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One-size-fits-all prosecutorial negotiating approaches disserve all parties and invite patchwork negotiating over jurisdictions and time

Criminal defendants must always go to court ready for trial, but also need to consider negotiations before unholstering their weapons and unleashing their offense

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As glorious as are criminal trial victories, settlement negotiations are very important for many criminal defendants, because many of them are caught redhanded and have thin reeds at best for avoiding worse and significantly more punishing outcomes at trial than through settling their case.

Of course, criminal defense lawyers and their clients must fully prepare for trial battle, not only for the circumstances where a guilty plea or no contest plea is out of the question, but also to be prepared for settlement negotiations that are insufficiently fruitful, and because the settlement incentive is lowered for a party who knows his or her opponent is not ready for trial. Not being ready for trial makes the opponent smell blood and move to let out even more blood.

In negotiating, prosecutors are influenced by such key factors as their job security, satisfying law enforcement personnel, satisfying complaining witnesses, fulfilling the rules of lawyer conduct, managing the time and other resources of themselves and the rest of the law enforcement community, dealing with a public potentially irate over their decisions, appearing to be fair,  and their own viewpoints of the case.

Often, I hear prosecutors tell me that it is not fair for them to offer one type of beneficial settlement result to one party and not others charged with the same crime and with a similar prior record with the criminal justice system. Some  tout the importance of being consistent, in mantra-like fashion. When that happens, I am ready to distinguish my client’s case from the so-called run-of-the-mill situation with the same type of prosecution, including humanizing and individualizing my client and the circumstances of his or her case, pointing out the bets each party has to hedge in the particular case, the balance of the equities and negative aspects of my client’s case and life history, and the low severity of my client’s case compared to many other cases involving alleged violations of the same statute.

I also can point out that negotiations are hardly consistent when such claimed consistency stops at the county’s or state’s borders or changes from line prosecutor to line prosecutor, and chief prosecutor to chief prosecutor. Furthermore, I can point out the inconsistency of offering one type of negotiated disposition today that is much less favorable to defendants than what was more common in the same county less than a year before.

Negotiations must be based on a case-by-case individualized basis, even though doing so might seem more time consuming to a prosecutor at first blush. All criminal defendants’ liberty interests are too compelling to do otherwise. Negotiators need to work effectively to negotiate from the basis of goals rather than positions. Negotiators need to shed their egos when bargaining for a resolution.

When negotiations work to a party’s satisfaction, great for that party. When negotiations do not work, bring on the trial if a trial is the only remaining alternative, and do everything you can to win the trial. This remains war.