How does plea negotiating work? Why do plea negotiations matter?
We commonly judge a lawyer by his or her trial skills. But while trial skills are very important, the reality is that your attorney’s negotiation skills are used far more frequently and impact vastly more of their clients. According to Bureau of Justice Statistics research, about 95% of criminal cases are resolved prior to trial. So how does a lawyer get the best outcome for the client, and what can you do to ensure you are being properly represented in this critical stage of your case?
First things first: What is most important to the client?
The first thing a lawyer needs to ascertain is what is most valuable to the client. Too often, lawyers focus on what they assume is the client’s priority without asking them. Some clients are most concerned about court costs, some about jail, some about what is on their record. Talk about what impact a potential outcome would have on your job, your school, your family. Once your lawyer understands what is most important to you, he or she can get to work on achieving an outcome that works for you.
What is the strength of my case?
Your lawyer can’t evaluate your negotiating position without understanding the strength of your defense at trial. If you have a case that is winnable, then obviously you shouldn’t agree to any burdensome plea offer. On the other hand if you are highly likely to be convicted at trial, then it’s time to get the best deal you can based on your priorities.
What is most effective with this particular prosecutor?
Every prosecutor is different. Each prosecutor’s office has its own disposition standards, and within that culture different prosecutors respond to different negotiating styles. Some prosecutors will not truly negotiate until you have set a trial date, filed motions, and demonstrated that you are prepared to fight. Others appreciate saving the work and bluster, and make their best offers earlier in the case, and will revoke plea offers if the case gets close to a trial date. It is crucial to have a lawyer that is both local and experienced, as knowledge of the local negotiation culture is always going to help get the client the best possible outcome.
What common negotiating mistakes do lawyers make?
I think the biggest is lacking creativity. Too often lawyers think in binary terms, either a trial or a guilty plea. Remember that “plea bargaining” doesn’t equate to “guilty plea”, there are many other options out there! In Kitsap Courts, alternative case resolutions include pre trial (felony and misdemeanor) diversion, deferred prosecution, misdemeanor compromise, and a variety of therapeutic courts. These alternative options commonly give clients an opportunity to resolve their case without the stress and expense of trial, without jail, and without a criminal conviction.
Each court has different options available for different types of cases. We can often spot an out of town lawyer when he or she is making a lengthy argument to a judge for a certain remedy, when the local lawyers know that judge will never grant that particular kind of request. It is to the client’s benefit to have a lawyer who is familiar not only with all the options allowed by the law, but which ones a local judge is going to actually approve.
What can I do to make sure my lawyer is negotiating in your best interest?
First, make sure you and your lawyer are on the same page about your goals and what you can or cannot accept. If your top concern is jail, talk about options to avoid jail. If keeping your license is most important, ask which options will preserve your license. And understand that it may require a tradeoff, like community service or longer probation, if that’s what it takes to get what’s most important to you.
Second, ask your lawyer to outline for you, based on your charge(s), what options are realistically available, so you understand the choices. Is your case eligible for civil compromise, or pretrial diversion? If initially the answer is no, what can you do to help get yourself eligible? And most importantly make sure your lawyer is willing to go in to negotiations to fight to GET you eligible, and get you the best possible outcome on your individual case. The truth is that prosecutors have wide latitude to negotiate creatively, it is your lawyer’s job to get them to see why your particular case is worthy of an exceptional resolution.