Lessons In Negotiating

The other day, I picked up a new case in arraignments where my client was accused of theft (petit larceny).

I looked through the client's file. It looked like he was homeless, and he'd been arrested (and pleaded guilty) more than three times in the past year and had done jail time on each of those cases. I knew that the judge would be likely to set bail, and it seemed unlikely that this client could make any bail. Unfortunately, even if he wanted to fight the case, he'd probably spend (much) more time in jail waiting for a trial than he would if he pleaded guilty immediately.

I went to the D.A. and asked him how much time he was going to recommend. He told me he'd ask for 60 days. I figured I'd ask the judge for 30. 30 seemed about right to me, based on my client's record, the amount he stole, and the fact that he was homeless. I also knew that if this judge didn't agree to 30 days, we'd see another judge later in the week who might be willing to agree to 30 days.

I go and meet my client. We talk for a while about the facts of the case. He's very adamant about the fact that he did not steal, or try to steal, anything. This happens a lot - and I always feel very torn. If my client had money (and, therefore, could make bail), he'd probably plead not guilty and take the case to trial. But, even assuming I could get a judge to agree to 30 days on this case, he'd spend longer than that in jail waiting for a trial if he pleaded not guilty.

So, I talk to my client about a plea. No way, he's not interested. He didn't do anything wrong, why should he plead guilty? I try to talk to him a little bit about the plea anyway. I tell him that I could probably get him 30 days and that he'd spend longer than that waiting for a trial. He's absolutely not interested. He will plead not guilty, no matter what.

We go in front of the judge. My plan (my only plan, unfortunately) is to try to get the judge to ROR my client, even though I know that the possibility is remote. The judge asks the D.A. if there's any recommendation, and the D.A. responds, "sixty days."

My client bursts out (quite loudly) "Sixty Days? I'll take it!"

The judge responds, "Ok, Mr. (Defendant), you wish to plead guilty..."

At which time my client turns to me and says, "See if he'll go any lower. Will he give me anything lower?"

Needless to say, the judge wouldn't budge from 60 days. Not the best way to start a negotiation.


  1. Is there bad weather (extreme heat, rain or the like)?

    I've had a number of homeless clients try to get thrown in jail on misdemeanor charges so that they can have a place to be during bad times.

  2. Actually, we very rarely see that. I think it's because our homeless shelter system is pretty good, and our prisons are particularly bad. I guess that speaks well of the city though.

    Your question does remind me of another case though... which will be the subject of today's post.

  3. They do it here and judges/prosecutors in the cities seem to realize it and put them in jail for a month or two.

    Unfortunately, when they wander out of the city into the counties things don't go quite so well. Most of the time they steal something minor but a petit larceny 3d here is a felony and the "law and order" suburbs just aren't going to tolerate it. Suddenly the client is facing years in prison rather than months in jail - usually with a full confession, tapes, and a store manager who saw it all. More than once I've heard the statement: "I thought I was still in Richmond; if I'd realized the store was over the county line I'd never have done it." Unfortunately, that doesn't make for much of a defense.

  4. Er, is it "petit" larceny, or "petty" larceny?