What does the prosecution think of its case?
Not every drunk driving case goes to a trial. What your attorney really needs to discover is the true intention of the prosecution. Does the prosecution want to try your case or settle it? If the prosecution wants to settle, what price will it seek to extract from you?
Your lawyer can often accurately approximate the prosecution’s position by making a conscious effort to read the clues.
The easiest way to discover the prosecution’s frame of mind is by listening. There are some adept poker players posing as lawyers in the drunk driving field, but not many. The reason may be the belief that drunk driving cases are “cut and dried,” so there is no need to be cunning. Many prosecutors will reveal their cases to a defense attorney who is willing to listen.
In addition to listening, your attorney should try looking. How much discovery has the prosecution done? The pIn addition to listening, your attorney should try looking. How much discovery has the prosecution done? The prosecutor who is amassing discovery with demands and motions often has a reason. Since many attorneys believe discovery is the primary method to garner information, a frequent reason the prosecutor is conducting discovery is preparation for trial. Most attorneys do not use the same level of effort in obtaining discovery for cases that they believe are going to settle.
Feeling the dynamic
In addition to looking and listening, your lawyer should try to feel any dynamic surrounding the case. Are the courts packed? Does the prosecutor have pressing personal matters dominating his or her thoughts? Perhaps the prosecutor has been in trial continuously for several weeks and is looking for a respite. The opposite could be true with a prosecutor who needs a trial to keep up his or her trial statistics. Many new prosecutors feel drunk driving cases are an easy way for them to compile impressive trial statistics.
Note taking by the prosecution
Your lawyer can notice if the prosecutor makes extensive notes following a pretrial conference. Your defense lawyer will generally be dealing with a prosecutor who works for a large governmental agency (e.g., the state attorney’s office). Often at large governmental agencies one prosecutor is not assigned to handle a case throughout the entire court proceedings. This requires the prosecutor handling the case for a given day to put notes in the file. The note taking is usually done in front of the defense lawyer in open court.
If your lawyer sees the prosecutor writing extensive notes, it is a fair assumption that there is something unusual—good or bad—about the case. Long notes are not written about ordinary cases. How can your defense attorney know if the notes reveal a feeling of strength or weakness on the part of the prosecution? The next pretrial will tell. The tone and nature of the prosecutor’s comments at the next pretrial hearing will often be predicated on the notes written from the previous proceeding. A hard line suggests the notes were not good for the defense; a more conciliatory position by the prosecutor reveals that they think they have problems.
New prosecutors during their probationary period
New prosecutors who are on probation sometimes offer a unique opportunity to settle a case. Prosecution probationers are frequently judged on their won-lost record in trial. If a prosecutor has recently lost a case, and if your lawyer can demonstrate that your case will be problematic for the prosecutor, the prosecutor on probation may have a heightened interest in settling the case.