settlement by Wittgenstein

VIEWS: 52 PAGES: 16

									                  Settlement Culture


1. Settlement is where both sides agree to compromise the
case
   -- How does it work in each system?
   -- let’s take a look ….
Civil:   Criminal:

         Formal process

           • The Agreement
1. The Agreement:
 Civil:                 Criminal:
  -- client enters what is called a “plea agreement”
   -- he agrees to change his plea of not guilty to
                         Formal process
   “guilty” or “no contest” in exchange for something:
                             • The Agreement
       • promise of lenient punishment
      • dropped counts, etc
       [explain what no contest does. Blocks civil case]
   -- agreement is in writing
   -- two types of agreements:
   (a) Binding – the sentence agreed upon is final. The
   judge cannot change it.      Rare; Judges dislike
   (b) non-binding – the sentence is merely a
   recommendation; the judge can change it.
Civil:   Criminal:

         Formal process

           • The Agreement
           • The Interrogation
  The
1.Civil: Interrogation:   Criminal:
   -- client is interrogated (formally questioned) by the
                          Formal process
   judge on the record in open court
                             • The Agreement
        -- Called a plea hearing. [mention the paper].
                             • The Interrogation
   -- judge asks a bunch of probing questions …
  The How are you          Criminal:
1.Civil: Interrogation:feeling today, is your head
     1.
      client is interrogated any medications or
   --clear, have you taken (formally questioned) by the
                          Formal process
     drugs?
   judge on the record in open court
                             • The Agreement
        Do you know what this agreement is paper].
     2. -- Called a plea hearing. [mention theall
                             • think it says, etc.
     about, tell me what you The Interrogation
   -- judge asks a bunch of probing questions
     3. Are you happy with the agreement? Do
     you think it is what you really want?
    4. How was your lawyer? Did he/she do a
    good job for you?
    5. Are you guilty?
    6. Do you understand the rights you are
    waiving [will go through them one at a time]
  The How are you          Criminal:
1.Civil: Interrogation:feeling today, is your head
     1.
      client is interrogated any medications or
   --clear, have you taken (formally questioned) by the
                           Formal process
     drugs?
   judge on the record in open court
                              • The Agreement
        Do you know what this agreement is paper].
     2. -- Called a plea hearing. [mention theall
                              • think it says, etc.
     about, tell me what you The Interrogation
   -- judge asks a bunch of probing questions
     3. Are you happy with the agreement? Do
     you think it is what you really want?
                                      Question:
     4. How was your lawyer? Did he/she do a
                          Why does the judge do this? Is
     good job for you?
                          it because he or she personally
     5. Are you guilty? cares about the defendant?
    6. Do you understand the rights you are
    waiving [will go through them one at a time]
 why is the
judge doing
   this?      1
              1
              0
  The How are you          Criminal:
1.Civil: Interrogation:feeling today, is your head
     1.
      client is interrogated any medications or
   --clear, have you taken (formally questioned) by the
                          Formal process
     drugs?
   judge on the record in open court
                             • The Agreement
        Do you know what this agreement is paper].
     2. -- Called a plea hearing. [mention theall
                             • think it says, etc.
     about, tell me what you The Interrogation
   -- judge asks a bunch of probing questions
     3. Are you happy with the agreement? Do
     you think it is what you really want?
     4. How was your lawyer? Did Answer: a
                                      he/she do
    good job for you? The Judge is making it so that
    5. Are you guilty? the defendant cannot get out of
                        the agreement after he goes to
                            jail. “Sealing are
    6. Do you understand the rights youthe deal.”
    waiving [will go through them one at a time]
  The How are you          Criminal:
1.Civil: Interrogation:feeling today, is your head
     1.
      client is interrogated any medications or
   --clear, have you taken (formally questioned) by the
                          Formal process
     drugs?
   judge on the record in open court
                             • The Agreement
        Do you know what this agreement is paper].
     2. -- Called a plea hearing. [mention theall
                             • think it says, etc.
     about, tell me what you The Interrogation
   -- judge asks a bunch of probing questions
     3. Are you happy with the agreement? Do
                                     want?
     you think it is what you really Answer:
                          [Explain he/she Corpus]
    4. How was your lawyer? Did Habeas do a
    good job for you?
                      If one is filed, pull the transcript,
    5. Are you guilty? read it, and deny the claim.
    6. Do you understand the rights you are
    waiving [will go through them one at a time]
  The
1.Civil: Interrogation:   Criminal:
   -- client is interrogated (formally questioned) by the
                          Formal process
   judge on the record in open court
                             • The Agreement
        -- Called a plea hearing. [mention the paper].
                             • The Interrogation
   -- judge asks a bunch of probing questions
   -- the questions ensure:
       • plea is knowing, intelligent, and voluntary
       • no coercion or hidden punishments (“he said if I
       I don’t do this, they would prosecute my mother”)
       • satisfied with the lawyer (“he sold me down the
       river”)
   -- Note: magistrate court is different! [mention paper]
       Civil:                  Criminal:

                               Formal process

                                  • The Agreement
                                  • The Interrogation
                                  • Factual Basis

-- there must be a factual basis for the plea
-- you can’t plead to something that has no factual basis
   (e.g., plead to a battery instead of a theft)
-- the lawyer will certify in open court what the factual basis for the
crime was
   (remember, it is a basis, not a proof.)
Civil:      Criminal:

            Formal process

               • The Agreement
               • The Interrogation
               • Factual Basis


                    Question:
         Do you think the civil process is
         like this? Does the agreement
           have to be approved by the
                     judge?
Everyone
 Votes!
           1.   Yes, it is       4
           2.   No, it is not   18
   Civil:            Criminal:

Extremely informal   Formal process

 • Make agreement      • The Agreement
 on the phone          • The Interrogation
 • Mail each other
 some paperwork        • Factual Basis
 • Phone the judge
 and tell him you
 settled
   Civil:                   Criminal:

Extremely informal          Formal process

 • Make agreement               • The Agreement      illustration
   Criminal settlement system: three-party transaction
   Civil phone
 on the settlement system: two-party transaction
                                • The Interrogation
 • Mail each other
 some paperwork                 • Factual Basis
                             Judge
 • Phone the judge
 and tell him you                    Question:
 settled
                         Do you think the civil process is
                                   Defendant
               Prosecutor this? Does the agreement
                          like
               (plaintiff) have to be approved by the
                                       judge?

								
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