Michigan Embezzlement Lawyer - The Realities of Defending the Case

December 9, 2013

As a Michigan embezzlement lawyer, I have a somewhat unique criminal practice. Unlike the more "traditional" criminal attorney who handles a wide range of cases, I concentrate in just a few sub-specialties, one of which is embezzlement. I believe that in order to effectively handle an embezzlement case, a lawyer has to understand the client's side of things every bit as much as he or she must know the law. Unless the evidence in a case is so completely lacking that the Judge is about to dismiss it for being so weak, it becomes imperative for me to get the prosecutor and the Judge to see my client's side of things, as well. This is a difficult, but necessary task.

Let's be clear about that; there isn't exactly a large pool of sympathy to tap into for a person charged with this crime. If a lawyer simply accepts that as the whole reality and tries to plow forward anyway, he or she will have little or no chance to make things better for the client. This is a key point for me. While being "tough" and "aggressive" are necessary qualities to being an effective criminal lawyer, they are far from enough, and even farther from being the most important, in the typical embezzlement case. A bouncer at a bar is tough, but you wouldn't place your future in his hands. A used car salesman is normally aggressive, but that same skill makes him little more than annoying.

Real World 1.2.pngBy contrast, intelligence, experience, skill and tact are far more important qualities to successfully resolving something like an embezzlement case than just being "tough" and "aggressive." This is particularly true when a person (or a lawyer) thinks those are the best terms to describe him or herself. Here, you need the finesse of a skilled tactician rather than the bang of a dull hammer.

In that regard, it is usually the first order of business for me, in resolving an embezzlement charge, to blunt, or soften, the intensity of the ire normally felt by the victim that in turn is incorporated in the prosecutor's case. In other words, I have to calm things down a bit. I have to "mediate" things so that my client gets through the case intact. Most of all, I have to keep my client out of jail. When these cases start, the police and prosecutor's side is usually a bit "hot." I need to cool things down before we start off.

To be sure, some embezzlement cases "sound" strong, but lack enough evidence to convict a person. In those cases, fighting, and being "tough" and "aggressive" are important. However, one of the ironies of my practice is that, despite having published a number of articles that clearly advise anyone contacted by a detective (or a company lawyer, or loss prevention officer, or anyone asking questions, for that matter) to simply exercise his or her right to remain silent, many people find me, and those articles, after they've spoken to someone, or even written out a statement. While these admissions are not necessarily carved in stone, the reality is that they often come in circumstances where the other evidence is pretty strong, anyway.

If you're reading this and you've already admitted to something, you can take comfort in the fact that, in all the countless Michigan embezzlement cases I've handled, I've never had one where the only, or even the best evidence was the person's own statement or admission against self-interest. In other words, while it's better to remain silent, I've never seen anyone get convicted ONLY because he or she admitted something. Even so, if you haven't yet been charged, do yourself a favor and don't say anything. Often enough, I'm hired early on and I can be the "heavy" who asserts my client's right to remain silent to the police, or other inquiring party. This is one less uncomfortable thing my client has to deal with.

Thus far, we've seen that if the case, really meaning the evidence, is weak, then standing and fighting and being "tough" and" aggressive" are necessary qualities. If the evidence in the case is simply "good enough," much less strong, then a more intelligent approach is required. This brings us back to square one: facing the charge. Unless the case can realistically be won through trial, a favorable outcome will have to be negotiated. As noted before, it becomes important for me to get the whole dimension of my client's side of things into the picture. This may sound strange, so let's explore what I mean, and why it is so important.

After having helped innumerable people charged with embezzlement, I have yet to meet the person who is evil, or who hatched some nefarious scheme to get rich at his or her employer's expense. This really cuts to the heart of the problem, because to the police and the whole criminal justices system, an embezzlement case just seems to "add up" to systematic stealing. My clients are people who come in with very heavy hearts, and feel horrible about what has happened. There are countless ways these things happen, but most often, they start small. It is common for a person caught up in an embezzlement situation to have resolved, at least early on, to pay things back, or otherwise "make it right." Life, however, has a way of getting in the way of life, and things happen. Fast forward any number of months, or even years, and a person may have come to rely upon his or her diversion of money just to get by. In other cases, a gambling, or even a shopping problem underlies what is classic addictive behavior. Curiously, I almost never see substance abuse issues as any kind of underlying pathology in embezzlement cases.

The larger point is that I've never had a client come in driving a Porsche bought with the embezzled funds. Most people who find themselves in this predicament do, in fact, truly get "caught up" in a situation that they never intended to create. The difficulty, which the reader no doubt appreciates, is that when I wind up sitting across the desk from and speaking with the detective or the prosecutor, they have little interest, at least early on, in "the other side," meaning the client's side, of things. The detective has undoubtedly spent much time with the victim (usually the employer) and had to deal with a boatload of anger and shock. These cases never arise from something like a simple misunderstanding about a loan gone bad. Instead, the underlying fact of most embezzlement cases is that the employer's money was diverted and its trust broken.

All this angst gets squeezed into a police report, often accompanied by various degrees of "forensic accounting" (this may include hundreds of pages of copied checks or other evidence trails, that, once found, can go on rather far) that then gets forwarded to the prosecutor, who will typically have met with the detective handling the case (and perhaps even the victim) and reviewed things him or herself. At the earliest stages, the victim's emotions usually transfer, at least in part, to police in prosecutor, in very much the same way that I absorb some of my client's.

As an embezzlement case begins, I have to stand strong, and often alone, kind of like a distant figure on the railroad tracks as a roaring locomotive approaches. My job, right out of the gate, is to slow the momentum of the criminal charge, and charge here is meant in both senses of the word. This is, in part, what I meant about having to calm things down a bit. In most cases, this is exactly where being "tough and aggressive" is completely useless. As we noted before, if there is something to fight about, particularly if there is a fight we can win, then standing up and holding strong is the appropriate course of action. However, when the evidence is strong, (and if an admission has been made), then diffusing the intensity of the prosecutor's side of things and avoiding a fight is really the first order of business. No one who understands the first thing about diplomacy and negotiation would ever want to negotiate with someone who is mad. The only way to make a mad person happy is to give him or her everything they want, and even then that's not usually enough.

Instead, tempers have to cool. That typically means buying some time. Sometimes, that's accomplished by holding out and standing strong, which is essentially a more cerebral version of being "tough." There is, of course, a major element of leadership here. For all the talk of being diplomatic, none of that can come at the cost of being passive and letting the other (meaning the prosecutor's) side control the case. Think back to my analogy about standing on the railroad tracks; that's done to get the train to slow down and stop. In a real life court case, each side will jockey for control. While that can be done politely, it is imperative to never cede that position to the opponent. This very topic could be the basis of training manual for lawyers; it is sufficient here to note that one either understands this, or not, and if not, then one is in for a career of nothing more than going along for the ride.

Eventually, serious negotiations will begin. Usually, but not always, this is better done later, rather than sooner, for obvious reasons. This is when I have to "humanize" my client. Again, this is something that, as a lawyer, one either understands, or not. This is how diplomats manage to end wars and get sworn enemies to stand down and give things up and then shake hands. This is not a skill you can learn; you either have it, or not. If you have it, then experience certainly refines it. In my case, as years of experience has grown into decades, those skills are as much intuitive as anything else. This culminates in dealing with each situation differently, because the dispositions of the various parties involved will inevitably call for different approaches to resolve the outstanding issues.

One issue that is front and center of every embezzlement case, however, is money. Above and beyond all the intellectualizing about these cases, the old saying that "money talks and BS walks" is axiomatic. The prosecutor wants, more than anything else, to get its victim's money back...

In most cases, that simply cannot be done right away, and in many cases, it probably can never be done completely. That's just a reality, but it is an important reality with which both sides have to contend. If I can negotiate even a partial payment, particularly an up-front lump sum payment, then I can usually get more for our side from the prosecutor. In cases where repayment will take a long time, or is just not fully possible, I have to "condition" the other side for that. Here we circle back to the proposition that you never want to negotiate with anyone who is mad. How exactly this is done depends on the particular circumstances of the case, but it must be done.

At the point where discussions of money become relevant, discussions about avoiding jail or prison time become relevant, as well. There are plenty of cases I handle where the possibility of going to jail is small to almost non-existent. One thing that has stuck me is that in my own tour of the internet, it seems a rather common practice for some lawyers to call attention to the worst-case scenario consequences and then go on to reassure the person they've tried to scare nearly to death that things will be okay if you hire them, because they are particularly "tough" and "aggressive." "Experienced" might be thrown in, for good measure, as well. As we've already noted, though, these situations require finesse, and not a dull hammer.

Many of my embezzlement cases measure in the multiple hundreds of thousands of dollars. In most cases, full repayment may be the goal, but it's not likely to happen. Despite that, I have to negotiate for my client's freedom. Now the whole idea of calming things down a bit, and slowing the momentum and waiting until tempers cool in order to avoid negotiating with anyone who is still mad should begin to make more sense. Again, underneath all of this analysis, it very often comes down to the prosecutor negotiating for money, and me negotiating to avoid incarceration. Unfortunately, most of the time, I have to do this without all the money, and sometimes when there is little to no possibility of ever being able to repay it all, anyway. Here, I have to remind the prosecutor that it makes no sense to let anger ruin another life, or even lives, if my client is married and/or has a family. This can take some doing, and requires much finer skills than anyone who defines his or her best qualities merely in terms of being "tough" and "aggressive."

Embezzlement cases are serious concerns, and anyone facing such a charge should take care hiring a lawyer. Finding the right attorney takes a lot of work. Reading what the lawyer has written on this subject is important, of course, but it is even more important to read between the lines, so to speak, and cultivate a sense of the lawyer's real understanding of the numerous dimensions and dynamics at play in a Michigan embezzlement case as well as his or her overall approach to it. If you, or someone you know is facing an embezzlement charge in Macomb, Oakland or Wayne County, and you're looking for a lawyer, please feel free to contact me or, better yet, call my office (586-228-6523) with your questions.