Highly experienced lawyers and rookie lawyers alike can develop their negotiation abilities (just as they improve their trial skills) (just as they improve their trial skills). But without legal training, what can you do?
Lawyers commonly utilize checklists to learn how to handle various cases or defenses. This post is derived from the academic paper titled “How to Be a Better Plea Bargainer,” by Cynthia Alkon and Andrea Kupfer Schneider. It will focus on how you may become a more effective plea bargainer by preparing for negotiation with a negotiation checklist (“prep sheet”).
Plea bargaining is, by definition, a negotiation to reach an agreement between the parties to resolve a criminal case.
Why Preparation Matters in Negotiation
Like any other communication skill, bargaining abilities can grow with careful thinking, practice, and reflection. Preparation is the most straightforward approach to improving your negotiation skills.
Plea negotiation is the main type of criminal case settlement. The great majority of state and federal cases are resolved through plea bargaining. However, plea bargaining involves limits and aspects that are more complex than those observed in regular civil trials.
The fact that plea bargaining is a negotiation with severe limits is why negotiating skills are essential. Strong negotiation abilities can assist both prosecutors and defense lawyers in moving beyond the limits. Prosecutors are bound by office policies, which are occasionally political. The local district attorney is usually an elected politician and beholden to party politics.
To become a good negotiator, it is necessary to develop the abilities of assertiveness, empathy, adaptability, social intuition, and ethicality before engaging in a negotiation. For example, a defense lawyer who has thoroughly investigated their case and knows that the evidence is weak on a critical 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 the typical offers for various crimes, knowing if or when to be pushy about negotiating a higher deal.
Lack of preparation can be shown in empirical studies on defense attorneys, revealing that many fail to engage in detailed interviews of defense and prosecution witnesses. This is true even though defense attorneys realize that vulnerabilities in the prosecution’s case are some of the primary leverage points in a plea bargain. Yet, many still neglect to execute this crucial work.
Goals for the Preparations Sheet
First, excellent negotiation demands adequate preparation. A preparation sheet is the greatest place to begin and helps to carefully organize thoughts.
Second, a preparation sheet is helpful to realize more clearly that there are often common interests and goals, potentially shared gaps in information or facts, shared mistakes that can be made, and shared concerns as one continues through the negotiating process.
How to Use a Preparation Sheet
The first step in using a plea preparation sheet is to fill it up with the case facts.
For example, negotiators generally focus on their private interests and desires, not thinking about their rivals. A plea preparation sheet discourages this technique and necessitates considering their counterpart’s interests. Understanding what matters to your adversary is crucial to a negotiated agreement. Defense lawyers who focus entirely on their client’s interests and do not realize that the prosecutor cannot plead out some cases to lighter offenses without their boss’s consent will unlikely find out what they might need to do to acquire that approval.
Does the defense attorney need to talk to the prosecutor’s boss directly? Does their client have particular mitigating circumstances that will be more likely to convince the prosecutor’s supervisor that this case is an exception to the policy? An intelligent negotiator will think about the positive or negative facts in their case. What is the defendant’s criminal history? What are the laws and policies that influence this case? Are there minimum sentences?
If you have unfavorable (or problematic) facts, your zone of possible agreement is altered. The zone of probable agreement is likewise varied in different jurisdictions. Even within the same state or county, there can be enormous variances in how specific cases are processed, what standard offers are, and the zone of probable agreement in that court or county or state.
Beyond the information, the prep sheet might help consider subsequent measures. For example, defense lawyers are expected to consider collateral repercussions. The U.S. Supreme Court insists that lawyers warn about immigration consequences in each plea deal. However, defense counsel may not take the time to find out if pleading to a given case will mean the defendant will be evicted or lose their employment or their professional license. This may even be a more significant factor with less severe instances, such as misdemeanors, which can nonetheless entail significant collateral consequences. A prep document underlines the relevance of inquiring about these repercussions for defense counsel.
Thus, it matters to think about collateral implications and examine whether another conclusion is a preferable option without the collateral consequence.
A negotiation prep sheet urges us to explore these choices as well. Penal codes in the U.S. are written with a broad range of viable options and ways to charge the same conduct. Before commencing a negotiation, it is practical to list what those possibilities are. What are lesser offenses? What are enhancements that can be changed or dropped? And what are the other processes? Does one charge or another qualify for a drug court?
Lawyers might overlook the complete spectrum of alternatives without knowing that option generation can be vital for any discussion.
Interests and Goals
It usually is rational to start the preparation for a negotiation by analyzing what is essential—needs, motives, and interests—and then creating a goal for measuring those accomplishments. Effective negotiators realize that while intuitive, explicit, specific reasoning about interests and goals makes it significantly more probable to achieve them.
In every negotiation, the first thing to think about is the parties’ interests. We might believe that this is very simple: the prosecutor wants to punish the culprit, and the defendant wants to prevent that. And yet recognizing the genuine interests of the parties—versus their opening offers or assumed positions—is vital in addressing their demands. In negotiation theory, the difference between viewpoints and interests is typically stressed as the basis of more effective negotiations. The skills to prepare those—interviewing, gathering information, active listening—are highlighted as required for client-centered counseling.
It is not enough to comprehend your interests. It is advantageous to effectively persuade your opponent to grasp (or make a decent guess about) their interests.
The interests of the victim, the press, or the public, which might align, but often do not, are essential concerns. Each case, victim, and jurisdiction will differ as to how impactful the interests are on the actual bargaining. The pressure of the press or public to be harsh or to dismiss charges should be considered. Similarly, some victims will prefer more engagement while others will not.
In the plea negotiating to set, interests include those that may be beyond the case itself. For example, both defense lawyers and prosecutors are interested in managing their caseloads. Prosecutors may have an interest in career promotion. Prosecutors have office policies by which they must abide. Defendants may be apprehensive about collateral effects (would they lose housing, jobs, custody of their children?).
Prosecutors are typically less concerned with what a defendant wants than how they can explain or justify a particular arrangement to their supervisor. Defense lawyers who understand such interests are better equipped to present facts and arguments that justify creating an exception to an official policy, such as eliminating a school zone enhancement or obligatory jail time. Why is this case different? Why should a prosecutor look at this case differently?
In addition, having detailed, optimistic, and realistic goals will be most successful. With specified goals, negotiators are willing to go back and forth more often, be patient while negotiating (rather than abruptly accepting a less desirable conclusion), and work harder to accomplish that goal.
Moreover, goals ought to be hopeful or aspirational. An easily reachable goal could 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 aims help shape the first offer (few obtain more than what they ask for) (few get more than they ask for).
One can prepare to drop back to a “safe” offer as a second or third bid, but there is no apparent reason to start with the “safe” price.
Finally, goals do need to be justifiable and reasonable. This takes the investigation to determine the average range of results in other cases or similar scenarios. Having a basis in law and policy is vital for comprehending what is considered fair and just. In some circumstances, particularly more severe offenses, the prosecutor may never make an offer. In death penalty cases, the plea bargain may center on whether the prosecution will agree to live 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, career, or other reason to assume that the accused behavior is an anomaly? Defense attorneys have fewer weapons to negotiate without the defendant’s family or history information.
Finally, good facts for either party or the law itself may provide that side advantage in the plea agreement. Prosecutors more commonly have this advantage. For example, if a case has been charged without prospective enhancements, that can be leveraged in the plea agreement.
Negotiators may anchor themselves by comprehending the spectrum of options, knowing that what they propose is acceptable and justifiable. What are the Minimum/Maximum/Standard offers? Collateral Consequences (Immigration, Family Court, Professional Licensing, etc.) (Immigration, Family Court, Professional Licensing, etc.) Motions/Procedure? Prosecutorial Policies? Court History/Judge? Leverage (Law? Facts? Procedural? Jurisdictional?)? Are alternative Processes Available? (diversion, issue solving courts, restorative justice procedure, other?)?
Finally, location counts in plea discussions. The most crucial fact in what happens in a criminal case is where it happened. 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 consider the aspects of the agreement. This includes the exact parts of the prospective 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 discussion and go to her “best alternative.” This stops the negotiator from making a terrible bargain, which would be worse than the alternative.
In plea bargaining, if negotiation is not successful, the BATNA for the defense attorney will nearly always be going to trial (the prosecutor would have no choice but to proceed) (the prosecutor would have no choice but to proceed).
The second component of the BATNA analysis is knowing when to go to that BATNA. Depending on the case, the circumstances, the individual prosecutor and judge, a defendant may be faced with two choices: take a terrible bargain or go to trial and risk an even worse outcome. In some instances, the defendant may have a WATNA, the worst option to a negotiated agreement.
Prosecutors, by contrast, may view of trial as a BATNA. Suppose their facts are vital and the law supports them. In that case, they can often expect a substantially stiffer punishment after trial due to the trial penalty.
Another part of negotiating preparation is to evaluate elements of the agreement, noting that each plea bargain can involve more than time and jail. Particularly amid 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 purports to serve.
Taking diverse views, contemplating various ideas and structures, and thinking about parallel scenarios might help open a negotiator’s mind to innovation. Moreover, being creative—giving oneself time and space to be creative, consulting with others, and brainstorming, wordplay, or other activities—need to be included in negotiation preparation so that a negotiator can think over numerous ideas.
Approach and Communication
Effective negotiators evaluate how negotiators connect before and throughout the negotiation, realizing that everything from the previous relationship to the style and time of the communication affects 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 pretty the information shared by the other side of 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 inside the negotiation has been demonstrated to minimize the risk of duplicity, enhance the likelihood of integrative agreements, and leave the parties feeling that they were handled fairly.
In advance of the negotiation, one should analyze 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 create rapport before providing substantive information or offers? Additionally, during the negotiation, it is helpful to contemplate the future connection knowing that behavior now sets the reputation and relationship for the next interaction.
In negotiating, it is necessary to separate the individuals from the problem. This helps recognize relationships distinct from the roles rivals can play. Defense lawyers and prosecutors typically have a long-standing and deep professional connection. They may be assigned to the same court for numerous 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 affect how plea talks play out. Defense lawyers will provide less information to prosecutors who have a reputation for concealing evidence or otherwise not being ethical.
Prosecutors may not have as much tolerance to bargain with a defense counsel 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 negotiation is another thing to track. It behooves negotiators to examine when they first make contact in the course of the encounter and when they first exchange proposals and how patient the negotiators can be in moving back and forth. One issue in plea talks is that first offers are typically made before discovery is complete.
Linked to the timing of the negotiation is how a negotiator should decide on 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 an uncommon negotiation where the counterpart will give even more than the first offer; therefore, that offer likely establishes the upper limit of the negotiation. The first offer, the anchor point, can set the stage for the negotiation in significant ways, modifying the counterpart’s aims and even their perceived alternatives. At the bottom end, the reserve point (here $30,000) specifies 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 scale of the concessions will be.
Immediately decreasing from $60,000 to $45,000, for example, conveys a warning that the previous estimate was not that feasible and that there are more concessions to follow. Understanding the basic timing expectations of the negotiation can also be crucial. (How long do we have to negotiate? How many times should I plan to counter?)
Yet many plea bargains begin and stop at the arraignment. A considerable fraction also likely plead out to the first offer without making a counteroffer. Not making a counteroffer and accepting the initial offer may be excellent bargaining, depending on the circumstances.
However, certain circumstances necessitate additional negotiation. For example, suppose evidence or witnesses are located that support a self-defense claim. That can be utilized to push the prosecutor to make more concessions and sweeten the offer. The contrary is perhaps more familiar: prosecutors threaten to add charges or enhancements to encourage taking the deal. Threats are not prevalent in instances involving three strikes and obligatory minimums, depending on the policies of the local prosecutor’s office.
In the last 20 years, negotiation textbooks have enthusiastically integrated behavioral economics and cognitive psychology into decision-making to better understand negotiators’ common mistakes. The first is anchoring, which is the premise that the first number that negotiators encounter “anchors” judgment of the item’s value. Even though these first statistics are not based on reasonable criteria, they have a tremendous psychological pull.
In research addressing topics ranging from home purchase to average temperature guessing, these parameters can anchor the range of the discussion. Within the legal framework, factors like statutory damage, insurance caps, or opening offers serve this purpose. Negotiators need to notice this psychological pull and be prepared to counter with their anchor 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 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 sensible, and yet it appears that these anchors can sway parties away from their goals and limits. When a defense attorney has those “good” information, it may well behoove her to center the bargain with a low first offer. The issue with plea discussions is that the maximum sentence in a case might operate as an anchor even if that is not the offer.
A second phenomenon affecting how negotiators interpret an offer is loss aversion—the fear of losing what one has (or upsetting the status quo) (or changing the status quo). Loss aversion makes the existing situation seem more enticing, even when that is unnecessary. For example, worry of going to prison when one is not yet there could boost loss aversion for defendants. Prosecutors usually have high conviction rates, although they may fear losing a case and are likely to drop charges or make a better offer if they are not convinced they have the facts needed to convict.
The last mistake is overconfidence, a prevalent phenomenon in which we overstate the strengths of our case and underestimate the vulnerabilities. A defense counsel may not realize the reality that jurors are often biased against their clients (because of their color, or the charges, or that many juries are quick to make up their mind that the defendant is guilty) (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.
A third fallacy is reactive devaluation, the tendency to undervalue a proposal because the negotiating rival offers it.
The last aspect of a prep sheet focuses on different methods of communication and knowing the pros and drawbacks of these choices.
Even before the COVID-19 pandemic forced everyone onto videoconferences, lawyers have been using diverse techniques to communicate offers, from in-person to text messaging to emails. These decisions are significant in negotiation in general since each has its advantages and downsides during a negotiation.
These styles of communication are different in three ways:
- Media richness—or how much you pick up in social cues, mood, body language, tone, etc.
- Content—how formal or informal are the modes and what type of information is typically shared in that mode.
- And the timing—is the communication synchronous or asynchronous, and what are the expectations for response time.
Face to face, or videoconferencing, provides the most richness in terms of seeing and understanding the other person, typically 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, can vary in content and include synchronous communication but do not provide visual signals.
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 answer promptly (and thus end up reading the email chain in reverse order). We often believe 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 customary duration of a face-to-face engagement.
Text messages, which are already being used to exchange plea bargaining proposals in some cases, may shift this yet again as they are even shorter (although people often assume the response time is faster) (although people often assume the response time is faster).
Plea bargaining is negotiation, albeit with limits, and all negotiators can profit from clear, organized thought in advance. Preparing for negotiating is a vital skill in negotiation. Moreover, this advanced 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 a trial to recognizing how and when we communicate impacts the relationship between counterparts and therefore, the outcome as well. And although there are significant differences between prosecutors and defense lawyers, the same information counts or should matter in seeking justice.