Here's an overview of Specialty Courts in Texas by one of our prosecutors.
Specialty Courts - Does your jurisdiction have them? As populations grow, so do their crime rates. One of the hottest trends to spread across the state are specialty courts. These “courts” are used to handle certain types of cases and relieve the caseload of district and county courts. I placed that term in quotes, because these aren’t the typical courts we think of. Yes, there are judges, prosecutors, and defense attorneys involved, but the normal procedural rigor does not exist. Rather, it is a much more practical, common-sense method, designed to dispose of cases efficiently.
The four common types of specialty courts geared toward criminal law are: Drug Court, DWI Court, Re-entry Court, and Mental Health Court. Depending on your jurisdiction, the operating procedures and names of these courts will vary. I will be preface by telling you to contact your local courts administration to find whether these types of courts exist in your jurisdiction and what the rules are for each. What follows is a brief overview of the four courts mentioned above.
Primarily, with all specialty courts, there will be a panel consisting of a judge, a prosecutor, a defense attorney, probation officers and other various actors like MHMR representatives, CRTC or SAFP representatives and maybe even community leaders who volunteer their time to allow an avenue of resources for the court it wouldn’t have otherwise. The latter can provide information on local employment and housing for the participants.
This panel convenes before every court meeting and conducts a round-table discussion of the participants. The files of each participant are maintained by their case worker (who will usually be their probation officer) and at this briefing they provide details on the status of the participant like their employment situation, latest urinalysis results, or progress in counseling. The group will discuss each participant individually and make suggestions as to how to best handle their current situation. Sometimes, the conclusion might be that the participant needs to be praised for his efforts. Other times, the participant may need to be sanctioned for violations. After the briefing, the court-meeting is held where the participants are each addressed by the judge. The judge will speak briefly with the participant. Then, each defendant will be encouraged, either through discipline or a pat on the back.
The judge, at first glance, would seem to have the most important role because he is the one who presides over the process. He is the one who has the ability to sanction participants for violations of the rules of the court. Primarily, sanctions are handled civilly through contempt of court. Don’t get overly confused by this part. Participants who enter these courts must abide by the rules and terms given them by the court. If he fails to do so, the judge has the ability to sanction the participant to jail time through contempt of court.
The case worker’s role is equally as important. The panel depends on her to provide the information needed to determine what steps need to be taken to ensure the best outcome for the participant. Their relationship with the participant is obviously vital in maintaining the participant’s motivation.
The defense attorney participates by providing any collateral legal assistance needed by the participant. He does not represent the participants in their actual cases, but can help in guiding the participant in various legal situations like obtaining a driver’s license or valid ID card. He also serves as a liaison to the defense bar when they have questions about the court and its processes.
Ultimately, however, the prosecutor has the final say in whether the state will pursue a motion to revoke or filing the case (this depends on the court and its structure – see more on this later on.) The panel may feel one way, but the prosecutor still maintains her ability to do what she feels is in the best interest of the state. Most prosecutors assigned to these courts do so because they believe it works. Thus, most prosecutors will approach these courts with a “team” mentality and facilitate a cooperative effort by the panel.
The goal with these courts is to find ways to rehabilitate offenders who have the potential of being productive citizens in our communities. Rather than taking a hard-line approach to handling the rise in criminal caseloads, this effort is being pushed because it provides results-based successes. Not just keeping somebody out of trouble for a few months, but actually altering their behaviors to conform with acceptable societal standards for the rest of their lives.
As these specialty courts continue to grow, so will the types used to address different areas of criminal law. As of now, I’m familiar with the following four and will discuss each briefly.
Drug Court:
Primarily deals with drug users who haven’t yet established a criminal record. These are your first-time felony offenders and their cases very from Possession < 1 gram cases to Credit Card abuse cases. These are the folks who obviously have a drug problem. Depending on your jurisdiction (and again, please contact your Courts Administration office) this court will either put offenders in Drug Court as a term and condition of their probation (formal or deferred) or the prosecution will allow the person to participate in the program pre-filing (if the pre-filing method is used, after the offender completes the program, his case is dismissed.)
DWI Court:
This court handles defendants whose DWI occurrences (note more than one) do not rise to the felony level (DWI 3rd or more.) DWI Court, for the most part, sees those offenders who have more than one DWI pending or are on probation for DWI or DWI – 2nd and have failed to comply with the terms and conditions of their probations. Examples would include someone who has been arrested for multiple DWI’s during a short period of time or someone who is on probation and has picked up a new DWI or failed to abstain from alcohol use. The goal here is to rehabilitate these individuals before they reach the felony level. In exchange for not having to go the county jail for a lengthy period of time, these folks participate in this rigorous, lengthy specialty court where they receive more attention than they would than just being on probation.
Re-entry Court:
This court deals with drug and alcohol users who have agreed (either as a term and condition of their probation or as the result of a probation modification) to enter either a county rehabilitation program or SAFP (TDCJ.) Results have shown the probability of relapse is high upon their “re-entry” into society. This court’s purpose is to provide further structure to their lives so that relapse is avoided. The court increases the success rate of these individuals substantially by keeping a much closer eye on their progress. Instead of just having to report to their probation officer, each individual is carefully scrutinized by the panel and their progress or decline is continuously monitored. The goal is to ensure that the rehabilitation “sticks” (for lack of a better term) so that the participant doesn’t pick up further cases or relapse back into their addiction.
Mental Health Court:
This is probably the youngest of specialty courts and, for the most part, is still being established. This court deals with those individuals who have MHMR issues that affect their competency. This court allows criminal courts a way of keeping track of those cases where the defendant is being restored to competency or is in the process of having their competency reviewed. Instead of these cases falling into oblivion, the purpose is to bring them all together where they can be maintained with the same goal of being able to provide an effective resolution to each. Because these cases must be handled differently, this court provides that alternative method.
*Keep in mind, this court is obviously handled differently than the other three courts. Much of what is discussed here, is not applicable to Mental Health Courts. Again, contact your local courts administration for rules and guidelines.
The duration of these courts can vary. Some may last 12 to 24 months. Probations are often extended so that the individual can graduate from the program. That’s right, graduate. As the individual progresses through these programs they “phase” up. After they have completed all of their phases, they graduate. The idea is that upon graduation, these participants return to society changed. Changed so that their behaviors are modified and their ability to become productive members of society is stabilized.
As I’ve mentioned numerous times, please contact your local courts administration office to see whether these courts exist in your jurisdiction and what the rules are for each. Keep in mind, these courts are administered by each local jurisdiction. Therefore, there will be numerous variations from each jurisdiction. I hope I’ve provided enough information to spark your interest. I am by no means the authority on the specialty courts. There are numerous websites you can check out for further information. I’ve included a couple below. Remember, you may have a client who would benefit from these courts. Check into it. If your jurisdiction doesn’t have them, don’t be afraid to contact your courts administration office and ask why not? This may be a good time for the argument “everybody else is doing it!”
http://www.tadcp.com/
http://www.reentrycourtsolutions.com/
Specialty Courts - Does your jurisdiction have them? As populations grow, so do their crime rates. One of the hottest trends to spread across the state are specialty courts. These “courts” are used to handle certain types of cases and relieve the caseload of district and county courts. I placed that term in quotes, because these aren’t the typical courts we think of. Yes, there are judges, prosecutors, and defense attorneys involved, but the normal procedural rigor does not exist. Rather, it is a much more practical, common-sense method, designed to dispose of cases efficiently.
The four common types of specialty courts geared toward criminal law are: Drug Court, DWI Court, Re-entry Court, and Mental Health Court. Depending on your jurisdiction, the operating procedures and names of these courts will vary. I will be preface by telling you to contact your local courts administration to find whether these types of courts exist in your jurisdiction and what the rules are for each. What follows is a brief overview of the four courts mentioned above.
Primarily, with all specialty courts, there will be a panel consisting of a judge, a prosecutor, a defense attorney, probation officers and other various actors like MHMR representatives, CRTC or SAFP representatives and maybe even community leaders who volunteer their time to allow an avenue of resources for the court it wouldn’t have otherwise. The latter can provide information on local employment and housing for the participants.
This panel convenes before every court meeting and conducts a round-table discussion of the participants. The files of each participant are maintained by their case worker (who will usually be their probation officer) and at this briefing they provide details on the status of the participant like their employment situation, latest urinalysis results, or progress in counseling. The group will discuss each participant individually and make suggestions as to how to best handle their current situation. Sometimes, the conclusion might be that the participant needs to be praised for his efforts. Other times, the participant may need to be sanctioned for violations. After the briefing, the court-meeting is held where the participants are each addressed by the judge. The judge will speak briefly with the participant. Then, each defendant will be encouraged, either through discipline or a pat on the back.
The judge, at first glance, would seem to have the most important role because he is the one who presides over the process. He is the one who has the ability to sanction participants for violations of the rules of the court. Primarily, sanctions are handled civilly through contempt of court. Don’t get overly confused by this part. Participants who enter these courts must abide by the rules and terms given them by the court. If he fails to do so, the judge has the ability to sanction the participant to jail time through contempt of court.
The case worker’s role is equally as important. The panel depends on her to provide the information needed to determine what steps need to be taken to ensure the best outcome for the participant. Their relationship with the participant is obviously vital in maintaining the participant’s motivation.
The defense attorney participates by providing any collateral legal assistance needed by the participant. He does not represent the participants in their actual cases, but can help in guiding the participant in various legal situations like obtaining a driver’s license or valid ID card. He also serves as a liaison to the defense bar when they have questions about the court and its processes.
Ultimately, however, the prosecutor has the final say in whether the state will pursue a motion to revoke or filing the case (this depends on the court and its structure – see more on this later on.) The panel may feel one way, but the prosecutor still maintains her ability to do what she feels is in the best interest of the state. Most prosecutors assigned to these courts do so because they believe it works. Thus, most prosecutors will approach these courts with a “team” mentality and facilitate a cooperative effort by the panel.
The goal with these courts is to find ways to rehabilitate offenders who have the potential of being productive citizens in our communities. Rather than taking a hard-line approach to handling the rise in criminal caseloads, this effort is being pushed because it provides results-based successes. Not just keeping somebody out of trouble for a few months, but actually altering their behaviors to conform with acceptable societal standards for the rest of their lives.
As these specialty courts continue to grow, so will the types used to address different areas of criminal law. As of now, I’m familiar with the following four and will discuss each briefly.
Drug Court:
Primarily deals with drug users who haven’t yet established a criminal record. These are your first-time felony offenders and their cases very from Possession < 1 gram cases to Credit Card abuse cases. These are the folks who obviously have a drug problem. Depending on your jurisdiction (and again, please contact your Courts Administration office) this court will either put offenders in Drug Court as a term and condition of their probation (formal or deferred) or the prosecution will allow the person to participate in the program pre-filing (if the pre-filing method is used, after the offender completes the program, his case is dismissed.)
DWI Court:
This court handles defendants whose DWI occurrences (note more than one) do not rise to the felony level (DWI 3rd or more.) DWI Court, for the most part, sees those offenders who have more than one DWI pending or are on probation for DWI or DWI – 2nd and have failed to comply with the terms and conditions of their probations. Examples would include someone who has been arrested for multiple DWI’s during a short period of time or someone who is on probation and has picked up a new DWI or failed to abstain from alcohol use. The goal here is to rehabilitate these individuals before they reach the felony level. In exchange for not having to go the county jail for a lengthy period of time, these folks participate in this rigorous, lengthy specialty court where they receive more attention than they would than just being on probation.
Re-entry Court:
This court deals with drug and alcohol users who have agreed (either as a term and condition of their probation or as the result of a probation modification) to enter either a county rehabilitation program or SAFP (TDCJ.) Results have shown the probability of relapse is high upon their “re-entry” into society. This court’s purpose is to provide further structure to their lives so that relapse is avoided. The court increases the success rate of these individuals substantially by keeping a much closer eye on their progress. Instead of just having to report to their probation officer, each individual is carefully scrutinized by the panel and their progress or decline is continuously monitored. The goal is to ensure that the rehabilitation “sticks” (for lack of a better term) so that the participant doesn’t pick up further cases or relapse back into their addiction.
Mental Health Court:
This is probably the youngest of specialty courts and, for the most part, is still being established. This court deals with those individuals who have MHMR issues that affect their competency. This court allows criminal courts a way of keeping track of those cases where the defendant is being restored to competency or is in the process of having their competency reviewed. Instead of these cases falling into oblivion, the purpose is to bring them all together where they can be maintained with the same goal of being able to provide an effective resolution to each. Because these cases must be handled differently, this court provides that alternative method.
*Keep in mind, this court is obviously handled differently than the other three courts. Much of what is discussed here, is not applicable to Mental Health Courts. Again, contact your local courts administration for rules and guidelines.
The duration of these courts can vary. Some may last 12 to 24 months. Probations are often extended so that the individual can graduate from the program. That’s right, graduate. As the individual progresses through these programs they “phase” up. After they have completed all of their phases, they graduate. The idea is that upon graduation, these participants return to society changed. Changed so that their behaviors are modified and their ability to become productive members of society is stabilized.
As I’ve mentioned numerous times, please contact your local courts administration office to see whether these courts exist in your jurisdiction and what the rules are for each. Keep in mind, these courts are administered by each local jurisdiction. Therefore, there will be numerous variations from each jurisdiction. I hope I’ve provided enough information to spark your interest. I am by no means the authority on the specialty courts. There are numerous websites you can check out for further information. I’ve included a couple below. Remember, you may have a client who would benefit from these courts. Check into it. If your jurisdiction doesn’t have them, don’t be afraid to contact your courts administration office and ask why not? This may be a good time for the argument “everybody else is doing it!”
http://www.tadcp.com/
http://www.reentrycourtsolutions.com/
Monday, March 15, 2010
Does Your Client Deserve Special Treatment?
Another post from one of our friendly Texas prosecutors:
The following post is anecdotal and may not apply to all prosecutors across the State. It's just how I see things.
Justice is blind, or at least it’s supposed to be. But let's face facts - prosecutors give special consideration to defendants whom they feel deserve it. Special consideration may be in the form of a pretrial diversion, deferred adjudication, class C offer, or maybe even a dismissal upon the completion of certain requirements. Is there is way you can help the prosecutor see that your client deserves special consideration? Absolutely.
Now, keep in mind, this doesn’t apply to all of your clients. Like it or not, the defendant who has been to state jail is not going to get the same open-mindedness from the prosecutor as the first time offender. That should be obvious. Maybe your client does have some history, but has really turned her life around. This was just a stupid mistake. Is the fact that your client is a first-time offender always going to get that special deal or is the fact that your client has a criminal history always going to preclude such a deal? Nope. What you need to do is…
Go the extra mile. Prepare a folder with mitigating information. Yes, a folder. Prepare it as if you were turning it in to a professor. Why? Can’t you just tell the prosecutor the information? You may think that he probably wouldn’t have time to really look at a folder anyway… Wrong. Remember, you, the defense attorney, portray the image of your client to the prosecution. Portray it in a professional manner. And a folder full of mitigating information about your client will grab his attention.
What do you put in the folder? Anything that demonstrates your client’s redeeming qualities: letters of recommendation, transcripts, proof of employment, recent accomplishments, anything. The sky is the limit. For the purpose of this post, I’ll focus specifically on these four:
If you recall, one of the important parts of the law school application was submitting letters of recommendation. Not the “I know this person and she’s awesome” type. Rather, the “Here’s who I am and here’s how I know this person and here’s a specific instance of character” type of letters. Prosecutors see the former on a regular basis and the effect is usually minimal. However, the latter is rare and much more effective.
2) Transcripts
Prosecutors aren’t admission boards. Grades aren’t really that important. Of course, solid F’s won’t get you anywhere, but any records showing your client progressing through higher education is a plus. Same goes if you have a client who is still in high school. Proof of someone trying to obtain their GED should also be included.*
*I would like to point out if you ever have a client who has not completed their GED or is showing interest in college, have them do it. The criminal process takes months. During your first meeting early on, steer them in the right direction. It is always a handy tool during PNC and the long term benefits for your client are clear.
3) Proof of Employment
Working is key. Someone who appears unemployed and lazy is never appealing to a prosecutor. Provide proof of employment through either a letter from the boss (same rules as a letter of recommendation above) or payroll stubs. Make sure payroll stubs are the most recent. One from six months ago isn’t going to have much impact. Again, if you have a client who isn’t working or going to school, encourage them to do so.
4) Proof of Accomplishments
You may have a client who is a regular volunteer at the Salvation Army. Get a letter and add it to the folder. Maybe he was an eagle scout or former military. Add it, too. Any of your client's achievements or accomplishments can do nothing but separate them from the rest of the prosecutor’s caseload. As before, if your client has no notable accomplishments, you should encourage her to go do something to help out the community. Taking proof of the completion of 40 hours of community service by your client who has been charged with shoplifting shows the prosecutor your client is already accepting responsibility for his actions. It will help her distinguish your client as being truly deserving of a favorable offer.
By now you get my point - Provide hard copies of mitigation to the prosecutor. And, if you’re going to do that, do it right. Don’t throw a bunch of letters together into a 33 cent folder. Do it right. Keep that mindset of a college project that’s going to be graded. After all, your client is, in some way, being graded. Go for the A+!
Thursday, February 11, 2010
The Final 3 Rules for Pretrial Negotiations with Texas Prosecutors
Below are the last of the rules offered for posting by a Texas prosecutor:
"At this point, you may view these rules as a PRO-prosecution rant. That is not my goal. These are simply some recommendations which are ignored by defense attorneys on a daily basis, thereby destroying any chance they have of being successful in negotiations with the prosecutor.
Here are the final 3 Rules. If nothing else, I hope these rules have given you a little insight in one prosecutor's mind.
#3 R-E-S-P-E-C-T
#2 No Personal Favors
#1 Don’t Lie
#3 R-E-S-P-E-C-T
Rule #3 is one that cannot be overlooked. And it’s one that might take some open-mindedness on your behalf.
Prosecutors don’t do the job for $$$. They don’t do it for the power. They do it because they have a passion for civic duty (at least that’s why I do it). They have a passion for upholding the law and being the voice of victims and the community. There is a great sense of pride that comes with being a criminal prosecutor. It’s because the job is hard, relentlessly stressful, and incredibly rewarding. And why do they do it? Why does anyone work in the criminal justice field? To see that justice is done. Sure there may be those prosecutors that come along seeking trial experience so they can land that big firm job they didn’t get out of law school. But for the most part, prosecutors knew they were going to be prosecutors in law school. Most of them view it as a calling. And you, as the defense attorney, must find a way to respect this.
Respect the prosecutor? That’s right. Appreciate what it is she does for a living. She is your adversary, but not your enemy. The two are not mutually exclusive. I’m NOT telling you to be her biggest fan, just to respect her as an attorney. She should also respect you, if you are a zealous and ethical advocate for your clients. Make it real, don’t fake it. Why? Why do I have to respect her?!
Because she’ll recognize it. She’ll recognize your respect and that produce a much smoother process for your current and future clients. If you can build your relationship with the prosecution on the cornerstone of respect, communications will swing wide open as will your potential for success in negotiations.
#2 No Personal Favors
This is one where I’m going to get right to the point. Do NOT ever ask for a personal favor on a case. Never ever. Not only is it ethically wrong, but prosecutors hate it. It doesn’t matter that your client is:
- Your nephew
- The best man in your wedding
- Your legal assistant’s wife
- Your best friend’s son or daughter
- An old best friend from college
And so on and so on. In the event you find yourself representing someone with close ties, tread very, very lightly at the PNC. I’m not telling you to refrain from relaying the relationship to the prosecutor, but never use it in a way that makes the prosecutor feel like your asking for a personal favor.
It’s a quick and fast way to lose credibility on the case and damage your reputation with the DA’s office. And it appears very slimy. Present it in the same way you would any other case. Do your homework and be prepared. Show the prosecutor why a lesser punishment is the right punishment and so on. The situation where this will get you in trouble is the one where you have created a good working relationship with the prosecutor only to watch it dissolve in an instant because you have now put that relationship in a most awkward position.
#1 Don’t Lie
And we arrive at number one. If you ask them, most prosecutors and give you a list a mile long of criminal defense attorneys whom they know have lied to them on occasion. You should avoid this legacy at all costs. For what ever reason, somewhere along the way, defense attorneys accepted lying as an acceptable way of zealously representing the client. I do not mean to say that all defense attorneys are liars, because I have certainly tried cases against many ethical, honest, and scrupulous defense attorney for whom I have the upmost respect.
The bottom line is that being anything less than truthful doesn’t work. Plain and simple. It doesn’t work because once you find yourself telling that one little lie to a prosecutor, the habit of lying will follow. And when you become a lying defense attorney your reputation ensues as a lying defense attorney. Every prosecutor will know you’re a liar and you’ll be labeled.
It might only take that one little white lie. Prosecutors talk. They share one office and they share everything with each other. When a prosecutor catches a defense attorney lying, it’s almost like winning a trial. They immediately tell every other prosecutor and overnight you become a liar. And for what? For a few less months probation for your client? So that you can get the prosecutor to waive the enhancement? Maybe you lied in your motion or you lied about what a victim did or did not say. Maybe you just told a little one about your client “trying” to get into the Army (he did say he had thought about it once.)
It is never, ever worth it. Sure, you may get one client a little better deal on his case or get a prosecutor to agree to suppress some evidence. The problem is every client after that one is jeopardized because he’s being represented by the lying defense attorney. You’ll have no credibility when you sit down at that negotiation table. You’ll have no credibility when you sit at defense table during trial. And why is that so important? Your credibility is everything in order to be successful in criminal practice.
Be honest. Don’t lie. Your duty is not to create a fairytale defense. Your job is to represent your client to the best of your ability based on the information you gather. And, just like respect, prosecutors recognize honest defense attorneys. The reason is because, unfortunately, they are so few and far between the dishonest ones. You’ll produce that great working relationship with the prosecutor that will harvest future success at PNC’s.
Conclusion
All right, I’m done. You’re thinking I’m naïve, right? You’re thinking “yeah, in a perfect world where the prosecutors played by the rules, too…” Maybe you see this as an ineffective method because it’s opposite of what the masses of criminal defense attorneys do everyday. And it seems to work.
No guarantees here. But here’s why I tell you it works. I know defense attorneys that follow these rules. Several of them. And they are the most successful, respected defense attorneys I know. And they’re not pushovers. These are the guys the prosecution hate trying cases against. Because they’re credible. They’re credible in front of the jury. They’re credible in front of the jury because they’re credible in their legal habits. And they relate in an amazing way with the jury.
At PNC’s, they relate with the prosecutors. They are those people who try and do things for the right reasons. Prosecutors recognize it in these defense attorneys and at the negotiation table, the debate, although very spirited at times, is usually left in an agreement. An agreement where everybody leaves happy, including your client."
Tuesday, February 9, 2010
Rules #5 and 4 for Negotiating with Prosecutors
A note from the prosecutor who wrote these rules: "I expect nothing from a defense attorney that I do not also expect from a prosecutor and (where it makes sense) these rules apply to both sides. Prosecutors should be ethical and professional in all their dealings and should have a singleminded focus toward Justice."
With that in mind, rules #5 and 4 for pretrial negotiations are:
#5 Be Passionate but Professional
and
#4 Past Cases Don't Matter
5. Be Passionate but Professional
The criminal area of the law is a very adversarial one. Everyone knows and expects that. As mentioned earlier, prosecutors and defense attorneys deal in the negotiation of liberties and freedoms. It’s easy to see how negotiations can get heated and out of control. Just as the defense attorney expects the prosecutor to be hard-nosed, the prosecutor, in turn, expects a passionate defense from the defense attorney. However, she doesn’t expect to deal with someone who cannot maintain a level of professionalism.
There will be countless times where the defense attorney deals with a prosecutor who is stubborn to the bone. She’ll refuse to budge or even slightly consider mitigating evidence. It happens. But you have the opportunity to “kill her with kindness.” Getting overly angry and losing your temper will get you absolutely nowhere. The same goes for whining. Your job is to zealously defend your client’s rights, not to try and win an oscar in a courtroom during the PNC.
The prosecutor will always expect a debate. If she doesn’t want to negotiate, then she won’t make an offer. She’ll just tell you to set it for pretrial hearings. Keep this in mind. If she’s made an offer and you show up at PNC and he begins discussing the case with you, then you know she’s willing to move. Maybe she won’t move as much as you would like. In a professional way, debate the case. You can be passionate without being childish. Yelling, screaming, and whining (and, yes, it does happen all the time) by the defense won’t gain you any ground with the prosecutor.
I am NOT telling you to suck up by any means. But pounding the table with your fist or whining because “you’re not being fair” is taking it too far. It seems many defense attorneys think there are no bounds to a zealous defense. They may be right. I guess, in all reality, you can do what you want. It’s just flat out an ineffective way to negotiate with the prosecutor.
Ultimately, you will gain respect from the prosecutor and he’ll gladly welcome you to the negotiation table. Your relationship with prosecutors cannot be thrown away because you’re not getting what you want a particular case. I cannot stress enough how important it is to maintain this relationship.
#4 Past Cases Don’t Matter
Two months ago, you reached a great agreement with the prosecutor on a case that left you, the client, and his parents happy. It was a bad case and the letters of recommendation and proof of enrollment in summer classes were enough to get the prosecutor to agree to a deferred class C probation. Today, your scheduled PNC with the same prosecutor on a very similar case isn’t going in the same direction. She refuses the same deal on this case. The facts are different and, in her mind, so should be the punishment.
Do you say it? Do you bring up how he agreed to this two months ago on that other case? No, no, no. It is IRRELEVANT. Prosecutors don’t have blanket deals they give on similar cases. Why? Remember, the law gives crimes a punishment range because every situation is different. Determining the proper punishment on any given case? Well, the prosecutor views that as her job. And she’s not going to agree to something just because she’s done it before.
It is your job to present evidence or points of law that weaken the prosecutor’s case thereby enabling her to agree to reduce his offer. I’m not asking you to forget about what happened on the case two months ago. Use that to your advantage. You know she’ll make that offer if you do your job. Do your job and don’t just ask her to do it because “you did it on that other case.”
*I’d like to point out, part of this does and does not apply to co-defendant’s cases. It’s always important to know what the co-defendant is getting. The prosecutor will, of course, take co-defendant’s offers into consideration when making an offer for your client. But, as above, don’t tell the prosecutor she HAS to offer your client the same deal being offered to the co-defendant. That is false. She has the discretion to offer whatever she feels necessary. Maybe she sees a different prosecutor made the offer on the other case and he’s “way too soft on crime.” Or your client’s criminal history is much worse than her co-defendant’s. Present it in a way that will enable the prosecutor to reduce her offer to something similar to the other.
“I understand the co-defendant has been offered this (offer X.) And based on this information (insert pertinent mitigation,) I feel my client should be a candidate for the same offer.”
Sunday, February 7, 2010
Rules #7 and 6 for Defense Attorneys to Remember
Continuing on, here are rules #7 and 6 from our friendly neighborhood prosecutor.
#7 The Prosecutor Didn’t Do It
Here’s an example, you’ve got a DWI case you’re handling where the client’s parents have hired you to represent their 17 year old son. It was a dumb mistake and they’re seeking your help to plead for mercy from the prosecution. During the PNC, you bring to the prosecutor’s attention that she, too, was once a young, dumb teenager. The questions follow: “Don’t you remember what it was like to be that age?” “Come on. Didn’t you ever do anything stupid when you were that age?” “Do you really want to ruin this kid’s life by making him take a conviction on something we’ve all done when we were young?”
#7 The Prosecutor Didn’t Do It
Here’s an example, you’ve got a DWI case you’re handling where the client’s parents have hired you to represent their 17 year old son. It was a dumb mistake and they’re seeking your help to plead for mercy from the prosecution. During the PNC, you bring to the prosecutor’s attention that she, too, was once a young, dumb teenager. The questions follow: “Don’t you remember what it was like to be that age?” “Come on. Didn’t you ever do anything stupid when you were that age?” “Do you really want to ruin this kid’s life by making him take a conviction on something we’ve all done when we were young?”
Prosecutors are very good at separating their personal lives from the job they do. They have to. A defense attorney asking them to do anything contrary (like above) is an extremely ineffective way to open the lines of communication. It doesn’t matter what the prosecutor did or didn’t do. It only matters what your client did and what the appropriate way to handle it will be. Ultimately, it can be viewed as a personal attack on the prosecutor that creates a very powerful animosity. When a prosecutor walks into the courthouse everyday, the first thing he does is put on his prosecutor hat. He’s not going to take it off simply because you ask him to.
#6 Don’t Downplay.
Your client stole a six-pack of cokes and two bags of chips from the convenience store. The offer? 5 years in the pen. What? You’ve got to be kidding, right? Wrong. The prosecutor has reviewed the case and seen your client’s criminal records. He’s seen the 8 prior theft convictions, 2 of which were penitentiary trips. Sure, it may have been 18 years ago, but it’s clear to the prosecutor your client has not learned his lesson. His case is worthy of enhancement and the prosecutor is taking advantage of the opportunity.
You have the mitigating information. You know your client really has changed. He’s had the same job for the past twelve years (kept it since getting out) and is happily married and up-to-date on his child support. He’s even helping coach a little league baseball team. He just screwed up. He was having a bad day, and for some reason, decided to act out. Another trip to the pen will ruin his life.
You sit across from the prosecutor about to fly out of your seat. He needs to hear this information. And besides, it was only $10 worth of stuff. Come on prosecutor! Are you serious? IT’S NOT A BIG DEAL… Wrong! Remember, to the prosecutor it appears, on paper, to be a big deal. Don’t downplay the crime. The prosecutor’s response to your “it’s not a big deal” comment is going to be one of immediate defense. Defense of the law in their minds. You don’t want to put the prosecutor in the position of feeling like he has to defend the law because your client is refusing to accept responsibility.
Rather, remain patient and calmly explain the situation. Show the prosecutor deference for his offer and kindly and mildly reject it. Not because “it’s not a big deal,” but rather because the punishment doesn’t fit the crime. Openly reveal your client’s desire to accept responsibility for what he did. That, above everything else in many cases, is what the prosecutor is looking for. If you can show him your client isn’t trying to fight responsibility, but merely pleading for mercy, you’re much more likely to receive an open response from the other side of the table.
Friday, February 5, 2010
Rules #9 and #8 for Negotiating with Prosecutors
More from our Texas prosecutor friend. Picking up where we left off yesterday, here are rules 9 and 8 for defense counsel to remember when negotiating a criminal case with a Texas prosecutor.
#9 Make Sure to Relay the Plea Offer to Your Client.
One of two things will happen when you get your first setting for a plea negotiation conference (PNC): (1) either the prosecutor will relay the offer to you ahead of time or (2) she will have it ready when you show up at the PNC. (There might be third option where you show up for the PNC and the prosecutor doesn’t have an offer. Not your fault. Be courteous and polite if she doesn’t. Don’t force her into making an offer on the spot!)
Regardless of when you get the offer, the first thing you do before beginning negotiations is relay it to your client. It may be an absurd offer for 50 years in the pen - relay it to your client. It may be very close to being acceptable, needing a simple alteration of this or that – relay it to your client. You have an obligation to relay any and all offers to your client. The prosecutor expects that. Don’t show up ready to negotiate first.
You may have all the information you need for a dismissal or mitigating facts the prosecutor must hear about. In fact, you know as soon as she hears this information she will immediately lower her offer. Wait anway. Go talk to your client. It’s a great opportunity to look good in front of your client by showing the client how you are going to tell that prosecutor to take that deal and and shove it. The client will appreciate seeing your gameplan and the prosecutor will appreciate you involving your client in this important aspect of the case. Discuss the offer with your client and then come back and begin negotiating. Or, of course, discuss the offer ahead of time if you receive the offer before the PNC (this is ideal because it saves everybody time.)
#8 Come to the PNC Prepared.
Since the PNC is your special one-on-one time with the prosecutor, this one should seem obvious. However, this rule is often taken for granted. The average criminal case is going to have multiple PNC settings. It is inevitable. Believe me, the prosecutor hates it. She hates seeing a case for the 6th time. How did it get to the 6th PNC? The answer? Somebody along the way was unprepared. The prosecutor is not going to care about the time she was unprepared (remember, in her mind she’s busier than you and gets more slack because of that). She remembers all those times you showed up without relaying the offer first (“Can we just reset it?”) or didn’t have the affidavit you needed (“Can we just reset it?”) or needed to look over some of the evidence (“I need to watch the video. Can we just reset it?”) and so on.
Generally, prosecutors will let the defense slide on the first and maybe second PNC. She’ll understand you still need time to review discovery, talk to your client, and find mitigating information. When that second or third PNC rolls around, however, it is time to really negotiate the case. Be prepared. Do your homework. Don’t show up arguing this fact or that point of law on a whim. Although the prosecutor does have a thousand cases, it doesn’t mean she’s not very familiar with your case. Don’t take that chance. You may be the best defense attorney around, with a mastery of criminal law, but he first time you try argue something on the fly, the prosecutor will see your lack of preparation. What happens? Usually, you’ll lose ground on your case, as well as credibility with the prosecutor.
Know the facts and areas of law applicable to the case. Show the prosecution you know what it is you’re arguing and thereby gain credibility in the argument. I can’t stress how much it will open up the negotiations. If you’ve found a case that applies to your client’s case, have a copy ready for the prosecutor. If the indictment can be quashed, bring your copy of the code and show the prosecutor where it’s lacking. Don’t just throw out, “Well, there’s a case that says law enforcement can’t do this!” or “I don’t think the elements are there for the crime…” Know exactly what it is you’re going to argue before you approach the negotiating table and be prepared to back up your argument with the specific case or provision in the law. A little preparation is not too much to ask, and it's what you client expects.
Thursday, February 4, 2010
10 Rules for Negotiating with Prosecutors: #10
Today we will begin a series that a prosecutor friend of mine was kind enough to provide. From the outset, please understand that these rules are simply her ideas on the subject and are not intended to apply globally.
Let's begin with #10:
When a defendant on TV or in a movie settles his criminal case, we hear that he accepted a "plea bargain." However, most jurisdictions don't use the term "bargain." Rather, as practitioners of criminal law, we use "negotiation." Plea negotiation. Why do I point out the difference? Because The term "negotiation" is a more accurate portrayal of what actually occurs in courthouses across Texas everyday - a process where two parties become involved in the negotiation of liberty and justice (for y'all). One side represents the State and the other the defendant, but both parties are equally interested in justice. We "bargain" for a good deal on used cars. We "negotiate" the penalties for crimes.
Now, if we negotiate criminal cases, what is needed to effectively defend your client's rights? Well, negotiation skills, of course. Some have a knack for negotiating while others learn the art of negotiation in law school. There are, however, essential rules to follow when negotiating with Texas prosecutors criminal cases. I've compiled a top ten list of the ones I feel most important. They might, at first glance, seem obvious and elementary. But often, it's the most obvious and elementary things we overlook by becoming accustomed to our own, unique practice of law. Basically, lawyers are naturally inclined to become creatures of habit. Consider making a habit of the following.
10. Do NOT Try to Negotiate a Plea at YOUR Convenience.
On nearly every case, you will get a notice from the court coordinator informing you that your client is set for a PNC (plea negotiation conference). During a PNC you and the prosecution come together to negotiate. It is a predetermined time at a predetermined location where both sides are set to meet and discuss the case in hopes of resolving it without a trial. 1000th District Court at 2:00pm on Jan. 1st, 2100. The prosecutor is scheduled to be there. You are scheduled to be there. It is a special time set aside for your very own personal attention from the prosecutor on the case. Most of the time, the prosecutor, knowing he is set for PNC on the case, will look over the case in advance in preparation for the negotiation. PNC's are for plea negotiations. Pretty simple, right? Not for some defense attorneys. That's why I present the following.
The following are NOT times for plea negotiations:
"Lucky me, I got to the courthouse first thing this morning and got all of my guilty pleas done. I have an extra minute or two. I think I'll swing by the DA's office and talk to the prosecutor on that one case. He's probably there."
"Dang it! I've got trial next week and am in no way ready. This stupid trial is gonna take up all my time and attention the rest of the week. It's Monday and while I've got a second, I'm gonna ring up the prosecutor on cases I have set for PNC in the 1000th District Court on Friday morning and see if we can go ahead and get that out of the way. He's probably got a sec."
"Oops. My PNC was set at 1:30pm and it's now 3:30pm. I bet she's still in court. She has to wait on me anyway. I know the court makes her stay until all attorneys have shown up. Who cares if I'm 2 hours late. She's probably been dealing with other attorneys anyway and won't even notice I'm late. Besides, I hate standing in the stinking PNC line."
Finally, my favorite:
"Woo-hoo! Vegas, baby! Can't wait to get there Wed. night. Oh wait, I've got PNC's Thursday afternoon. Eh, no biggie. I'll just swing by the DA's office tomorrow after lunch and see if the prosecutor has some free time."
Bottom line is this. The prosecutor does NOT have any free time, ever! She has a thousand cases and is working on any twenty of them at one time. If you step back from the situation, you should easily be able to see her response to your random call, tardiness, or unannounced drop-in. It's not a good one - far from it. You have been given an appointment to negotiate the case. Keep it. The prosecutor must keep it. The above examples (and similar variations) will land you straight in the doghouse. Do you see any success negotiating from a doghouse? Don't put yourself in that situation. Make it a habit to negotiate the case at the PNC at the scheduled time.
Disclaimer: There will be those emergency times when you must break this rule. Save it for emergencies! Also, keep in mind this rule does NOT apply to the prosecutor. Obviously, she's not going to just pop into your office to discuss the case. But, if she calls to discuss it, set an appointment and go and see her. She's calling you. Oblige her. There's a reason she wants to see you. It'll pay off for your client (and future clients) in the end.
Let's begin with #10:
When a defendant on TV or in a movie settles his criminal case, we hear that he accepted a "plea bargain." However, most jurisdictions don't use the term "bargain." Rather, as practitioners of criminal law, we use "negotiation." Plea negotiation. Why do I point out the difference? Because The term "negotiation" is a more accurate portrayal of what actually occurs in courthouses across Texas everyday - a process where two parties become involved in the negotiation of liberty and justice (for y'all). One side represents the State and the other the defendant, but both parties are equally interested in justice. We "bargain" for a good deal on used cars. We "negotiate" the penalties for crimes.
Now, if we negotiate criminal cases, what is needed to effectively defend your client's rights? Well, negotiation skills, of course. Some have a knack for negotiating while others learn the art of negotiation in law school. There are, however, essential rules to follow when negotiating with Texas prosecutors criminal cases. I've compiled a top ten list of the ones I feel most important. They might, at first glance, seem obvious and elementary. But often, it's the most obvious and elementary things we overlook by becoming accustomed to our own, unique practice of law. Basically, lawyers are naturally inclined to become creatures of habit. Consider making a habit of the following.
10. Do NOT Try to Negotiate a Plea at YOUR Convenience.
On nearly every case, you will get a notice from the court coordinator informing you that your client is set for a PNC (plea negotiation conference). During a PNC you and the prosecution come together to negotiate. It is a predetermined time at a predetermined location where both sides are set to meet and discuss the case in hopes of resolving it without a trial. 1000th District Court at 2:00pm on Jan. 1st, 2100. The prosecutor is scheduled to be there. You are scheduled to be there. It is a special time set aside for your very own personal attention from the prosecutor on the case. Most of the time, the prosecutor, knowing he is set for PNC on the case, will look over the case in advance in preparation for the negotiation. PNC's are for plea negotiations. Pretty simple, right? Not for some defense attorneys. That's why I present the following.
The following are NOT times for plea negotiations:
"Lucky me, I got to the courthouse first thing this morning and got all of my guilty pleas done. I have an extra minute or two. I think I'll swing by the DA's office and talk to the prosecutor on that one case. He's probably there."
"Dang it! I've got trial next week and am in no way ready. This stupid trial is gonna take up all my time and attention the rest of the week. It's Monday and while I've got a second, I'm gonna ring up the prosecutor on cases I have set for PNC in the 1000th District Court on Friday morning and see if we can go ahead and get that out of the way. He's probably got a sec."
"Oops. My PNC was set at 1:30pm and it's now 3:30pm. I bet she's still in court. She has to wait on me anyway. I know the court makes her stay until all attorneys have shown up. Who cares if I'm 2 hours late. She's probably been dealing with other attorneys anyway and won't even notice I'm late. Besides, I hate standing in the stinking PNC line."
Finally, my favorite:
"Woo-hoo! Vegas, baby! Can't wait to get there Wed. night. Oh wait, I've got PNC's Thursday afternoon. Eh, no biggie. I'll just swing by the DA's office tomorrow after lunch and see if the prosecutor has some free time."
Bottom line is this. The prosecutor does NOT have any free time, ever! She has a thousand cases and is working on any twenty of them at one time. If you step back from the situation, you should easily be able to see her response to your random call, tardiness, or unannounced drop-in. It's not a good one - far from it. You have been given an appointment to negotiate the case. Keep it. The prosecutor must keep it. The above examples (and similar variations) will land you straight in the doghouse. Do you see any success negotiating from a doghouse? Don't put yourself in that situation. Make it a habit to negotiate the case at the PNC at the scheduled time.
Disclaimer: There will be those emergency times when you must break this rule. Save it for emergencies! Also, keep in mind this rule does NOT apply to the prosecutor. Obviously, she's not going to just pop into your office to discuss the case. But, if she calls to discuss it, set an appointment and go and see her. She's calling you. Oblige her. There's a reason she wants to see you. It'll pay off for your client (and future clients) in the end.
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