So You Don’t Want To Win?

A call came in from an old pal, a partner in one of those huge, multi-national Biglaw firms that get the first call from important people about big cases, because resources.  After going through the usual courtesies, we got down to business.

Him:  So it’s a small case, really. Not the sort of thing that you handle.

Me:  And yet you called. So what’s up.

Him:  Well, the defendant is, you know, “high profile.”

Me:  “High profile”?  As in, an important guy you make a lot of money off?

Him:  Exactly.  So can you do me a solid and take this case and cut him a good deal?

Me:  Wait, you want me to go in for the purpose of cutting a deal?

Him:  Exactly.  Quick and easy, in and out.

Me:  So he doesn’t want to win?

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.

Me:  You know, I’m not quite sure I’m the best guy for your “high profile” client.

Him:  You don’t know how to negotiate a plea?

Me:  Sure, I do, but what I don’t do is walk into a case for the purpose of losing.

It’s not that plea bargains are necessarily bad things. Indeed, they are unavoidable at times, and often turn out to the best option for a client.  But they don’t happen because we ask “pretty please” of the prosecutor.  Rather, they come from the prosecutor knowing that they will be facing a zealous defense, a lawyer who will be more than happy to try the case if that’s what is in the defendant’s best interest, and who will test their mettle at every turn.

The best deals don’t come from kissing baby prosecutor butt, but from doing the job of defense lawyer properly.

Me:  You know, as much as I would like to help you out, I’m really not comfortable with this.

Him:  Why not? They’ll pay whatever you want. Money is no issue.

Me:  Much as I appreciate that, and I do, it’s not about the money.  It’s about what I do.

Him:  So you don’t want to do what’s best for the client?

Me:  Well, it’s a little premature to decide that what’s best for the client is to beg for a plea, don’t you think?  Can’t we at least, I don’t know, read the papers?  Maybe even do some research or investigation?

Him:  Why bother?  It’s going to end up the same way regardless, and if you make the prosecutor work, isn’t he going to pay you back by jacking up the plea offer?

Me:  Maybe.

Him:  So why not go straight to the plea and get rid of the middle man?

Me:  Because maybe, just maybe, he can win.  Maybe, just maybe, he doesn’t have to cop a plea, be saddled with a conviction and all that comes with it. Maybe, God forbid, he’s innocent?

Him:  Yeah, on what planet?  Look, if you don’t want the case, that’s fine.  I have other guys to send it to.  We’re still buds.

Me:  I’m happy to take the case. I’m happy to help you and your “high profile” client out.  I’m just not willing to commit to copping a plea without first making sure that’s the best possible outcome.

Him:  Never mind. Best to the wife and kids.

Me:  You too.

45 thoughts on “So You Don’t Want To Win?

  1. Gritsforbreakfast

    Criminal defense lawyers are the Washington Generals of the legal profession (though at least the Generals keep track of their won-loss record). For the most part, they are paid to lose – especially those taking indigent cases from the state where there’s no PD.

    For that reason, it’s ridiculous to claim that plea bargains come “from the prosecutor knowing that they will be facing a zealous defense, a lawyer who will be more than happy to try the case if that’s what is in the defendant’s best interest, and who will test their mettle at every turn.” If pleas only came under those circumstances, there wouldn’t be a 97% tap out rate. Sure, there are exceptions, but most pleas happen because of volume swamping the system, not because criminal defense lawyers are doing a bang-up job.

    1. SHG Post author

      You’ve completely misunderstood the point of the post. It’s your super hero power. This post reflects my view of how to practice, not that of all criminal defense lawyers everywhere.

    2. Myles

      While you have to be half brain dead to have misread the post like this, where do you come off writing criminal defense lawyers “are paid to lose.” Maybe the ones you know, but that’s about you, you lowlife piece of dogshit.

      Fuck you. I defend my clients. I wonder if your boss at the Innocence Project is aware of your mindless hostility and hatred toward lawyers. You fucking disgrace.

      1. SHG Post author

        I briefly considered chastising you for being a bit too vulgar in response to Scott’s rant, but then I thought, he’s a big boy and if he wants to spew stupid in public, then he needs to take the heat for it.

      2. RKTlaw

        Well, you beat me to it, but if Mr. “Paid to Lose” wants to come here, I can show him lots of folks doing indigent defense and doing “a bang-up job”. I waited a day, or I would have called him worse than Myles did.

  2. Charles B. "Brad" Frye

    I decided a while back that your friend’s attitude and approach to (especially federal) criminal cases will forever remain a mystery to me. No evaluation, investigation, or any effort to test any part of the Government’s case? Just read the indictment and proposed “relevant conduct” language of the Plea Agreement and retire to calculate the damage under the (only “advisory, of course) Sentencing Guidelines?

    Sigh.

    The Feds are scary, yes. The USSG are scary, yes. Count One (“conspiracy,” from whence all “relevant conduct” springs, much like Spanish Kings’ land grants in Texas real estate) is scary. I get all that. Still. Still.

    What is scarier is relying, if only in part, on a career federal prosecutor who will so appreciate your client’s sturdy forthrightness and acceptance of responsibility (“the ref signals a three!”) that she will join you in asking for probation. As Buddy Holly wrote: That’ll be the day.

    (Return Cynicism Switch to “neutral” to prepare for next task.)

  3. John Barleycorn

    I wonder if anyone other than me has ever had a nightmare set at a carnival in modern times where the carnies were prosecutors, CDL’s, and judges?

    P.S. There must be a secret cant or jargon within the ranks of CDLs that an unsuspecting client needs to be aware of when overhearing CDLs chatter amongst themselves, no?

          1. ExCop-LawStudent

            I’m not too sure that Gregorian Chants should be kept with the new generation of lawyers. Most of the law students I’ve talked to about it complain that it gives them a headache.

  4. Mark Draughn

    Uhhmm…wow. I mean…I’m don’t know much about negotiation, but… Geez, I just hope their white collar specialist isn’t on the phone apologizing to the prosecutor for the delay because the first lawyer they called wasn’t willing to do a deal…

    1. SHG Post author

      It’s a very different perspective. Representing corporations in criminal investigations involves business decisions. Representing human beings is a bit different. They forget that sometimes. Well, all the time.

  5. anonymouse

    Maybe a different strategy would have been more productive. As in fishing, sometimes you have better luck than you expected; all things considered.

    1. SHG Post author

      Maybe. I’ve often thought that I could be rich if I wasn’t so damn honest. But I won’t represent that I will do one thing in the hope of doing another. Others may, but I choose not to.

  6. Max Kennerly

    As you admit, your preferred strategy may result in a revoked plea bargain. That might leave the client worse off in both the short-term (seems to me they want this over, so they can get back to their fabulously wealthy life) and the long-term (they might lose at trial).

    It’s fun to be macho. It’s not necessarily in the client’s best interest. Good thing your friend knew that, even if you don’t.

    1. SHG Post author

      Max, are you on drugs again? Where do you see “revoked plea bargain”? I realize that you aren’t a criminal defense lawyer, have no clue what you’re talking about and make up this stupid crap in your baby PI lawyer head, but that’s not a good reason to comment when you’re on a bender.

      Try this one when you ponder how things “seem to you”: A conviction, a loss of civil rights, punishment, deportation, preclusion from education and housing. Now what were you saying about getting back to their fabulously wealth life? Thankfully, no human being will ever risk their life in the hands of some worthless wussy who confuses macho with competence.

      I know Max, maybe you can cry and beg the prosecutor not to be mean to the defendant. No doubt the prosecutor will be so moved by your deeply felt tears that he will dismiss the charges. What’s next, Max? A law review article on the virtue of incompetence or how to make a fast buck copping out without really trying?

      1. Max Kennerly

        You’re the one who said that your own approach might cause the prosecutor “to pay you back by jacking up the plea offer.” Your friend pointed out that danger, and you told him you didn’t care. You knew what you wanted to do, despite having never spoken with the client about what he wanted to do, what risks he was willing to take. Your friend then backed out of the referral, and rightly so.

        If you don’t want to take cases involving quickie plea bargains, that’s your call. But that refusal is not necessarily in every defendant’s best interest, as you yourself admitted.

        1. SHG Post author

          You demonstrate your lack of understanding of what was said. That’s no big deal, since this post wasn’t meant for people who don’t practice criminal defense, and no one expects you to understand. This doesn’t mean revoking plea offers, as you originally wrote (and now disappears). That’s okay. You aren’t supposed to demonstrate a grasp of the subject. But instead of your typical spewing ignorance, you might try to learn first. That’s always been your downfall, Max. Being clueless never stopped you from leaping to assumptions.

          It can happen that an aggressive defense can result in a prosecutor making a higher plea offer in response. However, it’s far more likely that it won’t. Criminal lawyers realize this. You don’t. It’s also possible that there are grounds for dismissal, suppression, etc., that will be revealed on investigation and research. If you walk in begging for a plea, you never find out. As much as a defendant may think (and in my example, this wasn’t the defendant’s idea, but he was persuaded to give up before he started by the “white collar specialist”) that he wants a plea, I’ve never met one yet who wouldn’t prefer dismissal.

          There are plenty of lawyers who are more than happy to take a quick buck for a quick plea. No doubt if you did criminal defense, you would be one of them.

          Criminal law involves enormous tolerance for ambiguity, and occasional risk. It’s unlike anything you’ve ever experienced, since your PI clients take no risk when you fail to represent them competently. You’re inability to grasp how this happens is irrelevant, but your compulsion to make sure criminal defense lawyers know that you have no clue is what never ceases to amaze.

          1. Max Kennerly

            I think you went 80 / 20 on the ad hominem / substance ratio there, which is an improvement.

            Substantively, “It can happen that an aggressive defense can result in a prosecutor making a higher plea offer in response. However, it’s far more likely that it won’t.” So shouldn’t you raise this with the client before taking the aggressive approach, rather than assuming the client is perfectly comfortable with this risk because you happen to be? Your friend ended the referral because you told him you wouldn’t have that conversation with the client.

            “It’s unlike anything you’ve ever experienced, since your PI clients take no risk when you fail to represent them competently.” I know you don’t really believe that, you’re just mouthing off. But for the record, over the past month I filed two birth injury cases for kids with cerebral palsy. Both families are on food stamps. If I screw up, they lose the opportunity for therapy, support, assistance, mobility, modifications to their homes and cars — they lose the chance at a better life. I have no doubt the client in this post would take whatever plea he could get over the life those kids are living right now.

            1. SHG Post author

              How many times do I have to explain what ad hominem means to you? It means “you’re stupid so your argument is stupid,” not your argument is stupid so you’re stupid. And I don’t think you’re stupid; I do think you have no clue what you’re talking about, so you try to desperately stretch to prove your point.

              Now I assume your reading comprehension skills to be sufficient to realize that your characterization of what I’ve written is inane, meaning that you’ve chosen to misread the content (not to mention grossly misstate what I’ve written) to make your case rather than acknowledge that you yet again made a moronic comment. This is a sign of your immaturity, your need to “win” rather than learn anything. This doesn’t help you, Max. You’ve made yourself a joke and a bore.

              But since you’ve decided to inform me of your great PI work, consider this analogy: the birth injury cases are referred by a lawyer who has informed the parents, who are poor, hungry and desperate, that they can score a quick $10k settlement but no more because of poor liability. He sends them to you on condition that you settle the case for $10k as soon as possible, without any investigation into liability or damages.

              Do you take the case on that condition? Do you settle for $10k without investigation into liability or damages? Do you take the case and do nothing more than call the carrier, ask for an offer, and take whatever they give you? Well, maybe you do.

            2. Max Kennerly

              “Do you take the case on that condition? Do you settle for $10k without investigation into liability or damages? Do you take the case and do nothing more than call the carrier, ask for an offer, and take whatever they give you? Well, maybe you do.”

              That’s not truly analogous to the example you gave. First, offers in tort cases don’t tend to ever go down, and certainly not in the pre-trial stages. No insurer ever lowered an offer because a complaint was filed and some discovery was taken. By your own argument, this isn’t the same in criminal defense, where your offer can get worse by way of an aggressive defense. Second, you had an investigation of some sort, plus an informed client and reasonably knowledgeable referring lawyer. You shouldn’t rely on their analysis entirely, but to reject it out of hand, and to assert you wouldn’t even consider the approach already favored by the client, seems foolhardy.

              But in your example, yes, I call the client and say: “maybe I can get you $10k, but I think that’s a huge mistake,” and we go from there. If they want their $10k, I can’t stop them, and I send them back to the referral lawyer to do it. I don’t tell the referral lawyer, “I won’t bother until you can confirm the client won’t take less than $5 million.”

            3. Max Kennerly

              You’re too obsessed with flaming me to deal with the basic issue here. I’ll just cut and paste it again: “So shouldn’t you raise this with the client before taking the aggressive approach, rather than assuming the client is perfectly comfortable with this risk because you happen to be?”

              Is that so hard to answer with a simple “yes?”

            4. SHG Post author

              Is that what it looks like to you, Max? That I’m obsessed with flaming you? You’re a curious young man. You come here, to my blawg, to tell me that I’m obsessed with you?

              So here’s the problem Max. I never wrote anything about “raising this with the client before taking the aggressive approach.” That wasn’t what I said. It’s what you said. After you said it, I responded that your characterization of what I said was inane.

              You’ve disgraced yourself. Haven’t you made yourself look bad enough for one day?

            5. Sgt. Schultz

              Max:

              So shouldn’t you raise this with the client before taking the aggressive approach, rather than assuming the client is perfectly comfortable with this risk because you happen to be?

              SHG:

              Now I assume your reading comprehension skills to be sufficient to realize that your characterization of what I’ve written is inane, meaning that you’ve chosen to misread the content (not to mention grossly misstate what I’ve written) to make your case rather than acknowledge that you yet again made a moronic comment.

              Max:

              You’re too obsessed with flaming me to deal with the basic issue here. I’ll just cut and paste it again: “So shouldn’t you raise this with the client before taking the aggressive approach, rather than assuming the client is perfectly comfortable with this risk because you happen to be?”

              Is that so hard to answer with a simple “yes?”

              Max, we can read it. Don’t you realize this? This is so very sad.

        2. Andrew

          You obviously have no clue how plea bargaining happens, which is fine as SHG says. But why then do you feel the need to comment? Are you just trolling or do you take some perverse pleasure in making yourself looke like an asshole?

          1. SHG Post author

            While I hesitate to diagnose Max, he trolls criminal defense blogs in an effort to “show up” criminal defense lawyers with his baby lawyer brilliance, and then gets very angry that no one thinks as highly of him as he thinks of himself. I assume it has something to do with his toilet training, but then I’m no shrink.

            1. Andrew

              I really don’t understand why you post these comments. Same with the comments yesterday. This just reduces the signal to noise ratio here. You say you’re hard on stupid comments, but it seems to me that you let an awful lot of truly awful comments go through.

            2. SHG Post author

              Yeah, I struggle with what to post and what to trash. Maybe I’m too much of a softie for all my curmudgeonliness.

            1. Andrew

              “No one” from the internet thinks you’re right. “Andrew” is a criminal defense lawyer who has been around here a long time and appreciates the solid thought that comes of experience.

              “Andrew” doesn’t feel any need to argue with clueless people.

    2. Kathleen Casey

      There is “an objective standard of reasonableness” in criminal representation, and doing the work is part of it.

      A random pick of the onslaught of common law from a district court here in NY. The result is nice, a hearing on the sentencing issue the defense attorney dropped the ball on:

      When determining what constitutes reasonable performance of counsel, Strickland provides that reference may be made to “[p]revailing norms of practice,” such as the American Bar Association Standards for Criminal Justice (“ABA Standards”). Strickland, 466 U.S. at 688. ABA Standard § 4-4.1 (Duty to Investigate) states:

      a. Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty.
      ABA Standard § 4-4.1 (2d ed. 1980). The Supreme Court has set forth a similar mandate, stating that “[p]rior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.” Von Moltke v. Gillies, 332 U.S. 708, 721 (1948)… .

      Assadourian v. Brown, No. 08 Civ. 4732 (SDNY, July 16, 2009).

      Not published in a reporter for some reason. But it gives off the scent of what we are expected to do. It is available on Leagle and Google Advanced Scholar.

      The Second Circuit affirmed the district court’s denial of the habe writ following a hearing, also not officially published. Assadourian v. Brown, No. 10-5175 2d Cir., Aug. 29, 2012).

  7. Mirriam Seddiq

    I have so many things to say on this topic. I have been known to even forget to ask for plea offers. I need to get better at that. But I hate doing it until I know everything about my case and until my client trusts me enough to advise them on what they should do. Ultimately whether they plead or not is their decision, but I can’t tell them what I think about their case if I don’t know anything about their case.

    I mean, isn’t that how this whole thing works?

    m.

  8. David Sugerman

    The particulars of criminal defense work aside–of which I know nothing–this points to a broader problem endemic in the profession. Whether it’s laziness, lack of rigor, or–worst of all–the fast buck, I see this on the civil side way too often. But of course, the stakes can’t get higher than when you’re dealing with crime.

    I suspect this is worse outside of the big legal markets. In smaller cities and towns, we see each other again and again. Reputations and play books are easily checked via phone calls or list serves. The upshot is that when you become that guy/gal who never goes to trial, everyone knows it. Not sure that kind of reputation check operates in LA, NYC and the other bigger markets. I suppose this provides a bit more protection against the temptation of the greased-skid, easy out.

    The particulars of BigLaw are even more dispiriting. Often, their “litigation partners” have no trial experience. Maybe that culture, which is so endemic to the civil side, sets your pal on the road that started your conversation?

  9. Oscar Michelen

    I don’t understand all the noise here quite frankly. Why would any lawyer commit to a plan of action without investigating the case first? It can never be in the client’s best interest to start out with an end result in mind. This also show the inflexibility of BigLaw – due to their size and overhead they cannot even service everyone of their own client’s needs. I am thankful for that because I do get a good amount of referrals from my friends who are at these firms and the conversation is almost verbatim to what SHG posted here. Finally, it is sad that we have come to accept that it is okay that taking some time to look into a case means risking the opportunity to plead the case out fairly later on down the road.

    1. SHG Post author

      The noise comes from one squeaky wheel, Max, which actually serves as a great juxtaposition for the voices of criminal defense lawyers. It galvanizes us to remember what it is we do, which isn’t to sell out clients for a quick buck, even if that’s what they think they want and it’s teed up for us to do so.

      By the way, kick ass before the Georgia Supreme Court on oral argument in Chan v. Ellis, Oscar.

      1. Matthew Chan

        As a non-lawyer, I cringed when I read what your friend wrote. I have (fortunately) never had to deal with the criminal side of the law or hire a criminal defense attorney for myself or anyone I know. It is not reassuring to me that there are criminal defense lawyers who don’t share the same convictions to defend their clients before considering a plea bargain. It would appear that this “high profile” client is concerned about publicity issues, hence, the willingness to just accept a plea bargain from the prosecutor. I may not be a lawyer but I don’t see any prosecutor’s giving plea bargain “gifts” without some degree of self-interest involved.

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