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Disciplinary Self-Help Litigation Manual

Study Exposes Public Defender Plea Negotiation Practices and Suggests New Negotiation Theory

A major tenet of negotiation theory is the claim that attorneys bargain in the “shadow of trial,” which focuses on the possible outcomes of a trial and sentencing. The study’s authors found that many attorneys operate in what the authors call the “shadow of the client” theory. Attorneys who operate in that shadow focus on the wants and needs of the client.

Over 90% of criminal cases are resolved through a plea bargain. The study under review here is the first look into the “nuts and bolts of plea bargaining.” It provides great insight into how attorneys prepare to bargain, and the priorities and backgrounds that lead attorneys to operate in one of the so-called shadows. It also tested the attorneys’ self-declared negotiation goals against their actual practices.

The authors — Ronald F. Wright, Jenny Roberts, and Betina Wilkenson — began by going into the field to interview public defenders in four states. From there, they created a survey that was sent to 2,265 public defenders in 31 offices across 13 states. Responses came from 579 attorneys. Of the respondents, 21% devoted more than half their time to working on misdemeanor cases, about 40% worked general felony cases, and 8% specialized in particular types of felonies.

The authors noted that the survey focused on “defense attorneys to the exclusion of prosecution, and public defenders rather than private defense attorneys.” They said comparison of responses amongst these groups merit future research, but it is outside the scope of this study.

The responses led the authors to “believe that case characteristics, attorney background, courthouse environment, and attorney beliefs about negotiation objectives influence the way that attorneys prepare for negotiation.”

They noted, however, that because the attorneys self-reported, their responses should be interpreted with care. “[G]iven the voluntary nature of the survey, we probably received responses from the most active and conscientious defense attorneys in each office.” Nonetheless, the results offer insights to a process that takes “place behind closed doors with no other parties present.”

The survey asked 24 questions in its “Negotiation Practices” section. The top five factors were: the client’s criminal history, knowledge of the relevant facts, the client’s wants and needs, the category or type of case, and the attorney’s knowledge of relevant legal issues.

Client Goals and Discovery Critical

Seven questions were contained in the “Preparation for Bargaining” section. Having a clear sense of client goals and timely receipt of discovery were deemed the most important factors, while developing a theory of defense and being able to predict the outcome of a trial and sentencing were deemed the least important.

Nonetheless, “relative importance” was given to all factors in this section, which also included investigating the facts and researching the legal issues.

While a trial casts a shadow over all bargaining, “a lot of bargaining appears to happen in an entirely different shadow, one cast by the defendant’s life situation,” the authors wrote. “These factors, even if they wouldn’t prove relevant at trial or sentencing, are important considerations for a prosecutor who wants to do justice.”

Misdemeanor attorneys rated collateral consequences of a plea to be of relative importance when plea bargaining. Yet there are felony attorneys who emphasize collateral consequences in bargaining. The study found that it is the attorney’s focus on collateral consequences that matters, rather than if they have a misdemeanor caseload, that determines if they operate in the shadow of the client.

The study also found that attorneys who place weight on a “client’s custody during negotiations were more likely to score higher on shadow-of-client indicators such as importance of the ‘client’s goals.’” Custodial status remained important for those defenders even after controlling for the attorney’s “caseload, courthouse environment, and personal backgrounds.”

The survey found that attorneys with eight or more years of experience were more likely to operate in the shadow of the trial. Likewise, attorneys who emphasize the importance of “suppression” issues more often treat the probable outcome of a trial as an important factor in bargaining preparation.

“Male defense attorneys were less likely than female attorneys to treat trial prediction as a focal point for bargaining preparation,” the study found. “Overall, the ‘shadow of the trial’ theory of negotiation matters more for the most experienced attorneys, particularly those who stress the importance of motions to suppress.”

The defendant’s criminal history was important to attorneys who operated in either shadow. While attorneys who placed the most importance on criminal history were more likely to stress trial and sentence predictions, they also were more likely to emphasize knowledge of alternatives to incarceration.

The most surprising result to the authors was that the survey respondents reported that their caseloads at the time of negotiation were relatively unimportant to the outcome of the negotiation. “The response highlights the uncertainties involved in self-reported survey data,” the authors wrote.

That result surprised them because they said “the common wisdom [is] that high volume is a primary driver of our bargain based system of criminal justice.” That, however, is only part of the wisdom.

Those experienced with the system, however, believe there are other drivers of plea bargaining. In a previous report, CLN found that prosecutorial power has a lot to do with pushing defendants into plea bargains. It is common for prosecutors to charge more severe or additional crimes to coerce the defendant with a greater sentence. This often compels a plea to a lesser crime or the additional charges being dismissed. Then, there is what is known as the trial tax, which is where a sentence greater than a pre-trial plea offer is imposed after trial. In some jurisdictions, courts have discretion to impose maximum penalties without regard to guideline sentences that plea offers routinely rely upon. See CLN, May 2019, p.1.

Caseload ‘Relatively Unimportant’

Of the 24 factors for importance of
negotiation outcomes, caseload was rated “dead last” by defenders. Misdemeanor attorneys rated that factor as “relatively unimportant” while felony attorneys placed even less importance on this factor.

“Defenders beliefs about the unimportance of their own caseloads stand in contrast to other evidence about the pressures of caseloads,” the authors wrote. They pointed to the “many studies and news reports highlighting public defense systems that operate unethically, and sometimes unconstitutionally, high workloads.”

The authors concluded the defenders are either “simply fooling themselves about the ability to get good negotiation outcomes despite the number of cases they handle,” or the low rating “might align with a narrative that treats plea bargaining as something distinct from trial preparation and prediction.”

Nonetheless, the authors said it is “self-delusional” for defenders to rate caseload so low. “Defenders who downplay the effects of caseload fail to see that preparation for negotiation in the shadow of the client involves the investigation of a broader range of factors, and therefore can take more time than preparation for bargaining in the shadow of trial predictions,” they wrote.

A contrast between personal interviews and survey responses was found when it came to the importance of an attorney’s personal style and reputation. Other studies have found a negotiator’s personality and the interpersonal dynamic between two negotiators impacts an agreement.

Defenders who were interviewed pre-survey confirmed this theory. “It is a strongly-held view among criminal law practitioners that reputation as a skilled trial attorney — and one who is not afraid to go to trial — is a valuable chip in any plea bargaining session,” the authors wrote.

Yet, in survey responses, “defenders rated both parties’ reputation as negotiators and as trial attorneys near the bottom” of the 24 factors.

A prosecutor’s reputation as a negotiator and trial attorney were rated the lowest. The defenders rated case and defendant characteristics as more important.

At the same time, shadow of trial attorneys perceive the relationship between an attorney and prosecutor as having importance in plea bargaining. Those attorneys also believed that trial and sentence predictions should be central to plea bargain preparation.

The study also revealed a gap in what defenders report as important during negotiations and what they claim to do in their own cases. This was revealed by the responses to 24 questions in the “Negotiation Practices” section of the survey.

Witnesses and Facts

Attorneys rated knowledge of the facts as “relatively” and “extremely important.” While they nearly “always” review the file in preparation for bargaining, “several other preparatory activities related to fact investigation happen less frequently.” Defense witness interviewing occurs midway between “sometimes” and “usually,” while prosecution witnesses are “sometimes” interviewed. “As defense attorneys gain more experience or handle more serious cases, they become more likely to investigate facts more thoroughly,” the study found.

The culture of quickly resolving misdemeanor cases could be a factor in this result, “particularly in high-volume jurisdictions.” Less experienced attorneys are also more likely to handle cases where the only defense witness is the defendant. It may also be that as attorneys gain experience, they learn how important it is to interview witnesses.

Discovery is a key component to fact investigation. The defenders rated “timely receipt of discovery” close to “extremely important.” They also reported “usually” receiving discovery prior to negotiations. Yet “defense attorneys do not engage very often in strategic information exchange during the bargaining process,” the study found.

The authors said it was a “missed opportunity” for defenders to not request “information from the prosecution during plea bargaining that reaches more broadly than discovery laws indicate.” Such information, they said, could lead to “better negotiation outcomes in some classes of cases.” Attorneys handling misdemeanor cases had the lowest score for learning new information apart from discovery.

All defenders reported sharing information with the prosecution during bargaining. Spur-of-the-moment bargaining could explain why defenders share more information than they obtain. This sharing of information is consistent with a shadow of the client negotiation theory.

While defenders rated their knowledge of the relevant legal issues as “relatively important,” they reported that they only “sometimes” and “usually” do legal research in preparation for bargaining. “This gap between aspirations and self-declared practice is especially troubling for adherents of the shadow-of-trial theory,” the authors wrote. “[W]ithout adequate legal research, the defenses [sic] attorney will never see all of the opportunities” to develop “legal arguments that will shape the trial.”

The authors believe legal research is most important for misdemeanor attorneys because their cases can “involve significant legal issues, such as constitutionality of a public order offense statute or whether the prosecution properly alleged every element of the offense.”

Finally, the authors looked at the bargaining interactions. Again, they found a gap between what defenders say matters and what they actually report doing during negotiations. While they emphasize focusing on the client’s goals and needs, they report they “usually” wait for the prosecution to make the “first concrete offer,” which is known as anchoring.

The theory behind anchoring is that an opening offer highly favorable to one’s side makes subsequent offers appear reasonable. Misdemeanor defenders are more likely to await that first offer. This could be due to the fact “a large percentage of guilty pleas happen at arraignment or first appearance” in those cases.

Waiting for the prosecution to make an offer was found to be detrimental to the client’s interests. The defenders reported that first offers were “somewhat unfavorable” for their clients. They also said they “sometimes” receive “take it or leave it offers” and offers with time limits.

With a “grim starting point,” the defenders said they “usually counter-offer.” That, however, is not always good for the client. Almost half of the defenders reported their counter-offer was “somewhat unfavorable” or “very unfavorable” to their clients. Only 15% of the defenders reported making offers that were extremely favorable to their clients.

“The default of waiting for prosecutor offers is also worrisome in cases where an aggressive first offer from the defense is likely to have little downside risk,” wrote the authors.

‘Split of Opinion’

Almost 25% of defenders, and one-third of misdemeanor defenders, said their clients “infrequently” or “never” paid a trial tax. That group of attorneys also reported they made first offers that were “reasonable” for the defendant rather than “somewhat favorable” or “extremely favorable.” 

 

 

 

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