The Court Room Procedures, part 10 of 12
During plea negotiations, Prosecutors don’t necessarily care to be convinced. Their job is to “seek justice,” dispose of cases, and if they have to go to trial, try a case they can Proof Beyond a Reasonable Doubt.
The negotiations between the Lawyer and the Prosecutor during Plea-bargaining are most often about what proof may or may not be admissible in Court.
The very few criminal cases that are not resolved through negotiation are resolved in a Jury trial or trial to a Judge.
Almost everyone not familiar with the system believes that a great lawyer is like the ones we see on television, like Better Call Saul.
Of course, IF a case cannot be resolved through negotiation, the client should have a lawyer skilled, knowledgeable and able to go to trial. Unfortunately, the worst time to find out if a lawyer is not equipped, or prepared to go to trial, is when the case is called to trial. It is too late.
The point most clients miss about Jury Trials (casinos) is that when you get to that point in a case, one of the two sides has miscalculated. And, by the odds, because most often the Prosecution chooses which case to take to trial, the odds are on the Prosecutor to win. Because if a prosecutor gets to pick the case to try, she will obviously pick a case she believes has the proof to win.
It is at this point where a lawyers reputation and trial skills come into play. Ask yourself, if the prosecutor gets to choose the case to try, would he pick an easier case to prove or a hard case to prove? If the case could be hard to prove, would the prosecutor rather fight a skilled and prepared lawyer? Or a lawyer that the prosecutor knows by reputation will not or is unable to try the case? The answer is obvious: make the better Plea Bargain offer to the better-equipped lawyer with a case that is hard to prove. And, if forced to trial, the lawyer is a weaker opponent.
Clients should NEVER try to evaluate if their case is hard to prove. What clients believe makes their case hard to prove or easy to win never has anything to do with what proof is admissible, for example, the promiscuity defense in a sexual assault case.
The client should focus his or her attention to which lawyer to hire and whether or not, to proceed to Jury or Judge Trial.
Again, the most important decision is the initial decision on which lawyer to hire. Ability to impress a client in the lawyers is not a predictor of the lawyer’s ability to negotiate or try a case to a Jury or a Judge. Although, the interview should give you a good feel for a lawyers experience, preparation, demeanor and confidence.
Negotiating skills are absolutely taught and learned, and seasoned with experience. But, by basic training in law school, lawyers are terrible negotiators. Not because they are bad lawyers, but because they were trained in advocacy, research and legal reasoning. That is not negotiation. And very often, civil clients will hire lawyers to negotiate and never explore the lawyer’s reputation and training in negotiation. The same goes for lawyers in the criminal Justice system.