As published in The Chicago Daily Law Bulletin
I recently sat down with a cop, a PD, a States Attorney, an AG and a judge to discuss negotiation and the use and non-use of power. Their opinions were remarkably consistent.
That’s because “they” is one guy—Hon. Dan Gillespie, currently sitting in Law Motions. He’s done virtually every job in the system and loved them all. “Every day was so good. And it went so fast.”
I recently sat down with a cop, a PD, a States Attorney, an AG and a judge to discuss negotiation and the use and non-use of power. Their opinions were remarkably consistent.
That’s because “they” is one guy—Hon. Dan Gillespie, currently sitting in Law Motions. He’s done virtually every job in the system and loved them all. “Every day was so good. And it went so fast.”
His stories could fill five columns. He teaches us that power withheld may be far more powerful than power wielded.
“I was a 25-year-old rookie in the 18th District. I was assigned to a partner more than twice my age. And I was eager to go out and make arrests.”
Gillespie soon found that being the toughest, hardest-charging bull in the china shop was not always the best way to handle every situation.
“We responded to a call of a disturbance at a swank restaurant just off Michigan Avenue. Two prosperous looking customers appeared to have been drinking, got into an argument. One gentleman accused the other of having hit him. I just wanted to arrest the customer in question, simple enough.
“The matter was resolved without an arrest. I learned from my partner, John, there was more than one way to resolve a dispute.
“He was always courteous to people, always polite. Basically, he would listen to them and solve it short of an arrest.
Gillespie watched and learned.
“I never knew him to pull a gun, or use handcuffs. If anybody cuffed, it would have been me. He’d just say to me, ‘All right, kid. All right, Junior.’
“I learned my greatest power was the power to arrest or not. That was my power as a patrolman.
“That decision gave me power to leverage a successful outcome to many negotiations. And I learned that the greatest exercise of power doesn't necessarily come from its application but from the possibility of applying it and doing something less.”
Amazingly, Gillespie went to law school at night while he worked as a cop while he was also in the army reserves. After graduating, he became a public defender. Now, he used his knowledge for the other team.
His old buddies didn’t think he would really do it. “‘Of course, Danny, now that you're a public defender and you were a policeman, you'll plead them all guilty, right? Because you know they did it, right?’
“I was defensive about that at first. But then, I started talking about the Fifth and Sixth Amendment, the right to trial, the right to be proven guilty beyond a reasonable doubt, the right to counsel, and I got so animated about it, they wished they never asked.”
He used the principles he had learned as an officer. Just as he didn’t have to arrest people to get the best outcome, he found he could most often do best for his clients without trying their case.
Gillespie calls negotiating as a PD a good example of principled, interest-based bargaining.
“My most successful efforts as a public defender were as a negotiator on behalf of my client, not as a trial attorney. I would like to think that I won most of those negotiations. I need to feel that because I lost most of my trials. And that's an understatement.
“My first challenge was to secure the trust of my clients. I did that by treating them with courtesy and respect, like I learned from my partner, John. I explained the charges to them, including the range of possible sentences. I explained that I was always eager to try those cases. I never initiated discussions about a plea. I learned to wait for them to ask.
“Negotiating with the assistant state's attorney, what really helped was to get ahead of the curve. To know more about the case than they did.
“Then I was able to negotiate the best result with them. To do that, I had to show my willingness to go to trial. And that was my leverage, because if I went to trial with all my cases, the whole thing comes to a stop, especially if I ask for a two or three, four-day jury trial.”
“The assistant state’s attorney had an interest in maintaining cordial relations with me because I represented everyone in the lockup. If I took all those cases to trial, or heaven forbid, to jury trial, the states’ attorney and the judge would have little time to handle other cases on the call.”
It was the threatof arrest that allowed Gillespie the cop to avoid making the arrest. It was the legitimate threatof going to trial that made Gillespie the PD an effective negotiator on behalf of his clients. “Because I was a police officer, I knew exactly what they were doing and how they did it.
“I knew what everything meant. I knew the custom was always two partners back then. One guy writes the arrest report, the other guy writes the case report. Because of that, there will be a discrepancy between the two. Knowing that, I was able to find the discrepancy and able to impeach them on what was missing.
Withholding power means letting everyone get something.
“I would explain to the client the best he could do is four years. The minimum was three. Because he had a prior probation, he wasn't going to get three-year probation now. Four would be the best he could get.
“So, he would say, ‘You tell the judge, I'll take the four if he guarantees I'll be on the Friday bus.’ So, that put him in the position of power, position of authority. Then I'd tell the judge what he wanted, go back and tell him he's on the Friday bus. So, that allowed him to save face to help close the deal.”
Next, Gillespie took a pay cut to become an assistant state’s attorney and used that same knowledge and experience to negotiate for the other side.
Then he became an assistant attorney general. Then a judge.
As a criminal judge, seeing one hundred litigants a day, he negotiated sentences. “We'd have these conferences and the State would ask for what they thought was a fair number. And the Public Defender would ask for a lesser number. I was able to really come up with what I thought was a fair number. The State generally would ask for more than what they wanted, and the Public Defender will demand less than they could get.”
He used his power to sentence as sparingly as possible. “If you want to influence the man's behavior, start with the lesser offense and move up. And that was a form of negotiation. So, you influence a lot of people's behavior by how you handle them.”
As a motion judge, he settles cases and discovery disputes using humor and a gentle touch.
There can’t be many who ever sat in as many different seats as Judge Dan Gillespie has. There certainly aren’t many as unassuming. Judge Gillespie shows us that wherever you sit and whatever side you’re on, you can often get more of what you actually want by demandingless.
“I was a 25-year-old rookie in the 18th District. I was assigned to a partner more than twice my age. And I was eager to go out and make arrests.”
Gillespie soon found that being the toughest, hardest-charging bull in the china shop was not always the best way to handle every situation.
“We responded to a call of a disturbance at a swank restaurant just off Michigan Avenue. Two prosperous looking customers appeared to have been drinking, got into an argument. One gentleman accused the other of having hit him. I just wanted to arrest the customer in question, simple enough.
“The matter was resolved without an arrest. I learned from my partner, John, there was more than one way to resolve a dispute.
“He was always courteous to people, always polite. Basically, he would listen to them and solve it short of an arrest.
Gillespie watched and learned.
“I never knew him to pull a gun, or use handcuffs. If anybody cuffed, it would have been me. He’d just say to me, ‘All right, kid. All right, Junior.’
“I learned my greatest power was the power to arrest or not. That was my power as a patrolman.
“That decision gave me power to leverage a successful outcome to many negotiations. And I learned that the greatest exercise of power doesn't necessarily come from its application but from the possibility of applying it and doing something less.”
Amazingly, Gillespie went to law school at night while he worked as a cop while he was also in the army reserves. After graduating, he became a public defender. Now, he used his knowledge for the other team.
His old buddies didn’t think he would really do it. “‘Of course, Danny, now that you're a public defender and you were a policeman, you'll plead them all guilty, right? Because you know they did it, right?’
“I was defensive about that at first. But then, I started talking about the Fifth and Sixth Amendment, the right to trial, the right to be proven guilty beyond a reasonable doubt, the right to counsel, and I got so animated about it, they wished they never asked.”
He used the principles he had learned as an officer. Just as he didn’t have to arrest people to get the best outcome, he found he could most often do best for his clients without trying their case.
Gillespie calls negotiating as a PD a good example of principled, interest-based bargaining.
“My most successful efforts as a public defender were as a negotiator on behalf of my client, not as a trial attorney. I would like to think that I won most of those negotiations. I need to feel that because I lost most of my trials. And that's an understatement.
“My first challenge was to secure the trust of my clients. I did that by treating them with courtesy and respect, like I learned from my partner, John. I explained the charges to them, including the range of possible sentences. I explained that I was always eager to try those cases. I never initiated discussions about a plea. I learned to wait for them to ask.
“Negotiating with the assistant state's attorney, what really helped was to get ahead of the curve. To know more about the case than they did.
“Then I was able to negotiate the best result with them. To do that, I had to show my willingness to go to trial. And that was my leverage, because if I went to trial with all my cases, the whole thing comes to a stop, especially if I ask for a two or three, four-day jury trial.”
“The assistant state’s attorney had an interest in maintaining cordial relations with me because I represented everyone in the lockup. If I took all those cases to trial, or heaven forbid, to jury trial, the states’ attorney and the judge would have little time to handle other cases on the call.”
It was the threatof arrest that allowed Gillespie the cop to avoid making the arrest. It was the legitimate threatof going to trial that made Gillespie the PD an effective negotiator on behalf of his clients. “Because I was a police officer, I knew exactly what they were doing and how they did it.
“I knew what everything meant. I knew the custom was always two partners back then. One guy writes the arrest report, the other guy writes the case report. Because of that, there will be a discrepancy between the two. Knowing that, I was able to find the discrepancy and able to impeach them on what was missing.
Withholding power means letting everyone get something.
“I would explain to the client the best he could do is four years. The minimum was three. Because he had a prior probation, he wasn't going to get three-year probation now. Four would be the best he could get.
“So, he would say, ‘You tell the judge, I'll take the four if he guarantees I'll be on the Friday bus.’ So, that put him in the position of power, position of authority. Then I'd tell the judge what he wanted, go back and tell him he's on the Friday bus. So, that allowed him to save face to help close the deal.”
Next, Gillespie took a pay cut to become an assistant state’s attorney and used that same knowledge and experience to negotiate for the other side.
Then he became an assistant attorney general. Then a judge.
As a criminal judge, seeing one hundred litigants a day, he negotiated sentences. “We'd have these conferences and the State would ask for what they thought was a fair number. And the Public Defender would ask for a lesser number. I was able to really come up with what I thought was a fair number. The State generally would ask for more than what they wanted, and the Public Defender will demand less than they could get.”
He used his power to sentence as sparingly as possible. “If you want to influence the man's behavior, start with the lesser offense and move up. And that was a form of negotiation. So, you influence a lot of people's behavior by how you handle them.”
As a motion judge, he settles cases and discovery disputes using humor and a gentle touch.
There can’t be many who ever sat in as many different seats as Judge Dan Gillespie has. There certainly aren’t many as unassuming. Judge Gillespie shows us that wherever you sit and whatever side you’re on, you can often get more of what you actually want by demandingless.