Roughly nine in ten criminal cases in Harris County end in a negotiated resolution rather than a verdict. That makes negotiation the most important skill a defense lawyer has — and the one clients understand least. Brian Foley explains it from the prosecutor's chair in this video.
What the prosecutor is weighing
- Provability. Can the State actually win at trial? Weak identifications, uncooperative complainants, suppressible searches, and bad video all lower the number.
- Seriousness. The charge, the injury, the loss, and whether a weapon was involved.
- The defendant. Criminal history, or the lack of it; employment, family, education; mitigation completed since the arrest.
- The complainant. In assault and theft cases, what the complainant wants carries real weight — though not a veto.
- Resources. A prosecutor with two hundred cases cannot try all of them; a case that will be a hard trial is worth resolving.
Where the defense gets leverage
Leverage is the credible prospect that the State loses something by refusing. It comes from discovery that exposes a weakness, a motion to suppress set for hearing, a witness the defense has found and the State has not, mitigation the prosecutor cannot ignore, and — most of all — a lawyer the prosecutor believes will try the case.
The supervisor
Line prosecutors in Harris County have limited authority. Reductions below certain levels, dismissals, and diversions often require a chief's approval. A defense lawyer who knows how to frame a request so the line prosecutor can sell it upstairs gets more than one who simply argues.
Timing
The first offer is made from the offense report. The best offer is usually made after the video has been reviewed, the motions have been filed, and a trial date is real. Read why the first offer is a starting point.
The client's decision
Every offer is presented to the client with an honest assessment of the alternative. The lawyer negotiates; the client decides. Brian Foley and Luis Baez made these offers as prosecutors and know what the State will actually do. Call or text (713) 703-1718.