I bought a car. Not recently, but some time ago. Car buying is not my strong suit.
Here's how it went.
I drop by the dealer and see a car I like. I'm dealing with the owner, and he's being good and personable. The sticker price is X but I don't want to pay the sticker price.
"How 'bout if I sell it to you for what I paid for it plus a hundred bucks?" the dealer asks. "I'll show you the dealer invoice." He does.
Sounded okay to me, after a moment's reflection, and I went for it. I was very happy with the car, which I kept for a decade. But I always knew I'd been had. I just didn't know how, not being familiar with the jungle into which I'd innocently wandered. Today you can look it up on the Internet, what the dealer gets from the manufacturer for selling to you. "Dealer cash," it's called. Today you have a better chance of finding out your negotiating cards. This means you have to do your homework, but at least you can now do it, certainly a lot easier than pre-Internet.
The next time I bought a car I read two books by former car salesmen. I got friendly with the salesman. I told him I was a lawyer, and he told me he was going through a divorce. I spent weeks buying that car, which I held onto for fifteen years, until it died, or I killed it, take your pick. You can't beat the curve of deteriorating rubber and failed seals, no matter how you try, unless you like paying for someone else to rebuild your car at book rates, piece by piece. Don't try it.
As I was leaving the dealership with the lovely car, the salesman said that if his divorce lawyer had negotiated for him as well as I had for the car, he'd've been in a lot better shape. That was a real compliment and I appreciated it.
In an earlier version of the above, my wife and I went into a dealer and picked out our first car. As we were signing the deal, the salesman said, "I have to tell you that the VIN plate on this car says it was built in the previous model year."
Why is he telling me this, I wondered? As stated, buying cars was never my game, but my mother didn't raise any idiots, either, as far as I'm aware.
So the wheels start turning. Last model year...why do I car about that? It's the same car. We've agreed on a price. We like the car. H'mmm...
The problem is that this conundrum requires that you imagine what the future will be like regarding this automobile, which you have never thought about. You have to imagine that some day you might wish to sell this car which you have your heart on buying, now, pen in hand.
When you sell this car, it will be one year older than you think it is. Your buyer may say, "But this car is six years old, not five; how about knocking the price down another $500 or $1,000?"
So my wife and I walked out of the dealership and never bought the car.
Reminded me of a time when Marie's parents wanted to buy a summer home near a lake so they could spend time with their grand-kids, which they hoped we'd produce. They mentioned this to a friend who told a real estate salesman who had us drive from the San Francisco Bay Area up to Auburn, east of Sacramento, where they took us up in a airplane so we could see the roads, the lake, the clubhouse, and the two or three homes already built on this development which consisted of hundreds of wooded lots. The roads were in. All you had to do was to build the house. Marie's father said he'd like to buy one, make that two, lots next door to each other. One for them and the other for us, I guess. We could walk out the back door of the yet to be built homes and take a swim in the lake with the kids, the ones they hoped we'd produce, and did.
The plane landed and we walked over to the clubhouse in which there was a room full of salesmen and their customers, just snapping up these lots. On the wall was a big diagram, a wall-painting, showing all of the hundreds of lots, all numbered, surrounding the lake. There was an airstrip. This place was big with airline pilots. Sales managers were seated behind the folding tables serving as desks. People were lined up, buying.
My father-in-law was seated at the table, pen in hand, ready to sign the purchase contract, when he turned to me and asked what I thought. I'd just been standing in line taking it all in.
"Who is going to oversee the building of this house?" I'd wondered, standing there. We live in the Bay Area, and this place was up in Auburn, a couple hours drive away. Not me. Not him. We both worked.
"Suppose you want to sell this place some day," I wondered, "is there going to be someone to take your buyer up in an airplane to show him how great this place looks from 2,500 feet? Will there be a crew of salesmen pumping up the pressure to buy today? I don't think so."
"Why don't we discuss this in the car on the way back?" I said.
Father-in-law put down the pen and we all thanked the salesman and left the boiler room operation. Reminds me of "The Sting." I don't know how many of those customers were real.
In the car on the drive back, we realized that we'd driven all the way to Auburn to see a home on a lake suitable to enter and go out back for a swim in the lake. Did we want to build that home, long distance, using local contractors? Father-in-law decided he knew better than that. Eventually they bought a nice condo up at Lake Tahoe and we all, including the kids who came along, enjoyed staying there.
The point of all this is that in life, you must deal with other people on important matters, and you won't know all that you need to know in order not to get fleeced. You can get tripped up by your own emotions: impatience, desire to get the negotiation over with, pie-in-the-sky visions of what the future will be like with this thing you're buying, etc.
Your dream is the car salesman's piece of iron.
Hollywood is dreams for you, at the movies. For Hollywood, it's asses in seats.
In court, for you, it's justice. For us, it's about disposing of cases, hammering out deals. You can call it what you like.
What do you need to know when negotiating a deal?
Whether you are buying a car, or a house, or making a deal with another attorney, there is what you know, and what you want to know but will have difficulty finding out. You should know what other agendas are in play, the unstated ones. At the car dealership, you're worried about the price of the car. The dealer is worried about his financing charges and dealer rebates, which are almost invisible to you, unless you do your homework. You need to be able to play him, just as you know he's playing you.
The weenie in the negotiation with the dealer who sold me the car for $100 over his purchase price (he showed me the papers, and for all I know they were genuine, having the vehicle i.d. already typed in on the invoice), is that I didn't know the game.
I don't doubt that the papers accurately reflected the dealer invoice price, i.e. what he paid. What I didn't know, but later learned, was that the dealers profit was not the hundred bucks he extracted from me to make the deal look advantageous to me.
The dealer profit lay in the manufacturer's rebate earned by the dealer for selling this car, and, in all likelihood, a number of other cars that month or year. That was the gravy for him, not the $100. Had I known the dealer's real cost, plus his rebate, we could have had a real negotiation. But I wasn't in that business and had no business entering that negotiation with that ignorance quotient.
On a cruise from Piraeus, the port of Athens, Greece, to the Aegean islands and then to Turkey, Marie advised that she wanted to buy a hand-woven carpet in Istanbul.
"What? We're aboard ship and now you tell me you want to negotiate for a carpet with an expert and we know nothing about buying carpets? We'll be shorn like sheep, the ones used to provide the wool for the carpet."
We get off the ship in Istanbul and into a bus en route to the carpet emporium. We are cherries, having never bought a carpet except from Macy's, where you pay what it says on the price tag.
The tour guide says the driver is taking us to this place where we'll be seated and offered coffee, tea, or raki, the local drink-this-and-you'll-buy-anything beverage. It will be impolite to refuse one of these beverages. A matter of local custom and hospitality. We don't want to offend the locals, do we.
The problem is that if you accept the hospitality and fail to buy, you are in worse trouble. Guilt feelings will attend you all your life.
"At this place, they will not haggle with you on price," the tour guide advised.
At last, a lie even I could recognize, even in a foreign country. Everybody knows that the rug merchant doesn't exist who won't haggle over price. Idiots know this. We knew this, and looked at each other, knowingly.
We sat down, watched the rug show (guys come out and display rugs), and refused the drinks. "Let's get out of this place," we said, and bailed.
Marie and I walked down the street, lined with carpet shops. "Wonder why they took us to this place?" we wondered.
We stopped in to another place and saw a ton of rugs, and had the salesman give us the book on carpets. The place you went to was booked last year with the shipping line, the bus company, and the tour guide, we were advised. They all get their cut of all sales. That explained why we were there and why the tour guide advised us against haggling. It reduced her cut.
I knew something about hand-woven carpets. From something I'd read, I recalled that a key ingredient in value was the number of hand-tied knots per square inch of rug. An 8' x 12' had a lot more knots than a 5' x 7.' It took the little girls and their mothers out in the village a lot longer to tie. They had to get paid for all that time.
Also, the design counted. Was it good looking. And the sharpness of the colors, whether the design elements bled into each other muddily, or were sharply delineated.
We saw some we liked and some we didn't, cheapos and good ones. We left.
We walked into the Grand Bazaar of Istanbul, a remarkable place of 4,000 shops under one undulating roof. All sorts of gold and jewelry shops. "Are you German? Australian? American? I have a cousin in America. Come in, have some coffee."
We walked back towards rug store number one, but went to the place across the street. Found a 5' x 7' Marie really liked. $3,500. Asking. We offered less. Sorry, can't sell for less. We walked out and shopped some more, and came back. $3,000. Walked out again. Came back. $2,500. The bus was parked outside, ready to pick us up at 4:00 p.m, taking us back to the ship. Time was 3:30 p.m. The closer we got to 4:00 p.m., the smarter we seemed to become. The only asset we had was the power to walk out, credibly, for good. We had the bus outside warming up as proof.
We continued to waste time, talking about maybe this rug, maybe that one. At 4:00 p.m. the salesman was going to see a couple of grand walk out the door, forever.
At ten to four we agreed on $2,300 and Marie, who was a travel agent, promised to tell all her friends about this great place.
They actually sent us the rug, as all you get is the claim check.
We love the rug.
A later client of mine was a rug merchant. He offered to appraise our new 5' x 7.'
"No thanks." I didn't want to know. We were happy with the rug. Felt we had done our due diligence, as much as we were able under the circumstances. We felt we'd paid a fair price and hadn't been taken. We didn't steal the rug and the salesman made his profit. Good for him. Beyond that we didn't want to know.
That was the way it should be.
When you go into the market to buy a car, a home, a carpet, a work of art, or a loan, you cannot just walk into the store and deliver yourself into the hands of an expert. You have to do your homework. At least some homework. Or hire an expert, like a realtor, to represent you. Or an attorney.
A friend of mine is an attorney. A good friend of ours is an auto salesman, retired. We call him our auto attorney, because he knows the business far more than we do.
Recently I needed to go into the car market to buy a car. I called my attorney friend who'd recently bought a car.
"I'm going to buy a car. I haven't bought a car in fifteen years. How do I prepare?" I asked.
He told me to start with CarsDirect.Com. He'd bought a car recently by getting a price quote from them. Went to the dealer, who offered the same car for a few grand more. "I have this quote from CarsDirect," he told the salesman. "We'll be happy to match that," he said. Sold.
When my son wanted to buy a car, I gave him the books from my previous foray. We went over the routines used by salesmen, such as how much do you want to spend, what color do you want (before you've decided on model or price) etc. Then we practiced walking out of the dealership. Unless you can admire a car you'd like to own and still walk out when the price is too high, you are asking to be taken.
In the fourth dealership, we bought a car the boy was happy with.
All this takes time, preparation, anticipation, energy, frustration, shoe-leather, etc. Eventually you buy a car that you don't steal (you're not going to beat the dealer in this game), and you are not going to buy the story (previously owned by the little old lady who only drove it to church on Sunday).
These are some of the things I've learned. When it came to the rug, I realized beforehand that my business as a lawyer was negotiating. I negotiate the value of cases every day that I'm at the Hall of Justice. The DA puts the price tag on the case. The defendant says "I'm not taking that." The haggling over the rug begins. There's a bus waiting outside. It leaves at four o'clock. We can buy the deal or get on the bus.
At the Hall, the bus is called The Trial. The other bus is the one the client get on that takes him to prison unless he buys the rug at three o'clock. Or the rug merchant, that's the DA, decides to take his money and run. I served as a DA for seven years before entering private practice, which includes a substantial amount of criminal defense since 1974. The defendant is worried about jail time. The DA is worried that his witness won't show up sober.
These differences of worry are what make for results we call Justice.
Funny game.
Justice is controlled by the balance of risk, a sliding scale indeed.
One of the recurrent themes of justice-work, either side, is that it is a human process prone to certain mistakes. Crimes of competition, they might be called. Overzealousness.
When I prosecuted a case in court, I had to win, or a bad guy would go free, which I couldn't allow to happen. There is a temptation to stretch an argument beyond what the evidence will bear. You discount competing evidence and aggrandize your own. You are selling rugs to jurors who may or may not buy what you're selling. Both sides do this, to a fault. There are other faults.
In criminal justice, a lot of the most serious, outcome-determining stuff happens off-stage, as in a Kabuki theater. Cops conduct interviews without videotapes, or tape-recorders, and when the defendant has been softened up through all sorts of psychological suasion, and is ready to confess, the tape recorder comes on, after the first run-through. Voluntary, knowing, and intelligent. Stand up in any court.
What happened to induce the confession?
Cop's word against the defendant's, and who's going to believe him? He just confessed.
You can read Scott Turow's recent non-fiction book on such faults, and their proposed remedies, or John Grisham's "A Case of Innocence" (look it up, this is memory). Or any number of other good works. Turow's is the result of his serving on the Illinois commission to investigate why so many innocent men were turning up on Death Row, only to be exonerated by undergraduates in the journalism program at a local university.
What was the matter with the cops, prosecutors, judges, juries, and appellate courts, that they all had to be shown up by undergraduate journalism students? Someone was asleep at the switch, it seemed. And if there, then why not here? Same game all over. Maybe we've been fooling ourselves a bit too much.
What you're going to find is that in the competitive business of law enforcement, and the tug-of-war that should be a criminal proceeding, things get overlooked, because it's a human process, and well, we humans are just full of flaws. We're impatient, lazy, disbelieving, believing, and just not prepared to put faith in yet another miscreant who we think is just lying to us to save his own miserable skin. This is usually the guy who it turns out is, just this once, telling the God's-honest-truth, which we ignore at our peril, of course, but life is too short to run down wild-geese, isn't it.
Justice depends on humans, and humans have two agendas, the ones we know about and the ones we've yet to discover. Witnesses make deals with friends, and cops, and sometimes prosecutors. These understandings are not always in writing. They just come about off-record someplace. They influence what people tell other people, such as to cops, DAs, and...juries.
This is the weenie in the criminal justice system, when there is a weenie, which is not always, but just enough to keep appearing in the newspapers every day or every other day, somewhere or other in this country of 300 million.
Don't the judges prevent these sorts of miscarriage of justice?
Are you kidding? Where do you think the judges come from? Trees?
They're former prosecutors. Or they consult colleagues who are former prosecutors.
They can't see these flaws because they and the flaws are part of the woodwork. Or the judges prefer not to. They're elected, after all. I know, not the federal judges, but there are far more state judges than federal.
We don't throw out cases because the constable or the witness blundered, usually. We work around the usual pitfalls. "Harmless error, in light of overwhelming evidence of guilt," the appeals court rubber-stamps.
I don't know what to do about this.* You can insist on videotaped confessions in the station-house. The preparatory softening up will then occur in the police car en route to the station. The cops will ask the person they want to encourage to cooperate if he'd like to get a cup of coffee before going downtown. Off camera.
The justice system depends on what happens off camera, off stage.
Most claims, civil or criminal, are never tried. There aren't enough courthouses, judges, bailiffs, and court-reporters to try all the cases. Fact is, you can't get to trial before going through a process of mediation, arbitration (in a lot of routine civil cases, such as accident claims). You'd be wasting a courtroom. Those get saved for cases that won't otherwise settle. Cases are costly to try, and involve a lot of risk of loss. Both sides have something to risk.
A bad peace is better than a good war, we say.
That's how it works.
They don't teach you this in law school.
The miracle is that the system works as well as it does, to take the bright side for a moment. We run hundreds of thousands of criminal cases through the system (fifty states, innumerable counties, many federal districts and circuits) every year.
Yes, there are mistakes.
Yes, constant vigilance is required.
Yes, there is not enough money to prosecute and defend.
Welcome to the world.
We do the best we can and trust our colleagues to act in good faith. Like Reagan, we "trust, but verify." He threw that Russian proverb at Gorbachev, a lot. Gorby folded, as I recall.
When they our colleagues play fast and loose, we call them on it.
What's the key?
The key to criminal justice is a competent investigation.
That means one that is conducted with integrity.
Integrity means leaning over backwards to ask whether you might be wrong, just this once.
Integrity means not fooling yourself. And remember, you are the easiest person to fool.
Why are you the easiest to fool?
Because you want to believe. That's the set-up. As soon as you want to buy the car, you are a patsy for a salesman, or a for the person claiming to have the information you need to win your case, who will tell you what you want to hear...for a price...a little consideration down the line.
As far as I can tell, this is how it works.
So whether you are buying cars or justice, there is what you know and what you need to find out.
This is a never ending process. But the criminal process must end sooner, rather than later. The next case is coming up. The bus is about to leave, today. Fish or cut bait. So there is this inevitable lag between the real and the ideal. The sour results show up in the newspaper, every day, somewhere.
Good luck, and keep a sharp eye peeled.
They didn't teach me this in law school.
A few paragraphs above I said that I don't know what to do about this. Maybe I do. Maybe it's practical, maybe not.
To make our system work, good people are required, people who have enough insight, judgment, self-discipline, and supervision, and oversight, that they are able to control the competitive urge and behave with the integrity that we all hope to see when it's our case that's in issue, as well as the next guy's. Constant supervision is, like good investigation, a matter of what goes on inside the heads of the players, regardless of the amount of treasure available to fund proper behavior. Yet it is essential.
Every jurisdiction in America, as in the world, is different, in the sense of having a different "corporate culture," only it's the legal culture we're talking about.
San Francisco and San Mateo Counties, where I practice, mainly, are foreign countries.
San Francisco has bail. San Mateo has high bail.
San Francisco has a Public Defender. San Mateo has a Private Defender system.
One friend familiar with both has the strong opinion that the San Francisco system puts more pressure on judges and prosecutors to behave with the neutrality and respect for the rights of the accused than San Mateo does.
His view is that the judges in San Mateo are afraid of the DA, politically.
How so?
The judges want the DA's endorsement, come election time, so they can appear tough on crime. They can't obtain this endorsement by ruling against the DA too often.
And so it goes...
This is a tall order, getting all those things right, things that mostly occur inside the heads of the functionaries before they appear in open court of record. Justice takes a lot of people doing the right thing in concert and in opposition to one-another.
In my experience cops, probation officers, DAs, defense attorneys, and judges all want to see justice done. All are driven by different, clashing agendas, however. We all know what they are, generally. It's making the necessary adjustments that is difficult.
If it's true that a great deal of what passes for criminal justice occurs off-stage, Kabuki-theater-like, it's even more true that an additional great deal of what passes for criminal justice occurs inside the heads of police, prosecutors, defense counsel, judges, witnesses, and jurors. Maybe even parties. Especially parties, but why don't we stick to the priests of the system, the officials, public and private.
This is the hardest to police. It is true that what we think often shows itself in the open, but not always. There's what we don't disclose because we don't have to. There's the natural bias of a system dedicated to bringing wrongdoers to justice.
Do the children of lawyers become lawyers? Or engineers?
Are the laws of humanity any more tractable than the laws of nature?
What do the sons of engineers become?
Lawyers, probably.
If you'd like to read further on criminal justice, see the new Earl Warren biography, Justice For All, Earl Warren and the Nation He Made, by Jim Newton, a Los Angeles Times editor (Riverhead/Penguin, 2006). It seems reasonable to conclude that the reforms in criminal justice that the Warren Court is know for were the result of personal experience in the real ways of prosecution during the 1920s and 1930s in Oakland (Alameda County), where Warren was DA.
For a longer view, see The Tyrannicide Brief, The Story of the Man Who Sent Charles I to the Scaffold,
by Geoffrey Robertson (Pantheon, N.Y., 2006). Wait until you see how a criminal defendant fared in the days before they had defense attorneys, and the scaffold was right outside the dock, the place for prisoners during trial. The dock was a pen outdoors in London, for the prisoners stank so badly from being kept downstairs in the stony lonesome. The rights of Englishmen? They were a long time in developing. We, of course, take our notions of justice, and criminal procedural rights, from these trials. They are hard-won. The last thing we should ever do is give them up lightly because we are afraid and our president says we must in order to be saved. Better not to be saved, imho, as the cure is worse than the disease. Sometimes you need to take a bit longer view.
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