Whenever I speak to a new Client or prospective new Client about their criminal case outcome, one of the topics I always discuss is a Mitigation Plan. Clients always want to know, “How long will I be on probation and how much will my fine and Court costs be?” My answer is: “It depends.” The variables typically involved in that equation are:
- The grade of your offense (felony or misdemeanor);
- The facts of your case;
- Your prior criminal record, if any;
- The particular charge filed against you;
- The number of cases filed against you;
- Whether you enter into a Plea Bargain Agreement with the State or have a trial; and
- Whether you have completed a Mitigation Plan tailored to your particular situation and the charge(s) filed against you.
My experience over forty years of practicing law has shown me that very few attorneys even mention the word “Mitigation” in conversations with their Clients. That is because a plan of Mitigation is not something that can be executed in a short period of time. It usually takes many months of work by the Client for it to be of any help in negotiating a better outcome for him or her. If the goal of the attorney is to get the case disposed of as quickly as possible, there is no reason to discuss the benefits of a Mitigation Plan with a Client. So often, the attorney wants the Client to accept the first Plea Bargain Offer made by the State and turn the case over before he or she has to spend too many hours in the file, thus allowing a maximum of unearned fees to be retained by the attorney who has charged the Client a flat fee for representation. The Client should thus be very wary of the criminal defense attorney who does not discuss the benefits of a well-thought out, tailored, Mitigation Plan in the initial Client conference.
My experience since implementing Mitigation Plans in my Clients’ cases has been that in every single case the completed Mitigation Plan has had a significant impact on the final Plea Bargain Offer I have been able to negotiate for my Client. While each case is different, I have seen significant reductions in both the fines and number of months on probation (over the initial Plea Bargain Offer) the Assistant District Attorney has been willing to agree to after reviewing each Client’s Mitigation File. Sometimes, the Mitigation efforts of my Client has resulted in a case being dismissed, charges reduced in degree, Probation Violations dismissed, cases being admitted to Pre-Trial Diversion or other Diversion Court programs where such outcomes were initially rejected by the State, and the Court granting a Petition for Non-Disclosure.
Mitigation Plans also can affect the outcome in the penalty phase of a jury trial or in an Open Plea to the Judge. Presenting evidence of Mitigation to these fact-finders is a far better way to approach the punishment phase of a trial than to have no evidence at all to put forward showing the rehabilitation of the Defendant. It may make all the difference in deciding if you should go to prison or be offered a term of probation.