Tales & Trails of a Traveling Wiseguy

Yesterday I wrote about the business plan Jimmy McGill uses as Saul Goodman in season 5 of Better Call Saul. He makes defending petty criminal cases more profitable by churning through them quickly. Some might say, "Oh, that's quality, not quantity." I purposefully did not use that phrase because it's not clear that Jimmy is depriving his clients of quality representation.

The main way that Jimmy pushes through a higher volume of cases is by aggressively seeking plea bargains. But that's actually normal. Despite how the legal system is depicted in police- and courtroom procedurals on TV like Law & Order, most criminal cases are settled by plea bargain arrangements.

How many is most?  In a quick web search about how criminal cases are settled, I found a study from the Department of Justice saying that "over 90%" of criminal cases are resolved via plea bargain. Cornell University law school says 95%. The American Bar Association says 95% of state criminal cases and 98% of federal cases.

Thus, if wheeling-dealing Saul gets plea bargains for 19 out of every 20 defendants— 95%— and only goes to trial with one case in 20, he's he's doing exactly what the legal profession as a whole does.

And plea bargains do benefit defendants. The defendant is offered the opportunity to plead guilty to lesser charges, with lesser punishment, than they might otherwise be convicted of at trial. This is especially important in Jimmy's/Saul's cases, because he's defending people whom he knows did the crime. And they're generally not smart criminals, as they crimed in ways that left evidence and witnesses to help convict them.

So why does the system want to plea-bargain down these offenders? That's because it benefits the system, too. The prosecutors save time not going through a full trial. It's a win for them because they get a conviction against a small-time offender with less effort, freeing them up to spend more time on cases against people who committed bigger crimes. The courts avoid being clogged up with minor cases, too, keeping space open in their limited dockets for defendants (and plaintiffs!) who wish to go to trial. And ultimately the people, particularly we as taxpayers, benefit because it's our money being spent to otherwise tie up a courtroom and all its legal staff for days or weeks at a time prosecuting potentially minor offenses.

If there's a way in which Saul is depriving his clients of quality representation it's that he's pulling risky stunts— and sometimes illegal actions— to defend them. These could blow up and possibly harm the client's interests if they were discovered. Though so far they haven't. Saul keeps getting away with it!

What are some of Saul's tricks, BTW? Well, in one of the early-season scenes he hires his university student film crew to pose as TV news interviewers. They ambush one prosecutor with a fake "gotcha!" story about an innocent person being prosecuted. Among other things, the stunt seems to intimidate the prosecutor. He may be on his back foot whenever Saul is the opposing counsel in a case.

Another prosecutor, who made clear she is not intimidated by stunts— the one Jimmy orchestrated a hilarious letter-writing campaign against— tries to slow-walk Saul's negotiations to blow up his business plan of closing cases quickly. He plots a scam with an elevator repairman to cause the courthouse's elevator to get stuck for 20 minutes while he's in it with her. Out of boredom and frustration at time being lost— because the prosecutors are juggling dozens of cases, too— she agrees to negotiate.

It's worth noting that this prosecutor isn't being 100% ethical. By slow-walking Saul's cases because she dislikes Saul she is hurting not just Saul but all the defendants he represents— people who are a) presumed innocent until proven guilty and b) have the Constitutional right to a speedy trial.

These types of dirty tricks don't rise to the level of crimes. Not crimes worth prosecuting, anyway. But in ep. 5.03 Saul does commit a crime in representing a defendant that could get him thrown in jail. Under duress from a drug gang he ran afoul of early in the first season he accepts payment from a gang leader to instruct a low-level dealer in jail to give a false story to police investigators. Though from the client's perspective, "S'all good, man!" because he avoids prosecution with likely a multi-year sentence upon conviction.