Training for Bargaining

American Political Science Review, 1979

Marquette Law Review, 2007

Following a larger previous study on the negotiation styles of lawyers, this article examines more specifically the data relating to criminal lawyers and found that the percentage of lawyers engaged in problem-solving was higher than any other practice area. Furthermore, when I ran breakdowns of prosecutors and defense attorneys, it turned out that 86% of defense attorneys were perceived as problem-solving. This was almost 20% more than prosecutors and also any other practice area. What is going on? One could hypothesize that it is the long term relationship and small community of criminal lawyers that lead to problem-solving. It could also be the case load, the fact that the majority of defendants are already in jail when they plea bargain, the sentencing discount given in a plea versus a trial (for example, a plea might result in a 6 year sentence when a trial could result in 30 years), and also that most defendants do not have the education or financial wherewithal to push their ...

Justice Quarterly, 2009

This ethnographic work examines the inner workings of a highly formalized plea bargaining unit in a large urban prosecutor's office from the lawyers' point of view. Observations of forty two plea negotiations between prosecutors and defense attorneys along with both formal and informal interviews reveal how the legal actors adapt to institutional rules in the pursuit of the both efficiency and justice. In the face of ever increasing prosecutorial power, defense attorneys find ways to equalize the balance when cases don't fit the 'normal crimes' model. Examination of negotiating strategy and discourse give further insight into whether prosecutors and defense attorneys behave differently under highly rationalized systems of plea-bargaining compared with traditional models previously studied.

Kentucky Law Journal, 1979

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Law & Society Review, 1979

Across Australian criminal jurisdictions, the most frequent method of case finalisation is not a contested trial, but rather by an accused entering a plea of guilty. In this context, negotiated guilty pleas, commonly referred to as 'plea bargaining', 'plea negotiations', 'settlements' and 'early resolutions', have taken on a more prominent and significant role in the delivery of modern day justice. Negotiated guilty pleas are the result of an agreement reached between the prosecutor and the accused (usually through their legal representative) that may involve—among other outcomes— alterations to the charges (number, severity and structure), an agreement as to the case facts to be put before the court, and/or an agreement on the Crown's sentencing submission, in exchange for the accused forgoing their right to a contested trial and entering a guilty plea. These agreements are justified on the grounds of court efficiency and reducing court backlogs through the speedier resolution of cases, while still ensuring that the public interest is served through a timely conviction—albeit this conviction may not reflect the full extent or severity of the offending conduct. Abstract | Negotiating guilty pleas ('plea bargaining') is a central element of criminal justice processes in Australia, yet little is known outside the legal community about the frequency and outcomes of plea negotiations. This study addresses this important knowledge gap through qualitative and quantitative analysis of cases that were resolved through negotiated guilty pleas in Victorian courts.

If we do not maintain justice, justice will not maintain us. -Francis

SSRN Electronic Journal, 2000

Psychology, Crime & Law, 2018

In the American criminal justice system the vast majority of criminal convictions occur as the result of guilty pleas, often made as a result of plea bargains, rather than jury trials. The incentives offered in exchange for guilty pleas mean that both innocent and guilty defendants plead guilty. We investigate the role of attorneys in this context, through interviews with criminal defense attorneys. We examine defense attorney perspectives on the extent to which innocent defendants are (and should be) pleading guilty in the current legal framework and their views of their own role in this complex system. We also use a hypothetical case to probe the ways in which defense attorneys consider guilt or innocence when providing advice on pleas. Results indicate that attorney advice is influenced by guilt or innocence, but also that attorneys are limited in the extent to which they can negotiate justice for their clients in a system in which uncertainty and large discrepancies between outcomes of guilty pleas and conviction at trial can make it a sensible option to plead guilty even when innocent. Results also suggest conflicting opinions over the role of the attorney in the plea-bargaining process.

2007