Today Only?

 Posted on September 29, 2010 in Uncategorized

In the markets of South and Southeast Asia, where I learned to haggle, one of the gambits used by vendors is to claim that the offered price has to be accepted right now: "for you, today only, fifteen Rupees!"

They never mean it. Turn and walk away, and the price goes down. Leave and come back the next day; the merchandise is still there, and the vendor is one day more interested in unloading it.

The words aren't literally true; they don't contain any information beyond, "I am willing to sell this to you for fifteen Rupees"; they're just part of the ritual, the game.

I heard the same line the other day in court: a prosecutor told a criminal-defense lawyer, "this offer is only good for this setting." (For you, today only, fifteen years!)Did the words mean what they purported to, or was this just part of the ritual? Put in practical terms, what does the criminal-defense lawyer tell his client when the client asks if he can have some time to think about the plea offer?

Chances are good that the same factors that led the prosecutor to make the offer today will still exist when the case comes back to court; the merchandise will still need to be sold. Prosecutors want to resolve cases without doing too much work but without getting in trouble with their supervisors or giving away the shop. There might be a reason that making the same offer at the next setting would interfere with these goals (chief isn't here today, will be then and will nix the deal; case at a point where ADA has to get it pled or do some actual work). If so, the prosecutor will generally identify the reason; the defense lawyer then has to decide whether the prosecutor's assessment is correct, or whether the plea offer is likely to remain the same (or, as usually happens, get better). Without a plausible reason for the offer to get worse, though, "today only" in the courtroom means what it means in the bazaar: it's part of the ritual.

When the prosecutor's motivation for getting the defendant to plead guilty now is to avoid work that will have to be done before the next setting, "today only" is usually not the literal truth: there will be work to be avoided between the next setting and the one after that too.

What if the work the State does between this setting and the next might make the State's case stronger? Before negotiations begin, the diligent criminal-defense lawyer will be more familiar with the case than the prosecutor. She will know whether it will look like a better case or a worse one to the prosecutor after the prosecutor does a little more work.

But what if the prosecutor's "today only" offer comes before the defense lawyer has had an opportunity to investigate the case? She has to convey it to the client, naturally, but how does she help the client evaluate the offer? She can't. It's presumptively a bad offer, and here's Bennett's Opening-Bid Precept: the better it looks, the worse it is.

Even when it doesn't means what it says (that the offer really will go away for all time if not immediately accepted), a prosecutors' deadline is not always devoid of information. At the very least, the ultimatum tells the defense lawyer that the prosecutor is playing games, which is helpful information to have.

Often the deadline even contains information that the prosecutor would rather conceal. The question came up recently of how to deal with a prosecutor who was threatening to rescind a plea offer if the accused insisted on notice to which he was constitutionally entitled. In that case, the ultimatum told the defense lawyer that the prosecutor had a real problem with his case; the lawyer would have been a fool not to explore and exploit that problem.

The courtroom is not the bazaar. We are not haggling over bangles. Our negotiations change people's futures; they can tear families apart or give hope to the lost. But the lesson of the bazaar applies. When a prosecutor tells you that the offer is open "today only," you will almost never go wrong if you turn and walk away.

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