The new lawyer negotiator

Why do some prosecutors even bother?

Nobody is gettin’ off easy if those slimy defense attorneys can’t work deals

You would think lawyers learn how to negotiate in law school.  They don’t, though.  You only learn things about the law in law school.    You learn how to do legal research, so you can teach yourself the stuff about law that they never taught you in law school (which, by the way, is a lot of damn stuff).  Then you get that first bad legal job, so you can learn how to apply all that stuff you’ve learned (and learned how to learn) in the real world.  And, when you work at that first bad job, you not only learn how to apply that knowledge, but you learn that not everything is black-and-white.

If you go into criminal law, the fact that not everything is “black-and-white” can ruin your life.  Just because somebody was shot, doesn’t mean they were murdered.  Just because a police report says somebody was driving and drunk, doesn’t mean they’re always going to be guilty of DUI/OUI.  Just because you know the cops violated your client’s Miranda rights doesn’t mean the judge is going to throw out your case.

We live in the grey area.  That’s why the cops hate us. They make an arrest because they “know” somebody is guilty.  It’s black-and-white to them.  If we can convince a prosecutor it’s not as solid as the cops think, though, then we’ve got room to negotiate.  Negotiating is as much the lawyer’s craft as trial skills are.

Criminal law has become more about negotiating than anything else.  Just ask the Supreme Court.  Unless, of course, prosecutors have “an office policy.”

Man, I hate “office policy.”  “Office policy” is how a prosecutor in court tells you that he’s not interested in negotiating because, quite frankly, his boss won’t let him.  This happens when some boss somewhere decides every case of that type should be treated the same- despite the fact that the cases aren’t the same.  And, the boss is never the one in court doling out this “office policy” news.

Don’t get me wrong- I’m not talking about getting a “you’ll have to talk to my supervisor about that” if you’re trying to work something out on a dicey case.  Or even getting something like “we don’t make offers on sex cases.”  I’m talking about when some low-ranking prosecutor tells me they can’t really talk to me about some piddly, dumb, misdemeanor or petty offense. Like speeding, or underage consumption of alcohol.  Then they say the same thing to other attorneys about different cases.  It’s as if they don’t have the discretion to negotiate anything.

Because they don’t.

This is starting to happen more and more.  Some people think that setting up office policy is a way prosecutors can be tough on crime.  They’ll show us, right?  Nobody is gettin’ off easy if those slimy defense attorneys can’t work deals.  No sweet-heart deals on speeding in this little Mayberry!

When will a new prosecutor learn how to negotiate if he never has the chance?

I’ve got an idea. It’s brilliant, really- Fire all of those prosecutors.  Not the ones pronouncing the brilliant, exhaustive policy.  Fire the ones who are marching down to court without the discretion to do a lawyer’s job.  The ones who are useless.

Did I just call them useless? Yeah. Useless.  That has a nice ring to it.

Look, I’m not meaning to slight them.  I’m really not.  It’s not their fault they can’t negotiate.  Although I might get frustrated with them in court, I know it’s not their policy.  They’re just doing what their bosses tell them.

They’re still useless, though.  In this era of mega-budget deficits and financial cliffs, I don’t see how “useless” fits in any budget.  I’m all about cutting waste, and some kid standing in front of a line of lawyers repeating “I can’t make an offer on that” or “Our policy is to offer you…” is completely wasteful.

You could fire the useless lawyers, replace them with some sort of a fancy machine or computer program that would dole out the bad offers, and save millions.  Defense attorneys could just walk up to the plea machine, punch in the statute of their case, and the plea machine could spit out the same useless offer (or non-offer) that the old prosecutor did.  You could even fire a whole bunch of public defenders.  With any luck, you’d even put a bunch of weirdos like me out of business.  “Why would I get a lawyer if I can work the plea machine myself?”

With all the money you’d be able to spend on more important things, think of how wonderful you could make the world.  You could use the money to feed the homeless or buy medication for the infirm.  You could fix roads and build infrastructure.  Hell, you could even supplement the salary of some of those poor, underpaid police officers who are barely able to make ends meet at $100,000 per year.

Or, you could just let lawyers do what lawyers should do in an imperfect world with imperfect cases: Negotiate.