At a legal conference in San Diego a few years ago, I listened to Judge Richard Boulware speak. He said something that has stuck with me ever since: “The order of mitigation is the defendant first, then the lawyer, and then friends and family.”
He also said most people get the order wrong. I know I did.
When I was indicted, I let my lawyer take the lead. I let other people write letters on my behalf. I spoke last and least. That left the government’s version untouched. My silence allowed their narrative to stand unchallenged.
Judge Benita Pearson has made the same point: defendants must treat sentencing like a full-time job. She said if a defendant has been a bad father, their lawyer will say he’s a great father—and she will discount it. She discounts what prosecutors say too, because she knows their incentive. The only voice that matters is the one backed by evidence from the defendant. Translation: you must do the work yourself.
Judge Mark Bennett told Michael Santos he’d be “astoundingly impressed” if a defendant got their personal story into the probation report. He admitted he’d never seen it. Imagine that—judges practically asking for something that almost no one does. Why? Because too many lawyers tell their clients, “No, we’re not doing that.” And defendants accept it. That’s the wrong order of mitigation, and it’s tragic.
Mitigation isn’t about whining. Judges hear whining every day: “If you send me to prison, I’ll lose my job, I’ll miss my family, I can’t pay restitution.” That’s not mitigation. That’s self-pity. Good mitigation shows collateral consequences honestly—losing a license, losing a career, losing standing in the community, knowing your name will forever be searchable on Google. Judges respect honesty, not excuses.
We once worked with a doctor who had a child with autism. His lawyer told him not to mention it, fearing it would sound manipulative. But ignoring it was lazy. We reframed it. He said in his own words: “The irony is that my child benefits from the very government programs I defrauded. That makes my conduct worse. I should have been held to a higher standard.” The judge respected that because it was honest. He owned it.
The same applies to privilege. Don’t run from it. Say it. “Your Honor, I had opportunities many people never had, and I blew it.” Judges nod at that kind of honesty.
I saw it again with my friend Matthew Bowyer. As he approached sentencing, he said, “No matter what happens tomorrow, I take pride in knowing I prepared, I led, I set an example for my wife and kids. I spoke openly about my mistakes. I wrote a book. I donated 100 hours to a nonprofit. Whatever the number is tomorrow, I’m ready.”
That’s the right order of mitigation. Defendant first. Then the lawyer. Then friends and family. Most people reverse it, and they pay the price. Judges have told us over and over: don’t sit silent, don’t stall, don’t outsource your voice.
The government will always have a version. The question is whether you’ll leave it standing—or replace it with your own.
Justin Paperny
