Radical transformation of “litigation”

As Court Lawyers, especially criminal lawyers, we have always liked to conceptualize ourselves and, even, internally visualize ourselves as “seasoned warriors of Justice “, that armed with powerful and convincing arguments, we boldly and courageously confront the powerful and insatiable “Accusing Dragon” represented by the State Attorney’s Office…

But the truth is that the situation has been changing radically, progressively and incessantly, for multiple material and practical reasons: especially due to the alarming overflow of claims without the absolutely necessary counterpart of the corresponding increase in means of all kinds, especially human resources, to respond to the growing demands. And this has brought the inevitable consequence of a huge deterioration in the quality of the Administration of Justice, clearly reflected in exorbitant delays and undue delays, which have made this “Public Service” the worst valued of all by citizens, and very especially for those specifically affected: the so-called “justiciable”…

And what does this progressive “transformation” consist of in the practice of procedural litigation? Well, nothing more and nothing less than a progressive, vertically growing increase in “arrangements” and “agreements” between the contending parties, called in criminal proceedings (due to respect for the “principle of legality”), conformities (cf. arts. 787, 801 LEcrim.concordant provisions and jurisprudence).

We have gone from practically NO possibility of agreement with the Prosecutor’s Office when, many years ago (1965), I began my procedural journey, to the current technological postmodernism, in which both Bar Associations with their “Conformity Protocols”, such as the Prosecutor’s Office, and even the Court itself invite you to enter into conversations to try to reach an “agreement” that avoids holding almost the entire hearing of the trial, freeing the Tribunal and the parties from the corresponding preliminary questions, interrogations, testimonial, expert, monumental evidence, incidents, reports of conclusions and last words, etc., and, even, from possible future resources and appeals that, ultimately, would take longer. even the firmness of the judicial resolution…

I must add that, as I already predicted at the time, additionally, a new incentive has emerged so that the Prosecutor’s Office feels more tempted to reach “conformity” agreements with the Defense Lawyers: The Jury Court, which, although in an absolutely minimalist way, has entered the world of criminal proceedings from the Law of 1995, and which has come in some way to compensate for the decidedly greater strength that the Ilma has. State Prosecutor’s Office before a Court of Professional Magistrates (known classmates of the Prosecutors and also, like them, civil servants) that before a Court of “Lay Citizens in Law”, who make up the Court of the Jury, whose components do not know or Neither Prosecutors nor Lawyers are used to distinguishing –except for the respective plot qualities– between the significance of the Prosecutors’ robes, laden with coats of arms, and the only black ones of the Lawyers– a fact that, by pure rational deduction , has strengthened the procedural principle of “equality of the parties in the Plenary Trial”…and consequently, a greater desire and possibility of “conforming”…

As a consequence of all of the above, the formerly belligerent Defense Attorneys are becoming more and more peaceful “Negotiating Attorneys“, which for pragmatic reasons and for convenience, they are focusing a large part of their efforts on convincing the Prosecutor to reach an agreement that is most convenient for their client than on defeating him in court, with all the uncertainties that this always entails…

A final thought: In any case, to reach a good “conformity agreement” with the Prosecutor’s Office, the Defense Counsel must be ready and willing, loaded with all his procedural weapons to show them reasonably and discreetly to the contrary. Ultimately, the intention is to reconvert the contentious process from “a blood duel” into an “intelligence duel” for the benefit of greater agility and efficiency of the Security Service. Justice. Or not?

p.s. In the United States, as published by the specialized magazine “The Champion” corresponding to Sep-Oct. In 2021, in an article by the Lawyers of the “Practice Group” of the JONES WALKER Law Firm, of Miami, Florida, in the Survey published regarding the year 2018, only 2% of those accused by courts of federal criminal jurisdiction went to trial and of those who decided to stand trial only 320 were acquitted…

Gustavo López-Muñoz and larraz
Director of the Criminal Law Department JL Casajuana Abogados