Dan Small: In the previous episode, I introduced my work learning to try cases at the Hyattsville, Maryland, Magistrate's Court. Like many courthouses all around the county, there was a group of lawyers who focused on that court and spent much of their time there. Relationships were generally cordial. After all, these were misdemeanors, no dead bodies, and everyone knew that you would be working together on another case, or many cases tomorrow, so you had to be able to trust each other today. Besides, there was that local barroom where courthouse folks liked to hang out and share stories and amber liquids at the end of the week.
Naturally, these courthouse lawyers got to know not only the people but also the local rules, written and unwritten. Every court has its own unwritten rules. In this courthouse, that included the fact that many of the crimes we were dealing with had prison terms written into the statute of up to a year. But these were technical maximums, not real-life sentences. For example, you could go to jail for running a stop sign, but it almost never happened.
Over time, there had evolved a set of unwritten standard results for many of the common offenses. A first-time traffic offense, with no accident or injury and a remorseful defendant who had acted reasonably with the officer, could often be worked out within a certain range of fines. The lawyers who practiced in and around the courthouse knew these unwritten rules, and it made cases much simpler. There would still be arguments over mitigating or extenuating factors, background, etc., but both sides knew the general parameters.
Drunk driving was the great leveler, even back then. It cut across all socioeconomic lines and brought a wide variety of defendants. One time, a very high-level corporate executive from Washington, D.C., was caught drunk driving. He came into our little courthouse with four — count them, four — lawyers from a top firm in D.C. What he was paying them to defend him for this traffic offense, I can only imagine.
The problem was that for all their high fees, they knew nothing about this courthouse or its unwritten rules. When I got to him in line and it came time to "discuss their case," I found a side conference room where I could meet with the whole gang of lawyers. Once settled, apparently used to being in command, the senior partner made an impassioned plea on behalf of his client, and then he decided to take the bull by the horns and make the first offer in settlement negotiations for a plea deal.
Clearly, someone had researched the applicable statute for him and probably written him an excellent memorandum setting forth the maximum penalties, including a jail term. He had undoubtedly reassured his client that he would use his renowned influence and skills to demand a greatly reduced sentence.
But what no one had told the senior partner, what the senior partner had not bothered to find out, and what the senior partner had not told the client because none of them knew the courthouse, was that I was well aware of the statute's technical maximum penalties, but couldn’t care less. That's just not how we based our plea agreements. For a first-time drunk driving offense back then, no accident, no injuries, no passengers, no damage and immediate remorse, everyone in the courthouse knew the appropriate general range of punishment — everyone, of course, except these four newcomers.
The result was that the range that I as the prosecutor would have recommend if I made the first move was significantly less severe than what the high-priced counsel was recommending as his opening negotiating offer. He was unwittingly selling his client down the river. Literally.
What was I to do? If that's what his own counsel was offering, all I had to do was to smile, say "but of course," leave the room and move on to the next case. There was, after all, still a long line waiting for me in the courtroom. I won't deny that I thought about it for a bit. But I couldn't do it.
Just because his lawyer didn't know the unwritten rules of the courthouse, didn't mean that I didn't know them or would so easily violate them. But how do you get to a fair result without thoroughly embarrassing the senior partner? Saying, "You're an idiot, and it's putting your client at risk!" didn’t seem like the diplomatic way to go there.
So, I hemmed and hawed for a little bit, speaking theoretically and discussing hypotheticals, all those great things that lawyers do when they're not sure what the heck else to say.
Ironically, it was the most junior of the four lawyers who caught on first. He started hemming and hawing with me, including about how their opening offer was really just an example of how this important statute could be abused and overused. We never talked about unwritten rules, and no one stated the obvious about how badly they had almost screwed up, but it slowly became obvious to everyone in the room.
We eventually walked it back to a resolution that was within the general boundaries of that court. Not great, but considerably more favorable to the defendant than what his own counsel had initially "offered."
Part of me felt badly for the defendant. Surely his lead counsel would go back to him and brag about what an extraordinary deal he had somehow been able to convince me to accept. When just as surely, if the poor guy had hired one of the courthouse regulars, or if any of his four lawyers had consulted with one of the regulars, he would have gotten the same — or better — deal much more easily.
Small courthouse, small case, it's true. But it doesn't matter. In any case, in any court, it's essential to know your judge, know your courthouse, everyone in it, and everything else that might contribute to your success or failure, including — and especially — its unwritten rules.
