Interviewer: I see in the news and the media that a lot of attorneys say, “I’m aggressive. I’ll fight for you,” that kind of thing. What do you think about that attitude? Does that serve the client’s interest?
Sam Sachs: I think most attorneys are aggressive in collecting their fees. Whether they’re aggressive in court or not, I hear that all the time. Sometimes being aggressive is stupid. I’ve been teaching lawyers municipal court practice for 20 years now – continuing legal education – and I’ve taught at different institutions that provide that, and I always tell them that being aggressive with a prosecutor when you’re trying to negotiate your case or get the discovery is wasted effort. You don’t yell at police officers. You don’t yell at court staff and you don’t carry on with prosecutors. That’s when you need to do the right thing and behave yourself.
Attorneys That Persist in Retaining an Aggressive Fighting Stance Do it to the Detriment of Their Clients
The time to be aggressive is when you can’t work the case out and you have to step into the courtroom. Then you pull out all the stops, but people that do take this aggressive fighting stance consistently do it to the detriment of their clients. You have to balance it with reason. I know when to get aggressive and because I have a long-standing reputation, they know what it’s going to be like if they try a case against me. I have a certain style and a certain way of doing it. I get good results when I try them and I don’t make it easy on prosecutors or witnesses for the State, and I tell them, “Whatever happens, don’t take it personally.”
Afterwards, win, lose or draw, I shake their hands. I shake their hands when I enter the courtroom. I’m always cordial, but the time to be aggressive is not when you’re trying to work a case out. The time to be aggressive is once a trial starts and the prosecutor says to you, “There’s no way that this is going to be worked out. We can’t give you what you’re asking for,” which is usually reasonable. Then we’re going to war.
The funny thing is, when they tell me they are going to war, I go into war mode. I prep my case for trial. I walk into the courtroom. I don’t even want to speak to the prosecutor anymore, because as far as I’m concerned, I’m ready for war, but I don’t get ready for war until I think there are no other options.
The Process of Plea Bargaining in New Jersey
Interviewer: Why would a prosecutor offer a deal and why wouldn’t they? Would they get in trouble from their bosses if they don’t convict enough people?
Sam Sachs: No, they don’t keep track of convictions for prosecutors, but in New Jersey, we have an interesting system. Municipal court prosecutors are only appointed for a one-year term, so they always have to worry about whether they’re going to be re-appointed, if the cops are happy, if the judges like working with them – so that’s a very strange situation.
Judges in municipal courts are never tenured. They only serve three-year terms, so they have to be worried about whether they get re-appointed. In municipal court, the only prohibitions for plea bargaining pertain to drug cases and DWIs or anything with a mandatory sentence. For those you can’t plea bargain. Everything else is permissible.
Rural Counties Tend to Be a Lot More Aggressive in Prosecuting than the Urban Counties in New Jersey
In Superior Court, it’s a funnel. They have to plea bargain the cases based on the sheer number of cases that come in and how many they possibly can try. That’s when you have to do your background work. I like getting involved in cases as early as possible, finding out who the prosecutor is, and then start working the case, looking at getting the discovery, speaking to the prosecutor, discuss what my thinking is, and letting them know what they didn’t hear from the police that I’ve ascertained from my client. I’ve never really had a prosecutor tell me, “I have to get a conviction on this one.” What I’ve had them say is, “My boss won’t let me do anything but this,” in which case I usually say, “Okay, let’s go speak to your boss.”
I find an overwhelming number of county prosecutors are extremely reasonable. It does vary throughout the State of New Jersey. The more rural counties tend to be a lot more aggressive in prosecuting than the more urban counties, but when you practice long enough, you get to know what the house rules are in each different jurisdiction. You get to know the prosecutors and you have a pretty good idea of what they’re willing to do. In certain counties, they’ll consider something very minor an aggravated assault, and in other counties, it’s got to be almost horrendous before it’s an aggravated assault because of the sheer volume of cases they have.