Communicating With Lawyers

You may work really hard on your narrative. And your narrative may do a fabulous job of advancing prospects for leniency. Nevertheless, your lawyer may refuse to read your work or incorporate it into his sentencing memorandum.

At the end of the day, you must remember that your lawyer works for you. You must decide if your lawyer is doing everything within his power to advance your prospects for mercy. If the lawyer adamantly refuses to consider your narrative, or to reveal the reasons why he will not include the narrative, then you may want to consider changing lawyers.

My partner, Justin, does a lot of one-on-one work with clients. A prominent law firm represented one of Justin’s clients. The lawyer succeeded in getting the prosecutor to recommend a sentence of one year plus one day (to qualify for the good time). The client had worked with Justin in preparing a sentencing narrative. It was a fabulous narrative, showing that the client understood the gravity of the offense. Yet the lawyer said that he had never used a sentencing narrative from a defendant, and he wasn’t going to start. The lawyer said that he had already succeeded in getting the prosecutor to agree to a short sentence. That was good enough.

Unfortunately, the judge did not agree with the prosecutor’s recommendation. At sentencing, the judge stated that he did not think the sentence reflected the seriousness of the crime. He sentenced the defendant to 24 months—double what the defendant expected. If the defendant had submitted his narrative, he may have had a better outcome.

Since some lawyers resist the efforts clients make to prepare for sentencing, we have drafted a template. Consider modifying the following template to suit your needs when you communicate with your lawyer. It includes links that you may also want to send to the lawyer if he objects to submitting the narrative.

Dear (lawyer’s name),

I am working on the changes that I want to make to the probation officer’s first draft of the probation report. I’ll send you my comments by tomorrow.

In addition to my comments on the first draft of the report, I’ll attach a personal narrative that I wrote. Please read the narrative, then share your thoughts with me.

I spent many hours working on this document. I decided to work on the document after coming across two videos with federal judges. Judge Stephen Bough and Judge Mark Bennett have collectively sentenced more than 5,000 defendants. In the videos I watched, each judge stated that he was always disappointed that many attorneys did not do enough to prepare defendants prior to sentencing. Judges said that they wanted to learn more from defendants.

Judge Mark Bennett: I would be super impressed if, when reading a pre-sentence report, I saw that a defendant had thought about sentencing then. It would be astoundingly impressive to me, showing that this was a defendant truly understood the gravity of his offense and that he wanted to make things right.

Judge Bough: I’d like more defendants to show a true introspection, showing how they got here. He doesn’t want defendants to simply say “I’m sorry” he wants people to show that they truly understand what they’ve done. A defendant should write his thoughts, I his own words.

Based on what I’ve learned from watching those two videos, I worked extensively to write this narrative. I would like to make sure that the Probation Officer gets the narrative now, with hopes that the Probation Officer will incorporate my comments into the Presentence Investigation report.

Other research has shown me that if the PSR includes portions of my narrative, the record may influence my regular assessments in prison.

For that reason, I request that you provide my sentencing narrative to the probation officer when you return changes. If you object, please let me know why you disagree with the two federal judges that spoke so forcefully about the power of defendants that write sentencing narratives.

I look forward to hearing from you.

Based on our experience, our team at Prison Professors highly recommends that you submit your narrative to the probation officer during the presentence interview—or at the soonest possible time.