Pittsfield Township 14th District Court - Michigan Retail Fraud
Our firm focuses on the client's journey, and how he/she finds themselves on the wrong side of the law. We lead with empathy and understanding; our clients are not criminals, but rather good hearted, caring folks who respect the law, and want to be held in high regard. We work with a diverse pool of clients; our clients are our partners, and together we put forth a proactive approach to every case.
While I am a former NYC and Michigan prosecutor, and have been practicing criminal defense for more than a decade, I don't like using the "criminal" label with my clients. My clients don't have anything to hide; they are more frightened and embarrassed, and worried about an uncertain future. They are concerned that they made a terrible "first impression" with the police, prosecutor, judge, and court system; it can be gut wrenching to feel "stuck"; you can't change what happened, and sitting around, and worrying only makes things worse.
My goal is to empower each client to make a "true impression" and understand and demonstrate how they ended up on the wrong side of the law, and provide them the tools to SHOW rather than TELL what they can learn from their incident, and where they are going in the future. Nothing feels better as an attorney than to hear a prosecutor and judge praise my client for stepping up, and taking control of their own situation.
I view my role as both an attorney and a coach for my client. Coaching is the art of facilitating another person's learning, development, well-being and performance, which as an attorney is my client. Coaching raises self-awareness and identifies choices. Through coaching, my clients are able to find their own solutions, develop their own skills, and change their own attitudes and behaviors while tackling a challenging moment in life. The whole aim of coaching is to close the gap between people's potential and their current state, and help clients use their cases as moments of reflection and growth.
My clients do amazing in the criminal justice system, because they are mere visitors; having the right exit strategy is the key to navigating the most challenging moment in your life. You only get to handle your case once, how do you want to approach it?
While I am a former NYC and Michigan prosecutor, and have been practicing criminal defense for more than a decade, I don't like using the "criminal" label with my clients. My clients don't have anything to hide; they are more frightened and embarrassed, and worried about an uncertain future. They are concerned that they made a terrible "first impression" with the police, prosecutor, judge, and court system; it can be gut wrenching to feel "stuck"; you can't change what happened, and sitting around, and worrying only makes things worse.
My goal is to empower each client to make a "true impression" and understand and demonstrate how they ended up on the wrong side of the law, and provide them the tools to SHOW rather than TELL what they can learn from their incident, and where they are going in the future. Nothing feels better as an attorney than to hear a prosecutor and judge praise my client for stepping up, and taking control of their own situation.
I view my role as both an attorney and a coach for my client. Coaching is the art of facilitating another person's learning, development, well-being and performance, which as an attorney is my client. Coaching raises self-awareness and identifies choices. Through coaching, my clients are able to find their own solutions, develop their own skills, and change their own attitudes and behaviors while tackling a challenging moment in life. The whole aim of coaching is to close the gap between people's potential and their current state, and help clients use their cases as moments of reflection and growth.
My clients do amazing in the criminal justice system, because they are mere visitors; having the right exit strategy is the key to navigating the most challenging moment in your life. You only get to handle your case once, how do you want to approach it?
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If you've been charged with a Michigan Retail Fraud for the very first time, this doesn't make you a criminal or a bad person. I see clients on a daily basis who have have never been been arrested in their life. It's quite common that a good person will get themselves in a bad situation, which results in being charged with shoplifting
The crime of retail fraud is by far the most common offense for a first offender. It's disheartening to sit across from a person who can't explain why they committed the crime, and they wish could go back in time and not make the same mistake. A conviction for retail fraud could be extremely damaging for keeping or getting a new job. This is where I come into play - I can help you move forward without this mistake affecting the rest of your life. It is quite possible to keep this incident off of your criminal record
Michigan Retail Fraud requires the prosecution to prove beyond a reasonable doubt that:
- the defendant took some property that the store offered for sale,
- the defendant moved the property (Any movement is enough. It does not matter whether the defendant actually got the property past the cashier or out of the store)
- the defendant intended to steal the property. Intended to steal means that the defendant intended to permanently take the property from the store without the store's consent.
- this happened either inside the store or in the immediate area around the store, while the store was open to the public.
- the value of the property
If the value of the property is below $200, it is Michigan Retail Fraud in Third Degree, which is a 93 day misdemeanor.
If the value of the property is between $200-$1,000, it is Michigan Retail Fraud in Second Degree, which is a one year misdemeanor.
If the value of the property is more than $1,000, it is Michigan Retail Fraud in the First Degree, which is a felony.
There are different variations for this offense for a defendant who attempts to make a false return exchange, and for price switching to a lower amount. These crime require slightly different elements, but have the same penalty.
Facing a shoplifting charge can be a stressful and overwhelming experience. However, having an attorney who uses the power of empathy and compassion can make a world of difference in the outcome of your case. Here's how an attorney can use empathy and compassion to help you in your shoplifting case:
The crime of retail fraud is by far the most common offense for a first offender. It's disheartening to sit across from a person who can't explain why they committed the crime, and they wish could go back in time and not make the same mistake. A conviction for retail fraud could be extremely damaging for keeping or getting a new job. This is where I come into play - I can help you move forward without this mistake affecting the rest of your life. It is quite possible to keep this incident off of your criminal record
Michigan Retail Fraud requires the prosecution to prove beyond a reasonable doubt that:
- the defendant took some property that the store offered for sale,
- the defendant moved the property (Any movement is enough. It does not matter whether the defendant actually got the property past the cashier or out of the store)
- the defendant intended to steal the property. Intended to steal means that the defendant intended to permanently take the property from the store without the store's consent.
- this happened either inside the store or in the immediate area around the store, while the store was open to the public.
- the value of the property
If the value of the property is below $200, it is Michigan Retail Fraud in Third Degree, which is a 93 day misdemeanor.
If the value of the property is between $200-$1,000, it is Michigan Retail Fraud in Second Degree, which is a one year misdemeanor.
If the value of the property is more than $1,000, it is Michigan Retail Fraud in the First Degree, which is a felony.
There are different variations for this offense for a defendant who attempts to make a false return exchange, and for price switching to a lower amount. These crime require slightly different elements, but have the same penalty.
Facing a shoplifting charge can be a stressful and overwhelming experience. However, having an attorney who uses the power of empathy and compassion can make a world of difference in the outcome of your case. Here's how an attorney can use empathy and compassion to help you in your shoplifting case:
- Understanding the Client's Perspective A skilled attorney will take the time to understand their client's perspective. This includes listening to their side of the story, understanding the circumstances surrounding the shoplifting charge, and taking into account the client's feelings about the situation. By understanding the client's perspective, an attorney can better tailor their defense strategy to the client's specific needs and goals.
- Reducing the Stigma of a Shoplifting Charge A shoplifting charge can be stigmatizing and embarrassing. However, an attorney who uses empathy and compassion can help reduce that stigma. By treating the client with respect and empathy, an attorney can help the client feel less ashamed and more willing to actively participate in their defense.
- Exploring the Underlying Issues A shoplifting charge can be a symptom of underlying issues such as addiction, mental health issues, or financial difficulties. An attorney who uses empathy and compassion can help explore these underlying issues and find solutions that address them. By addressing the underlying issues, an attorney can help prevent the client from engaging in future shoplifting behavior.
- Building a Strong Defense Strategy An attorney who uses empathy and compassion can work with the client to build a strong defense strategy. This includes exploring options such as diversion programs, plea bargains, or alternative sentencing. By doing so, an attorney can help the client avoid the harsh consequences of a shoplifting conviction.
- Providing Emotional Support A shoplifting charge can be an emotional rollercoaster for the client. An attorney who uses empathy and compassion can provide emotional support to their client throughout the legal process. This includes being available to answer questions, providing reassurance, and helping the client navigate the complex legal system.
Leading with Empathy
Proactive 12-Step Plan
How Create a TRUE IMPRESSION
Leading with empathy, and being proactive from day one on criminal cases was developed based upon my experience as a prosecutor in New York City and Michigan, and guided by the leading business principles that I have learned while studying at the Ross School of Business (University of Michigan), MIT Sloan School of Business and the Stanford Graduate School of Business.
Step #1 – Core Strategy
When a client is charged with a crime in Michigan, the police, prosecutor, probation, and judge view each file as a name and a charge without a human connection. A client has brief interactions with many folks, but the perception of the case remains within the 4-corners of the police reports. The typical client and his/her attorney focus on what have already happened, and battle on a lopsided playing field where everyone is focused on a single incident. The case is viewed through a filter of guilt, conviction, and punishment.
The New Rules of Empathy focus on strategy, which is about being different. It means deliberately choosing a different set of activities to deliver a unique mix of value. My clients adopt a logical and consistent set of choices that generate and sustain long term competitive advantage in the criminal justice system. My clients are competing for the limited attention span of a judge, prosecutor, and probation department; to be more than just a name and a charge.
My firm is unique in that we focus on the WHY we do it; we do it because we believe a client should be judged on more than the 4-corners of the police report. A client should be judged on their past, how they handle the case in the present, and projecting the client’s future path. I’m passionate about giving the client the opportunity to make a true impression, versus the unfortunate first impression provided to those involved in the case. The typical attorney handling a criminal case for a client is fighting the wrong battles and using their limited time and resources on the wrong playing fields. We lead with empathy first and make it a goal to have the key players better understand my client; humanizing how and why the incident happened.
Step #2 – Fixed vs. Growth Mindset
Carol Dweck, author of Mindset: The New Psychology of Success, created the terms growth and fixed mindset. This distinction acts as the fork in the road for my clients who wish to adopt The New Rules of Empathy Defense.
Most clients charged with a crime in Michigan adopt a fixed mindset. They believe their case is static and stuck where it ended, with the police reports and facts alleged. They try to look innocent or be apologetic about what happened and have a doomsday approach. Fixed minded clients focus their attention on trying to dispute irrelevant parts of the case because they have a defensive, fight or flight mindset; they feel helpless in stuck in the mud; they are looking for that easy button or mulligan. A client with a fixed mindset would ignore feedback, see proactive efforts as fruitless and give up; they tend to adopt a victim mindset and want others to feel bad that they are now charged with a crime; they lack proper perception and understanding of their case in the context of others around them, which we will discuss as “the box”. A client with a fixed mindset ignores empathy and the opportunity to put a human touch on their own case.
A fixed mindset focuses on the sunk costs of a case, which is a cost, or in our case an event that has already occurred with no potential for recovery or change. This does not necessarily mean what happened must be true, because some clients are wrongfully accused or there is lack of evidence; the sunk cost nature is more the police reports and evidence when a case begins; we cannot change the allegations or the starting point of a case. There is no opportunity to say, “well I didn’t do this, so please stop charging me with a crime”. Clients believe the truth should automatically end the case, but that lacks proper perception and understanding of the other parties in the case.
What we do have is the opportunity cost of not doing anything. By adopting a fixed mindset for a case, focusing on the past, a client gives up the chance, or opportunity to put a comprehensive strategy in place for the present and future, which both helps the positioning of their case, and their overall mental and emotional well-being. Leading with empathy feels natural; it allows the client to be themselves; it allows them to scream from the hilltops that they ARE NOT A CRIMINAL, but in a planned and purposeful way.
Clients who are willing to adopt a growth mindset and The New Rules of Empathy Defense will view their case as a learning opportunity and believe that something better can come from the incident. The growth mindset embraces challenges, persistence in the face of challenging obstacles and see hard work and effort as a path to turning a negative moment into a foundational rock for their future success. A growth mindset client is open to criticism and acknowledgement that they broke the law and can be inspired by the success of others who have adopted a similar approach. A client adopting The New Rules of Empathy Defense will be encouraged by bright spots, and gain confidence that they too can have the same wonderful outcome as others who have adopted the proposed approach. A growth mindset requires stepping away from your individual position in the case and viewing the case from “outside of the box”, which is the next step.
Step #3 – Get of the box
Every client charged with a crime in Michigan begins with being “stuck in the box”; this too is literal as the client is handcuffed and put into a police car and eventually a jail cell even for a single evening. This phrase is more than a physical vehicle or jail cell, it refers to self-deception, which determines one’s experiences in every aspect of life, especially when charged with a crime in Michigan.
When arrested and charged with a crime, you are blinded to the true cause of the problem. People stuck in the box cannot see their problems; they assume it is something else, except the real problem. A person in the box sees things from a closed perspective; this person feels like a victim and it is unfair they are now facing these consequences. A crime they once thought should be punished by the law and society, is now, well different because they are charged with that crime. If Jane Doe committed the same crime then it’s a good law and proper punishment, but it should be different because I am now charged with that crime, and I have a job, kids, responsibilities etc.
If a client charged with a crime stays in that box, they will adopt a fixed mindset and are resistant to identifying the real reason they are charged with a crime. If a person is willing to embrace what is outside the box, then escape is possible.
The first step is to put yourself in the shoes of the others involved in the case, because it allows you to see your role in the conflict. Getting out of the box must be sincere and genuine or it will not work. You cannot decide to leave the box as a means to an end, such as a better result in your case without a sincere desire to make life changes.
To understand and adopt The New Rules of Empathy Defense, it’s important to understand that the judge, prosecutor, and probation are in their own boxes; viewing the client as a criminal with a name and a charge, but we cannot move them from their fixed mindset without taking the lead by getting out of our own box. Words alone will not carry us in court; in order to lead with empathy and a deeper understanding of the client's situation, we will need a comprehensive serious of tools to use during the case.
Step #4 – Culture and core values
If a client is willing to adopt the strategy of a growth mindset then it is time to set a “tone at the top”, identify a culture and establish core values for the handling of their case. For a client charged with a crime in Michigan, we need to decide on a vision of where they want to go, what they want to learn and create values and priorities for their case. We set standards of behavior both inside and outside the courtroom. As Duke Men’s Basketball Coach Mike Kryzewski said, “you cannot merely expect culture to be a natural occurrence; it has to be taught and made part of your everyday routine”.
For a person charged with a crime in Michigan, the default view of your case will be: bad person who committed a criminal act in our community, and they need to be punished. So, a person charged with a crime cannot expect anything else; the client needs to set their own culture, educate, and inform the prosecutor, judge, probation, and other case participants of this culture and make it part of their routine.
Famed leadership coach Jeff Jansen said “Your team's culture acts as your team's immune system. It quickly identifies and successfully eliminates the unhealthy attitudes and actions that destroy the health of your team. Without a healthy culture, expect your team to get sick and struggle to recover.”
A criminal client in Michigan needs to adopt core values to strengthen and direct their immune system; a fixed mindset approach or getting yourself back in the box during a case can destroy progress. I have had clients who start off well then slack off or do something puts the case in a negative light and it destroys all the hard work.
The New Rules of Empathy Defense may push clients to adopt these examples of core values in a criminal case in Michigan: accountability, honesty, strength, perseverance, empathy, growth, responsibility, generosity, recover, love, kindness, change, excitement, develop, reborn.
Step #5 – Complex Change
When a client is charged with a crime in Michigan, there are two paths for that client. The client can “stay in the box” with a fixed mindset or they can adopt a growth mindset. Even with the best intentions, change is not easy, especially when it is unclear what changes need to be made. You must acknowledge you’re in the box then be willing to learn how you ended up there, and how to avoid going back.
We need to address and answer six-questions for managing complex change. If we are missing any of the six, then change will be delayed or ultimately fail.
1. Do we have a case for change? When charged with a crime in Michigan, especially someone who has no criminal or a very limited criminal record, it is time to assess how you ended up on the wrong side of the law. Assuming committing a crime is not part of your daily life, and you did not plan to break the law, there is a case for understanding the WHY, with motivation to make changes in your life. Without a case for change, you end up at a status quo.
2. Do we have the vision? This goes back to our culture and core values or where the client wants to go, what they want to learn by creating values and priorities for their case. If a client lacks vision for their case, they will be left with confusion.
3. Do we have the skills to bring change? Yes, when I was a prosecutor in Michigan, I was not satisfied with what other criminal attorneys were doing for their clients, so I developed a comprehensive proactive program to allow my clients to tangibly help their case every single day. We will address this as part of the Client Value Chain. I designed the program to be customized for each type of crime, the specific court and for each individual client. Without the proper skills and game plan I bring to a client’s case, a client is left anxious each day on what they can do to help their case. I have witnessed other clients represented by other attorneys visibly questioning their lawyer “why didn’t we do X, Y, Z on our case together” when in court together.
4. Do we have the incentives to bring change? On the surface, someone charged with a crime would have a lot of incentive to do something, but most people charged do not view change in the proper context. The default incentive is to escape the situation as fast as possible, to pop the painkiller, and get in and out. A painkiller popper client tells a judge “I will never be back, I am sorry”. That goes in and out of the judge’s hear; you might as well have not said anything, because the judge is justified in viewing you as just as everyone else; you did not compete for their attention, understanding or true empathy.
To not compete is to adopt a fixed mindset; if we are to take a growth mindset, not only do we get better results (incentive) on the case itself, but we have a treatment plan in place to better the client’s life and set them up for success for the future (the vitamin).
We come to court able to tell the judge why this happened and seek empathy; we show what we are doing in the present and our plans for the future to not return to a similar situation. To show that a negative moment has been converted to a positive time of change. Without the right incentives, we are stuck with no change or gradual change, which is not helpful in the short window of a criminal case. Clients compete in a small window to create true impression; without success the entire case remains stagnant and sits on a foundation of guilt, conviction, and punishment.
5. Do we have the resource to bring change? Yes, just as we will have the skills, we will have the resources. Since my days as a prosecutor over a decade ago, I have refined a customized method for each client, which factors in the court, judge, type of offense, and our agreed upon goals.
I make the program easy to understand and follow and offer support and guidance along the way. I hold my clients accountable with agreed upon specific, measurable, achievable, and compatible goals. Without the proper resources, complex change can fail due to frustration. When a client is charged with a crime in Michigan, there mind is going a mile a minute, so the resources need to be easy to understand, follow and maximize. We cannot create a situation over system overload; I work with each client's schedule and lifestyle to make sure we accomplish the necessary tasks.
6. Do we have an action plan? Even with a case for change, the vision, the skills, the incentives, and resources, we still need an overall action plan. When I work with a client charged with a crime in Michigan, and we adopt The New Rules of Empathy Defense, we assess the case from the prospective of the prosecutor, the judge, and our own team goals.
We stay out of the box by understanding that our case involves many other participants, some with real power in the case, such as the prosecutor who can add, amend, dismiss, or change the charges, the judge who presides over the case (aka the boss), and who sets bond, conditions and ultimately will determine things like jail, probation, ability to travel and have contact with others.
Our action plan involves the option of litigation, which means filing motions, setting a case for trial, or working toward resolution. Each case is unique, no case is the same, so this action plan will vary for every client I work with. Without the proper action plan, there could be false starts and loss of opportunity for daily impact on a client’s case.
Step #6 – Stakeholder Mapping
Getting out of the box requires valuing those around you, and their role in the situation. It requires a stakeholder analysis to assess the system you are entering and all the interested parties. This information is used to assess how the interest of each stakeholder should be addressed. Without proper stakeholder mapping, we leave our case open to blind spots; lose of opportunity to leverage change and avoid resistance forces against our desired change.
For a criminal case, a client begins with the least amount of power; the police had the power to arrest you, the prosecutor had the power to charge you, and the judge has the power of the court proceeding and your fate. Additional stakeholders are, but not limited to probation, named victims and witnesses, and any civil litigation parties.
A client who remains in the box and cannot see the developing ecosystem of stakeholders will not do well. Their court file will be a name and a charge in a filing cabinet, and the outcome of the case will be dragged down by the short and long-term liabilities of the four corners of the police reports and allegations.
An ecosystem is a biological community of interacting organisms and their physical environment. The components are linked together through nutrient cycles and energy flows; this is a wonderful description of what a criminal case is in Michigan.
As a client charged with a crime, we need to feed the prosecutor nutrients/currency of short-term and long-term assets to change the perception of the case. The energy flows with a judge and probation are determined by a client’s approach and mindset. A client who decides to stays in the box, or doesn’t realize they are in the box, and goes to court as a victim will have a very bad experience with a judge and probation; a client who goes in with a growth mindset with have a much better experience, be less anxious, more confident, and get a better result. Leading with empathy calms the waters on a client's case and can take down the stress levels tremendously.
Step #7 – Shareholder Mapping
In adopting The New Rules, shareholder mapping is different than stakeholder mapping, because it identifies those directly outside of your criminal case, but otherwise impacted by the case. Examples of shareholders in your case would be a spouse, family members, children, employers and employees, members of your community; the guiding principle is generally those who were already in your life before the incident occurred, or enter your life during your case, but not categorized as a stakeholder.
When charged with a crime, you are initially in the box, you tend to focus on these shareholders; you think about your family, your job, and those who may be impacted by your decision. If you run a business, you have employees relying on your ability to keep running a business. Shareholders are generally pre-existing relationships, but during a case and after, my clients develop new relationships with counselors, community service organizations, make new friends, or even exit relationships and enter new ones.
The expectation that a criminal case will bring complex change also means that a client’s life will evolve for the better during and beyond the criminal case. Shareholders are generally people who support your journey and can provide comfort and encouragement during complex change. People who are empathic for you, and support you during a difficult but manageable time in your life.
Clients are typically able to make a short list of shareholders in their success, but I encourage them to continue adding or deleting from this list along the way; when charged with a crime, some people may no longer support you, but new people will enter your life. People around us may find themselves in the box and vulnerable to judgment and a closed mind approach.
Employers may fire you when charged with a crime, a family member or friend may be disappointed. This could be viewed as a good thing; to filter out those who were not true supporters and could not handle the heat of a difficult situation. By adopting a growth mindset, we take a negative moment, and turn it into a positive detour; this life event happened for a reason. That job was not meant to be, or that family member or friend will either come around or they will not, and it’s for the best.
One major goal we set at a beginning of each criminal case is to turn the stakeholders (judge, prosecutor, probation etc.) into shareholders. By adopting a growth mindset, and leading with empathy, my clients can gain the support of a prosecutor, a judge and probation staff; actual praise, smiles, congrats and such at the end of their case. What better testament to growth than getting these stakeholders out of their own boxes, and to view the client as a human who will have ups and downs, but ultimately learns from their past.
Step #8 – Balance Sheet
The concept of a financial balance sheet in a criminal case is unique, but it helps a client visualize the good, the bad, the past and the future in a single document. For a balance sheet to balance, total assets should equal the total of liabilities and shareholder equity.
So how do we adopt this to a criminal case?
Let us start with liabilities; a liability is an obligation between one party, and another not yet completed or paid for. In the world of accounting, a financial liability from a previous business transaction or event. Sounds just like someone committing a crime in a community; when a crime is committed a transaction or event has already occurred and there is incomplete element to the outcome.
Simply, when you commit a crime, the judge, prosecutor, and probation’s job is to “do something” to you. There is an obligation to act against you; that is their role, the prosecutor charges crimes, and the judge protects the community.
In the financial word, there are current or short-term and non-current or long-term liabilities; same applies for the mindset of the judge, prosecutor, and probation. These stakeholders want to punish you for what you have done in the short-term, but also want, feel the need to send a message to prevent you from doing it again in the future; a criminal case has a short-term liability of punishment and long-term message to go along with it. A short-term liability can be punished with a weekend in jail, and a long-term liability can be punished with a criminal record for the rest of your life and years of probation.
In applying The New Rules of Empathy Defense, our liability column for our balance sheet we put the police reports, statements, evidence; the worst-case scenarios and outcome; most clients charged with a crime in Michigan, and their attorneys just make this single column; by simply focusing on the negative parts of a case would be a fixed mindset approach to criminal defense.
For our growth mindset approach, we create the next column, which is shareholder equity, and for our purposes in a criminal case this is going to be a client’s years on earth prior to the incident. This may include positive and negative things, but it is who you were in all facets of your life the moment before the alleged crime occurred.
Examples of shareholder equity would be in no order, your job, mental, emotional, and physical well-being, your family status and life, education, community involvement, your criminal history, your age, your immigration status, professional licenses, travel needs, military, security clearances, and many others. Things that would create empathy for your unique human life; yes, you're on the wrong side of the law, but the case doesn't define, these above things define you, and are at risk when you go to court for a criminal charge. Should these be ruined because of an isolated moment? No.
It matters to a prosecutor, judge, and probation who the person was right before the crime happened, but only if they are properly educated. If a client comes to a case with no prior record, a diagnosed mental health condition, a licensed teacher or nurse, a parent of three children, someone with an extensive criminal record, active in their community, unemployed, eighteen years old or eighty years old, this all matters in very different ways in adopting a specific approach to the case.
A lot of this shareholder equity goes into our action plan, but it starts with its position on the balance sheet. The formula of liabilities plus shareholder equity, now tells us we need to combine all the bad stuff of the present case, and all your equity; this will produce a different number for each client. The goal will be to balance things out, and have this column equal assets. Remember, your liabilities start a certain value, and it will go up or down depending on your shareholder equity. This means a less serious case with a first offender has in theory less assets needed to balance things out, but a more serious crime of a client with an extensive record must create more assets in comparison.
Based on what that number looks like, we now work on our asset column. Like liabilities, assets are both short-term and long-term. We assume that a client’s asset column is empty at this moment, and its our job as client and attorney to fill it up with the right mix, or as we will get into our client value chain. The short-term assets will be part of our diagnosis the why this happened, and our treatment plan. Items we put into place during the pendency of the case; while on bond, or even before going to court for an arraignment. These are proactive steps adopting the theory of “time value of money” as we will get into next; working on the why and putting the how and what into place on our own before it is ordered by one of the stakeholders in our case (judge, prosecutor, probation).
Long-term assets are important to address the long-term liability concern of our stakeholders; to address the question of what happens when the stakeholders are no longer actively involved and moved onto the next case. Is jail enough to protect the community in the future? Do we need to maximize probation? Do we need to brand the client a public criminal to warn others about them in your community?
Stakeholders struggle answering the question of; will this person learn anything? Will they be back committing the same crime, or did they address the underlying issue, and they are mindful and working on it moving forward? A short-term asset might be doing community service as a jail alternative while a long-term asset may be a commitment to long-term counseling.
Step #9 – Time Value of Money
This concept is widely accepted that there is a greater benefit to receiving the same amount of money now than it would be sometime in the future. In economic terms, a $100 today is worth more than $100 next year. This concept is why interest is paid on money in your bank account, or why you are charged interest to borrow money.
For a criminal case, the same concept applies. If you have committed a crime, and decide to adopt The New Rules of Empathy Defense, you will get yourself outside the box with a growth mindset and begin a series of proactive steps. Proactive steps in the present are worth more to stakeholders now they would be once ordered. Not only is it worth more to the stakeholders, but there is immense value in a client staying busy and better understanding their case from day one. A criminal case is stressful; clients cannot sleep, eat, drink or function because they are frozen in fear of the unknown.
By adopting a growth mindset, you work on your case every single day, which helps inside and outside the courtroom. Present value is created in the client’s mental and emotional state, which allows them to be a productive and active participant in their own case. Proactive clients are happier, more focused, and motivated to tackle each day of the case journey.
If I told a client two stories of two clients, and the first client sat at home and looked up scary outcomes on the internet, complained to anyone who would listen, and consistently worried about worst case scenarios, and the second client spent each day actively working on a half-dozen proactive steps, including understanding how they ended up in this case, and instead focused on best case scenarios, which would sound like a better path? Of course, it would be the second client, but clients and attorneys do not know how to compete in this criminal defense space. The key to the time value of money is adopting the right client value chain, which can be tailored to each specific client for their particular court, judge and charge.
Step #10 – Client Value Chain
Now that we understand the time value of money, we can hopefully agree that there is more value in present action than future action. We need to also consider the stakeholder mapping and acknowledge that we are powerless when a case begins.
Most clients go through a case as a series of orders and demands; they follow the next step handed to them by someone with real power; a police officer who arrested you, a prosecutor who charged you, and a judge who is about to send you to jail. Going back to step #1 and our core strategy; it is about being different, to change the status quo on how things have gone in the criminal justice system, and what I expect will continue with most attorneys and their helpless clients. The majority of criminal attorneys lead with a gun, a sword or another weapon; that creates hostility and a us vs them mentality with the prosecutor and judge. In reality, a prosecutor has limited resources to "prosecute to the fullest extend of the law" on only so many cases. By picking an early fight, you're on their radar. If you lead with empathy, hard work and common sense, you create options; you can always pickup your weapon later if needed, but leading with empathy can create amazing results for a client.
Adopting the client value chain is about being different. It is a deliberate set of activities and the steps we need to take to deliver additional value to a client’s case. A detailed set of procedures to work smartly, deliberately with a targeted focus on the exact court, judge, charge, and client to deliver maximum value. The goal is change, and we need the resources and action plan to bring about complex change.
When a client is charged with a crime, they enter an incredibility competitive ecosystem with little empathy, understanding or passion to understand each case. A client’s file is a needle in the haystack; and not only are you a needle, but you also just committed a crime; a crime against the community where the judge, prosecutor, probation, and court staff likely own homes and send their children to school. Talk about a stacked deck.
When people think of competition, they think aggression, fighting, passion, but most importantly they see two-sides, opposing teams or individuals on opposite sides of a sporting event, argument, or transaction. The criminal client who stays inside the box will adopt this type of competitive mindset. The client will see themselves against the prosecutor and scared of the judge. It is very natural to adopt this mindset as someone accused and charged with a crime. What a client and their attorney do not realize is for 99 plus percent of cases in Michigan, the hockey puck is already in the net, the basketball has gone through the hoop, the football through the uprights, the baseball over the fence and the golf ball is already in the hole.
Despite this reality, the client and attorney stay in the box, heck they build a fort; take a fixed mindset, become totally defensive minded, then look to engage the prosecutor and judge in an adversarial manner ignoring that the other team has not already scored. The evidence, facts the case are squarely against the client. The lawyer understands this, but believes they are being paid to start a fight, and they attempt to create value by picking fights and being difficult.
As a former prosecutor, there was no quicker way both personally and for my former colleagues to receive limited help or consideration than being a pain in the butt defense lawyer who had no reason for pick a fight. The best lawyers no matter how guilty or innocent their clients are will look to create value with the prosecutor, and work toward the proper result. Most prosecutors can spot the cases that need to be tried and will work with the attorneys to bring about a good and fair trial or make a very strong alternative proposal to resolve the case. If a lawyer is being difficult to be difficult, the lawyer will create very little value for their client, make the client upset, which will then push the lawyer to be even more of a pain in the butt, and in the end the client gets a stressful, anxious, and worse result.
Some cases should go to trial because the client did not break the law or there is a believe the prosecutor cannot meet the burden of proof, but most people set cases for trial, because they are frustrated and want to avoid the consequences of their actions. Clients who set trials to set trials have not fully explored creating value and hunting for the right solution, but it’s not there fault, they need The New Rules of Empathy Defense or a similar approach to inform them of every option. Many clients are frustrated in being charged, because they do not believe they broke the law, when once they understand the law, they realize they did break the law, but did not plan on it, or did not intend on doing it. I’ve heard it a thousand times, “I didn’t think I was over the limit”, “I offered to pay for the items I didn’t scan”, “I didn’t know that was against the law” etc.
My hope is that once a client is properly educated, they will stop acting like a victim, and prepare to tackle the case like an educated and informed citizen. If they cannot come to grips on reality stay in the box, these clients will look to blame others, avoid consequences, and want an easy button. I do not work with clients who are not realistic about their cases and the impact of those inside and outside their case.
A criminal case is not only about the client, but also within the context of the entire ecosystem. The good news for my clients is it does not really matter that they broke the law; I am able to have 100’s of charges dismissed or reduced each year, to keep people out of jail, keeping their driver’s license and thriving in their family and professional life.
When I tell a client that it is ok to be completely, caught red-handed guilty and really feel bad and regret what has already happened, and things are still completely manageable, it takes a giant weight and burden off their shoulders. It is time to put down the sword, and instead adopt the client value chain.
Guilty clients turn lapses in judgment and poor choices into the reason why they are successful in the future; criminal cases can be limited to short-term consequences if handled with a growth mindset. We want there to be long-term prosperity; it is amazing when a client tells me they are glad their case happened, because if it did not, X, Y and Z would not happen. Criminal cases in Michigan are manageable if a client is willing to get out of the box and adopt a growth mindset.
The client value chain is a step-by-step model that transforms the client’s complex change, core values and culture shifting to reality. It is the currency we use to engage our stakeholders (prosecutor, judge, probation) and show them the short and long assets in place for the client.
A client who remains in the box will show up in court and promise everyone that the same thing will not happen again. The definition of insanity is doing the same thing repeatedly and expecting a different result. This would be an insane approach to addressing your stakeholders in your case, but it is what over 99 percent of clients and attorneys do with a fixed mindset. If you don’t create change or understand how you ended up in court, the same thing will happen again; it may be a different manifestation, but nothing has intervened to make the next time any different. Adopting Simon Sinek’s Golden Circle approach, my clients focus on the why incident happened. Very few clients understand why they stole, why they got a DUI or why they got into a fight with a spouse; it is the reason you are charged with a crime.
Its extremely rare to see a client and attorney even know how to approach the crime charged; nothing about the old rules of criminal defense set those clients apart or compete for the stakeholder’s attention. The other 99 plus percent of people who are charged with crimes, focus on the what as in what they are charged with and what about the situation impacts them (I will lose my job, I need to drive a car). The stakeholders in a criminal case are not going to be moved hearing the what, because they have a stack of police reports and evidence to tell them the same thing; they may pay attention to the how you are uniquely approaching the case, but there will not be real change without understanding and educating the stakeholders on the why of the case. The New Rules focus on the why, before we even think about the how or what.
Step #11 - Measurement and Control of Client Performance
Our comprehensive action plan contains a lot of moving parts. My clients and I can have the best action plan and do all the hard work, but if we are unable to measure and provide proof of progress and change to the stakeholders then we will be unable to achieve all our goals for a criminal case. Our steps must be specific, measurable, achievable, and compatible with our goals.
When my clients and I agree on an action plan, we map out the steps, and the best practices for measuring and documenting each step. This requires a system that quantifies and analyzes our choices and growth. We call this measurement our growth system; it may contain test results, support group attendance, evaluations, counseling verification, certificates of completion and other measures.
A high functioning and reliable growth system are just a starting point; we also need a management control system to maintain progress, provide feedback and present the short and long-term assets to the stakeholders. A management control system is all about ensuring that everyone is "on the same page" in terms of implementing the strategy then ensuring stakeholder buy-in.
A client can execute the action plan, but if a prosecutor, judge, or probation are not willing to listen and learn about our growth then it will lack the intended impact. This means ensuring that the client value chain and our decisions are well planned and coordinated, and everyone is motivated, and open-minded to learn more about the client.
Many judges and prosecutors are now very familiar with my client’s proactive approach, and even expect it from my new clients (high bar set), but when I work with a judge or prosecutor either new or someone infrequent, our approach always takes them by surprise in a refreshing way but may not truly understand the whole package. There are methods that I employ in order to help drive home the impact and measurables. Leading with empathy is easy to understand, easy to measure, and the modern way to handle criminal cases in Michigan.
A well-designed management control system helps implement our core strategy and allows the client to maximize the new value created as part of the action plan.
Step #12 – The 3 R’s (Reset, Rebrand, Reward)
Think of the present-day Sears or Kmart; failing companies who will need a miracle to survive the next year or two. The condition of these companies would be an upgrade on the position in society that a client charged with a crime faces. These corporations have thousands of people and millions of dollars trying to save them, who do you have in your corner when a criminal case begins?
Most clients worry if they will survive the day, keep their job, support, and care for family, specifically children. Not even your closest allies can be relied upon to support you during a criminal case. I have had clients who lose the support of family members and fired from companies after decades of employment.
People do not want to be associated with lawbreakers, because they believe it says something about them or the company that employs a criminal. These folks are stuck in their own box, but their initial position is not unreasonable. A client who adopts a fixed mindset will be judged for the crime committed and may never escape that label. A fixed mindset ignores the possibility of empathy, and creates an unnecessary fight or flight mentality.
The New Rules of Empathy Defense are here to the rescue, and bring you the 3 R’s, which ultimately is a brand repositioning. The client is the brand, and the client needs a ton of help, but lack the thousands and people and millions of dollars to save them. Where do we start?
We need to break old associations and add new ones, which in business is much more difficult than simply starting a new brand. If current associations are strong and well established, it can be near impossible. The Marlboro cigarette brand used to be more about Shakespeare and the theater before the creation of the Marlboro Man brand image. The brand had to reinvent itself in order to survive.
Unfortunately, a criminal charge does have strong associations, but the key is to avoid them sticking; this is where the first of the R’s comes into play – the Reset. The Reset happens as soon as you see the incident as a sunk cost and avoid a fixed mindset. By sticking the police report and the evidence against you in quarantine, and isolated from the case, it allows you to focus on a growth mindset approach. If you choose to adopt a fixed mindset, the stink of that “committed a crime” association will never leave you.
Once in a growth mindset, the second of the R’s – the Rebrand can happen. Brand repositioning are changes made to what the customer, or in a criminal case, the stakeholders associate with your brand. The stakeholders expect a criminal to come to court, resist change, be difficult and abrasive, because they are on the defense.
People get away with driving drunk, stealing, fighting, speeding, and breaking the law more than they are caught. An arrest and criminal charges are a game of chance, but a judge and prosecutor also understand this dynamic. When arrested for a crime, the stakeholders in the case will say “you were finally caught” despite no record of previous bad actions. As a former prosecutor I understand this dynamic, which needs to consider in all strategy.
By using our balance sheet, we put use our shareholder equity to show the stakeholders the history of our brand, and why we have and can still bring value to society and those around us. Example being a hard-working, first time offender nurse; should this nurse be stripped of their professional license, and not help thousands of patients in the future due to an isolated moment in time? Not if we lead with empathy.
Every brand, company and person will at some point falter or detour from a successful path; we are after all human and susceptible to poor judgment. Like a successful company who has a bad quarter or losses money on a new product offering, us humans are going to break the law either intentionally or unintentionally, and not even know why we did it. In the rebranding stage, we are salvaging all the positive attributes of the brand (the brand equity) and adjusting and modifying.
We acknowledge that if a crime is committed there is short-term liability that may exceed the shareholder equity of the client. The case just doesn’t go away, because you’ve lived an amazing life prior to the arrest. The goal is to identify that overage and match or exceed it with creation of assets. Even if we tackle short-term liabilities, we still need to put in place assurances for the future. This is where we go beyond the painkiller and apply the treatment plan, and future vitamin regiment.
The third and final R – the Reward happens over the course of the case, not only at the end of a case. By adopting a growth mindset and understanding the time value of money, it allows us to have earn flexibility with the judge and prosecutor. Examples of rewards at this stage would ability to travel for work or pleasure, to see family members, to drive a car, to amend or change testing to better accommodate your schedule.
Going through a criminal case is not easy, and if a client adopts a fixed mindset and is not willing to engage in value and relationship building with stakeholders, then the case will be filled with anxiety, stress and frustration. When someone is charged with a crime, they have very little power, but over time, a client slowly takes back control of the case in the form of rewards, both small and large. Other rewards, and potentially the most sought after may be avoiding jail time, avoiding a criminal record, ability to drive a car, to return to your home to see your spouse and kids, and to avoid or limit court supervision.
As part of culture change and adopting core values, we strive to make long-term impact in a client’s life. I have had clients tell me at the end of a case or weeks or months later that they are grateful the case happened, because without intervention they would not have received the help they needed or made changes in their life; they are a better member of society, employee, employer, family member and friend, because of the fruits of their criminal case.
Step #1 – Core Strategy
When a client is charged with a crime in Michigan, the police, prosecutor, probation, and judge view each file as a name and a charge without a human connection. A client has brief interactions with many folks, but the perception of the case remains within the 4-corners of the police reports. The typical client and his/her attorney focus on what have already happened, and battle on a lopsided playing field where everyone is focused on a single incident. The case is viewed through a filter of guilt, conviction, and punishment.
The New Rules of Empathy focus on strategy, which is about being different. It means deliberately choosing a different set of activities to deliver a unique mix of value. My clients adopt a logical and consistent set of choices that generate and sustain long term competitive advantage in the criminal justice system. My clients are competing for the limited attention span of a judge, prosecutor, and probation department; to be more than just a name and a charge.
My firm is unique in that we focus on the WHY we do it; we do it because we believe a client should be judged on more than the 4-corners of the police report. A client should be judged on their past, how they handle the case in the present, and projecting the client’s future path. I’m passionate about giving the client the opportunity to make a true impression, versus the unfortunate first impression provided to those involved in the case. The typical attorney handling a criminal case for a client is fighting the wrong battles and using their limited time and resources on the wrong playing fields. We lead with empathy first and make it a goal to have the key players better understand my client; humanizing how and why the incident happened.
Step #2 – Fixed vs. Growth Mindset
Carol Dweck, author of Mindset: The New Psychology of Success, created the terms growth and fixed mindset. This distinction acts as the fork in the road for my clients who wish to adopt The New Rules of Empathy Defense.
Most clients charged with a crime in Michigan adopt a fixed mindset. They believe their case is static and stuck where it ended, with the police reports and facts alleged. They try to look innocent or be apologetic about what happened and have a doomsday approach. Fixed minded clients focus their attention on trying to dispute irrelevant parts of the case because they have a defensive, fight or flight mindset; they feel helpless in stuck in the mud; they are looking for that easy button or mulligan. A client with a fixed mindset would ignore feedback, see proactive efforts as fruitless and give up; they tend to adopt a victim mindset and want others to feel bad that they are now charged with a crime; they lack proper perception and understanding of their case in the context of others around them, which we will discuss as “the box”. A client with a fixed mindset ignores empathy and the opportunity to put a human touch on their own case.
A fixed mindset focuses on the sunk costs of a case, which is a cost, or in our case an event that has already occurred with no potential for recovery or change. This does not necessarily mean what happened must be true, because some clients are wrongfully accused or there is lack of evidence; the sunk cost nature is more the police reports and evidence when a case begins; we cannot change the allegations or the starting point of a case. There is no opportunity to say, “well I didn’t do this, so please stop charging me with a crime”. Clients believe the truth should automatically end the case, but that lacks proper perception and understanding of the other parties in the case.
What we do have is the opportunity cost of not doing anything. By adopting a fixed mindset for a case, focusing on the past, a client gives up the chance, or opportunity to put a comprehensive strategy in place for the present and future, which both helps the positioning of their case, and their overall mental and emotional well-being. Leading with empathy feels natural; it allows the client to be themselves; it allows them to scream from the hilltops that they ARE NOT A CRIMINAL, but in a planned and purposeful way.
Clients who are willing to adopt a growth mindset and The New Rules of Empathy Defense will view their case as a learning opportunity and believe that something better can come from the incident. The growth mindset embraces challenges, persistence in the face of challenging obstacles and see hard work and effort as a path to turning a negative moment into a foundational rock for their future success. A growth mindset client is open to criticism and acknowledgement that they broke the law and can be inspired by the success of others who have adopted a similar approach. A client adopting The New Rules of Empathy Defense will be encouraged by bright spots, and gain confidence that they too can have the same wonderful outcome as others who have adopted the proposed approach. A growth mindset requires stepping away from your individual position in the case and viewing the case from “outside of the box”, which is the next step.
Step #3 – Get of the box
Every client charged with a crime in Michigan begins with being “stuck in the box”; this too is literal as the client is handcuffed and put into a police car and eventually a jail cell even for a single evening. This phrase is more than a physical vehicle or jail cell, it refers to self-deception, which determines one’s experiences in every aspect of life, especially when charged with a crime in Michigan.
When arrested and charged with a crime, you are blinded to the true cause of the problem. People stuck in the box cannot see their problems; they assume it is something else, except the real problem. A person in the box sees things from a closed perspective; this person feels like a victim and it is unfair they are now facing these consequences. A crime they once thought should be punished by the law and society, is now, well different because they are charged with that crime. If Jane Doe committed the same crime then it’s a good law and proper punishment, but it should be different because I am now charged with that crime, and I have a job, kids, responsibilities etc.
If a client charged with a crime stays in that box, they will adopt a fixed mindset and are resistant to identifying the real reason they are charged with a crime. If a person is willing to embrace what is outside the box, then escape is possible.
The first step is to put yourself in the shoes of the others involved in the case, because it allows you to see your role in the conflict. Getting out of the box must be sincere and genuine or it will not work. You cannot decide to leave the box as a means to an end, such as a better result in your case without a sincere desire to make life changes.
To understand and adopt The New Rules of Empathy Defense, it’s important to understand that the judge, prosecutor, and probation are in their own boxes; viewing the client as a criminal with a name and a charge, but we cannot move them from their fixed mindset without taking the lead by getting out of our own box. Words alone will not carry us in court; in order to lead with empathy and a deeper understanding of the client's situation, we will need a comprehensive serious of tools to use during the case.
Step #4 – Culture and core values
If a client is willing to adopt the strategy of a growth mindset then it is time to set a “tone at the top”, identify a culture and establish core values for the handling of their case. For a client charged with a crime in Michigan, we need to decide on a vision of where they want to go, what they want to learn and create values and priorities for their case. We set standards of behavior both inside and outside the courtroom. As Duke Men’s Basketball Coach Mike Kryzewski said, “you cannot merely expect culture to be a natural occurrence; it has to be taught and made part of your everyday routine”.
For a person charged with a crime in Michigan, the default view of your case will be: bad person who committed a criminal act in our community, and they need to be punished. So, a person charged with a crime cannot expect anything else; the client needs to set their own culture, educate, and inform the prosecutor, judge, probation, and other case participants of this culture and make it part of their routine.
Famed leadership coach Jeff Jansen said “Your team's culture acts as your team's immune system. It quickly identifies and successfully eliminates the unhealthy attitudes and actions that destroy the health of your team. Without a healthy culture, expect your team to get sick and struggle to recover.”
A criminal client in Michigan needs to adopt core values to strengthen and direct their immune system; a fixed mindset approach or getting yourself back in the box during a case can destroy progress. I have had clients who start off well then slack off or do something puts the case in a negative light and it destroys all the hard work.
The New Rules of Empathy Defense may push clients to adopt these examples of core values in a criminal case in Michigan: accountability, honesty, strength, perseverance, empathy, growth, responsibility, generosity, recover, love, kindness, change, excitement, develop, reborn.
Step #5 – Complex Change
When a client is charged with a crime in Michigan, there are two paths for that client. The client can “stay in the box” with a fixed mindset or they can adopt a growth mindset. Even with the best intentions, change is not easy, especially when it is unclear what changes need to be made. You must acknowledge you’re in the box then be willing to learn how you ended up there, and how to avoid going back.
We need to address and answer six-questions for managing complex change. If we are missing any of the six, then change will be delayed or ultimately fail.
1. Do we have a case for change? When charged with a crime in Michigan, especially someone who has no criminal or a very limited criminal record, it is time to assess how you ended up on the wrong side of the law. Assuming committing a crime is not part of your daily life, and you did not plan to break the law, there is a case for understanding the WHY, with motivation to make changes in your life. Without a case for change, you end up at a status quo.
2. Do we have the vision? This goes back to our culture and core values or where the client wants to go, what they want to learn by creating values and priorities for their case. If a client lacks vision for their case, they will be left with confusion.
3. Do we have the skills to bring change? Yes, when I was a prosecutor in Michigan, I was not satisfied with what other criminal attorneys were doing for their clients, so I developed a comprehensive proactive program to allow my clients to tangibly help their case every single day. We will address this as part of the Client Value Chain. I designed the program to be customized for each type of crime, the specific court and for each individual client. Without the proper skills and game plan I bring to a client’s case, a client is left anxious each day on what they can do to help their case. I have witnessed other clients represented by other attorneys visibly questioning their lawyer “why didn’t we do X, Y, Z on our case together” when in court together.
4. Do we have the incentives to bring change? On the surface, someone charged with a crime would have a lot of incentive to do something, but most people charged do not view change in the proper context. The default incentive is to escape the situation as fast as possible, to pop the painkiller, and get in and out. A painkiller popper client tells a judge “I will never be back, I am sorry”. That goes in and out of the judge’s hear; you might as well have not said anything, because the judge is justified in viewing you as just as everyone else; you did not compete for their attention, understanding or true empathy.
To not compete is to adopt a fixed mindset; if we are to take a growth mindset, not only do we get better results (incentive) on the case itself, but we have a treatment plan in place to better the client’s life and set them up for success for the future (the vitamin).
We come to court able to tell the judge why this happened and seek empathy; we show what we are doing in the present and our plans for the future to not return to a similar situation. To show that a negative moment has been converted to a positive time of change. Without the right incentives, we are stuck with no change or gradual change, which is not helpful in the short window of a criminal case. Clients compete in a small window to create true impression; without success the entire case remains stagnant and sits on a foundation of guilt, conviction, and punishment.
5. Do we have the resource to bring change? Yes, just as we will have the skills, we will have the resources. Since my days as a prosecutor over a decade ago, I have refined a customized method for each client, which factors in the court, judge, type of offense, and our agreed upon goals.
I make the program easy to understand and follow and offer support and guidance along the way. I hold my clients accountable with agreed upon specific, measurable, achievable, and compatible goals. Without the proper resources, complex change can fail due to frustration. When a client is charged with a crime in Michigan, there mind is going a mile a minute, so the resources need to be easy to understand, follow and maximize. We cannot create a situation over system overload; I work with each client's schedule and lifestyle to make sure we accomplish the necessary tasks.
6. Do we have an action plan? Even with a case for change, the vision, the skills, the incentives, and resources, we still need an overall action plan. When I work with a client charged with a crime in Michigan, and we adopt The New Rules of Empathy Defense, we assess the case from the prospective of the prosecutor, the judge, and our own team goals.
We stay out of the box by understanding that our case involves many other participants, some with real power in the case, such as the prosecutor who can add, amend, dismiss, or change the charges, the judge who presides over the case (aka the boss), and who sets bond, conditions and ultimately will determine things like jail, probation, ability to travel and have contact with others.
Our action plan involves the option of litigation, which means filing motions, setting a case for trial, or working toward resolution. Each case is unique, no case is the same, so this action plan will vary for every client I work with. Without the proper action plan, there could be false starts and loss of opportunity for daily impact on a client’s case.
Step #6 – Stakeholder Mapping
Getting out of the box requires valuing those around you, and their role in the situation. It requires a stakeholder analysis to assess the system you are entering and all the interested parties. This information is used to assess how the interest of each stakeholder should be addressed. Without proper stakeholder mapping, we leave our case open to blind spots; lose of opportunity to leverage change and avoid resistance forces against our desired change.
For a criminal case, a client begins with the least amount of power; the police had the power to arrest you, the prosecutor had the power to charge you, and the judge has the power of the court proceeding and your fate. Additional stakeholders are, but not limited to probation, named victims and witnesses, and any civil litigation parties.
A client who remains in the box and cannot see the developing ecosystem of stakeholders will not do well. Their court file will be a name and a charge in a filing cabinet, and the outcome of the case will be dragged down by the short and long-term liabilities of the four corners of the police reports and allegations.
An ecosystem is a biological community of interacting organisms and their physical environment. The components are linked together through nutrient cycles and energy flows; this is a wonderful description of what a criminal case is in Michigan.
As a client charged with a crime, we need to feed the prosecutor nutrients/currency of short-term and long-term assets to change the perception of the case. The energy flows with a judge and probation are determined by a client’s approach and mindset. A client who decides to stays in the box, or doesn’t realize they are in the box, and goes to court as a victim will have a very bad experience with a judge and probation; a client who goes in with a growth mindset with have a much better experience, be less anxious, more confident, and get a better result. Leading with empathy calms the waters on a client's case and can take down the stress levels tremendously.
Step #7 – Shareholder Mapping
In adopting The New Rules, shareholder mapping is different than stakeholder mapping, because it identifies those directly outside of your criminal case, but otherwise impacted by the case. Examples of shareholders in your case would be a spouse, family members, children, employers and employees, members of your community; the guiding principle is generally those who were already in your life before the incident occurred, or enter your life during your case, but not categorized as a stakeholder.
When charged with a crime, you are initially in the box, you tend to focus on these shareholders; you think about your family, your job, and those who may be impacted by your decision. If you run a business, you have employees relying on your ability to keep running a business. Shareholders are generally pre-existing relationships, but during a case and after, my clients develop new relationships with counselors, community service organizations, make new friends, or even exit relationships and enter new ones.
The expectation that a criminal case will bring complex change also means that a client’s life will evolve for the better during and beyond the criminal case. Shareholders are generally people who support your journey and can provide comfort and encouragement during complex change. People who are empathic for you, and support you during a difficult but manageable time in your life.
Clients are typically able to make a short list of shareholders in their success, but I encourage them to continue adding or deleting from this list along the way; when charged with a crime, some people may no longer support you, but new people will enter your life. People around us may find themselves in the box and vulnerable to judgment and a closed mind approach.
Employers may fire you when charged with a crime, a family member or friend may be disappointed. This could be viewed as a good thing; to filter out those who were not true supporters and could not handle the heat of a difficult situation. By adopting a growth mindset, we take a negative moment, and turn it into a positive detour; this life event happened for a reason. That job was not meant to be, or that family member or friend will either come around or they will not, and it’s for the best.
One major goal we set at a beginning of each criminal case is to turn the stakeholders (judge, prosecutor, probation etc.) into shareholders. By adopting a growth mindset, and leading with empathy, my clients can gain the support of a prosecutor, a judge and probation staff; actual praise, smiles, congrats and such at the end of their case. What better testament to growth than getting these stakeholders out of their own boxes, and to view the client as a human who will have ups and downs, but ultimately learns from their past.
Step #8 – Balance Sheet
The concept of a financial balance sheet in a criminal case is unique, but it helps a client visualize the good, the bad, the past and the future in a single document. For a balance sheet to balance, total assets should equal the total of liabilities and shareholder equity.
So how do we adopt this to a criminal case?
Let us start with liabilities; a liability is an obligation between one party, and another not yet completed or paid for. In the world of accounting, a financial liability from a previous business transaction or event. Sounds just like someone committing a crime in a community; when a crime is committed a transaction or event has already occurred and there is incomplete element to the outcome.
Simply, when you commit a crime, the judge, prosecutor, and probation’s job is to “do something” to you. There is an obligation to act against you; that is their role, the prosecutor charges crimes, and the judge protects the community.
In the financial word, there are current or short-term and non-current or long-term liabilities; same applies for the mindset of the judge, prosecutor, and probation. These stakeholders want to punish you for what you have done in the short-term, but also want, feel the need to send a message to prevent you from doing it again in the future; a criminal case has a short-term liability of punishment and long-term message to go along with it. A short-term liability can be punished with a weekend in jail, and a long-term liability can be punished with a criminal record for the rest of your life and years of probation.
In applying The New Rules of Empathy Defense, our liability column for our balance sheet we put the police reports, statements, evidence; the worst-case scenarios and outcome; most clients charged with a crime in Michigan, and their attorneys just make this single column; by simply focusing on the negative parts of a case would be a fixed mindset approach to criminal defense.
For our growth mindset approach, we create the next column, which is shareholder equity, and for our purposes in a criminal case this is going to be a client’s years on earth prior to the incident. This may include positive and negative things, but it is who you were in all facets of your life the moment before the alleged crime occurred.
Examples of shareholder equity would be in no order, your job, mental, emotional, and physical well-being, your family status and life, education, community involvement, your criminal history, your age, your immigration status, professional licenses, travel needs, military, security clearances, and many others. Things that would create empathy for your unique human life; yes, you're on the wrong side of the law, but the case doesn't define, these above things define you, and are at risk when you go to court for a criminal charge. Should these be ruined because of an isolated moment? No.
It matters to a prosecutor, judge, and probation who the person was right before the crime happened, but only if they are properly educated. If a client comes to a case with no prior record, a diagnosed mental health condition, a licensed teacher or nurse, a parent of three children, someone with an extensive criminal record, active in their community, unemployed, eighteen years old or eighty years old, this all matters in very different ways in adopting a specific approach to the case.
A lot of this shareholder equity goes into our action plan, but it starts with its position on the balance sheet. The formula of liabilities plus shareholder equity, now tells us we need to combine all the bad stuff of the present case, and all your equity; this will produce a different number for each client. The goal will be to balance things out, and have this column equal assets. Remember, your liabilities start a certain value, and it will go up or down depending on your shareholder equity. This means a less serious case with a first offender has in theory less assets needed to balance things out, but a more serious crime of a client with an extensive record must create more assets in comparison.
Based on what that number looks like, we now work on our asset column. Like liabilities, assets are both short-term and long-term. We assume that a client’s asset column is empty at this moment, and its our job as client and attorney to fill it up with the right mix, or as we will get into our client value chain. The short-term assets will be part of our diagnosis the why this happened, and our treatment plan. Items we put into place during the pendency of the case; while on bond, or even before going to court for an arraignment. These are proactive steps adopting the theory of “time value of money” as we will get into next; working on the why and putting the how and what into place on our own before it is ordered by one of the stakeholders in our case (judge, prosecutor, probation).
Long-term assets are important to address the long-term liability concern of our stakeholders; to address the question of what happens when the stakeholders are no longer actively involved and moved onto the next case. Is jail enough to protect the community in the future? Do we need to maximize probation? Do we need to brand the client a public criminal to warn others about them in your community?
Stakeholders struggle answering the question of; will this person learn anything? Will they be back committing the same crime, or did they address the underlying issue, and they are mindful and working on it moving forward? A short-term asset might be doing community service as a jail alternative while a long-term asset may be a commitment to long-term counseling.
Step #9 – Time Value of Money
This concept is widely accepted that there is a greater benefit to receiving the same amount of money now than it would be sometime in the future. In economic terms, a $100 today is worth more than $100 next year. This concept is why interest is paid on money in your bank account, or why you are charged interest to borrow money.
For a criminal case, the same concept applies. If you have committed a crime, and decide to adopt The New Rules of Empathy Defense, you will get yourself outside the box with a growth mindset and begin a series of proactive steps. Proactive steps in the present are worth more to stakeholders now they would be once ordered. Not only is it worth more to the stakeholders, but there is immense value in a client staying busy and better understanding their case from day one. A criminal case is stressful; clients cannot sleep, eat, drink or function because they are frozen in fear of the unknown.
By adopting a growth mindset, you work on your case every single day, which helps inside and outside the courtroom. Present value is created in the client’s mental and emotional state, which allows them to be a productive and active participant in their own case. Proactive clients are happier, more focused, and motivated to tackle each day of the case journey.
If I told a client two stories of two clients, and the first client sat at home and looked up scary outcomes on the internet, complained to anyone who would listen, and consistently worried about worst case scenarios, and the second client spent each day actively working on a half-dozen proactive steps, including understanding how they ended up in this case, and instead focused on best case scenarios, which would sound like a better path? Of course, it would be the second client, but clients and attorneys do not know how to compete in this criminal defense space. The key to the time value of money is adopting the right client value chain, which can be tailored to each specific client for their particular court, judge and charge.
Step #10 – Client Value Chain
Now that we understand the time value of money, we can hopefully agree that there is more value in present action than future action. We need to also consider the stakeholder mapping and acknowledge that we are powerless when a case begins.
Most clients go through a case as a series of orders and demands; they follow the next step handed to them by someone with real power; a police officer who arrested you, a prosecutor who charged you, and a judge who is about to send you to jail. Going back to step #1 and our core strategy; it is about being different, to change the status quo on how things have gone in the criminal justice system, and what I expect will continue with most attorneys and their helpless clients. The majority of criminal attorneys lead with a gun, a sword or another weapon; that creates hostility and a us vs them mentality with the prosecutor and judge. In reality, a prosecutor has limited resources to "prosecute to the fullest extend of the law" on only so many cases. By picking an early fight, you're on their radar. If you lead with empathy, hard work and common sense, you create options; you can always pickup your weapon later if needed, but leading with empathy can create amazing results for a client.
Adopting the client value chain is about being different. It is a deliberate set of activities and the steps we need to take to deliver additional value to a client’s case. A detailed set of procedures to work smartly, deliberately with a targeted focus on the exact court, judge, charge, and client to deliver maximum value. The goal is change, and we need the resources and action plan to bring about complex change.
When a client is charged with a crime, they enter an incredibility competitive ecosystem with little empathy, understanding or passion to understand each case. A client’s file is a needle in the haystack; and not only are you a needle, but you also just committed a crime; a crime against the community where the judge, prosecutor, probation, and court staff likely own homes and send their children to school. Talk about a stacked deck.
When people think of competition, they think aggression, fighting, passion, but most importantly they see two-sides, opposing teams or individuals on opposite sides of a sporting event, argument, or transaction. The criminal client who stays inside the box will adopt this type of competitive mindset. The client will see themselves against the prosecutor and scared of the judge. It is very natural to adopt this mindset as someone accused and charged with a crime. What a client and their attorney do not realize is for 99 plus percent of cases in Michigan, the hockey puck is already in the net, the basketball has gone through the hoop, the football through the uprights, the baseball over the fence and the golf ball is already in the hole.
Despite this reality, the client and attorney stay in the box, heck they build a fort; take a fixed mindset, become totally defensive minded, then look to engage the prosecutor and judge in an adversarial manner ignoring that the other team has not already scored. The evidence, facts the case are squarely against the client. The lawyer understands this, but believes they are being paid to start a fight, and they attempt to create value by picking fights and being difficult.
As a former prosecutor, there was no quicker way both personally and for my former colleagues to receive limited help or consideration than being a pain in the butt defense lawyer who had no reason for pick a fight. The best lawyers no matter how guilty or innocent their clients are will look to create value with the prosecutor, and work toward the proper result. Most prosecutors can spot the cases that need to be tried and will work with the attorneys to bring about a good and fair trial or make a very strong alternative proposal to resolve the case. If a lawyer is being difficult to be difficult, the lawyer will create very little value for their client, make the client upset, which will then push the lawyer to be even more of a pain in the butt, and in the end the client gets a stressful, anxious, and worse result.
Some cases should go to trial because the client did not break the law or there is a believe the prosecutor cannot meet the burden of proof, but most people set cases for trial, because they are frustrated and want to avoid the consequences of their actions. Clients who set trials to set trials have not fully explored creating value and hunting for the right solution, but it’s not there fault, they need The New Rules of Empathy Defense or a similar approach to inform them of every option. Many clients are frustrated in being charged, because they do not believe they broke the law, when once they understand the law, they realize they did break the law, but did not plan on it, or did not intend on doing it. I’ve heard it a thousand times, “I didn’t think I was over the limit”, “I offered to pay for the items I didn’t scan”, “I didn’t know that was against the law” etc.
My hope is that once a client is properly educated, they will stop acting like a victim, and prepare to tackle the case like an educated and informed citizen. If they cannot come to grips on reality stay in the box, these clients will look to blame others, avoid consequences, and want an easy button. I do not work with clients who are not realistic about their cases and the impact of those inside and outside their case.
A criminal case is not only about the client, but also within the context of the entire ecosystem. The good news for my clients is it does not really matter that they broke the law; I am able to have 100’s of charges dismissed or reduced each year, to keep people out of jail, keeping their driver’s license and thriving in their family and professional life.
When I tell a client that it is ok to be completely, caught red-handed guilty and really feel bad and regret what has already happened, and things are still completely manageable, it takes a giant weight and burden off their shoulders. It is time to put down the sword, and instead adopt the client value chain.
Guilty clients turn lapses in judgment and poor choices into the reason why they are successful in the future; criminal cases can be limited to short-term consequences if handled with a growth mindset. We want there to be long-term prosperity; it is amazing when a client tells me they are glad their case happened, because if it did not, X, Y and Z would not happen. Criminal cases in Michigan are manageable if a client is willing to get out of the box and adopt a growth mindset.
The client value chain is a step-by-step model that transforms the client’s complex change, core values and culture shifting to reality. It is the currency we use to engage our stakeholders (prosecutor, judge, probation) and show them the short and long assets in place for the client.
A client who remains in the box will show up in court and promise everyone that the same thing will not happen again. The definition of insanity is doing the same thing repeatedly and expecting a different result. This would be an insane approach to addressing your stakeholders in your case, but it is what over 99 percent of clients and attorneys do with a fixed mindset. If you don’t create change or understand how you ended up in court, the same thing will happen again; it may be a different manifestation, but nothing has intervened to make the next time any different. Adopting Simon Sinek’s Golden Circle approach, my clients focus on the why incident happened. Very few clients understand why they stole, why they got a DUI or why they got into a fight with a spouse; it is the reason you are charged with a crime.
Its extremely rare to see a client and attorney even know how to approach the crime charged; nothing about the old rules of criminal defense set those clients apart or compete for the stakeholder’s attention. The other 99 plus percent of people who are charged with crimes, focus on the what as in what they are charged with and what about the situation impacts them (I will lose my job, I need to drive a car). The stakeholders in a criminal case are not going to be moved hearing the what, because they have a stack of police reports and evidence to tell them the same thing; they may pay attention to the how you are uniquely approaching the case, but there will not be real change without understanding and educating the stakeholders on the why of the case. The New Rules focus on the why, before we even think about the how or what.
Step #11 - Measurement and Control of Client Performance
Our comprehensive action plan contains a lot of moving parts. My clients and I can have the best action plan and do all the hard work, but if we are unable to measure and provide proof of progress and change to the stakeholders then we will be unable to achieve all our goals for a criminal case. Our steps must be specific, measurable, achievable, and compatible with our goals.
When my clients and I agree on an action plan, we map out the steps, and the best practices for measuring and documenting each step. This requires a system that quantifies and analyzes our choices and growth. We call this measurement our growth system; it may contain test results, support group attendance, evaluations, counseling verification, certificates of completion and other measures.
A high functioning and reliable growth system are just a starting point; we also need a management control system to maintain progress, provide feedback and present the short and long-term assets to the stakeholders. A management control system is all about ensuring that everyone is "on the same page" in terms of implementing the strategy then ensuring stakeholder buy-in.
A client can execute the action plan, but if a prosecutor, judge, or probation are not willing to listen and learn about our growth then it will lack the intended impact. This means ensuring that the client value chain and our decisions are well planned and coordinated, and everyone is motivated, and open-minded to learn more about the client.
Many judges and prosecutors are now very familiar with my client’s proactive approach, and even expect it from my new clients (high bar set), but when I work with a judge or prosecutor either new or someone infrequent, our approach always takes them by surprise in a refreshing way but may not truly understand the whole package. There are methods that I employ in order to help drive home the impact and measurables. Leading with empathy is easy to understand, easy to measure, and the modern way to handle criminal cases in Michigan.
A well-designed management control system helps implement our core strategy and allows the client to maximize the new value created as part of the action plan.
Step #12 – The 3 R’s (Reset, Rebrand, Reward)
Think of the present-day Sears or Kmart; failing companies who will need a miracle to survive the next year or two. The condition of these companies would be an upgrade on the position in society that a client charged with a crime faces. These corporations have thousands of people and millions of dollars trying to save them, who do you have in your corner when a criminal case begins?
Most clients worry if they will survive the day, keep their job, support, and care for family, specifically children. Not even your closest allies can be relied upon to support you during a criminal case. I have had clients who lose the support of family members and fired from companies after decades of employment.
People do not want to be associated with lawbreakers, because they believe it says something about them or the company that employs a criminal. These folks are stuck in their own box, but their initial position is not unreasonable. A client who adopts a fixed mindset will be judged for the crime committed and may never escape that label. A fixed mindset ignores the possibility of empathy, and creates an unnecessary fight or flight mentality.
The New Rules of Empathy Defense are here to the rescue, and bring you the 3 R’s, which ultimately is a brand repositioning. The client is the brand, and the client needs a ton of help, but lack the thousands and people and millions of dollars to save them. Where do we start?
We need to break old associations and add new ones, which in business is much more difficult than simply starting a new brand. If current associations are strong and well established, it can be near impossible. The Marlboro cigarette brand used to be more about Shakespeare and the theater before the creation of the Marlboro Man brand image. The brand had to reinvent itself in order to survive.
Unfortunately, a criminal charge does have strong associations, but the key is to avoid them sticking; this is where the first of the R’s comes into play – the Reset. The Reset happens as soon as you see the incident as a sunk cost and avoid a fixed mindset. By sticking the police report and the evidence against you in quarantine, and isolated from the case, it allows you to focus on a growth mindset approach. If you choose to adopt a fixed mindset, the stink of that “committed a crime” association will never leave you.
Once in a growth mindset, the second of the R’s – the Rebrand can happen. Brand repositioning are changes made to what the customer, or in a criminal case, the stakeholders associate with your brand. The stakeholders expect a criminal to come to court, resist change, be difficult and abrasive, because they are on the defense.
People get away with driving drunk, stealing, fighting, speeding, and breaking the law more than they are caught. An arrest and criminal charges are a game of chance, but a judge and prosecutor also understand this dynamic. When arrested for a crime, the stakeholders in the case will say “you were finally caught” despite no record of previous bad actions. As a former prosecutor I understand this dynamic, which needs to consider in all strategy.
By using our balance sheet, we put use our shareholder equity to show the stakeholders the history of our brand, and why we have and can still bring value to society and those around us. Example being a hard-working, first time offender nurse; should this nurse be stripped of their professional license, and not help thousands of patients in the future due to an isolated moment in time? Not if we lead with empathy.
Every brand, company and person will at some point falter or detour from a successful path; we are after all human and susceptible to poor judgment. Like a successful company who has a bad quarter or losses money on a new product offering, us humans are going to break the law either intentionally or unintentionally, and not even know why we did it. In the rebranding stage, we are salvaging all the positive attributes of the brand (the brand equity) and adjusting and modifying.
We acknowledge that if a crime is committed there is short-term liability that may exceed the shareholder equity of the client. The case just doesn’t go away, because you’ve lived an amazing life prior to the arrest. The goal is to identify that overage and match or exceed it with creation of assets. Even if we tackle short-term liabilities, we still need to put in place assurances for the future. This is where we go beyond the painkiller and apply the treatment plan, and future vitamin regiment.
The third and final R – the Reward happens over the course of the case, not only at the end of a case. By adopting a growth mindset and understanding the time value of money, it allows us to have earn flexibility with the judge and prosecutor. Examples of rewards at this stage would ability to travel for work or pleasure, to see family members, to drive a car, to amend or change testing to better accommodate your schedule.
Going through a criminal case is not easy, and if a client adopts a fixed mindset and is not willing to engage in value and relationship building with stakeholders, then the case will be filled with anxiety, stress and frustration. When someone is charged with a crime, they have very little power, but over time, a client slowly takes back control of the case in the form of rewards, both small and large. Other rewards, and potentially the most sought after may be avoiding jail time, avoiding a criminal record, ability to drive a car, to return to your home to see your spouse and kids, and to avoid or limit court supervision.
As part of culture change and adopting core values, we strive to make long-term impact in a client’s life. I have had clients tell me at the end of a case or weeks or months later that they are grateful the case happened, because without intervention they would not have received the help they needed or made changes in their life; they are a better member of society, employee, employer, family member and friend, because of the fruits of their criminal case.