Academic journal article William and Mary Law Review

Training for Bargaining

Academic journal article William and Mary Law Review

Training for Bargaining

Article excerpt

ABSTRACT

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. …

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