Plea negotiations are a central part of every criminal case, approximately 99% of all cases will end in a plea agreement. Yet, to most people the process remains a mystery. I have been on both sides has a defense attorney and has a prosecutor, here is what I have learned about how the top criminal defense attorney's negotiate the best deals for their clients.
At some point in every case the prosecutor and defense attorney will talk about a deal that will wrap up a criminal case. They talk in the courtroom, in the hallway, on the phone, in the prosecutor's office and just about anywhere two people can talk. Surprisingly, law school does not teach young lawyer's how to negotiate. Lawyers must rely on their natural talent and learn by trial and error.
Negotiating is all about getting the best deal. To do that you have to be firm and resolute without being a jerk, it is a balancing act. Act like a jerk and your client will pay for it. If you don't stand your ground and fight for concessions, you will never get a good deal. The secret is knowing when to push and how hard to push.
Reputation matters. Prosecutors know which defense attorneys are dangerous in the courtroom. A prosecutor's fear of losing a trial and having to explain it to their boss why is a good motivator to get concessions. Defense attorneys with a long and strong list of jury trials under their belt have a big advantage over the masses.
It is critical to evaluate your case. Know the facts, what are the strengths and weakness of your case. What goal does the client have, is it to stay out of jail, or get out as soon as possible, do they want and can they be successful on probation, do they want or need drug or alcohol treatment. Often times it is important to talk with the client and help them in setting reasonable goals. If your client confessed to murdering three people probation is probably not a realistic option. Once you and the client have a reasonable goal, go for it.
Understand what the prosecutor wants and needs. Prosecutors have extremely high caseloads they are very busy people. Prosecutors want convictions, and they do not want to lose jury trials. If they are going to dismiss a case or pled to a lesser charge they need reasons to explain it to their bosses. Save the prosecutor work get a better deal. Scare the prosecutor that you might well win the jury trial or get the judge to exclude key evidence get a better deal.
Timing is everything. I find the best times to settle a case is either early at the first or second setting (before the prosecutor has done a lot of work and become invested in the case) or after a yearlong struggle with a jury in the hallway (they think they might loose and they do not want to find out for sure). The critical thing is deciding when you have gotten the most concessions you are going to get and weighing the danger the client is in. The best attorney's just know when it is time.
Know when to go to trial. Some cases need to be heard by a jury to best protect and help the client. Explain the risks make sure it is what the client wants and what is best for the client. Then in the right cases step back from the bargaining table and step into the courtroom.
Know what to say. Begging and whining do not work. Trying to make the prosecutor sad about your poor client does not work, they hear it every day. What works is talking about the strengths of the defense case and pointing out the weaknesses in the prosecution case. What works is telling a compelling story about who your client is and pointing out what makes them a valuable human being. What works is showing the prosecutor that your client is not a threat to society and is willing and able to do what is necessary to rehabilitate themselves. Give the prosecutors the answers they will need if the boss asks them why they gave you such a good deal.
Bargain in good faith, always tell the truth and be respectful, make concessions where you have to. Keep your goal in mind, and stay strong. Walk away from the deal knowing you got all you could, that you protected your client.
Larry Dean Bloomquist
Attorney at Law