Scott Greenfield posted a story a while back about a conversation he had with a biglaw lawyer who was trying to refer a client on a criminal matter. The biglaw guy apparently wanted Scott to commit to negotiating a deal for the client without going to trial. He didn’t even think it was necessary for Scott to do legal research or investigate the case. His explanation for why he thought this was a good idea is disheartening:
My pal then launched into an explanation, that his partner, the “white collar specialist” formerly known as the prosecutor, had already been contacted and explained to the high profile client that nobody wins, that only a fool tries, and that the wise defendant comes in with hat in hand, throws himself upon the mercy of the similarly wise prosecutor, who then exercises mercy and offers a lenient deal that allows the defendant to move on with his life. That, he explained to the high profile client, is how good lawyers do it.
Oh dear God. I watch a lot of cop shows, and whenever the cops finally get the bad guy in the interrogation room, they always say something like “If you don’t talk to us, we won’t be able to help you out.” Cops make fun of suspects who fall for that, but the “white collar specialist” seems to actually think that the prosecutor will help out his client out of some sense of civility and niceness. I suppose that’s possible, in theory, but I suspect the prosecutor is more interested in getting the best possible deal from the government’s point of view, because that’s kind of his job.
The strangest thing, however, is that the biglaw lawyer seems unfamiliar with the fundamental rule of bargaining: In any negotiation, the person who has the most bargaining power is the person who is most able to walk away. The less you have to lose if the deal falls through, the less the other side can pressure you to make a deal, which means you have more control over the terms of the deal.
Therefore, the best way to get a good deal at the plea bargain is to be as prepared as possible to win at trial. If the trial will be difficult, you can expect a harsh plea offer, but if you have nothing to fear from a trial, you have nothing to fear from a plea. So even if Scott’s would-be client just wants a quick deal, he’ll get a better deal if Scott can convince the prosecutor that the defense has a good chance of beating at least some of the charges at trial. I know Scott is a Superlawyer, but I think even he’d need to poke at the case a bit first.
Granted, plea bargaining in the real world is more complicated than this simple rule, and there are probably cases where the smart move is to make a quick deal. But I find it hard to believe there’s any case in which a quick deal is so important that the defense lawyer should commit to it during the referral.
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