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April 6, 2017

New York Law Journal

By: Joel Cohen,

Some clients—hard to believe—treat their criminal lawyers as if they are the adverse party.  If the lawyer is negotiating a criminal disposition where the client faces 20 years, and believes a guilty plea with a three-year sentence and a $100,000 fine is a fair—and importantly, doable—proposal, the client won’t want to (appear to) agree.  Rather, he’ll tell his lawyer to lowball it: “Offer 12 months and $25,000 and see what they come back with.” Such negotiating tactics have served the client well in business.  Some might call it: “The Art of the Deal.”

So lawyers sometimes need to adapt to these mindsets.  We’re the professionals, and we require stratagems to make negotiation work.  And if the prosecutor—indeed, the opponent—realizes what the defense attorney faces in his attempt to reach the promised land of a fair case disposition, she might propose to engage in a back channel with defense counsel, assuming he promises not to tell his client the actual details of their joint attempt to get to a place that works for all.

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