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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 will use every day.

Empirical research on plea negotiations has concentrated on outcomes of negotiations rather than the process itself. Our multiphase 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 in which training might improve case outcomes for defendants.

Surveys, interviews, and training agendas 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 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 naive. 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.
TABLE OF CONTENTS

INTRODUCTION
I.   THEORY AND EMPIRICAL TESTING OF PLEA NEGOTIATION
II.  A NATIONAL SURVEY OF PUBLIC DEFENDER
     NEGOTIATION METHODS
     A. Methods
     B. The Absence of Formal Training
        1. Training for New Attorneys
        2. Formal Training After Orientation
        3. Routine Preparation
        4. Why the Reluctance to Train?
        5. Change on the Horizon
III. TRAINING DEFENDERS TO NEGOTIATE FOR BETTER
     OUTCOMES
     A. Training About Negotiation Strategies and Styles
     B. Training About Preparation: Understanding BATNA
     C. Training About Communication Strategies
        and Information Exchange During the
        Bargaining Process
        1. Anchoring
        2. Strategic Information Exchange
        3. Using Data to Establish Objective Criteria
     D. Additional Training (and Hiring) Considerations
        1. Negotiating in Person Versus Other
           Methods of Communication
        2. Law and Ethics of Plea Bargaining
        3. Hiring Better Negotiators
CONCLUSION
APPENDIX: SELECTED QUESTIONS FROM THE DEFENSE
COUNSEL SURVEY


INTRODUCTION

There is no novelty in placing guilty plea negotiations at the center of criminal justice in the United States. These days, only a tiny fraction of convictions come after a trial. (1) Word has even reached the U.S. Supreme Court. After decades of embarrassed and backhanded discussion of plea bargains, the Court now confirms what has long been obvious to system insiders: plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system." (2) Indeed, the Court now squarely recognizes defense counsel's constitutional duty to function effectively in the plea bargaining context, (3) and ethics rules, professional standards, and other norms of practice apply directly or indirectly to negotiation in criminal cases. (4)

Yet plea bargaining is an underappreciated skill, particularly given its central role in the criminal justice system. Consider this scenario: A new criminal defense attorney approaches a prosecutor in the hallway to discuss an ongoing assault case. Defense counsel knows that the complaining witness is interested in restitution for medical bills and an order that will keep the defendant away from his workplace. The witness does not seem particularly interested in having the defendant go to jail because he knows that then he will never get compensated. But he has not told this to the prosecutor yet because the prosecutor has not been in touch. Defense counsel has heard that the prosecutor is a tough negotiator, and because she really has no training on how to deal with a tough negotiator, she decides to match the toughness by threatening to take the case to trial and file a lot of motions if the prosecutor does not agree to an acceptable plea bargain.

Some interesting research shows that fostering a positive mood in a negotiation through tone can make the parties more creative and more likely to use negotiation strategies that try to meet both parties' interests--a "win-win" approach. (5) What if negotiation training had taught counsel that setting a positive mood could help achieve the desired outcome, particularly given the opportunities for "problem-solving" or "integrative" bargaining (6) in the particular circumstances?

Although plea negotiations now dominate the practice of criminal law, skills relating only to trial remain central to the way defense attorneys are trained for their work. (7) Negotiation-specific skills are still peripheral to that training.

The ability to try cases effectively will undoubtedly enhance the ability to negotiate effectively. Further, many aspects of preparation for trial, such as witness interviews and legal research, also prepare the attorney for plea bargaining. However, there is some preparation that relates solely to bargaining, such as determining--before entering the negotiation--what information to share and what to withhold during the actual bargaining session. (8) In short, defense lawyers are training to operate in a trial-based world that does not exist. (9) A common explanation for this lack of negotiation training is that some lawyers are innately good bargainers and others are not. Though it is possible to pick up some tips by watching those gifted in the art of bargaining, many believe that there is really no systematic way to think about--and thus to teach--plea bargaining.

The result is that criminal defense lawyers enter practice with little exposure to negotiation techniques and strategies in the plea bargaining context. While defenders quickly gain negotiation experience, particularly in a high-volume indigent defense practice, they often do not reflect upon that experience in a systematic manner that is designed to improve bargaining outcomes for clients. Defenders also do not integrate intentional preparation for a specific negotiation session into their routine practice. The training gap directly affects defendants, who are represented by lawyers without formal training in the negotiation process that produces the great majority of convictions. (10) As one scholar has described the problem, "the vast majority of lawyers have not received any training in the most significant skill they use every day." (11)

While it is easy to see that a problem exists with a near exclusive focus on trial-based attorney training, it is more difficult to know the precise extent of that problem. Empirical research has so far concentrated on the outcomes of plea negotiations rather than the negotiation process itself. (12) When it comes to discussions between defense counsel and the prosecution, along with the preparation and training that led up to that bargaining, the empirical research is thin. In particular, we have discovered no empirical studies of defender training for negotiation. (13)

This Article reports the first data from a long-term empirical study of the "bargaining" part of plea bargains. Our field study attempts to map the negotiation practices that happen during criminal plea bargaining in light of well-established insights from negotiation theory. Several different sources contribute to this study, including field interviews of public defenders, responses to an online survey (relevant portions of which are attached as an Appendix to this Article), and a content analysis of the training agendas for programs typically available to assistant public defenders in the different jurisdictions surveyed.

In this Article, we explore the training, if any, that public defenders receive on actual negotiation skills, compared to the training they receive on trial skills. In Part I, we summarize some of the negotiation literature, focusing on the small body of work that applies negotiation theory to the plea-bargaining context. Part II reports on the survey and other data from our field study that relates to negotiation training and preparation. The results show how some public defenders do receive limited training in negotiation skills in addition to trial skills, particularly when they first enter their offices. (14) The topic of negotiation, however, almost disappears from the agenda for public defenders in their continuing legal education, even as trial skills remain front and center. (15) The mutually reinforcing sources from this field study confirm that public defenders receive far less training in negotiation skills and strategies than they do in trial techniques, despite the dominance of negotiation in practice.

In Part III, we argue that this training deficit matters in practice. The attorneys' survey responses reveal various defense practices that could improve after training based on mainstream insights from negotiation theory. (16) Improved defense attorney performance during the preparation phase and during the negotiation process itself could change outcomes for some defendants. (17) Part III also offers several examples of negotiation-specific training, drawn from widely accepted and studied techniques and practices in negotiation literature. These include training about negotiation strategies and styles, understanding the concepts of "Best Alternative to a Negotiated Agreement" (BATNA) and anchoring, and using data to establish objective negotiation criteria. (18)

Leaders in public defender offices allow the gap in training to continue when they believe that negotiation is more an art than a science and not susceptible to rigorous analysis or systematic learning. (19) The position that negotiation cannot be taught is demonstrably false and theoretically naive. There is an entire world of formal negotiation learning, a discipline that has developed now for generations. (20) The theory has proven effective in actual negotiations. (21) 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, ethical rules, and professional standards. (22)

One of the few surveys of defense counsel's views on effective negotiation skills opined that "good relations with the prosecutor are not nearly as important as many believe." (23) The authors concluded that "defense lawyers with good negotiation skills can obtain favorable plea bargains even if they do not get along well with their opponents." (24) This insight reveals the transferable and generalizable nature of negotiation skills. They are not limited to just a few personality types and do not assume an unusually receptive prosecutor as a negotiating partner. Although public defenders may be dealt a weak hand in many cases, training focused on negotiation skills could help them get the best results from those cards.

I. THEORY AND EMPIRICAL TESTING OF PLEA NEGOTIATION

Negotiation is a relatively new field for academic inquiry. The topic is interdisciplinary, drawing on fields ranging from economics to anthropology. (25) The study of negotiation finds its roots in studies of labor markets in the 1920s and other business markets in the 1960s, but beginning in the late 1970s, legal and other academics turned their attention to the topic. (26)

In 1978, Gary Bellow and Bea Moulton published The Lawyering Process: Materials for Clinical Instruction in Advocacy, which included a thorough exploration of negotiation literature. (27) In 1981, Roger Fisher and William Ury published Getting to Yes, a best-selling book that introduced generations of students to the concept of principled negotiation through nonadversarial bargaining. (28) Within law schools, Harvard Law School's Program on Negotiation was founded in 1983, (29) and the Ohio State Journal on Dispute Resolution is now in its thirty-first year of publication. (30)

Like any other subject of social science inquiry, the field of negotiation operates through a dialogue between theory and empirical testing. General theoretical accounts grow first from preliminary observations about the field, and empirical testing confirms or refutes different aspects of the theory. That empirical evidence makes it possible to refine the general theoretical accounts of the topic.

While that dialogue has proceeded for the field of negotiation as a whole, the special context of plea bargaining in criminal cases has not yet attracted much attention. The empirical literature on the topic is particularly thin. (31) For instance, the training and preparation of defense lawyers for plea bargaining remain unmapped territory. Likewise, the actual practices of defense lawyers during plea negotiations have generated mostly anecdotal observations rather than systematic academic study. (32) Our understanding of guilty plea negotiations, therefore, must extrapolate from an established literature on negotiation more generally. The most promising designs for training programs for defense lawyers begin with a few scholarly explorations of teaching and training about negotiation generally.

The theoretical literature, applying insights about negotiation to plea bargaining, has progressed a bit further than the empirical work in the field. Nevertheless, it is recent and remains underdeveloped. In 1997, one author noted that, "no legal scholar has yet to explicitly apply bargaining analysis to the field of criminal law." (33) Ten years later, there was still "remarkably little cross-fertilization between the fields." (34) Major negotiation textbooks pay little to no attention to plea bargaining. For example, Russell Korobkin's well-respected Negotiation Theory and Strategy has two references to "Criminal cases" in the Index (with a total discussion of roughly five pages relating to those references) and one reference to "plea bargaining" (with a half-page discussion on "The Power of Patience in Plea Bargaining"). (35)

One early theoretical work came from Donald Gifford, who placed guilty plea negotiations into an overall framework for analyzing negotiation. He argued in 1985 that the context of a negotiation can determine which strategy--competitive, cooperative, integrative, or a combination--a negotiator should choose. (36) He applied this theory to several different contexts, one of which was plea bargaining. (37)

Ten years later, Rodney Uphoff published the most comprehensive examination of negotiation practices in criminal plea bargaining. (38) Uphoff noted the dearth of materials for teaching plea bargaining and undertook to examine "the skill of negotiating or plea bargaining from the perspective of the criminal defense lawyer." (39) His goal was to offer an approach to plea bargaining that was grounded both in the theoretical literature about negotiation strategy and "in the realities of criminal practice, client behavior and other salient aspects of the criminal justice system." (40) He argued that plea negotiations take place within a tension between the rational interests of the players--including the defendant, the prosecutor, the judge, and the defense attorney--and the ethical obligations of the defense lawyer. (41)

The theoretical framework for plea negotiations began to shift in the late 1990s and 2000s, as scholars incorporated insights from behavioral law and economics to identify relevant influences on actors in the plea bargaining process. (42) Influenced by social psychology, this literature generally does not undertake empirical examination of bargaining. Instead, it offers a framework for future empirical work to move beyond earlier studies that viewed plea bargaining through a rational actor lens. (43) This lens led researchers to focus too heavily on factors such as strength of evidence and likelihood of conviction. The social psychological approach, by contrast, explains "perception and decision making as a function of myriad individual and social factors." (44) This more recent literature applies that decision-making frame to the plea bargaining process at the theoretical level. (45)

This recent shift in the theoretical framework for plea negotiations has little corresponding empirical literature to test and refine its contours. (46) We found no recent empirical inquiry into defender negotiation training and little exploration of defender preparation for specific bargaining sessions. (47)

Why does plea bargaining get so little attention as a matter of negotiation theory? Some negotiation scholars suggest that negotiation in criminal proceedings is so different from negotiation in civil litigation that general observations might not apply to that context. (48) The power imbalance between the prosecutor and the defense attorney make the insights from civil litigation suspect in this setting. Negotiations in criminal cases, in this view, are completely distributive--dividing the pie into pieces rather than making the pie larger. However, a closer look at plea bargaining reveals more variety and more room for defense counsel to make an impact. (49)

II. A NATIONAL SURVEY OF PUBLIC DEFENDER NEGOTIATION METHODS

The field study we designed for this project documents current practices of defense attorneys related to plea negotiations. We focus on aspects of practice that could test current theories of negotiation in the plea-bargaining context and suggest new areas for empirical study. This survey data can also inform the conversation about closer regulation of plea bargaining currently taking place among courts, bar associations, national organizations that draft standards, and practitioners.

A. Methods

This field study involves several mutually reinforcing sources of evidence. First, we conducted fifteen interviews of public defenders who work in eight offices in four different states. Before conducting the interviews, we obtained the permission of the chief public defender for the jurisdiction. These field interviews lasted thirty to sixty minutes; we recorded and transcribed them for qualitative analysis. We used the interviews to refine survey questions in light of typical office policies, any informal rules of bargaining, and local norms of sentencing.

After completing the interviews, we developed an online survey for public defenders. We pretested the instrument with academic colleagues who are former defenders. Again with the permission of the chief public defender in each relevant jurisdiction, we distributed the survey to 1137 attorneys, working in twenty-six offices in nine states. An attorney from the leadership in each office sent an e-mail to staff attorneys just before the arrival of the survey link, saying that the leadership encouraged but did not require completion of the survey. Our survey was anonymous.

Responses came from 314 attorneys, for a response rate of 28%. Of those responding attorneys, 45% were female. Among those who indicated race or ethnicity, 83% were Caucasian, 9% African American, 5% Asian, 5% Hispanic, 2% Native American or Pacific Islander, and 5% "Other." (50)

In terms of seniority, 33% of the respondents had less than five years of experience as defense attorneys. One quarter had experience between five and ten years, 21% had between eleven and twenty years, and 20% had more than twenty years of experience. A handful (11%) worked as prosecutors at some point before taking their current positions as a public defender.

As for their current assignments, we asked the attorneys to estimate the percentage of their caseloads devoted to misdemeanor matters, general felony matters, specialized felonies such as homicide or sex offenses, and other matters such as juvenile or appellate work. We categorized attorneys by the predominant type of cases they carry, placing into a caseload category any attorneys who spend more than half of their efforts on that type of case. This process gave us a breakdown of 27% misdemeanor attorneys, 35% general felony attorneys, 11% specialized felony attorneys, and 28% with some other type of caseload.

The participating offices employed as many as two hundred ninety and as few as three attorneys; eight of the twenty-six offices were larger offices that employed twenty-five or more attorneys. We also selected seven offices that were funded and controlled at the local level, while nineteen others were funded and controlled at the state level. (51) The local offices tended to be larger offices in major urban areas.

In addition to our semistructured interviews and the survey instrument, we also collected the published (and, in some instances, unpublished) agendas for attorney training sessions in the jurisdictions where we distributed the survey. We looked to these training agendas for insight about how much training occurs in a formalized setting and how much occurs through informal discussion or observation. The agendas also allowed us to check the accuracy of attorney answers to questions about the amount and nature of training available to them.

B. The Absence of Formal Training

The interviews, surveys, and training agendas all pointed in a single direction: public defenders receive far more training about trial techniques than they do about negotiation techniques. The same rationales that support training in trial techniques should apply at least as much to negotiation skills and strategies, but public defenders currently do not benefit from much formal training on the latter subjects. This deficit between trial training and negotiation training holds true for both new and veteran attorneys. In this Part, we review the formal training available to attorneys--as reflected in survey responses and in published training agendas--along with the limited efforts at preparation for negotiation that public defenders report. Finally, we consider the reasons why training and preparation for bargaining receive so little attention during the formation of defense attorneys as competent professionals.

1. Training for New Attorneys

Our survey asked several questions about the training that public defenders received on negotiation techniques or strategies. The responses suggest that more training opportunities are available for new public defenders than for more experienced attorneys. (52)

About 26% of the attorneys reported that they received no training at all as newcomers to the public defender's office. The median number of days devoted to training for new attorneys was five. Attorneys with below-median days of new attorney training were just as likely to work in large offices as they were to work in small offices. The same is true of state-run offices compared to locally-run offices: there were no statistically significant differences between these types of offices.

Among the public defenders who received any training upon arrival in their offices, 41% said that none of the training for new attorneys related to negotiation skills and preparation for bargaining, while 58% reported five or fewer hours related to those topics. (53) The new attorneys who engaged in training spent some of that training time observing more experienced attorneys during plea negotiations, (54) but that observation time was minimal. Although 39% of the new attorneys who received training spent no time observing experienced attorneys negotiating, those who did observe negotiations spent a median of two hours doing so. Attorneys working in small public defender offices reported longer hours of observing negotiations: sixteen hours on average, as opposed to seven hours for larger offices. (55)

Our interviewees confirmed that training specifically for negotiation is not common. Referring to one statewide training program, an interviewee reported that five years ago there was "zero training on negotiation, nothing on plea bargains, nothing at all." (56) Another suggested that trials interfere with training for bargaining: "Well, one of the problems we have in [this county] is we don't get to go to a lot of those [statewide training programs on plea bargaining] because we're in trial." (57) The limited training on guilty pleas tends to be crime-specific rather than more general training about negotiation techniques:
   The misdemeanor [training] is in the fall and the felony is in the
   spring and they put on our PD's conference every year. That usually
   doesn't talk about plea-bargaining very much, there may be one
   topic about that.... It's usually like, "plea-bargaining in
   domestic violence cases." You know how do you address the specific
   issues of domestic violence when you're talking to a prosecutor who
   knows all about domestic violence cases. You know or
   plea-bargaining in mental health cases where there is [a] real
   mental health issue.... So it's probably more focused on the topic
   rather than actual plea-bargaining. (58)


2. Formal Training After Orientation

After the initial period of orientation for new attorneys, the amount of training devoted to negotiation skills drops even lower. More than half of all attorneys in every type of office reported zero hours of training about negotiation skills in a typical year after their arrival in the office. On average, more experienced attorneys received three hours of training per year directed toward negotiation. (59)

Again, the interviews confirmed that negotiation is not a prominent topic in the formal training sessions for veteran attorneys. As one public defender put it, there is "not specific training in our office ... because I think a lot of negotiation is learned just in district [court because] you're handling so many more cases.... And by the time you get to you know doing superior court cases, you kind of got that part of [it] down." (60)

The survey also asked if attorneys received any written training materials that related specifically to negotiation skills or plea bargaining. Just under half of the attorneys (44%) responded "yes," and there were no meaningful differences between state-run or local-run offices, or between large and small offices. Of the 44% who received these materials, about half (49%) reported that they never consulted those materials at any point after the time of the training.

As a supplement to these survey results and interviews, we reviewed training program agendas from seven of the jurisdictions we surveyed. (61) We requested copies of the training agendas from all of the offices; only one office sent a complete set of documents, while others provided several agendas that were readily accessible, and still others did not respond to our request for documents. We supplemented these responses with online searches for training materials from the last three years that were posted and available to the public. In all, we collected the agendas for fifty-one distinct training events.

With those documents in hand, we analyzed their content. Based on the title of each topic during the training event and any summary of the material to be covered during that time slot, we estimated the percentage of the total event that was devoted to negotiation topics, guilty pleas, or trial topics. (62) Many of these published training agendas indicated that no formal training relating to plea negotiations took place in the program; about half of the agendas addressed no topics that directly related to negotiation. A few more agendas listed topics related to guilty pleas, with indirect connections to negotiation (such as a generic reference to "plea bargaining") but even these topics do not receive sustained attention in the training session. One typical program of eight weeks of training for a major metropolitan public defender office offered a pronounced focus on trial skills but only two short sessions on "pleas and sentences."

The important feature of these training agendas is the comparison between negotiation topics and trial topics. These programs devoted an average of 12% of time or pages to negotiation topics, whereas they devoted 44% to trial and evidence topics.

We do not believe that the published training agendas available to us reflect the full range of training opportunities available to public defenders in these jurisdictions. There are bound to be some shorter, informal training sessions (perhaps scheduled for the lunch hour in a single office) that were not documented with a written agenda. And some training agendas were not available to us. Nevertheless, we have no reason to believe that the agendas we analyzed were unusual in the topics they addressed. The agendas we gathered from a number of jurisdictions appear to show even less negotiation training than reported in the surveys.

The surveys, interviews, and content analysis of the available training agendas all confirm that current formal training programs do not often address negotiation skills or strategies. The emphasis instead is on performance at trial and the preparation necessary to be ready for effective representation at trial. Any opportunities for reflection and learning about negotiation topics, therefore, are likely to happen informally, in the untracked and random interactions between attorneys in the office. (63)

3. Routine Preparation

Just as negotiation skills remain at the periphery of formal training for new attorneys and for veteran public defenders, intentional preparation for negotiation remains the exception for public defenders during their routine practice of law. Defense attorneys might give some thought to negotiation before they interact with prosecutors in a case. (64) They do not, however, devote the same level of preparation to negotiation that they give to trial preparation in their cases.

According to responses from one question in our survey, 38% of the attorneys discuss or moot their upcoming negotiations with a colleague or supervisor "often" or "always." (65) However, this discussion normally happens in informal settings with colleagues. (66) When asked how often they prepare for negotiation through a pre-negotiation meeting with a supervisor (a practice that often applies to trial preparation), only 4% of the respondents said that they follow this practice "often" or "always." (67)

Most of the attorney preparation for negotiation instead appear to be solitary activities. These activities are indistinguishable from the activities of an attorney who is preparing for a trial. Table 1 summarizes the average frequency score we assigned to the relevant answers, with 1 meaning "never," 2 meaning "infrequently," 3 meaning "sometimes," 4 meaning "often," and 5 meaning "always."

The lack of attention specifically devoted to training about negotiation skills and techniques finds a parallel in office practice. Attorneys do less preparation with their peers and supervisors prior to a negotiation than they do prior to a trial. Their individual preparations for negotiation overlap entirely with trial preparations. When it comes to negotiations, public defenders prepare and perform their work using the same framework as they do for the trial; they do not devote separate thought or preparation to the very different context of a negotiation.

4. Why the Reluctance to Train?

Why would the offices provide so little formal training related to negotiation techniques? The survey itself does not pursue this question, but our hour-long interviews on the subject did offer some insight.

The attorneys who talked with us explained the lack of formal training about negotiation by pointing to the nature of the knowledge an attorney must hold to succeed at negotiation. In their view, that knowledge is too complex and too dependent on individual personalities and specific relationships among the negotiators to be amenable to systematic study or theoretical insight. The lack of training, therefore, does not reflect the idea that effective negotiation is unimportant to the work of a defense attorney. Rather, negotiation does not receive direct attention in the training regime because it is viewed as an "art" rather "than a science." (68)

We heard in most interviews that--in the words of one public defender--"negotiation is such a nebulous thing." (69) Put another way, it is hard to do any deliberate and systematic preparation for or training about negotiation. That same public defender elaborated on the point:
   [P]lea-bargaining is ... more an art than a science. I don't know
   that there will ever be a set of instructions for how to do it and
   I don't think there should be.... [Y]ou kind of learn your way
   around in the little cases and you get the gist of it or you
   don't.... [Y]ou couldn't just sit down with somebody--at a CLE.
   "Here's how we do this, you got this"--it's one of these stages
   where you got to feel your way through.... I just don't think it's
   something that can be taught, I mean, here's--and it's one of the
   things you really got to do, it's like trying to tell somebody how
   to--I don't know, fly a jet or something. (70)


The analogy to flying a jet is interesting. The speaker argues that complex tasks like flying a jet cannot be taught; they have to be learned by just jumping in and doing it. Yet, in the authors' experiences, in the setting of a law school classroom, students almost always stumble when they moot a negotiation exercise; their learning curve is steeper here than for simulated cross-examinations of a police officer or closing arguments to a jury. And they do get better at the task after practice and reflection on what they can learn from that practice.

Another common theme among public defenders was that negotiation cannot be taught because it depends so much on individual personality or the unique interaction between the individual defense attorney and prosecutor. (71) The skill is highly individualized, defenders argue, making it pointless to generalize about the topic or to transfer the skill from one attorney to another. (72) As one attorney explained:
   [N]egotiation I guess is more about style.... But no I can't say we
   have had any real formal training on tips and tricks in negotiating
   plea bargaining.... [M]ost of the training, the vast majority of
   CLEs we do are substantive about, you know, suppression issues, we
   can talk sentencing structure, sentencing schemes.... But the
   nuances of plea-bargaining not so much. It's kind of an art form.
   (73)


Similarly, some defenders argued that prosecutor office policies differ so radically from one another that defense attorneys in one district could not offer much guidance on negotiation to defenders in other jurisdictions. One attorney put it this way: "[I]t would be tough for someone within our organization to put on something that's really useful to everyone ... to even like a broad sort of swath among offices. Because the practice of the [prosecutor's] offices in terms of plea bargaining ... is just entirely different ... office to office." (74)

The same observations about individual "style" and treating negotiation as a nuanced "art form" might apply equally to effective cross-examination of a witness or to opening statements at trial. Yet educators and scholars treat these trial preparation and trial performance skills as proper subjects for systematic study and theory-based instruction.

A few of our interviewees treated negotiation itself as a frivolous topic, providing less value than the attorney might gain from understanding the sentencing options available to the judge. As one attorney put it:
   [I]t feels like a used car sale[] ... they're offering [a] high
   number, you are offering a low number and then meet in the middle.
   But a lot of that is ... knowing what else you can plea to [and]
   convince the DA ... that's a proper thing to do. And then knowing
   the kind of programs that you can get a person into that kind of
   build[s] your credibility that this person is not going to do the
   same thing again. (75)


5. Change on the Horizon

Although training on the topic of negotiation technique is not commonplace for public defenders, (76) there are some signs of change. Some of our interviewees showed an awareness of negotiation as a topic for potential training, one that has begun to catch the attention of office supervisors. One interviewee, after saying that "zero" training on negotiation was available to her as a new attorney, said, "[t]hat has changed recently." (77) An attorney interviewed in another state reported that "an effort of late to include plea-negotiations as part of the training ... [is] an important component ... just like you would have for--how to do a cross-examination." (78)

Which topics would appear in plea negotiation training? So far, the answer remains fuzzy for attorneys, even for those who believe the topic is worthwhile to address in training. One interviewee described a training program that approached the topic through the lens of sentencing law: "There is a negotiation specific training at the state level right now, when we conducted most of the training here, we had a specific training called 'pleas and sentencing' which kind of discussed the negotiation process and the sentencing process as part of one presentation." (79) Training materials from some of the jurisdictions in which we conducted interviews did list new attorney trainings on collateral consequences, along with training on the use of immigration, employment, and housing consequences as part of the bargaining and counseling process.

One office supervisor declared negotiation techniques to be a new area of emphasis for training and speculated about the potential topics for these sessions. He said that negotiation training in his office would not only include the basics as embodied in the Sixth Amendment and the law of legal ethics. It would also include "nuanced" questions:
   Most of the training that has occurred on plea-bargaining is,
   yeah, you give them basics. You give the real basics, how do you
   do a plea, how you do a regular plea, what are the Boykin rights,
   what's the waiver plea, when is it appropriate, what are the
   sentencing schemes, blah, blah, blah. But also the ethics involved
   and especially after the recent case that came down ... and
   obviously you're going to take every plea to your client. But ...
   it's a lot more nuanced than that. You know ... when do you arm
   twist, when you don't arm twist, when is one arm twist too
   much, when is one not enough.... These are the things that you
   try to discuss with the attorneys about plea-bargaining. (80)


In an especially promising trend, several national organizations that promote the professional development of public defenders--such as Gideon's Promise and the National Association of Criminal Defense Lawyers--now include units on negotiation strategies and skills in their model training programs. (81)

In the next Part of this Article, we move beyond these preliminary suggestions for content. Based on survey responses about current negotiation practices and insights that are well established in the study of negotiation outside the plea-bargaining context, we describe some components of a comprehensive training program in negotiation skills and strategies. In particular, we focus on training that goes beyond the client counseling phase of the plea bargaining process. That phase has received significant and deserved attention in the wake of several Supreme Court cases considering attorney failures to counsel clients effectively about plea offers. (82) But training about basic negotiation skills during bargaining between lawyers is not the same as training about client counseling relating to plea offers. (83)

III. TRAINING DEFENDERS TO NEGOTIATE FOR BETTER OUTCOMES

There is no empirical study of whether negotiation training for defense attorneys would lead to better outcomes for defendants in the plea bargaining process--in part because so little training actually happens. (84) However, studies about the effectiveness of using particular elements from negotiation theory more generally support the claim that training matters. (85) There is good reason to believe that training would improve plea bargaining outcomes (86) because most professional decisions involve a mix of technical components that are amenable to training and intuitive components that are not. (87) Further, given the realities of the criminal justice system, "[i]t seemingly would follow ... that criminal defense lawyers interested in obtaining the best results possible for their clients would concentrate on becoming effective negotiators." (88) Although a full description of a comprehensive training program for plea negotiations is beyond the scope of this Article, this Part briefly describes several major areas in which negotiation theory can and should inform attorney training in plea bargaining.

Local culture, state sentencing law and policy, office policies, and other factors will vary from jurisdiction to jurisdiction and will influence how to negotiate most effectively and thus how to train defenders in plea bargaining. (89) Similarly, systemic issues unique to criminal cases--such as defendants who are often incarcerated, defense counsel with high workloads, and prosecutors who overcharge many cases--must be taken into account. (90) But this does not mean that training for effective plea bargaining is not possible; it simply means that training should be locally-calibrated and sensitive to the norms, personalities, and systemic pressures involved. Different defender offices train in different ways about things like jury selection, opening statements, and cross-examination; there is no one-size-fits-all approach, particularly against a backdrop of a local jury as a potential factfinder. At the same time, there are certainly many common elements to all training in trial practice areas, such as the "rule" that a trial lawyer should never ask a witness on the stand a question without knowing the answer. Negotiation training should operate in a similar way.

Just as there are general rules for training about trial practice or witness interviewing, negotiation literature agrees on the basic tenets. At a gathering of scholars and practitioners a decade ago, intended to develop a "canon" of negotiation theory that cuts across disciplines, there was broad agreement on six core topics that were already taught in, and included in the leading textbooks for, all of those disciplines:

(1) the idea of personal style or strategy or personality in a negotiation (including the concepts of competitive or adversarial v. interest based or principled or problem-solving); (91)

(2) the use of communication skills--both listening and talking--in negotiation; (92)

(3) the concept of integrative v. distributive negotiations; (93)

(4) the concept of a "bargaining zone" between the parties as well as the concepts of BATNA and reservation prices; (94)

(5) the use of brainstorming and option creation in a negotiation; and

(6) the importance of preparation to negotiation. (95)

The survey data reported in Part II suggests that the failure to train defense attorneys about even these basic concepts can cause real problems.

We direct our proposals for negotiation training in this Part to defense attorneys, without addressing the prospect of training for prosecutors. Is the benefit of training for defendants therefore temporary, a competitive advantage that disappears as soon as prosecutors also learn more about negotiation theory and strategy?

There is no rigorous empirical investigation of this question in the criminal context. We imagine, however, that at least some training benefits for the defense would survive even after both parties upgrade their negotiation skills. As we explain below, some negotiation environments lend themselves to a cooperative strategy or style that can benefit both parties. Even in more competitive zero-sum contexts, one party might use training better than the other. When it comes to trial techniques, we do not give up on training defense attorneys for better cross-examinations just because prosecutors might receive the same training. The same line of thought applies to negotiation training for defense attorneys. (147.) Ohio v. Johnson, 467 U.S. 493, 500 n.9 (1984).
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Title Annotation:Abstract into III. Training Defenders to Negotiate for Better Outcomes, p. 1445-1474; Plea Bargaining Regulation: The Next Criminal Procedure Frontier
Author:Roberts, Jenny; Wright, Ronald F.
Publication:William and Mary Law Review
Date:Mar 1, 2016
Words:6900
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