Training for bargaining.

• Author: Roberts, Jenny
• Position: Continuation of III. Training Defenders to Negotiate for Better Outcomes through Conclusion, with footnotes and appendix, p. 1474-1504 - Plea Bargaining Regulation: The Next Criminal Procedure Frontier

1. Training About Negotiation Strategies and Styles

   One early article calling for legal scholars to study negotiation noted how, "[i]n all negotiations, regardless of the context, certain strategic decisions must be made by each party," and stated that "such decisions can and should be planned systematically, according to general principles applicable to all negotiations." (96) Negotiation theory offers various names for different strategies and styles, but as a general matter, the current legal negotiation literature distinguishes between a cooperative/problem-solving/integrative approach and a competitive/adversarial/distributive approach. (97) The former refers to a situation in which the parties can add value to the negotiation in a mutually beneficial manner, (98) whereas the latter describes a zero-sum situation in which one negotiator's concession is a loss that leads to the other side's gain. (99)

   Plea bargaining might seem to be a purely distributive situation calling for a highly competitive approach because it appears that one negotiator's concession is a loss that leads to the other side's gain. (100) In fact, the repeat-player nature of the relationships in criminal law practice--working together in one courthouse, over and over--may move some aspects of the negotiation away from competitive to a necessarily more cooperative strategy. (101) Indeed, as Andrea Kupfer Schneider's important negotiation work demonstrates, "it is clear that extremely high levels of problem-solving behavior are exhibited between the prosecutor and the defendant's attorney." (102) Further, "results from [Schneider's study] suggest that criminal law may be an unexpectedly fertile environment to maximize positive problem-solving methods." (103) Another legal negotiation scholar, applying specific factors to choose a negotiation strategy for a particular context, concluded that criminal defense attorneys should adopt a "predominantly cooperative strategy coupled with some early competitive tactics and integrative solutions whenever feasible." (104)

   Consider the following example of the potential to create win-win situations in plea bargaining. A nineteen-year-old defendant is charged with misdemeanor assault in an incident resulting in some injury to the victim. An assault conviction will mean the defendant will lose his job, but the charge of disorderly conduct (a different misdemeanor in the jurisdiction, carrying a lower potential sentence than assault) will not result in that outcome. The jurisdiction also has a mechanism for deferred judgment in which, after a guilty plea, entry of judgment is stayed while the defendant serves a period of probation; successful completion results in discharge without a judgment of conviction. Defense counsel interviews the victim and takes a statement from him that describes how payment of medical bills is a primary concern and how the victim is upset the defendant has neither offered to pay nor contacted the victim (an acquaintance) to apologize. The prosecution has an office policy requiring a memo to a supervisor when there is a plea offer made on an assault case. Defense counsel offers to share the victim's statement with the prosecutor so the statement (once confirmed by the prosecutor) can form the basis for the memo to the supervisor (thus saving the prosecutor time and effort). Counsel also shares a letter from the defendant's boss about how an assault conviction will result in job loss--and thus inability to pay the medical bills--and describes how the deferred judgment will allow the young defendant to continue to develop in the workplace and pay off the bills over time.

   These opportunities for cooperative strategies, which may come as a surprise to some criminal law practitioners, deserve some place in a training focused on effective negotiation. One reason for the surprisingly noncompetitive dynamic in criminal case negotiations could be that clients are not in a position--as a matter of education, physical liberty, or accessibility--to push their state-funded lawyers to be more aggressive. (105) At the very least, defenders could learn to interview clients to get information they need to determine the most effective negotiation approach and to counsel clients in a manner that allows them to make a truly informed and uncoerced decision about whether to plead guilty.

   Negotiation style and strategy often go hand in hand simply because, to take one example, someone with a competitive style will feel comfortable with competitive strategy. But separating personal style from negotiation strategies "yields new flexibility for the negotiator.... Further, a negotiator should often make competitive, cooperative, and integrative moves within a single negotiation." (106) Consider a situation in which defense counsel has decided to adopt a competitive strategy but a cooperative style with respect to a certain aspect of the case--for example, the client is not incarcerated and will not plead guilty to anything involving jail or prison time. Counsel must then find a "nice" way to withhold information--such as an upcoming trial in another of the attorney's cases--that would not undercut the planned cooperative style.

   To be sure, negotiation theory is not easy or intuitive stuff. Indeed, the nuances that distinguish approach (strategy) from style "are often lost on students." (107) Schneider notes how her teaching "focus is almost completely on skills that support the styles rather than on debating effective styles," because "[a]dult professionals learn better by talking first about experiences and skills, and then focusing on framework or style selection." (108) Thus, she teaches a "triangle of skills" (109)--assertiveness (speaking), empathy (listening and inquiry), and flexibility (inventing and adapting)--on the theory that having effective skills allows negotiators to make informed and contextualized stylistic choices. (110) In the context of client interviewing, active listening and open-ended questioning are well-accepted and commonly taught techniques, drawn from social science understandings of such things as memory and observation. (111) Similarly, negotiation training could include such information-gathering techniques. For example, active listening might elicit important information from opposing counsel during the bargaining session. (112)

   Understanding how to implement a particular style or strategy is an undervalued skill in plea bargaining. Many defenders view themselves as simply begging or as needing to threaten to take everything to trial to get anything good out of a negotiation. (113) Yet just as training can teach attorneys how to cross-examine or interview without antagonizing the witness--or to decide when one might want to antagonize the witness--training can be aimed at exploring different styles and strategies of negotiation. One negotiation scholar (who also conducts trainings) described how lawyers may spend hours "gathering the factual, legal, economic, and political information" for a negotiation, but spend only 10-15 minutes preparing a negotiation strategy. (114) This strategy usually focuses only on "[w]here they plan to begin; [w]here they hope to end up; and [t]heir bottom lines. In between the starting point and the conclusion of their interactions, they wing it, thinking of their encounters as wholly unstructured." (115) In short, a little training about particular negotiation strategies and styles, as well as the skills to implement them, could go a long way.

2. Training About Preparation: Understanding BATNA

   The whole purpose of a negotiation is to get a more desirable outcome than you would get without the negotiation. (116) To determine whether a deal is worth taking, a negotiator must figure out what would happen if the parties do not reach agreement. (117) The Best Alternative To a Negotiated Agreement (BATNA) is a concept that gives a negotiator a reference point for knowing when to walk away from the negotiating table. (118)

   At first impression, it seems that the BATNA for a plea agreement in a criminal case will either be a trial, a dispositive evidentiary hearing (especially in drug or weapon possession cases), or an open guilty plea to all charges. (119) Those are certainly likely alternatives should negotiations fail, and thus defense counsel must determine the BATNA by carefully calculating: (1) the likelihood of acquittal on each count in the charging document, (120) and (2) the likely sentence the particular judge would impose after (a) a plea to all charges or (b) a conviction after trial. (121)

   While many defense attorneys may feel confident in their ability to determine quickly and intuitively the likelihood of success at trial, (122) training to take a step back and more methodically determine a BATNA is likely to improve bargaining outcomes. Fisher and Ury, who coined the term, recommend a three-step process for determining a BATNA: brainstorming a list of actions to be taken if there is no agreement, converting the most promising ideas into tangible alternatives, and selecting the best alternative. (123)

   To give one example, consider a drug sale case in which the police officer will testify that he observed the defendant hand a small packet to another person in exchange for money. The police found cocaine on that person; they also found cash and several small baggies of cocaine on the defendant. Obvious potential actions if there is no plea agreement are to win at trial or to get the defendant a pre- or post-plea diversionary deal (success in drug treatment in exchange for eventual dismissal of the charges). Too many defenders will do a quick calculation of the likelihood of winning the trial or getting into the program and will then enter the actual negotiation.

   However, more emphasis on Fisher and Ury's second step--making promising alternatives more tangible--could significantly improve the defendant's negotiation...