Training for Bargaining

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 use every day.

Empirical research on plea negotiations has concentrated on outcomes of negotiations rather than the process itself. Our multi-phase 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 where training might improve case outcomes for defendants.

Surveys, interviews, and training agenda 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 some 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 naïve. 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.

Keywords: Criminal Law, Criminal Procedure, Plea Bargaining, Plea Negotiations, Negotiation Theory