I just finished editing my piece for our symposium on plea bargaining, Cooperating or Caving In: Are Defense Attorneys Shrewd or Exploited in Plea Bargaining Negotiations?
and, I must say, I am more and more uncomfortable with what I am saying each time I read it. Let me explain…. In 1999-2000, I did a study of how lawyers negotiate by sending out a questionnaire to 2500 randomly-selected attorneys in Milwaukee and Chicago. Earlier articles discussed how negotiation patterns had changed over time and what made effective negotiators overall. I’ve also discussed how reputation markets could operate in smaller practice areas and smaller legal communities to encourage and reward problem-solving behavior.(What Family Lawyers Are Really Doing When They Negotiate)

For this plea bargaining symposium, I went back to look more specifically at the data relating to criminal lawyers and found that the percentage of lawyers engaged in problem-solving was higher than any other practice area. Furthermore, when I ran breakdowns of prosecutors and defense attorneys, it turned out that 86% of defense attorneys were perceived as problem-solving. This was almost 20% more than prosecutors and also any other practice area.

What is going on? One could hypothesize that it is the long term relationship and small community of criminal lawyers that lead to problem-solving. It could also be the case load, the fact that the majority of defendants are already in jail when they plea bargain, the sentencing discount given in a plea versus a trial (for example, a plea might result in a 6 year sentence when a trial could result in 30 years), and also that most defendants do not have the education or financial wherewithal to push their attorneys to be more assertive on their behalf.

And so, while I started writing my article singing the praises of problem-solving behavior and how reputation markets work to keep lawyers problem-solving, I am now not quite sure this is a pro-problem-solving story anymore. Is the high rate of cooperation between defense attorneys and prosecutors a good thing? Could the problem-solving rate for defense attorneys be the sign of a more insidious power imbalance? As I’ve titled the upcoming article, I am concerned that this is more caving in than cooperating.

Andrea Schneider