Advanced Plea Bargaining, Chapter 2
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:
- communicate factual information, and;
- 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.