Tips on Negotiating With Federal Prosecutors

Happy Monday from Atlanta, Georgia where I am working on some of my federal criminal cases.  I just finished communicating with one prosecutor, and the process made me think of some of the tips I’ve learned over the years on how federal criminal defense attorneys can improve their skills to better negotiate with federal prosecutors.

As is well known, the vast majority of cases or investigations end up without a trial.  That means much of the federal criminal defense lawyer’s time is devoted to talking with an Assistant United States Attorney (“AUSA”) in an effort to see if there is a way to resolve the client’s case more favorably.  However, the fact that most cases end up in a plea does not mean that the lawyer should always look to negotiate.  Instead, we need to simultaneously prepare to both fight and talk peace, a difficult balancing act.

This leads to negotiating Tip #1.  Sometimes the best negotiating tactic is to fight, fight, and fight some more.  Over the years I’ve noticed that even the best federal prosecutors get weary when the defense just keeps on coming at them with one issue or another. Every once in a while, this approach causes the AUSA to offer a better “deal” simply to stop the work of responding to the defense motions.  Now, this only works when the defense lawyer’s moves are well-founded, and not just some off-the-wall pleading or motion.  So, tip #1, work hard, sometimes it pays off for the client down the road.

Negotiating tip#2: Be an Upfront Human Being.  As lawyers, we have a job to do, and ours is an adversarial system of justice which means that the opposing lawyers are essentially fighting with one another.  But, if the defense lawyer is at least real, genuine and trustworthy in what he or she says, this can go a long way toward getting a better resolution.  Obviously, the process of negotiating involves some posturing, but if the defense attorney has a reputation of being a straight shooter then prosecutors are more likely to come back quickly with their “best offer.”  So, as much as possible the defense lawyer should be a person who the prosecutor can trust while recognizing that the two sides are opposing one another.

Which leads to Tip#3: Know the Law.  This seems obvious, but many young defense attorneys fail to recognize this aspect of negotiating.  When I was a younger lawyer, I sometimes made this mistake.  I would negotiate, and only later realize that under the law some additional issues needed to be discussed. If the AUSA had already given me some concessions, he or she was less likely to be as agreeable when I had to bring up additional issues.  So, the lesson is clear, the defense attorney should do as much research as possible and know the law BEFORE they begin negotiating with the prosecutor.

Finally, Tip #4: Don’t be Afraid of Trial.  Sometimes we just need to fight the case out in court, and no amount of negotiating will avoid that.  I know too many lawyers who are afraid of the courtroom battlefield, and prosecutors also know who those attorneys are.  The AUSA therefore has a great advantage, knowing the the defense attorney fears a trial.  Tip #4 therefore tells us that having a reputation of enjoying trial can go a long way toward getting a good negotiated resolution.

OK, now back to work!!