by Jacob Barrett
Highly experienced lawyers and new lawyers alike can improve their negotiation skills (just as they improve their trial skills). But without legal training, what can you do?
Lawyers often use checklists as part of learning how to handle certain types of cases or defenses. This article is adapted from the academic paper titled “How to Be a Better Plea Bargainer,” by Cynthia Alkon and Andrea Kupfer Schneider, and will focus on how you can become a more effective plea bargainer by preparing for negotiation through a negotiation checklist (“prep sheet”).
Plea bargaining is, by definition, a negotiation to reach agreement between the parties to settle a criminal case.
Why Preparation Matters in Negotiation
Like any other communication skill, negotiation skills can improve with careful thinking, practice, and reflection. Preparation is the easiest way to improve your negotiation skills.
Plea bargaining is the primary form of criminal case settlement. The vast majority of cases, both state and federal, are resolved through plea bargaining. However, plea bargaining has constraints and elements that are more complex than those seen in typical civil cases.
The fact that plea bargaining is a form of negotiation with significant constraints is exactly why negotiation skills matter. Strong negotiation skills can help both prosecutors and defense lawyers move beyond the constraints. Prosecutors are constrained by office policies, which are sometimes political since the local district attorney is usually an elected official and beholden to party politics.
To become an effective negotiator, it is critical to master the skills of assertiveness, empathy, flexibility, social intuition, and ethicality before going into a negotiation. For example, a defense lawyer who has fully investigated their case and knows that the evidence is weak on a key element (for example, that the key witness to the crime has recanted), can use the skill of assertiveness with the prosecutor to explain why the case, or the particular charge, should be dropped. A well-prepared defense lawyer will also know what the standard offers are for particular charges, so they will know if, or when, to be assertive about negotiating a better offer.
Lack of preparation can be seen to some degree in empirical studies on defense attorneys, showing that many of them fail to engage in comprehensive interviewing of defense and prosecution witnesses. This is true despite the fact that defense attorneys recognize that weaknesses in the prosecution’s case are some of the main leverage points in a plea bargain, and yet many still neglect to perform this critical task.
Goals for the Preparations Sheet
First, good negotiation requires good preparation. A preparation sheet is the best place to begin and helps to systematically organize thoughts.
Second, a preparation sheet is important to recognize more clearly that there are often shared interests and goals, perhaps shared gaps in knowledge or facts, shared mistakes that can be made, and shared concerns as one proceeds through the negotiation process.
How to Use a Preparation Sheet
The first step in using a plea preparation sheet is to fill it out with the facts of the case.
For example, negotiators often focus on their individual interests and needs, not thinking about their counterpart. A plea preparation sheet discourages this approach and forces consideration of the interests of their counterpart. It is important to understand what matters to your counterpart in order to come to a negotiated agreement. Defense lawyers who focus only on their client’s interests and do not understand that the prosecutor cannot plead out certain cases to lower offenses without the approval of their boss will be unlikely to figure out what they might need to do to get that approval.
Does the defense attorney need to talk to the prosecutor’s boss directly? Does their client have certain kinds of mitigating circumstances that will be more likely to convince the prosecutor’s boss that this case is an exception to the policy? A good negotiator will think about what the good or bad facts in their case are. What is the defendant’s criminal history? What are the laws and policies that influence this case? Are there minimum sentences?
If you have bad (or challenging) facts, your zone of possible agreement is different. The zone of possible agreement is also different in different jurisdictions. Even within the same state or county, there can be vast differences in how individual cases are treated, what standard offers are, and therefore, what the zone of possible agreement is in that court or county or state.
Beyond the facts, the prep sheet can help consider next steps. For example, defense lawyers are supposed to consider collateral consequences. The U.S. Supreme Court demands that lawyers advise about immigration consequences in any plea deal. However, defense lawyers may not take the time to find out if pleading to a certain case will mean the defendant will be evicted or lose their job or their professional license. This may even be a bigger factor with less serious cases, like misdemeanors, which can still carry significant collateral consequences. A prep sheet flags the importance of asking about these consequences for defense lawyers.
Thus, it matters to think about collateral consequences and to consider whether another outcome, without the collateral consequence, is a preferable option.
A negotiation prep sheet pushes us to consider these options as well. Penal codes in the U.S. are written with a full range of possible options and ways to charge the same acts. It is useful, before starting a negotiation, to have a list of what those options are. What are lesser offenses? What are enhancements that can be charged or dropped? And, what are the alternative processes? Does one charge or another qualify for a drug court?
Lawyers can often overlook the full range of options without recognizing that option generation can be an important part of any negotiation.
Interests and Goals
It is usually logical to start the preparation for a negotiation by considering what is important—needs, motivations, and interests—and then setting a goal for measuring those accomplishments. Effective negotiators recognize that, while intuitive, clear specific thinking about interests and goals make it far more likely that they will be achieved.
The first thing to think about in every negotiation is the interests of the parties. We might imagine that this is pretty simple: the prosecutor wants to punish the perpetrator and the defendant wants to avoid that. And yet understanding the real interests of the parties—versus their opening offers or assumed positions—is crucial in terms of meeting their needs. In negotiation theory, the difference between positions and interests is often highlighted as the crux of more effective negotiations, and the skills to prepare those—interviewing, gathering facts, active listening—are highlighted as necessary for client-centered counseling.
It is not enough to understand your own interests. In order to better persuade your counterpart, it is quite useful to understand (or make a good guess about) their interests.
The interests of the victim, the press or the public, which might align, but often do not, are important considerations as well. Each case, each victim, and each jurisdiction will play out differently as to how impactful the interests are on the actual negotiation. The pressure of the press or public to be tough or to drop charges should be considered. Similarly, some victims will desire more involvement while others will not.
In the plea negotiation context, interests include those that may be beyond the case itself. For example, both defense lawyers and prosecutors have an interest in managing their caseloads. Prosecutors may have an interest in career advancement. Prosecutors have office policies to which they must adhere. Defendants may be concerned about collateral consequences (will they lose housing, jobs, custody of their children?).
Prosecutors are often less concerned about what a defendant wants than how they can explain or justify a particular deal to their boss. Defense lawyers who understand those interests are better able to present facts and arguments that support making an exception to an office policy, such as dropping a school zone enhancement or mandatory jail time. Why is this case different? Why should a prosecutor look at this case differently?
In addition, setting specific, optimistic, and realistic goals will be most successful. With specific goals, negotiators are willing to go back and forth more often, be patient while negotiating (rather than prematurely accepting a less optimal outcome), and work harder to reach that goal.
Moreover, goals need to be optimistic or aspirational. An easily achievable goal might sound safe (“I know that I can get the prosecutor to drop the gun charge”) but shortchanges what you might be able to achieve. These aspirational goals help frame the first offer (few get more than what they ask for).
One can plan to drop back to a “safe” offer as a second or third bid, but there is no good reason to start with the “safe” bid.
Finally, goals do need to be justifiable and realistic. This takes research in understanding what the typical range of outcomes have been in other cases or similar situations. Having a grounding in law and policy is crucial for understanding what is viewed as fair and just. In some cases, particularly more serious cases, the prosecutor may never make an offer. In death penalty cases, the plea negotiation may be around whether the prosecution will agree to life in prison without parole, as any sentence less than death may be the goal of the negotiation.
Know the Case
Will this defendant be a danger? Will this defendant commit another crime? Does this defendant have a supportive family, job, or other reason to believe that the accused behavior is an anomaly? Without knowledge of the defendant’s family or history, defense attorneys have less ammunition with which to negotiate.
Finally, good facts for either side or the law itself may give that side leverage in the plea negotiation. Prosecutors more often have this advantage. For example, if a case has been charged without possible enhancements, that can be leverage in the plea negotiation.
By understanding the range of outcomes, negotiators can anchor themselves, knowing that what they propose is reasonable and justifiable. What are the Minimum/Maximum/Standard offers? Collateral Consequences (Immigration, Family Court, Professional Licensing, etc.) Motions/Procedure? Prosecutorial Policies? Court History/Judge? Leverage (Law? Facts? Procedural? Jurisdictional?)? Alternative Processes Available? (diversion, problem solving courts, restorative justice process, other?)?
Finally, location matters in plea negotiations. The single most important fact in what happens on a criminal case is where it happens. Who is the prosecutor? What are the prosecutor’s office policies? What judge will the case go in front of?
Elements of an Agreement
Once negotiators have figured out their interests, priorities, goals, and criteria, they can start to consider the elements of the agreement. This includes both the particular pieces of the potential agreement—known as options—and what happens if the negotiation fails.
The best alternative to a negotiated agreement (“BATNA”) is when a negotiator should know at what point she would walk away from a negotiation and go to her “best alternative.” This prevents the negotiator from making a bad deal, which would be worse than the alternative.
In plea bargaining, if a negotiation is not successful, the BATNA for the defense attorney will almost always be going to trial (the prosecutor would have no choice but to proceed).
The second part of the BATNA analysis is knowing when to proceed to that BATNA. Depending on the case, the facts, the particular prosecutor and judge, a defendant may be left with two choices: take a bad deal or go to trial and risk an even worse outcome. In these situations, the defendant may simply have a WATNA, worst alternative to a negotiated agreement.
Prosecutors, by contrast, may think of trial as a BATNA. If their facts are strong, and the law supports them, they can often expect a much tougher sentence after trial, due to the trial penalty.
Another part of negotiation preparation is to consider elements of the agreement, recognizing that each plea bargain can comprise more than time and jail. Particularly in the midst of the COVID-19 pandemic, both prosecutors and defense attorneys may be, at times, getting more creative with individualized responses to each particular case due to the increasing recognition that mass incarceration is disproportional to the goal of public safety it purports to serve.
Taking different perspectives, considering various designs and structures, and thinking about analogous situations can help open a negotiator’s mind to creativity. Moreover, the process of being creative—giving oneself time and space to be creative, consulting with others and brainstorming, wordplay, or other activities—need to be built into negotiation preparation so that a negotiator can mull over different ideas.
Approach and Communication
Effective negotiators consider how negotiators interact with one another before and during the negotiation, understanding that everything from the previous relationship to the mode and timing of the communication all impacts the substantive outcome of the negotiation.
The relationship often sets the tone for how much information is exchanged, whether the parties trust each other to bargain in good faith and consider fairly the information shared by the other side, if the parties are willing to be creative with each other and problem-solve solutions, and even the extent to which negotiators trust each other to comply with the terms of the agreement. Building rapport within the negotiation has shown to lessen the likelihood of duplicity, increase the likelihood of integrative agreements, and leave the parties feeling like they were treated fairly.
In advance of the negotiation, one should consider the relationship between the negotiators and if there is any way to improve that beforehand. For example, how does the negotiation communication commence? Are there ways to build rapport before exchanging substantive information or offers? Additionally, during the negotiation, it is helpful to consider the relationship of the future recognizing that behavior now sets the reputation and relationship for the next interaction.
In negotiating, it is important to separate the people from the problem. This helps recognizing relationships separately from the roles adversaries can play. Defense lawyers and prosecutors often have long standing and close professional relationships. They may be assigned to the same court for several years. They may have worked together in different courts over decades. As lawyers, they are by definition repeat players.
Reputations are also well known and can impact how plea negotiations play out. Defense lawyers will share less information with prosecutors who have a reputation for withholding evidence or otherwise not being ethical.
Prosecutors may not have as much patience to negotiate with a defense lawyer who is known to be dishonest or who has a reputation as someone who is fighting all the time, regardless of whether the facts support the fight.
Timing of a Negotiation
The timing of a negotiation is another element to track. It behooves negotiators to consider both when in the course of the interaction they first make contact, as well as when they first exchange offers and how patient the negotiators can be in going back and forth. One challenge in plea negotiations is that first offers are often made before discovery is complete.
Linked to the timing of the negotiation is how a negotiator should decide counteroffers.
In a civil settlement negotiation, if the plaintiff would like to settle for $50,000 (for pain and suffering on top of expenses), would hope to settle for $40,000 (covering expenses), and would walk away at $30,000 (having calculated that trial would be worth it at that point), the first offer could well be $60,000 with an optimistic reach and a justification of extreme pain and suffering.
It is a rare negotiation where the counterpart will give even more than the first offer so that offer likely sets the upper limit of the negotiation. The first offer, the anchor point, can set the stage for the negotiation in key ways, adjusting the counterpart’s goals and even their perceived alternatives. At the bottom end, the reservation point (here $30,000) sets the lower limit of the negotiation range. Effective negotiators, therefore, will consider how many steps they will make between $60,000 and $30,000 and what the size of the concessions will be.
Immediately lowering from $60,000 to $45,000, for example, sends a signal that the first number was not that realistic and that there are more concessions to come. Understanding the general timing expectations of the negotiation can also be critical. (How long do we have to negotiate? How many times should I plan to counter?)
Yet many plea negotiations begin and end at the arraignment. A significant percentage also likely plead out to the first offer without a counteroffer being made. Not making a counteroffer and accepting the first offer may be good negotiation, depending on the circumstances.
However, there are also cases that demand more negotiation. For example, if evidence or witnesses are discovered that support a self-defense claim, that can be used to encourage the prosecutor to make more concessions and sweeten the offer. The reverse is probably more common: that prosecutors threaten to add charges or enhancements, to encourage taking the deal. Threats are not uncommon in cases involving three strikes and mandatory minimums, depending on the policies of the particular prosecutor’s office.
In the last 20 years, negotiation textbooks have enthusiastically integrated behavioral economics and cognitive psychology into decision making to better understand the common mistakes that negotiators make. The first is anchoring, which is the concept that the first number that negotiators encounter “anchors” estimation of the value of the item. Even when these first numbers are not based on realistic criteria, they have a strong psychological pull. In research studying topics ranging from home buying to average temperature guessing, these criteria can anchor the range of the negotiation. Within the legal context, things like statutory damage or insurance caps or opening offers serve this purpose as well. Negotiators need to recognize this psychological pull and be prepared to counter with their own anchor in order to set the range.
However, when there is no first offer, a defense lawyer may decide to wait for the prosecutor’s first offer, not recognizing the potential power of a first offer or that making the first offer might move the prosecutor lower in her own offer—anchoring works both ways in that the first offer has the potential of subconsciously setting the reasonable expectations of both parties. It might not be rational, and yet it appears that these anchors can shift parties away from their goals and limits. When a defense attorney has those “good” facts, it may well behoove her to anchor the negotiation with a low first offer. The challenge in plea negotiations is that the maximum sentence in a case, even if that is not the offer, can act as an anchor.
A second phenomenon that can impact how negotiators view an offer is loss aversion—the fear of losing what one has (or changing the status quo). Loss aversion makes the current situation seem more attractive, even when that is unwarranted. For example, fear of going to prison when one is not yet there might increase loss aversion for defendants. Prosecutors generally have high conviction rates, yet they may fear losing a case and are willing to reduce charges or make a better offer if they are not confident that they have the facts needed to convict.
A third error is reactive devaluation, the tendency to undervalue a proposal because it is offered by the negotiation counterpart.
A last mistake is overconfidence, a common phenomenon in which we overestimate the strengths of our case and underestimate the weaknesses. A defense attorney may not recognize the fact that juries are often biased against their clients (because of their race, or the charges, or that many juries are quick to make up their mind that the defendant is guilty). Prosecutors are even more likely to suffer from overconfidence.
The last element of a prep sheet is a focus on different types of communication and understanding the pros and cons of these choices.
Even before the COVID-19 pandemic forced everyone onto videoconferences, lawyers have been using different ways to exchange offers from in-person to text messaging to emails. These choices matter in negotiation in general because each has its advantages and disadvantages over the course of a negotiation.
These modes of communication are different in three ways: (1) media richness—or how much you pick up in terms of social cues, mood, body language, tone, etc.; (2) content—how formal or informal are the modes and what type of information is typically shared in that mode; and (3) and timing—is the communication synchronous or asynchronous and what are expectations for response time.
Face to face, or videoconferencing, provides the most richness in terms of seeing and reading the other party, often includes both informal (“how is the weather? How about that game yesterday?”) and formal content, and occurs simultaneously with parties going back and forth in terms of conversation.
Every other technology is different in one way or another. Phone calls, for example also vary in content and have synchronous communication but do not provide visual cues.
Email is different in all of these ways—we may or may not correctly read the tenor and tone of the email, we may or may not respond quickly (and can end up reading the email chain in reverse order), and we often consider it to be more formal communication. If there is any greeting at the beginning, it tends to be one or two lines and not the typical length of a face-to-face interaction.
Text messages, which are now being used to exchange plea bargaining offers in some cases, may shift this yet again as they are even shorter (although people often assume the response time is faster).
Plea bargaining is negotiation, albeit with constraints, and all negotiators can benefit from clear, organized thinking in advance. Preparing for negotiation is a key skill in negotiation. Moreover, this advance thinking needs to go further than typical law and facts to comprehend the elements of negotiation that make us more effective—from understanding the counterpart, to thinking creatively about options, to assessing whether to pursue trial, to recognizing that how and when we communicate impacts the relationship between counterparts, and therefore, the outcome as well. And, although there are key differences between prosecutors and defense lawyers, the same information matters, or should matter, in seeking justice.
Source: “How to be a Better Plea Bargainer,” by Cynthia Alkon and Andrea Kupfer Schneider, Washington University Journal of Law & Policy, Vol. 66. (Electronic copy available from Social Science Research Network Electronic Paper Collection, at: ssrn.com/abstract=3934577).
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