(Many) Thoughts on Professionalism

I don't argue with D.A.s. I disagree with them, I debate with them, I negotiate with them, I sometimes engage in a little "back and forth," but I don't argue. In my mind, there's no point to it. If a D.A. and I just aren't going to see eye to eye, I've got other ways to get what I want. I'll take the issue to the judge or I'll take the case to a jury. There is absolutely no reason for me to raise my voice or engage in name calling with a D.A. I've never done it, and I hope I'll never do it.

Because, in general, I see D.A.s as equals. They went to law school. We sat for the bar exam together. They've got their job and I've got mine. And, for the most part, they do their job professionally. There are some dirty D.A.s, but then again, I guess there are some dirty defense lawyers. I'm just not one of them.

But from what I see, is that it seems like D.A.s can get away with being dirty (and by "dirty" I mean unprofessional and unethical), without much risk of getting disbarred or other professional sanctions. I guess judges don't really want to take them on.

When I know a D.A. is acting unethically I'm don't confront him and demand an explanation. I just use it to my full advantage in court. I don't need to hear what his excuse is.

For example, I had a drug case recently where I found out that the D.A. had forged the lab report. Interesting, right? (And, just as a side note, why did he even need to forge the lab? They own the chemists.) Another defense attorney suggested that I go to the D.A. (who has a reputation for being reasonable) and say "What's up with that?" But why? I mean, what would I do if he said "Sorry, please don't report me," or "Sorry, my supervisor made me do it?" What good would it do? My solution is to push the case toward trial. First, I don't think the D.A. will have the guts to take a case to trial when he knows he can't put a chemist on the stand - and therefore, the case would die a "speedy trial" death. In the alternative, if he's stupid enough to take the case to trial, I have a great witness in the very reliable attorney who learned of the forgery.

Now, I've considered that maybe this is wrong or unethical of me. Maybe, under some rules of professional responsibility, I have an obligation to report the unethical behavior. But the problem there is that I don't know of it personally and, more importantly, I'd be jeopardizing my client's case by pointing out the weaknesses in the case to the D.A. I think my loyalty is with my client, at least until the case is resolved.

The whole "forged lab" case was a bit of a tangent, but I think it's a fair portrayal of my relationship with D.A.s and how I don't feel that I need to confront them or argue with them.

So, the other day, I had a case where the D.A. (a different D.A.) and I just weren't seeing eye to eye. He was making a ridiculous jail recommendation on a first arrest of an old man. We went back and forth, we negotiated, I shared more of my case then I probably would've wanted with the hopes that I could get a better offer. It just wasn't happening. But I didn't want to try the case.

As another tangent, I guess that's where I lose my advantage - when I have a case that I can't win. I lose my best tactic when I just cannot say "Then we'll take it to a jury" (and mean it.)

Anyway, it was a case I couldn't win. In the end, my boss called the D.A. to try to get an offer. It turned sort of weird. My boss was really tough on the D.A. He didn't raise his voice, or engage in name calling, but I think he... how to say this... was a little more aggressive than I would be. And maybe that's because he didn't see the D.A. as an equal, he saw him as "You're a new little punk D.A. just starting out, and I'm a big criminal defense lawyer who has been practicing for decades."

It made me put a lot of thought into where exactly that line is, between professional and unprofessional negotiation. Obviously, there's the extremes - name calling, yelling, hanging up being extremely unprofessional. And there's the other side, being so unwilling to offend a D.A. that you're really not effectively negotiating for your client. Something along the lines of "Will you please make an offer? No? Oh, well, then, ok." That's almost unprofessional in the other direction.

Then there's this middle ground - which includes raising your voice slightly and a bit of bullying. And, just as a side note, it's effective. My boss was able to get a disposition that I wasn't able to get.

But, examining the tactic, I'm not sure that it's either strictly professional or unprofessional. I guess the thing I realized from watching it be done to this D.A. is that it's just not my style. It's not something I could engage in. Not at this point in my career at least. Which may be unfortunate, because it's not as if I can always call on my boss and say "Can you get this D.A. to make an offer?" But, I try to judge my behavior by the golden rule, and I decided that I really would not be ok with a D.A. supervisor calling me and using the same tone with me.

In the end, it's better that I know what I stand for, and that I know I have a reputation for professionalism. D.A.s and defense attorneys and judges respect me because of my reputation. And, I'm a bad ass in my own way - I get what I want from the judge and from the jury. And that's what matters.

3 comments:

  1. Right on! I have a sign in my office that says "Never mistake kindness for weakness."

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  2. As a b type personality myself I've found the only way to get better at negotiation is experience and preparation. It also helps to understand the other guys strategy.=)
    Here's a good book on it:
    http://www.amazon.com/exec/obidos/tg/detail/-/0140157352/102-4830653-7126563?v=glance

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  3. For a civil litigator like me, it's interesting to hear about the process of negotiation between criminal practitioners, like yourself and like my prosecutor wife. I don't know if a true comparison can be done, because the stakes are different, the context is different, the level of intensity is greater in criminal cases, and the sheer number of negotiations you engage in with each other is far more than in civil lit. But one thing that's common to both is one's reputation as a negotiator. In my practice area, if a plaintiff's lawyer BS's me once in order to negotiate a settlement, he might get away with it... just once. But his future clients will suffer. I don't think it's much different in crim law.

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