Monday, November 5, 2012

Seven Steps to Effective Plea Bargaining

From nearly 25 years defending the accused in state and federal courts, here's what makes a lawyer a good plea negotiator:

1.  Prepare the case for trial.  Nothing convinces a prosecutor like knowing the defense is ready, willing and able to go to trial (and appeals) and possibly prevail.
2.  Try/appeal cases.  Trying cases keeps lawyers sharp.  It confirms to prosecutors you can and will try cases.  Appealing if and when you lose does the same (and often results in favorable decisions).
3.  Charge hourly.  A lawyer should get paid for the work she does on a case.  Charging on an hourly basis is usually fairest, and helps spread any financial burden over time.  Saavy prosecutors suspect that defendants may be reluctant or unable to come up with a larger so-called trial fee under typical "flat fee" arrangements. 
4.  Put it in writing.  Memorialize discussions with prosecutors via email or letters to them (copy to client).  If it ain't in writing; it ain't.
5.  Criminal defense is a stud poker game; play accordingly.  "Winning" is less about the cards you're dealt (which cannot be changed) than in when you play them, how, with whom, and what is at stake.
6.  Carefully consider every communication.  Everything that is said or written, when and how, affects the outcome.
7.  Keep the client well informed.  It is their case, and their future.  They deserve to know what is going on.  Their perspective and input are invaluable.

By far most criminal cases are plea bargained.  The lawyer who gets a good plea for his client - quietly, efficiently, effectively - is a winner.

A Step Towards Ending Cheating in Sports

In follow-up to the 9/13/12 post about how to end cheating in sports by suing offending athletes and their enablers, a news report today describes an intriguing lawsuit: 

Apparently an Australian sportswear company called Skins is suing cycling's governing body for $2 million, claiming its brand has been harmed by backing the sport of cycling as the Lance Armstrong so-called doping scandal unraveled (Longmont Times-Call at p. B2).  The lawsuit in effect seemingly alleges that cycling officials knew (or should have known) of Mr. Armstrong's ongoing cheating and/or did nothing to stop it, thereby damaging Skins' reputation.

Question whether Skins did (or will) sue Mr. Armstrong himself, and whether the governing body has a claim against him for any liability it may have.

Thursday, September 20, 2012

Why criminal defense lawyers?

One of my favorite anonymous quotes about the criminal defense Bar - Protectors of Rights, Defenders of Individual Freedoms, and one of the last bulwarks against unbridled government power:
We, as criminal-defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job, our sworn duty, as criminal-defense lawyers, to protect our clients, from those people.

Thursday, September 13, 2012

How to End Cheating in Sports

Lance Armstrong.  Melky Cabrera.  Alex Rodriguez.  Countless football players and Olympic athletes.  The list is long and growing.  Obviously lured by the riches that await, professional athletes increasingly risk "getting caught" taking performance enhancing drugs and the like - cheating - to gain an edge (at least according to the news).  For these and other alleged "frauds pretending to be heroes," getting caught means little more than an apology (A-Rod) or forced retirement (Manny Ramirez) after they've already taken millions - hundred of millions - in contract and endorsement money.

The business of professional sports - be it cycling, baseball, football, whatever - cannot be counted on to prevent or fix the problem; too much money is made.  And, too many fans seem not to care their guy cheats if their team wins:  A classic case of the fox guarding the chicken coop.

How to fix the problem?  State courts should recognize a private cause of action (for example, for any person who has purchased a ticket and attended a related sporting event) against offending athletes and their teams, based on fraud, misrepresentation, breach of contract and any other legal theory that fits the facts.  Recoverable damages would include those already available for other causes of action based on fraud etc., namely economic damages (like out of pocket ticket and travel costs), non-economic damages like emotional distress, punitive damages, unjust profits, and any other damages caused by the wrongdoing.

Such causes of action already exist against professionals, businesses and other persons who through deceit, dishonesty and misrepresentation defraud others, so why not professional athletes and the teams and business that enable them?  If you pay (outrageous) ticket prices to take the family to a ball game to see athletes compete, and one or more of those athletes cheats by doping and perhaps impacting the game's outcome, shouldn't you be able to sue that person for related damages?   Why are they protected?

The same statute of limitations (time within which a suit must be brought) would apply, typically up to two years after the fraud is discovered.  That, combined with the possibility that the athlete and his team may have to cough up a ton of dough from their own pockets, most likely greatly would deter such cheating.

It is possible that some courts already would recognize such a legal right given the right set of circumstances.  But why have it be ambiguous?  The clearer the cause of action, the more powerful its deterrence.

Anyway, just a thought....  Now back to the football game.