When Trial Swagger Turns to Plea Shuffle

When the day started, I had swagger. I strutted into court salivating over the prospect of cross examining the witnesses. There had been a prior civil proceeding, where my co-counsel got the arresting officer to agree with our theory of the case and elicited some choice quotes. Our investigator had recorded an audio statement from the civilian witness. Our trial prep wasn’t so much discussion of how to keep out damaging evidence, but debating what sarcastic tagline to add to the end of our impeachments.

The prosecutor picked up on our arrogance too. When we announced we were ready for trial, she squeaked, “Isn’t there any way to resolve this?” I suggested a sweetheart deal, but was firm that we wouldn’t be pleading to anything close to the top count.

Much to our chagrin, the prosecutor came back and agreed to our suggestion. We told our client the good [for him] news: a deal with no collateral consequences, without the risk of trial, that would end his case today. After our client agreed to take the plea, my co-counsel and I exchanged a look, which our client  picked up on it immediately. (Don’t you all go asking to join our poker games at once). We confessed that we were really excited about the trial, and a touch disappointed that the case was being resolved. “In that case you can have a trial. I don’t need to take the plea,” our client offered. Of course we explained to him that it was his needs and interests at stake, not our egos, and he went to take his plea.

In jurisdictions, like ours in Brooklyn, NY where trials are virtually an endangered species, a good plea can feel anti-climactic. Or even like a let down.

Lawyers tally trials like notches on a belt. We’re asked at job interviews, trainings and bars “how many trials have you’ve had?” I confess to keeping a list of trials- the date, the name of the case, the judge and the prosecutor, and what lessons I learned.

It’s time we celebrate the hard fought for plea. Negotiating a plea can require just as much legal knowledge, people skills, and quick thinking as trying a case. Most of the time pleas are more beneficial to our clients anyhow.  I now resolve to keep a list of Excellent Plea Deals, along with lessons I learned to achieve them. In this case, for example, I learned how vital it is to go to those collateral civil hearings, to be persistent in finding the civilian witness, and to stride into court with a confident swagger.

Postscript: I started a draft of this essay and put it on a shelf for a week. A workshop on negotiations by Sean Maher prompted me to dust this off when Maher asked, “When was the last time you were at a bar and bragged about the last awesome plea deal you negotiated?”