The Criminal Defense Lawyer as Effective Negotiator: A Systemic Approach

Abstract

In the first issue of the Clinical Law Review, Peter Hoffman challenged clinical legal educators to “take skills seriously” by producing clinical scholarship that is “practical in its orientation and design” and written so as to enhance the ability of lawyers to represent their clients and to help law students prepare for law practice. To Hoffman, the best clinical scholarship about skills combines theory and practice, but ultimately is grounded in actual lawyering experiences. Finally, Hoffman insisted, if skills-focused clinical scholarship is to be useful, it must be written so that lawyers and law students can read, understand and, above all, apply the analysis provided in that scholarship to the task of representing their clients.

This article takes up Hoffman's challenge in the context of examining the skill of negotiating or plea bargaining from the perspective of the criminal defense lawyer. I decided to focus on this particular skill for two reasons. As anyone familiar with the criminal justice system recognizes, criminal defense lawyers spend much of their time “plea bargaining.” Indeed, the vast majority of criminal cases are resolved by a guilty plea. It seemingly would follow then, that criminal defense lawyers interested in obtaining the best results possible for their clients would concentrate on becoming effective negotiators.

And yet, despite the obvious importance of being good negotiators, criminal defense lawyers often do not bargain effectively. But why is this so? Before discussing the methods, approach or techniques that lawyers can use to enhance their ability to bargain effectively, it is critical to understand what it is about the practices of criminal defense lawyers and the criminal justice system that produces poor plea bargaining. It is only by understanding the systemic factors that pressure defense lawyers and defendants to settle most criminal cases and undercut defense counsel's negotiating strength that law students and practicing lawyers will be able to appreciate the difficulties they will encounter in implementing the approach and techniques described later in the article.

The article is designed, therefore, to address a critical need -- improving the ability of those lawyers handling the defense of criminal cases to negotiate more effectively.

Keywords: plea, defense, criminal, bargaining , negotiator, skills, Hoffman