This article is to appear in the next issue of Res Ipsa Loquitur for the Washtenaw County Bar Association.
I started my legal career as an Assistant District Attorney in Brooklyn, NY before taking a position as an Assistant Prosecuting Attorney in Oakland County, MI. Both positions offered a wealth of experience, but the positions could not have been any different. Now as a practicing criminal defense attorney, I use these two experiences to work with different prosecutors around Michigan. Here are a few tips for working with prosecutors in your practice:
County or Local?
There’s a huge difference between prosecutors working for a county such as Washtenaw County versus a local prosecutor such as the City of Ann Arbor. Generally a prosecutor for the county has less personal discretion in resolving cases, because he/she has multiple layers of supervisors, including an elected official versus some local prosecutors who may be the person with full discretion. Find out if you’re dealing with the person who makes the decisions, or if you need to speak to someone else. If you must speak to someone else, allow the prosecutor to suggest the procedure.
Respect the Process
With any prosecutor, you must respect these layers. The prosecutor you’re working with may not have the authority to grant you what you’re looking for, but can be a powerful advocate for working toward that outcome. Prosecutors will either have you directly contact that person who makes the decisions, or may offer to personally have that conversation with their superior, and get back to you on the answer. It’s important to respect this process, and to not immediately go over his/her head to speak to their boss. It’s likely the decision process has multiple layers. You may get what you want the first time, but you’re burning a bridge, because you’re making that prosecutor look like he/she isn’t doing their job in court. A lot of times, the higher-up decision maker will empower the individual prosecutor to make the final call; you do not want to be on the wrong side of that decision, because you didn’t respect the process.
Winning on the Road
Unless you’re going to a courthouse where you practice on a regular basis, the prosecuting attorney will usually have a home field advantage. The prosecutor will have superior knowledge on how the judge likes to run his/her courtroom, will know who the key staff members are, and will have a better understanding of the overall procedure for adjournments, pleas, sentencing, probation etc. Don’t be afraid to ask the prosecutor these questions, because it will make both of your jobs a lot easier. As a young prosecutor, it always made me feel good that a more experienced attorney was able to ask me questions, and we ended up bonding, and having a good working relationship.
Last Minute Dealings
Prosecutors and defense attorneys have different views of their caseload. Prosecutors generally only see the week ahead of them while criminal attorneys may be looking at their calendar weeks in advance. Prosecutors get handed new files every week while defense attorneys spend weeks working with a particular client. This creates a huge difference in how each side tries to resolve a case. As a criminal attorney, you may email a prosecutor about a case that is still 30 days away, because you’re thinking ahead to resolve your client’s case, whereas the same prosecutor is being slammed in court by twenty attorneys looking to do the same thing. The attorneys in court are going to get priority over your email or phone call.
My advice for this type of situation is to reach-out to the prosecutor early to introduce yourself if you don’t already have a working relationship with them. Don’t hound them about dismissing or reducing your case yet; most likely they won’t receive your client’s file for another few weeks. A few days before going to court, shoot them an email or call them to discuss your case. Most likely, you won’t have a productive chat about the case until you’re in court.
Study the Playbook
Each prosecutor’s office has criteria for resolving cases, and it’s important you know this before going to court. One prosecutor may not reduce Super Drunk cases, but another might knock it all the way down to Impaired Driving. If you haven’t worked with a particular prosecutor on a certain type of case, you can either ask around, or be upfront with the prosecutor, and ask them what they can offer. Most prosecutors on misdemeanor cases will tell you upfront their very best offer; this isn’t a divorce negotiation over parenting time; prosecutors generally aren’t saving their best offer for the last minute.
It doesn’t pay to storm in and make demands when you know a young prosecutor has zero discretion in the matter because his/her office has a firm policy. It’s always better to go in and say something like “I know your office doesn’t ______ but here is what I’m thinking”. You’re going to earn yourself a bad reputation if you continuously ask the same prosecutor’s office for the same deal when you should already know the answer; playing dumb to advocate is not going to get you anywhere. Better to acknowledge the road block, and work together to get around it if appropriate.
Finally, it’s important to remember that a prosecutor is an attorney too; they went to the same law schools, took the same bar exam and are licensed to practice by the same authority. That prosecutor will most likely not be a prosecutor forever, and they will be out in private practice just like you. They get hired and keep their jobs by following their office guidelines and keeping their boss happy. Treat prosecutors with respect and you will get much further in the courtroom. If a prosecutor is having a bad day, roll with the punches, and do not take it personally. The prosecutor is dealing with 25-30 files in court (60-75 in Brooklyn), multiple witnesses/victims and had to prepare for six bench trials and four jury trials the night before.
Bio – Attorney Jonathan A. Paul is a former prosecutor and a graduate of the University of Michigan Law School. Mr. Paul is licensed to practice law in both New York and Michigan, and is an associate with the law firm of Kelly & Kelly, P.C. Mr. Paul’s practice is focused primarily on criminal law, and he has been selected by Super Lawyers Magazine and as Clients’ Choice for Criminal Defense in 2013 by Avvo.com. Mr. Paul currently serves as the criminal law co-chair for the Washtenaw County Bar Association and is a member of the Oakland County Criminal Law Committee.
I started my legal career as an Assistant District Attorney in Brooklyn, NY before taking a position as an Assistant Prosecuting Attorney in Oakland County, MI. Both positions offered a wealth of experience, but the positions could not have been any different. Now as a practicing criminal defense attorney, I use these two experiences to work with different prosecutors around Michigan. Here are a few tips for working with prosecutors in your practice:
County or Local?
There’s a huge difference between prosecutors working for a county such as Washtenaw County versus a local prosecutor such as the City of Ann Arbor. Generally a prosecutor for the county has less personal discretion in resolving cases, because he/she has multiple layers of supervisors, including an elected official versus some local prosecutors who may be the person with full discretion. Find out if you’re dealing with the person who makes the decisions, or if you need to speak to someone else. If you must speak to someone else, allow the prosecutor to suggest the procedure.
Respect the Process
With any prosecutor, you must respect these layers. The prosecutor you’re working with may not have the authority to grant you what you’re looking for, but can be a powerful advocate for working toward that outcome. Prosecutors will either have you directly contact that person who makes the decisions, or may offer to personally have that conversation with their superior, and get back to you on the answer. It’s important to respect this process, and to not immediately go over his/her head to speak to their boss. It’s likely the decision process has multiple layers. You may get what you want the first time, but you’re burning a bridge, because you’re making that prosecutor look like he/she isn’t doing their job in court. A lot of times, the higher-up decision maker will empower the individual prosecutor to make the final call; you do not want to be on the wrong side of that decision, because you didn’t respect the process.
Winning on the Road
Unless you’re going to a courthouse where you practice on a regular basis, the prosecuting attorney will usually have a home field advantage. The prosecutor will have superior knowledge on how the judge likes to run his/her courtroom, will know who the key staff members are, and will have a better understanding of the overall procedure for adjournments, pleas, sentencing, probation etc. Don’t be afraid to ask the prosecutor these questions, because it will make both of your jobs a lot easier. As a young prosecutor, it always made me feel good that a more experienced attorney was able to ask me questions, and we ended up bonding, and having a good working relationship.
Last Minute Dealings
Prosecutors and defense attorneys have different views of their caseload. Prosecutors generally only see the week ahead of them while criminal attorneys may be looking at their calendar weeks in advance. Prosecutors get handed new files every week while defense attorneys spend weeks working with a particular client. This creates a huge difference in how each side tries to resolve a case. As a criminal attorney, you may email a prosecutor about a case that is still 30 days away, because you’re thinking ahead to resolve your client’s case, whereas the same prosecutor is being slammed in court by twenty attorneys looking to do the same thing. The attorneys in court are going to get priority over your email or phone call.
My advice for this type of situation is to reach-out to the prosecutor early to introduce yourself if you don’t already have a working relationship with them. Don’t hound them about dismissing or reducing your case yet; most likely they won’t receive your client’s file for another few weeks. A few days before going to court, shoot them an email or call them to discuss your case. Most likely, you won’t have a productive chat about the case until you’re in court.
Study the Playbook
Each prosecutor’s office has criteria for resolving cases, and it’s important you know this before going to court. One prosecutor may not reduce Super Drunk cases, but another might knock it all the way down to Impaired Driving. If you haven’t worked with a particular prosecutor on a certain type of case, you can either ask around, or be upfront with the prosecutor, and ask them what they can offer. Most prosecutors on misdemeanor cases will tell you upfront their very best offer; this isn’t a divorce negotiation over parenting time; prosecutors generally aren’t saving their best offer for the last minute.
It doesn’t pay to storm in and make demands when you know a young prosecutor has zero discretion in the matter because his/her office has a firm policy. It’s always better to go in and say something like “I know your office doesn’t ______ but here is what I’m thinking”. You’re going to earn yourself a bad reputation if you continuously ask the same prosecutor’s office for the same deal when you should already know the answer; playing dumb to advocate is not going to get you anywhere. Better to acknowledge the road block, and work together to get around it if appropriate.
Finally, it’s important to remember that a prosecutor is an attorney too; they went to the same law schools, took the same bar exam and are licensed to practice by the same authority. That prosecutor will most likely not be a prosecutor forever, and they will be out in private practice just like you. They get hired and keep their jobs by following their office guidelines and keeping their boss happy. Treat prosecutors with respect and you will get much further in the courtroom. If a prosecutor is having a bad day, roll with the punches, and do not take it personally. The prosecutor is dealing with 25-30 files in court (60-75 in Brooklyn), multiple witnesses/victims and had to prepare for six bench trials and four jury trials the night before.
Bio – Attorney Jonathan A. Paul is a former prosecutor and a graduate of the University of Michigan Law School. Mr. Paul is licensed to practice law in both New York and Michigan, and is an associate with the law firm of Kelly & Kelly, P.C. Mr. Paul’s practice is focused primarily on criminal law, and he has been selected by Super Lawyers Magazine and as Clients’ Choice for Criminal Defense in 2013 by Avvo.com. Mr. Paul currently serves as the criminal law co-chair for the Washtenaw County Bar Association and is a member of the Oakland County Criminal Law Committee.
