While plea bargaining dominates the practice of criminal law, preparation for trial remains central to defense attorneys' training. Negotiation is still peripheral to that training. Defense lawyers enter practice with little exposure to negotiation techniques and strategies in the plea bargaining context, the most significant skills they will use every day.
Empirical research on plea negotiations has concentrated on outcomes of negotiations rather than the process itself. Our multiphase field study examines the negotiation techniques that attorneys use during plea bargaining as well as their preparation and training for negotiation. This Article explores the data on the training aspects of our research. It then discusses implications of the failure to train for bargaining by noting a variety of areas in which training might improve case outcomes for defendants.
Surveys, interviews, and training agendas confirm our intuition about the lack of training for bargaining: public defenders receive far less training in negotiation skills and strategies than they do in trial techniques. Some defenders receive limited training on negotiation skills in addition to trial skills, particularly when they first enter their offices. The topic of negotiation, however, almost disappears from the agenda for later training, even as trial skills remain front and center.
Leaders in public defender offices allow this training gap to continue when they view negotiation as more an art than a science and not susceptible to rigorous analysis or systematic training. The position that negotiation cannot be taught is demonstrably false and theoretically naive. Formal negotiation learning has proven effective in actual negotiations. Negotiation theory also offers more concrete and comprehensive insights about sound practices than one can find in case law related to constitutional ineffective assistance of counsel, court rules and state statutes, or professional standards.
TABLE OF CONTENTS INTRODUCTION I. THEORY AND EMPIRICAL TESTING OF PLEA NEGOTIATION II. A NATIONAL SURVEY OF PUBLIC DEFENDER NEGOTIATION METHODS A. Methods B. The Absence of Formal Training 1. Training for New Attorneys 2. Formal Training After Orientation 3. Routine Preparation 4. Why the Reluctance to Train? 5. Change on the Horizon III. TRAINING DEFENDERS TO NEGOTIATE FOR BETTER OUTCOMES A. Training About Negotiation Strategies and Styles B. Training About Preparation: Understanding BATNA C. Training About Communication Strategies and Information Exchange During the Bargaining Process 1. Anchoring 2. Strategic Information Exchange 3. Using Data to Establish Objective Criteria D. Additional Training (and Hiring) Considerations 1. Negotiating in Person Versus Other Methods of Communication 2. Law and Ethics of Plea Bargaining 3. Hiring Better Negotiators CONCLUSION APPENDIX: SELECTED QUESTIONS FROM THE DEFENSE COUNSEL SURVEY INTRODUCTION
There is no novelty in placing guilty plea negotiations at the center of criminal justice in the United States. These days, only a tiny fraction of convictions come after a trial. (1) Word has even reached the U.S. Supreme Court. After decades of embarrassed and backhanded discussion of plea bargains, the Court now confirms what has long been obvious to system insiders: plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system." (2) Indeed, the Court now squarely recognizes defense counsel's constitutional duty to function effectively in the plea bargaining context, (3) and ethics rules, professional standards, and other norms of practice apply directly or indirectly to negotiation in criminal cases. (4)
Yet plea bargaining is an underappreciated skill, particularly given its central role in the criminal justice system. Consider this scenario: A new criminal defense attorney approaches a prosecutor in the hallway to discuss an ongoing assault case. Defense counsel knows that the complaining witness is interested in restitution for medical bills and an order that will keep the defendant away from his workplace. The witness does not seem particularly interested in having the defendant go to jail because he knows that then he will never get compensated. But he has not told this to the prosecutor yet because the prosecutor has not been in touch. Defense counsel has heard that the prosecutor is a tough negotiator, and because she really has no training on how to deal with a tough negotiator, she decides to match the toughness by threatening to take the case to trial and file a lot of motions if the prosecutor does not agree to an acceptable plea bargain.
Some interesting research shows that fostering a positive mood in a negotiation through tone can make the parties more creative and more likely to use negotiation strategies that try to meet both parties' interests--a "win-win" approach. (5) What if negotiation training had taught counsel that setting a positive mood could help achieve the desired outcome, particularly given the opportunities for "problem-solving" or "integrative" bargaining (6) in the particular circumstances?
Although plea negotiations now dominate the practice of criminal law, skills relating only to trial remain central to the way defense attorneys are trained for their work. (7) Negotiation-specific skills are still peripheral to that training.
The ability to try cases effectively will undoubtedly enhance the ability to negotiate effectively. Further, many aspects of preparation for trial, such as witness interviews and legal research, also prepare the attorney for plea bargaining. However, there is some preparation that relates solely to bargaining, such as determining--before entering the negotiation--what information to share and what to withhold during the actual bargaining session. (8) In short, defense lawyers are training to operate in a trial-based world that does not exist. (9) A common explanation for this lack of negotiation training is that some lawyers are innately good bargainers and others are not. Though it is possible to pick up some tips by watching those gifted in the art of bargaining, many believe that there is really no systematic way to think about--and thus to teach--plea bargaining.
The result is that criminal defense lawyers enter practice with little exposure to negotiation techniques and strategies in the plea bargaining context. While defenders quickly gain negotiation experience, particularly in a high-volume indigent defense practice, they often do not reflect upon that experience in a systematic manner that is designed to improve bargaining outcomes for clients. Defenders also do not integrate intentional preparation for a specific negotiation session into their routine practice. The training gap directly affects defendants, who are represented by lawyers without formal training in the negotiation process that produces the great majority of convictions. (10) As one scholar has described the problem, "the vast majority of lawyers have not received any training in the most significant skill they use every day." (11)
While it is easy to see that a problem exists with a near exclusive focus on trial-based attorney training, it is more difficult to know the precise extent of that problem. Empirical research has so far concentrated on the outcomes of plea negotiations rather than the negotiation process itself. (12) When it comes to discussions between defense counsel and the prosecution, along with the preparation and training that led up to that bargaining, the empirical research is thin. In particular, we have discovered no empirical studies of defender training for negotiation. (13)
This Article reports the first data from a long-term empirical study of the "bargaining" part of plea bargains. Our field study attempts to map the negotiation practices that happen during criminal plea bargaining in light of well-established insights from negotiation theory. Several different sources contribute to this study, including field interviews of public defenders, responses to an online survey (relevant portions of which are attached as an Appendix to this Article), and a content analysis of the training agendas for programs typically available to assistant public defenders in the different jurisdictions surveyed.
In this Article, we explore the training, if any, that public defenders receive on actual negotiation skills, compared to the training they receive on trial skills. In Part I, we summarize some of the negotiation literature, focusing on the small body of work that applies negotiation theory to the plea-bargaining context. Part II reports on the survey and other data from our field study that relates to negotiation training and preparation. The results show how some public defenders do receive limited training in negotiation skills in addition to trial skills, particularly when they first enter their offices. (14) The topic of negotiation, however, almost disappears from the agenda for public defenders in their continuing legal education, even as trial skills remain front and center. (15) The mutually reinforcing sources from this field study confirm that public defenders receive far less training in negotiation skills and strategies than they do in trial techniques, despite the dominance of negotiation in practice.
In Part III, we argue that this training...