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Old 11-30-2007, 12:04 AM
Howard Treesong Howard Treesong is offline
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Join Date: Oct 2004
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Default Re: Ask Howard Treesong About Law or Lawyering

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Two questions for you, sir!

1) What do you think Americans generally feel of the plea bargaining system in America? I am interested in your opinion of this piece, which may or may not be biased:

http://www.ft.com/cms/s/0/2699c7c4-9...0779fd2ac.html

e.g. "Plea-bargaining is effective because of four salient features of American justice: the exceptional severity of punishment; the justified terror of what might happen in prison; the uncertain outcome of fighting cases before juries; and the possibility of obtaining a far lighter sentence by agreeing to pleas of guilty."

And so on. Is this the general consensus or just some wacky Brits?

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This is a highly contentious issue over here. The current justice department is very aggressive with respect to white-collar criminal prosecutions, and in my view has really pushed the envelope. For example, prosecutors often insist that companies waive the attorney-client privilege and refuse to pay legal fees for executives who have been individually charged. Both rules are horrible, and reflect another facet of the problem your link articulates.

Plea decisions are very, very difficult. And prosecutors are known to add charges just to increase a defendant's risk. I think there's a fair argument to be made that plea demands can be coercive. Speaking rather more personally, I'd likely be willing to trust the jury system if I were unfairly charged -- although I must say that the notion of trying a complex financial accounting case is daunting indeed. That's so not just because it is expensive as all hell to get one to trial, but also because no juror will ever understand complex accounting in a trial setting. Most of the securities laws are written in an ambiguous way that makes them very very difficult to understand, so there's often a huge struggle to define themes intelligently, yet simply enough that a jury will get what's going on.

As for you Brits, I have a case going to trial in London next year, and may be there for some time. I will say that the level of advocacy among the barristers I've seen is very, very high. Some of these guys are really, really impressive.

Part of that comes from a procedural difference in the US system. In civil trials, we get to take testimony from witnesses during discovery, and can test out cross-examination. You UK guys can't, and so are much more practiced at taking what I'd call a "cold" cross, where you see your witness for the very first time in the courtroom.

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2) Do you like U2?

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Yep. One of my life's great regrets is when some girl in college offered me an extra ticket to a U2 concert. She was kinda hot, but I was sorta committed elsewhere, so I declined -- then soon after ended things with my then GF. Dumb, Howard, dumb.
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