The criminal justice legal process is “adversarial,” which means we defense attorneys are constantly at odds with prosecutors, probation officers and Department of Licensing (DOL) hearing examiners. This is what we mean when we say we “fight” for our clients. This doesn't mean we should be unprofessional or unduly confrontational, however. Although there are times where this may be inevitable, as time goes on I find more often that a calm, measured approach with the opposition pays dividends.
Left to my own devices, I have a bit of an attitude. I'm not proud to admit it, but I like to “mix it up.” As a rookie prosecuting attorney, I sometimes let this get the best of me. As a defense attorney, however, I am responsible for more than just stroking my own ego. My clients depend on me to represent their interests, not my own. After nearly ten years in this game I'm convinced that the manner in which I approach a prosecutor, probation officer, or DOL Hearing Examiner, may well affect the outcome for my client.
I recall that when I was a prosecutor, I responded differently to attorneys that approached me with a thoughtful, calm, pleasant manner far more open-mindedly than those who came at me pumping their fists and pounding their chests. I've learned from those guys, and I don't take that approach because it rarely works. Fostering good working relationships and smooth channels of communication with the opposition are one of a defense attorney's best assets.
Case in point: Recent Department of Licensing Fraud Hearing
I recently had a DOL hearing for a client who was accused of acting fraudulently in order to obtain a driver's license and facing a one year suspension. During the interview with the Hearing Examiner I requested that the Department “mitigate” her penalty by reducing the suspension significantly. I was very disappointed when I received his decision to reduce only to 180 days; I was even more put off by some of the commentary included in his decision which I felt was unfair and not supported by the facts. At first I set out to let him have it; but I took a step back, considered the issues from his perspective, and then write a more thoughtful and less emotionally charged letter asking him to reconsider his decision. After reading my letter he agreed to reduce her suspension even further, and remove the information I had requested. My client was thrilled with the result.
Most case results are negotiated rather than litigated
The vast majority of criminal offenses, including DUIs, result in negotiated outcomes rather than trial. If you have been charged with DUI or another crime, or are facing a license suspension, and you are looking for an attorney, take time to thoughtfully research and consider that attorney's working reputation with opposing counsel, and others such as judges, probation officers or DOL hearing examiners. The right attorney can and should be both a tough litigator and a skilled negotiator. Beware of those who brag about how tough they are, who say they "take no prisoners," or that they bully prosecutors into giving them what they want. As a former prosecutor I assure you that usually just fires them up (think “locker room bulletin board material” before a big game).
We've all heard Teddy Roosevelt's famous saying "speak softly but carry a big stick." The most respected and successful defense attorneys I know are always well-regarded not only for their legal skills and knowledge, but also for their professional demeanor. That is who you want representing you.