Know your court — and its unwritten rules

In my last column, I talked about my work learning to try cases at the Hyattsville, Maryland Magistrate’s Court. Like many courthouses around the county, there was a group of lawyers who focused on that court and spent much of their time there.

Relationships were generally very cordial all around. After all, these were misdemeanors, not really life or death, and everyone knew that you would be working together on other 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 together and share stories and amber liquids at the end of the week.

Naturally, over time, 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. Justice can hardly survive or be efficient without them. 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 (anything more would not be a misdemeanor).

But these were technical maximums, not real-life sentences. It was, to say the least, rare that anyone went to jail for just running a stop sign, but many people didn’t know that.

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.

Of course, the lawyers who practiced in and around that courthouse knew these unwritten rules. It made working out cases much simpler. The arguments would be over mitigating or extenuating factors, background, etc., but both sides knew the general parameters.

Drunken driving, of course, was the great leveler. It cut across all socioeconomic lines and brought a wide variety of defendants into this little courthouse.

One time, a very high-level executive from Washington, D.C., was caught driving drunk. Into our little courthouse he came with four — count them, four — lawyers from a top firm in D.C. I can only imagine what he was paying them to defend him for this traffic offense.

The problem was that, for all their high fees, they knew nothing about the courthouse or its unwritten rules. When I got to him in line and it came time to “discuss” the case, I found a side 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 (there was no real basis to dispute liability, this was all mitigation). 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 given 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, the senior partner had not bothered to find out, and the senior partner had not told the client because no one on the team 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 drunken-driving offense, no accident, no injuries, no passengers, no damage and immediate remorse, everyone in the courthouse knew the appropriate general range of punishment — everyone except these newcomers.

The problem was that the range that I, as the prosecutor, would recommend was significantly less severe than what the high-priced counsel was recommending as his opening negotiating offer for his client. He was unwittingly selling his client down the river.

What to do? If that’s what his own counsel was offering, all I had to do was smile, say “yes,” 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 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? “You’re an idiot, and it’s putting your client at risk!” didn’t seem like the diplomatic way to go.

So, I hemmed and hawed for a bit, talking about theoreticals and hypotheticals. Ironically, it was the most junior of the four lawyers who caught on first. Perhaps because we were closer in age, although even as the most junior of the four he was still older than I was. 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 or the importance of knowing the practice within that court, and no one stated the obvious — 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 counsel had initially “offered.”

Part of me felt bad 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. Just as surely, if the poor guy had hired one of the courthouse regulars, or if his counsel had consulted with one of the regulars and not just the law books, he would have gotten the same or a 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, your courthouse, everyone in it, and everything else that might contribute to your success or failure for your client, including and especially its unwritten rules.

Daniel I. Small is a litigation partner in the Boston and Miami offices of Holland & Knight. A former federal prosecutor, he is the author of “Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers,” published this year by the American Bar Association. The above column is adapted from “Lessons Learned,” with permission of the ABA.