Jamison Koehler never struck me as a violent sort of guy, so it was a bit surprising that he would end up sharing his client’s desire to punch the complainant.
I wanted to hit him myself.
This is what I tell my client after speaking with the complainant in a simple assault case. My client is accused of punching the complainant in the face.
It’s not that the desire to punch someone doesn’t happen, but most people don’t. When they do, it doesn’t always turn into a case as it doesn’t rise to the level where the punchee feels it worthwhile to pursue. Being punched once is bad enough. Having to deal with the cops over a simple punch, with no lasting injury, just adds insult to the mix. But not this guy.
The complainant turns out to be a first-class jerk. I call him up before the arraignment to find out what happened. I also express concern for his injuries. This, I have found, is the trick to get people talking: People love to talk about how they have been harmed.
True enough. A bit of empathy and the words flow. People love to talk about themselves, how they’ve been harmed, how it’s the most horrible thing ever.
Instead, the guy tries to shake us down for money. “I have talked with some of my lawyer friends,” he tell me. “And this is going to end up costing your client a fortune. First he is going to have to pay your fee. And then there will be a civil case. On an hourly basis, that is going to cost him even more.”
I always hate peoples’ “lawyer friends.” They tend to give such bad advice.
I take a moment to process what I am hearing. “Are you asking us to pay you off?” I ask him.
“Well,” he says. “I don’t have any sons. But if one of my daughters got herself into trouble like this, I would say that $30,000 would be a fair price to be done with it.”
This doesn’t happen often, but it happens. It’s a mercenary world, and some people can’t resist the opportunity to make a buck. Often, the “victim” sends a message to the defendant that he can buy his way out of the problem. In this instance, it was before arraignment, so there was no opportunity to do so. Instead, the “victim” chose to negotiate directly with the lawyer.
Some “victims” will lapse into prosaic demands for “justice.” Others, not so much. They realize the system may well punish their attacker, but won’t do squat for them. Giving a guy a good tongue lashing and probation won’t feed the kitty, and they could really use a new car. Which one would be more
There is another moment of silence as each of us thinks this over. You see the part about wishing I could hit him too? Or thinking that my client really should have hit him twice – and harder both times?
“I have to tell you,” I say to him. “I think you may have misunderstood the purpose of my call.”
“Very well,” he concludes. “See you in court.”
This may have been a huge opportunity lost. Aside from the fact that it’s improper to use the threat of criminal prosecution to gain a benefit for a civil claim, the offer to drop a criminal complaint for money destroys a victim’s credibility. Many prosecutors will drop a case flat upon learning what his poor, darling victim did. They don’t like being used by victims trying to extort money.
Had I been in Jamison’s situation, and I have, I would have told the victim that I had to discuss this with my client, and would get back to him. I would let some time pass, just for the sake of appearance, and wire up the ol’ telephone. Most lawyers of my generation keep a wire around for just the purpose, so that we can record telephone conversations when needed. Whether newer lawyers do so, I’m not sure, but it’s always a good idea to be prepared. The seven P’s remain a good thing.
On the call back, preface the recording properly, noting all the salient details from what happened before, why you’re calling, whom you’re calling, when you’re; well, all the “w” words. Then get the guy on the line. Begin with a recap of the earlier phone call, just to make sure you fully understand that deal.
Usually, they will be more than cooperative, as they want to make sure you know how much to pay them, and they’re chomping at the bit to get some quick and easy money. They can smell it. They can taste it. They’re excited at the prospect that this is going to work, one quick punch and they’re going to hit the lottery.
And there it is, all on tape (or digitally recorded, because we’re thoroughly modern these days). At the end of the conversation, you beg off because it’s more money than the defendant can pay. That’s where they start dickering. If 30’s too much, they can do 25. Okay, 20, but not a penny less. You protest, they can’t get blood from a rock. Desperation seeps into their voice as they see the payday slipping away.
This is where they remind you of how they will nail your client to the wall, make him regret not paying him off. You sigh, tell him you hear him, and that you will have to let him know. You press the button to end the call, but don’t hang up the receiver, because you still have to dial the prosecutor’s number.
A criminal prosecution is designed to do certain things to a defendant. Dickering price with the complainant is not one of those things. If that’s what he’s up for, burn him for it. And even if the prosecutor doesn’t decide to drop the case, you still have the recording for trial. With a decent cross, even the jurors will want to punch the guy by the time you’re done.