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Advanced Plea Bargaining, Chapter 2

by Stephen Cobb on Jan. 10, 2018

Criminal Criminal  Felony Criminal  Misdemeanor 

Summary: Criminal jury trials are so rare, it has become almost impossible for most defense lawyers to become certified as criminal law specialists like Mr. Cobb. During the pre-trial process there are specific things a client must and must not do in order to prepare for an actual trial by jury.

Chapter II: Know the players of the game

When you or someone you love is being prosecuted, there is nothing fun about the game of law. There is humor in the courtroom and even laughter, but nothing about your predicament as a criminal defendant or a family member is even remotely funny. 

As a result, there is a tendency for most people to continuously search the Internet "to learn as much as I can" about the law. This inevitably leads to clients and family members with no legal experience telling the defense team what to do. So, at this point it is a good idea to explain the role of everyone involved in the process.

The Judge - the judge always makes legal rulings on issues of law. The judge sometimes make findings of guilt or innocence in the place of a jury. If the crime alleged is a "new law violation" (there has not been a sentencing), then you or your loved one is entitled to a jury unless the case is in the Juvenile Division. There is no right to a jury in juvenile cases, violation of probation cases or violation of community control cases. The trial judge makes the final decision regarding the sentence to be imposed.

The Prosecutor - the prosecutor seeks conviction and punishment. In Florida, the state prosecutor doing the actual prosecution is an assistant state attorney working for the elected politician who runs the prosecutor's office. In federal cases and many states, they are known as assistant district attorneys. They make decisions regarding the type of charge, the number of charges, whether charges are reduced, substituted or abandoned, and any sentence recommendations. Plea bargains are made with prosecutors, not the judge. They are constrained by the Office Policy Manuel of the State Attorney, a list of dos and don'ts designed with political popularity in mind. 

The Probation Officer - probation officers are required by law to produce a Pre-Sentence Investigation Report when felony cases are set for a contested sentencing hearing. In theory, they can ordered in every case. In practice, they are not. As a practical matter, I try to avoid government sponsored PSIs and prefer to do one instead, on behalf of my client. However, most judges will still order a PSI if there is going to be a contested sentencing hearing.

The Defense Attorney - your defense lawyer should be part of a legal team just as the divisional prosecutor is part of a larger legal team. This legal team both defends you in the guilt/innocence phase and performs the plea bargaining. At a minimum, you should have Lead Counsel and at least one co-counsel for advanced plea bargaining to be effective. Lead Counsel is the most experienced criminal law specialist on the team. Lead Counsel is responsible for all final strategic and tactical decisions. Co-counsel's role will depend on the dynamics of a particular case. If you and your lawyer are not using a modern team approach, then you can forget about "advanced" anything in your case. The only exception is 1) a certified specialist in criminal law, and; 2) the specialist you have hired has experience with team leadership and made a judgment call that co-counsel is not necessary.

The Defendant - that is either you or someone you care about: the person accused.

Family and Friends - these are your best allies and your worst nightmare. They often tie up lawyer time wastefully by "trying to help", i.e., interfering with work flow. 

Let's analyze each of the above players in the game you and your loved ones have no desire to play.

The defendant, friends and family

The above three have been mixed together because each has the same role:

  1. communicate factual information, and;
  2. emotional mastery.

Many family members and friends do not have factual information about the case. Those that do are a witness of some type or form. 

Communicate Factual Information

If any of the three have factual information, then a Fact Pattern Report is required. Most lawyers - especially lawyers who practice several areas of law - have been trained to use office chat sessions for a continuous marketing cycle. These lawyers do not use Fact Pattern Reports - they get in the way of selling. 

The factual information you may have about a case or client is simply too important to get lost in chatty office visits designed to keep the selling process in motion. Fact Pattern Reporting is in Advanced Plea Bargaining and Basic Plea Bargaining because they should be the legal standard of care.

If your legal team does not use Fact Pattern Reporting as a default, you might as well stop reading now: you do not have an advanced legal team.

Emotional Mastery

Your need for emotional comfort is very real. The failure to obtain and maintain emotional mastery is the single biggest cause of poor outcomes. 

Experience leaves clues. The most important person lean on for emotional mastery under the most trying circumstances is you. You will read the books, listen to the audios and watch the videos or you will try to DIY yourself to "help" your legal team. This single choice tells a specialist whether you get it or you don't: if you have already hired competent legal counsel, get out of your own way. Stop "researching the law" and get real:

  • You do not have a law degree and it takes three years of very hard work to get one
  • Once you get a law degree, your real training begins
  • You are not behind paywalls looking at case law
  • You have neither been trained to think legally nor logically, so you do not know how to apply laws to fact patterns, and;
  • You are wasting your legal fee while increasing your stress

Many law firms take advantage of this dynamic: when people are arrested and prosecuted, it is usually several top ten most stressful events in life that anyone will ever face. 

The marketing department loves the fact that you are stressed: if they are lucky, you will want, or better, demand, hand holding office visits that produce no value for you, your loved ones or your case. These "I want to know what's going on in my case!" meetings are another opportunity to sell you more legal services. Perhaps you have a cousin going through a divorce, or a brother who was injured in a motorcycle accident or an aging parent needing elder care. All of these people will ask you since you have a lawyer what you think about their skill to help them.

This is one of the reasons so many law firms in the United States do not use Fact Pattern Reports: it is cheaper to cross sell, re-sell and up-sell legal services to existing clients rather than to generate new business. 

Yet "comfort visits" are the illusion of productive work without the reality. The purpose of an appointment with your legal team never changes:

The purpose of an appointment is to accomplish a case related, specific result that cannot be accomplished by any other method

"But wait a minute," you might say, "what about knowing what's going on in my case?" What if I have questions?"

When I do an initial consultation with someone for the first time, I always wrap up by asking if the person has any additional questions. The most common answer? "I think you covered everything I was going to ask.

Your legal team should begin your case by informing you about the entire process

This does not mean they will have a definitive legal opinion after an initial consultation. More importantly, there is no way to answer hypothetical questions.

Here is the answer to every hypothetical question you may ask (any question that starts with 'what if ...'): it does not matter. There are millions of possibilities. Going through a list of millions of possibilities is a waste of time, does not improve your legal position, and subtracts time from productive work on your case. 

Here is the reality of your situation and no one likes it: you are going to have to live with uncertainty for weeks or months. 

If your lawyer is giving lots or reassurance, your lawyer may be incompetent

People have a great desire for certainty that everything is going to be okay. However, your lawyer's job, and that of every member of the legal team is work of producing results, not waste time and your legal fee giving you empty reassurances. Your lawyer and your legal team cannot promise a particular result. 

But this doesn't stop anyone from wondering what the odds and percentages are because they are worried. Here are the odds and percentages in your case: they do not matter. Here is my favorite example to drive this point home.

A sharp investigator once contacted me and said "Stephen, I think you really need to look at this case closely." The case? Just a minor murder case where the client confessed to shooting someone to death when a crack cocaine buy went bad. 

How does that look to you? Try "bad". Very bad. 

The murder charge was completely dismissed. 

This is why lawyers hate "cocktail party questions" like this:

Guest: "Oh, you're a lawyer! Can I sue someone for . . ."

Me: "Yes."

Guest: "What? Huh? But you don't know what I want to sue them for . . . "

Me: "It doesn't matter. You can sue Satan for causing world misery, but good luck collecting."

The point is not to be rude or a jerk. The point is, most lay people do not even know what the right questions to ask are, much less where to find answers. Now, add one of the top five most stressful things in life - criminal prosecution of yourself or a loved one - and inappropriate, unanswerable questions are often vomited like bullets from a machine gun. 

Here is the truthful answer to 90%+ of your questions about the what ifs, odds and percentages:

Maybe. I don't know. I need more information.

This is maddening in both senses of the phrase: it drives people crazy and tends to make them angry with the lawyers on their team. You want reassurance and comfort which is why you will be tempted to ask your the same question five different ways.  Aunt Tilda, who worked at the police department twenty years ago in Tennessee, will ask her friends their opinion and send in legal statutes, cases and rules that are out of date or just simply don't apply. 

Coping with Stress During Criminal Prosecution is mandatory

In order to prevent problems with a loss of emotional control, I created Coping with Stress During Criminal Prosecution over a decade and a half ago. It's "bad for business" in the sense that it eliminates law firm sales and marketing "case update" appointments. At the same time, it's outstanding for your case: you and your loved ones do need comfort; none of you need another sales pitch.

Tip: if you are reading from the list three time a day for at least five minutes, listening to audios daily and watching videos at least twice a week, rest assured no one on the other side is doing this. You are on track for emotional mastery.

Master you emotions or they will bite you at exactly the wrong time. I have seen people lose their clarity at precisely the wrong time for over a quarter of a century. After witnessing over a thousand years of preventable incarceration, I stopped counting.

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