At PrawfsBlawg, guest lawprof Colin Miller asks what new classes should law schools consider adding to the curricula (noting the correct use of the Latin plural). While the knee-jerk answer for most practitioners might be easily answered by fewer classes, more clinical experience, Miller chose to start the discussion by offering an idea of his own. Plea Bargaining.
My first post is about classes which law schools should think about adding to their curricula. When I thought about this topic, the first class that popped into my mind was a class in plea bargaining. Many law students enter the field of criminal law, and “[p] lea bargaining now dominates the day-to-day operation of the American criminal justice system; about ninety-five percent of convictions are obtained by way of a guilty plea.” Michael O’Hear, Plea Bargaining and Procedural Justice, 42 Ga. L. Rev. 407, 409 (2008). Moreover, I would argue that plea bargaining in this country is in a constant state of flux, especially in the wake of the Supreme Court’s opinion in United States v. Mezzanatto, 513 U.S. 196 (1995).
And yet, I would also argue that most law students don’t learn much about plea bargaining at most law schools.
This caught my eye. Would they teach wannabe prosecutors how to overcharge so that they could bargain a plea down to where they really hope it will go? Will they teach wannabe defense lawyers how to bluff? What about the cause and effect aspect of this 95% conviction rate, that an acceptable plea is a by-product of the strength of one’s position rather than some independent goal.
In fairness, Miller really doesn’t mean what he says. He goes on to model his plea bargaining class after an existing one, which is all about the theoretical underpinnings of plea bargaining. It’s got nothing to do with getting a gun charge down to probation rather than a year or two.
But the fact that anyone, especially a scholar, would suggest that plea bargaining is worthy of a class in law school struck me as absurd. That they would have the hubris to believe that they can teach students how to plea bargain, a matter of understanding the local customs, finesse, the viability of trying a case to win, seems outrageous. And it is. Nobody seriously suggests that there be a class on the mechanics of negotiating a plea.
The theoretical approach, on the other hand, is utterly worthless. While it may be a fine matter for academic attention, it’s of no practical use to anyone. Plea bargaining, for better of worse, is a fact of life. Having a deep understanding of why changes nothing. It will never help a young lawyer obtain a better deal for his client. Do the lawprofs think that he can prevail by boring the prosecutor into submission with a lengthy explanation of the historic origins of plea bargains?
I see no issue with a crimlaw professor giving a lecture, one day, on the background of plea bargaining. It wouldn’t hurt lawyers to appreciate why we do it, ugly as it may be. Beyond that, however, it has no legs. Lawyers practicing in criminal law must know how to plea bargain, whether prosecutor or defense lawyer.
The best way to teach someone how to get the best deal is to teach them how to fight the best fight. There is only one magic secret to plea bargaining: A good deal only comes from a position of strength. Teach them how to win, and they will figure out the rest. You couldn’t teach it to them anyway.
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How about Criminology or better yet Penology.
At some level, it’s not such a bad idea. I took a class in law school that taught negotiating theory (sort of, anyway; our text was Getting To Yes! if you remember that book) and it was one of the more useful classes I took. The prof gave us fact patterns and assigned us to actually pair up and negotiate various issues. We were graded not on the result we got but on how creative we were in getting to that result. Mostly, I think, we ended up learning how to approach the process and how to control certain aspects of the discussion. Or maybe we just learned how to think.
It was damn good practice. Our prof was an adjunct who actually had clients. I still use the concepts I learned, and I think I’m a pretty good negotiator when I have to be.
Your last paragraph says it all: Bargaining theory predicts you get a good deal by being prepared to win if there’s no deal. It doesn’t take an entire class to teach someone this lesson, but there are people out there who really need to learn it.
My recollection is that they all study penology on their own time.
I know. Just let it slide.
A practical course in negotiating is quite another thing. Negotiating theory and tactics (which I learned in undergrad in an excellent course) as would apply in many areas of law would be enormously helpful. But plea bargaining, in itself, is another matter entirely.
The lesson is critical in two aspects, that one is, in fact, capable of doing what it takes to win, and that one understand that without the credible threat of winning, the state has nothing to lose and no reason to bargain. Lawprofs who have never been a defense lawyer won’t get that last part, as their theory requires the state to capitulate merely because they lack the capacity to try every case. In other words, the defense just says “no” and the state keeps dropping the offer. It doesn’t happen that way, theory notwithstanding.
On the other hand, by making the risk of disagreement greater than agreement, a deal can be struck. The concept is simple. The application far, far harder. The converse is that a defense lawyer who has never tried a case, or has a history of being afraid of trying cases, doesn’t present a credible threat, and therefore reduces the risk to the prosecution. The result is a bad deal offered, which the defendant is coerced into taking because his lawyer can’t/won’t go to trial.
I also took both game theory courses as an undergrad and a course in negotiation as a law student and both were incredibly helpful in thinking about how to approach and frame plea negotiations. As Scott points out, the best position from which to bargain is a postion of strength, which we referred to as BATNA (Best Alternative to Negotiated Agreement). Defense attorneys who live on their knees practice NATNA (No Alternative to Negotiated Agreement).
I actually disagree. So long as there is the threat that you will follow through and try a deadbang loser just pushing a prosecutor to the eve of trial can often result in a better offer, particularly in cases that are either chickenshit or cumbersome to try. As a lot, prosecutors are lazier than us and will deal a winner just to not have to bother trying it or taking the very slight risk of losing it.
We agree. Maybe I was unclear. As long as the threat of going to trial is credible, the defense attorney maintains some juice. I’m talking about lawyers who are known not to try cases, who present no credible threat.