Negotiating for the Defense
by: Aclark • June 30, 2015 • no comments
I started my legal career as an itinerant post-conviction litigator, traveling to far-flung counties in Ohio, trying to overturn flawed felony convictions. I primarily appeared in rural courthouses that were surrounded by Civil War statuary and ruled by judges and prosecutors hostile to my client’s goals, if not to me personally. I rarely knew any other lawyers in town and never had the home court advantage. Negotiating with the prosecutor was a non-starter. If my client’s position was legally correct and righteous, I was going to have to wait to bring it up on appeal or in federal court to get any relief. To bide my time I may have reported pictures of Jesus Christ hanging in courthouses to the ACLU.
In retrospect, I would have preferred to sit down with the prosecutor and at least try to negotiate for my client, even from a position of significant disadvantage. Under the circumstances, I learned a lot about appellate procedure, but got very little practical experience in negotiation. Like most defense attorneys, of all the trial skills and writing seminars I attended there was almost no training on negotiating skills. Negotiation classes in law school were the domain of the civil attorneys bargaining for money and contracts. If I had been invited to the table by a country prosecutor, I was on my own.
Things in Oregon are better. The criminal bar is relatively small, and there is a culture of conversation among the defense, the prosecution, and the courts. Even (or perhaps especially) in out-of-the-way places, basic collegiality is the rule rather than the exception. Although conditions in places like Oregon are more conducive to good negotiations, it’s my impression that very few criminal defense attorneys are getting formal training in becoming good negotiators. To be reasonably competent plea bargainers, it would follow that we should develop and burnish our negotiation skills with the same attention that we give to our trial skills.
In Padilla v. Kentucky[1] the Supreme Court found that “the negotiation of a plea bargain is a critical stage” triggering the right to the assistance of counsel under the Sixth Amendment. In 2012, the Court emphasized plea bargaining as a dominant feature of the criminal justice system in which the effective assistance of counsel was necessary.[2] The Court belatedly recognized that a “system of pleas” has supplanted a “system of trials.”[3] The decline of indeterminate parole-type sentencing since the 1980s and the legislative popularity of mandatory minimums are to blame for lowering the number of trials and increasing the importance of plea deals.[4]
Referencing Frye and Lafler may actually help get your prosecutor to the bargaining table. If you are told that there is no flexibility or room for negotiation, you might remind the prosecutor that you have to account for and engage in some negotiation or at least attempt to talk about options in order to show you have fulfilled your Sixth Amendment obligations.
For me, putting time into the strategy and planning for negotiation helps me retain my sanity when I’m feeling “more like a beggar than a bargainer, left with little more than the unenviable chore of imploring a mean-spirited prosecutor to be reasonable.”[5] Even when the prosecutor has an air-tight case against a seemingly unsympathetic client, a concerted negotiation effort can be worth it.
The bottom line is that just like a lot of our work, a so-called natural ability is nice, but planning and preparation are nicer. Negotiation skills can be learned. You don’t have to have a “wheeler dealer” personality to be a good negotiator. Some of this is common sense, but a basic checklist for good negotiation strategy includes:
- Get to know your client so you can add human detail. Understand what he or she wants you to accomplish at the bargaining table. Find out about employment status, mental and physical health, and education. Get an investigator to help develop mitigating information. Get ready to tell the prosecution why your case deserves a careful review. See “Selling Mitigation to the Prosecutor in Measure 11 Cases” on the Measure 11 page in the Library of Defense.
- Thoroughly prepare. Identify statutory issues and constitutional problems that could come up and complicate things for the prosecutor down the road. Find out if other jurisdictions are involved. Assess the strength of the prosecution’s case. Consider what motivates judges. Lisa Hay, “Sentencing: Thinking Like a Judge, Arguing as an Advocate,” The Champion, June 2014.
- Identify a zone of common interest with the other side. While the prosecution’s flexibility is limited, ask them about areas where they can be flexible. Meanwhile, you want to know what your best alternative is to your “bottom line” or worst-case outcome.
- Separate the people and personalities involved from the issues. Don’t take the negotiation personally and let it get hot. Don’t assume the prosecutor is crazy or irrational. Stay focused on your client’s goals and what issues you and the prosecution can agree upon. Listen. Generate options. As defense warrior James Russ once said, “You just can’t roll over for the prosecutor who says, ‘Take it or leave it.’ We can’t be run out of the courthouse by tough prosecutors. We have to be tough too.” Jeffery S. Weiner, “An Interview with James M. Russ,” The Champion. July, 1989.
As criminal defense attorneys, we are often negotiating from a position of weakness or disadvantage. It can be disheartening to feel like a cog in the system with your clients completely at the mercy of the government. Delving into the literature and philosophies of negotiation theory can pay dividends for your clients and help you keep your head in the long term.
Almost every case has room for a negotiation, and having a strategy is critical to good lawyering.
Resources
Helpful books and articles about negotiation skills, and a few specific to the realm of criminal defense:
- Negotiation Genius by Deepak Malhotra and M. H. Bazerman. (Bantam Books, 2007) – developed at the Harvard Business School and is especially well-written and inspiring.
- Getting to Yes: Negotiating Agreement Without Giving In by Roger Fisher and William Ury, (New York: Penguin Books, 1983) – the classic.
- Donald G. Gifford, “A Context-Based Theory of Strategy Selection in Legal Negotiations,” 46 OHIO ST. L.J. 41 (1985)
- James A. H. Bell, “Effective Plea Negotiations in a DUI Case Reduced to Practical Principles of Plea Bargaining,” The Champion, April 1994.
This just grazes the surface of the literature on negotiation.
Endnotes
- ↑ 559 U.S. 356 (2010)
- ↑ See Missouri v. Frye, 132 S. Ct. 1399 (2012) and Lafler v. Cooper, 132 S. Ct. 1376 (2012).
- ↑ Id. at 1381.
- ↑ Jed. S. Rakoff, Frye and Lafler: “Bearers of Mixed Messages,” 122 Yale L.J. Online 25 (2012).
- ↑ Rodney J. Uphoff, “The Criminal Defense Lawyer As Effective Negotiator: A Systemic Approach,” 2 Clinical L. Rev. 73, 94 (1995).
OCDLA Board Member Tex Clark is a Federal Public Defender in Portland. This article originally appeared in the'' June/July 2015 issue of The Oregon Defense Attorney journal.
