HOW TO BE A BETTER PLEA BARGAINER
Cynthia Alkon* and Andrea Kupfer Schneider**
INTRODUCTION
You are a public defender or a prosecutor and have a pile of cases to
handle in court today. All of the parties involved, including the judge,
expect most of these cases to settle. You have done hundreds, maybe
thousands of plea bargains over the years. But, every day when you have
to negotiate, you have that feeling in the back of your mind (maybe in the
pit of your stomach) that you could do better. You never got to take a
negotiation class in law school, and you have never attended a CLE or inhouse training on how to negotiate a plea bargain. On the other hand, you
are a very skilled trial lawyer. You know how to evaluate a case and how
to prepare for trial. You know how to interview, examine, and crossexamine witnesses. In addition to your practice experience, you have had
training in these skills. Moreover, you have had training on forensic
evidence, on specialized types of cases like driving while intoxicated or
child sexual assault, and lots of trainings on trial practice.
You know that there are excellent negotiators in your office and that
they often get amazing deals. While you feel pretty competent at
negotiation, you would not consider yourself excellent. Can that change?
Can a highly skilled criminal trial lawyer learn how to be a highly skilled
negotiator? Of course. Highly experienced lawyers and new lawyers alike
can improve their negotiation skills (just as they improve their trial skills).
But, without specialized CLE or in-house training, what can you do?
This Article will focus on a relatively easy strategy to increase your
effectiveness immediately, even as you wait for more negotiation training
(which we discuss below). Lawyers are often given checklists as part of
learning how to handle certain types of cases or defenses.1 This Article is
*
Professor of Law & Director of the Criminal Law, Justice, and Policy Program, Texas
A&M University School of Law.
**
Professor of Law & Director of the Marquette Law School Dispute Resolution Program
and Director of the Institute for Women’s Leadership, Marquette University.
1.
See, e.g., Emily LaGratta et al., Defender Checklists: A Toolkit for Practitioners, CTR.

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going to focus on one key way that you can become a better plea bargainer:
you can improve how you prepare for negotiation through having a
negotiation checklist.
The first part of this Article will focus on why preparation matters in
negotiation and how a systemic model can be used. Plea bargaining is, by
definition, a negotiation to reach agreement between the defense and
prosecution to settle a criminal case.2 Criminal law scholars are
increasingly recognizing the importance of negotiation and training for
negotiation in criminal practice.3 We will then turn to explaining our plea
bargaining preparation sheet in detail, noting how each element of the prep
sheet is important in negotiation in general and how this specifically applies
in a plea bargaining context.
I. WHY PREPARATION MATTERS IN NEGOTIATION
Negotiation is a learned behavior much like communication overall. By
the time we are negotiating on behalf of clients, we likely have many of
these communication behaviors ingrained in us. Perhaps through our family
dynamics, perhaps through professional training, perhaps through
socialization, or perhaps through other expectations, each of us has learned
to communicate in one way or another.
And yet we know that, like any other communication skill, negotiation
skills can improve with careful thinking, practice, and reflection.4 While
development of several negotiation skills is directly linked to personality
traits that might need to be adjusted (i.e. developing more of an ability to
ask questions and listen carefully or increasing flexibility or even
understanding how cognitive psychology might influence your behavior),
other aspects of negotiation, like preparation, are more often developed
through devotion of time and energy. In fact, we regularly tell our students
that preparation is the easiest way to improve your negotiation skills, since
FOR CT. INNOVATION, http://sfpublicdefender.org/wp-content/uploads/sites/2/2018/05/Toolkit-SanFrancisco-Defender-Checklist-FINAL.pdf [https://perma.cc/SSR5-FWZW].
2.
G. NICHOLAS HERMAN, PLEA BARGAINING (3d ed. 2012).
3.
See, e.g., Jenny Roberts & Ronald F. Wright, Training for Bargaining, 57 WILLIAM &
MARY L. REV. 1445 (2016).
4.
Michael Moffit & Scott Peppet, Learning How to Learn to Negotiate, in 1 THE
NEGOTIATOR’S DESK REFERENCE, 13, (Chris Honeyman & Andrea Kupfer Schneider eds., 2017).

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everything else can require a more challenging behavioral change.5
Plea bargaining is the primary form of criminal case settlement. The
vast majority of cases, both state and federal, are resolved through plea
bargaining.6 Some have argued that we should plea bargain fewer cases,7
and we ourselves have argued that the practice of plea bargaining has
significant flaws in terms of fairness.8 Some have argued that plea
bargaining, supported by draconian minimum sentences and with little
oversight by judges, has led to the mass incarceration crisis.9 These
negotiations between unfettered prosecutors and underfunded defense
attorneys are, in fact, a highly suspect and troubled aspect of our legal
system.10 All of these allegations are worth investigation and attention as
we continue to reform the criminal legal system.
In the meantime, plea bargaining will continue to be a criminal lawyer’s
primary activity. Despite this fact, law schools and continuing legal
education programs for attorneys still discount the value of focusing on plea
bargaining skills. Remarkably few law schools have specialized classes on
plea bargaining. For example, Professor Jennifer Reynolds posted a query
on the AALS dispute resolution list serve in November 2019, asking
professors to respond if they (or a colleague) were teaching a stand-alone
plea bargaining course. Eight professors responded that they taught plea
bargaining, but not all were doing so as a regular course offered every
year.11 In addition, the ABA Directory of ADR Classes does not list any
plea bargaining courses.12 Trainings for prosecutors and public defenders
primarily focus on honing trial skills.13 It has struck us (and others) that this
5.
See, e.g., Carrie Menkel-Meadow et al., DISPUTE RESOLUTION: BEYOND THE
ADVERSARIAL MODEL 107 (3d ed. 2019); Riskin et al., DISPUTE RESOLUTION AND LAWYERS, 16062 (5th ed. 2014); Russell Korobkin, N EGOTIATION 5-7 (2d ed. 2009).
6.
See, e.g., Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012).
7.
Roland Acevedo, Is a Ban on Plea Bargaining an Ethical Abuse of Discretion? A Bronx
County, New York Case Study, 64 FORDHAM L. REV. 987 (1995).
8.
Andrea Kupfer Schneider & Cynthia Alkon, Bargaining in the Dark, 22 NEW CRIM L.
REV. 434 (2019).
9.
See, e.g., Cynthia Alkon, An Overlooked Key to Reversing Mass Incarceration: Reforming
the Law to Reduce Prosecutorial Power in Plea Bargaining, 15 U. MD. L.J. RACE RELIG. GENDER &
CLASS 191 (2015).
10.
For classic articles see, e.g., John H. Langbein, Torture and Plea Bargaining, 46 U. CHI.
L. REV. 8 (1978); Albert W. Alschuler, Plea Bargaining and Its History, 79 COLUM. L. REV. 1 (1979).
11.
Email on File from Professor Jennifer Reynolds, June 7, 2021.
12.
ABA Directory Search, University of Oregon, last updated Jan. 2021,
https://mylaw.uoregon.edu/aba-search/ [https://perma.cc/329J-LCD5]
13.
See, e.g., the Texas Criminal Defense Lawyers Association list of Continuing Legal

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approach is flawed.14 As Jenny Roberts and Ron Wright have put it, “In
short, . . . lawyers are training to operate in a trial-based world that does not
exist.”15
Part of this gap may well come from the belief that plea bargaining is
not really negotiation. One might assume that negotiation in legal practice
is either civil case settlement (where the numbers of cases that are settled
through either negotiation or mediation also constitute a vast majority of the
total caseload) or deal-making, in which lawyers assist their clients in some
kind of business transaction and help negotiate the terms. This hesitation to
include plea bargaining in the definition of negotiation comes from both
traditional dispute resolution scholars and criminal scholars, neither of
whom necessarily see their scholarship reflected in the other field’s work.
Dispute resolution theorists worry, correctly, that plea bargaining has
constraints and elements that are more complex than those seen in typical
civil cases.16 Similarly, what little time criminal law professors spend
discussing plea bargaining is often focused on the outcomes of the plea
bargaining system rather than drilling down into the skills needed by
lawyers on the front line.17
With all of the negotiation books on the market and the explosion of
negotiation classes in law school, one might wonder why any additional
attention is needed to this subject. Every student and practitioner has long
heard that preparation for negotiation is necessary, yet classes in negotiation
often fail to cover plea bargaining at all. Similarly, criminal law, criminal
Education Programs for 2021, which includes cross examination training, training for DWI cases, fourth
amendment practice, and mindfulness, but, no dedicated program on plea bargaining. TEX. CRIM. DEF.
LAWS. ASS’N, https://www.tcdla.com/TCDLA/CLE_and_Events/CLE_Events/TCDLA/Events/Event_
Main.aspx?InitialArea=82BAE9D2-BBF2-4341-AF96-D280EA988D1D&hkey=d68eda32-707c4688-9c5b-42e04c014cf2 [https://perma.cc/9TWQ-VURJ].
14.
Roberts & Wright, supra note 3.
15.
Id. at 1450.
16.
For a discussion of these constraints, see, Cynthia Alkon, How to Negotiate with
Constraints: Lessons from Plea Bargaining, in NEGOTIATION ESSENTIALS FOR LAWYERS 231, (Andrea
Kupfer Schneider & Chris Honeyman, eds., 2019).
17.
See, e.g., Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor
to Consumer Protection, 99 CAL. L. REV . 1117 (2011) [hereinafter Bibas, Regulating the PleaBargaining Market]; Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 H ARV . L. REV .
2463 (2004) [hereinafter Bibas, Plea Bargaining Outside the Shadow of Trial]; Michael O’Hear, Plea
Bargaining and Procedural Justice, 42 G A. L. REV . 407 (2008); Ronald F. Wright & Marc Miller, The
Screening/ Bargaining Tradeoff, 55 STAN . L. REV . 29 (2002); Cynthia Alkon, The U.S. Supreme Court’s
Failure to Fix Plea Bargaining: The Impact of Lafler and Frye, 41 H ASTINGS CONST . L.Q. 561 (2014)
[hereinafter Alkon, The U.S. Supreme Court’s Failure to Fix Plea Bargaining].

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practice, criminal clinics, and externship placements in prosecutors and
public defenders’ offices abound. Couldn’t plea bargaining be well-covered
in these classes? Law school criminal practice clinics often tout the trial
skills or motion practice experience students will gain and do not focus on,
or mention, plea bargaining experience.18 Even more commonly, criminal
law and practice classes fail to incorporate negotiation theory to inform best
practices. Our goal in this Article is to bring these academic silos together
to bring the advantages of negotiation theory into the criminal practice
arena. Already, some of these self-imposed barriers are starting to fall as
scholars realize that negotiation theory and concepts can be illuminating and
prescriptively helpful.19
The fact that plea bargaining is a form of negotiation with significant
constraints is exactly why negotiation skills matter.20
18.
See, e.g., description of the Stanford Law School Criminal Prosecution Clinic: “Students
formulate case strategy, identify and interview witnesses, and conduct evidentiary motions, preliminary
hearings, and occasional nonjury trials.” Criminal Prosecution Clinic: Clinical Methods, STANFORD
LAW
SCHOOL,
https://law.stanford.edu/courses/criminal-prosecution-clinic-clinical-methods/
[https://perma.cc/YQ8W-BN3C]. See also description Tulane University School of Law Criminal
Justice Clinic: “Representing Louisiana’s most vulnerable defendants at all stages of their criminal cases
– investigation, pre-trial motions, trial, appeal, state post-conviction, and federal habeas – Clinic students
have opportunities to brief and argue cases in appellate courts including the Louisiana Supreme Court,
the Federal District Court, and the Federal Fifth Circuit Court of Appeals.” Criminal Justice Clinic,
TULANE LAW SCHOOL, https://law.tulane.edu/clinics/criminal [https://perma.cc/K5AL-PHAN].
19.
Bibas, Plea Bargaining Outside the Shadow of Trial, s u p ra n o t e 1 7 ; Roberts &
Wright, supra note 3 ; Rebecca Hollander-Blumoff, Getting To “Guilty”: Plea Bargaining as
Negotiation, 2 HARV. NEGOT. L. REV. 115 (1997); Richard Birke, Reconciling Loss Aversion and
Guilty Pleas, 1999 UTAH L. REV . 205 (1999); CYNTHIA A LKON & A NDREA K UPFER SCHNEIDER ,
N EGOTIATING CRIME : PLEA BARGAINING , PROBLEM SOLVING , AND D ISPUTE RESOLUTION IN
THE C RIMINAL C ONTEXT 197-98, 235-45 (2019); Cynthia Alkon, Hard Bargaining in Plea
Bargaining: When Do Prosecutors Cross the Line?, 17 NEV. L.J. 401 (2017) [hereinafter Alkon, Hard
Bargaining]; Cynthia Alkon, Plea Bargain Negotiations: Defining Competence Beyond Lafler and
Frye, 53 AM. CRIM. L. REV., 377 (2016) [hereinafter Alkon, Plea Bargain Negotiations: Defining
Competence]; Alkon, supra note 9; Cynthia Alkon, What’s Law Got to Do With It? Plea Bargaining
Reform after Lafler and Frye, 7 Y.B. ARB. & MEDIATION 1 (2015); Cynthia Alkon, The Right to
Defense Discovery in Plea Bargaining Fifty Years after Brady v. Maryland, 38 NYU REV. L. & SOC.
CHANGE 407 (2014) [hereinafter Alkon, The Right to Defense Discovery in Plea Bargaining]; Alkon,
The U.S. Supreme Court’s Failure to Fix Plea Bargaining, supra note 17; O’Hear, supra note 17;
Michael O’Hear & Andrea Kupfer Schneider, Dispute Resolution in Criminal Law, 91 MARQ. L. REV.
1 (2007); Andrea Kupfer Schneider, Cooperating or Caving In: Are Defense Attorneys Shrewd or
Exploited in Plea Bargaining Negotiations? 91 MARQ. L. REV. 145 (2007); Alafair S. Burke,
Prosecutorial Passion, Cognitive Bias, and Plea Bargaining, 91 MARQ. L. REV. 183 (2007); Russell
Covey, Reconsidering the Relationship between Cognitive Psychology and Plea Bargaining, 91
MARQ . L. REV . 213 (2007); Chad M. Oldfather, Heuristics, Biases, and Criminal Defendants, 91
MARQ. L. REV. 249 (2007).
20.
Alkon, supra note 16.

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Strong negotiation skills are what can help both prosecutors and defense
lawyers move beyond the constraints. Prosecutors are constrained by office
policies, which are sometimes political, since the local district attorney is
usually an elected official.21 There may be mandatory minimums or
prosecutors may have office policies preventing them from reducing certain
charges or dropping enhancements, such as gun enhancements.22 Defense
lawyers are often constrained by the existing laws that leave them with few
options for their clients.23
By focusing on negotiating skills, lawyers can move beyond these
constraints. However, mastering the skills of assertiveness, empathy,
flexibility, social intuition, and ethicality is predicated on going into each
negotiation prepared. 24 For example, a defense lawyer who has fully
investigated their case and knows that the evidence is weak on a key element
(for example, that the witness to the crime has recanted), can use the skill
of assertiveness with the prosecutor to explain why the case, or the particular
charge, should be dropped.25 A well prepared defense lawyer will also know
what the standard offers are for particular charges so they will know if, or
when, to be assertive about negotiating a better offer.26 Our preparation
sheet illuminates each of these skills by helping lawyers prepare to be
flexible, to ask good questions, and to pay attention to communication
choices. Each of these elements on the preparation sheet helps to build
negotiation effectiveness.
Attention to preparation in advance of a negotiation would seem to be
an easy place to start to improve one’s negotiation skills. In other areas of
leadership, we regularly hear adages on the wisdom of preparation and, in
fact, the likelihood of failure when we do not.27 Unfortunately, in the U.S.
criminal legal system, the simple calculus of taking time to prepare is often
lost, or difficult due to the heavy caseloads, lack of resources, and
21.
Cynthia Alkon, Plea Bargaining: An Example of Negotiating with Constraints, in 1 THE
NEGOT.’S DESK REF. 683, 689 (Chris Honeyman & Andrea Kupfer Schneider eds., 2017).
22.
Id. at 689.
23.
Id. at 691.
24.
See generally Andrea Kupfer Schneider, Teaching a New Negotiation Skills Paradigm, 39
WASH. U. J.L. & POL’Y 13 (2012).
25.
Alkon, supra note 21, at 694.
26.
Id.
27.
See, e.g., the saying “Failing to prepare is preparing to fail” is often attributed to Coach
John Wooden.

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surrounding institutional culture.28
This lack of preparation is evidenced to some degree by empirical
studies on defense attorneys, showing that many of them do not engage in
comprehensive interviewing of defense and prosecution witnesses.29 This
is true even though defense attorneys recognize that weaknesses in the
prosecution’s case are some of the main leverage points in a plea bargain.
A. Goals for the Preparations Sheet
We have several goals in the preparation sheet. First, a prep sheet
organizes our thinking. Whether or not you fill out each box, it helps a
negotiator conceptualize the major pieces that are needed prior to sitting
down for a negotiation. As the late Public Defender of San Francisco, Jeff
Adachi, observed, “checklists combat complexity” and “checklists prevent
mistakes.” Adachi said, “in most cases, our missteps and oversights could
have been avoided by using checklists.”30 Good negotiation requires good
preparation. The plea preparation sheet is a checklist to make sure that the
lawyers (or students in the role of a lawyer) go into the negotiation as
prepared as possible. Ineffective negotiation comes from winging it—using
the plea preparation sheet helps to prevent this.
Second, this prep sheet in particular brings together both typical
negotiation training prep sheets,31 with the particular elements of plea
bargaining preparation. There have been attempts at plea bargaining
preparation aids before, but these often miss the nuances of negotiation
theory and focus only on facts or law without really forcing negotiators to
think about how these elements get used in a negotiation.32 As we walk
28.
See, e.g., Neena Satija, How Judicial Conflicts of Interest are Denying Poor Texans Their
TRIB.
(Aug.
19,
2019),
Right
to
an
Effective
Lawyer,
TEXAS
https://www.texastribune.org/2019/08/19/unchecked-power-texas-judges-indigent-defense/
[https://perma.cc/RBU3-BBUD] (detailing examples where defense lawyers when judges prevented
defense lawyers from investigating cases or denied funding after the fact).
29.
Robert L. Doyel, The National College-Mercer Criminal Defense Survey: Preliminary
Observations about Interviewing, Counseling, and Plea Negotiations, 37 MERCER L. REV. 1019, 1021
(1986).
30.
Emily LaGratta et al., supra note 1, at 1.
31.
See, e.g., ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE (1995)
(providing multiple tools for negotiation preparation based on the model in Getting to Yes).
32.
Rodney J. Uphoff, The Criminal Defense Lawyer as Effective Negotiator: A Systemic
Approach, 2 C LINICAL L. REV . 73 (1995) (See pg. 133, Post Plea Bargain Checklist focused on
reflective practices after each negotiation to improve lawyer skills in plea bargaining). See also, Zach

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through each element below and how we have already used this in classes,
we hope that negotiators can see the benefit of merging these perspectives.
Third, this prep sheet is created to be used by both prosecutors and
defense attorneys. The skills that you need to be a good negotiator, as a
prosecutor or defense lawyer, cut across these professional identities. For
example, delivering a strong closing argument is a skill that both types of
lawyers need, and the skill is not fundamentally different between
prosecutors and defense lawyers. It is the same with negotiation skills—
they are not fundamentally different for prosecutors and defense lawyers.
We think that it is important for both sides to recognize more clearly that
there are often shared interests and goals, perhaps shared gaps in knowledge
or facts, shared mistakes that can be made, and shared concerns as one
proceeds through the negotiation process. While prosecutors and defense
lawyers could use the same checklist in a variety of areas, such as driving
under the influence of alcohol cases, this is not the norm in practice. CLE
programs, how-to manuals, and training programs are more commonly
divided by role. Prosecutors train with prosecutors and defense lawyers
with defense lawyers.
The plea prep sheet intentionally is not divided by professional role. We
believe that what matters in plea negotiation is good preparation. The
answers to the questions, the information filled in, will be different. Needing
to understand the underlying interests and setting goals for the negotiation,
however, are not different.
Finally, like all good prep sheets, this is designed so that each negotiator
learns from this prep sheet and then makes it their own. If one creates
muscle memory from practice, each negotiator will note the things that they
do on autopilot versus the elements that need more work. The best prep
sheets become individualized over time to the negotiator’s strengths and
weaknesses, to the particular cases they are handling, and to their particular
jurisdictions.
Wavrusa, A Plea Negotiation Primer, TDCCA: THE TEXAS PROSECUTOR (Jan.-Feb. 2021),
https://www.tdcaa.com/journal/a-plea-negotiation-primer/
[https://perma.cc/26PY-7YUD]
(A
prosecutor’s perspective on how to prepare for and negotiate a plea bargain).

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B. How We Have Used This Prep Sheet Already
We have used the plea preparation sheet in our negotiation classes and
in specialized criminal classes, including criminal clinics. We also think it
will work well as part of a training program for lawyers in both prosecutor
and defense offices.
As discussed above, plea bargaining is a unique form of negotiation. It
includes serious power imbalances and constraints. This makes preparation
all the more important, particularly for defense lawyers who are more often
in the less powerful position. The preparation sheet helps to drive this point
home when used as a part of a class or training.
The first step in using the plea preparation sheet in training or classes is
to have students fill it out with facts from the simulation. Even those who
have more of a background in criminal practice will quickly see that there
are a variety of things that they may not have been thinking about or
informed about.
For example, we regularly see students focusing on their individual
interests and needs and not thinking about their counterpart. The plea
preparation sheet discourages this approach and demands that students
consider the interests of their counterpart. We often find that students have
a hard time filing this part out and thinking about other’s interests. This is
a key point for discussion as we emphasize the value of understanding what
matters to your counterpart in order to come to a negotiated agreement.33
This is no less true in the context of negotiating criminal cases. Defense
lawyers who focus only on their clients’ interests and do not understand that
the prosecutor cannot plead out certain cases to lower offenses without the
approval of their boss, will be unlikely to figure out what they might need
to do to get that approval. Does the defense attorney need to talk to the
prosecutor’s boss directly? Does their client have certain kinds of
mitigating circumstances that will be more likely to convince the
prosecutor’s boss that this case is an exception to the policy?
Prosecutors and defense lawyers should be thinking about what the
good or bad facts in their case are. What is the defendant’s criminal history?
What are the laws and policies that influence this case? Are there minimum
sentences? If you have bad (or challenging facts) your zone of possible
33.
41 (1996).

ROGER FISHER ET AL., BEYOND MACHIAVELLI: TOOLS FOR COPING WITH CONFLICT 19-

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agreement is different. The zone of possible agreement is also different in
different jurisdictions. Even within the same state, or county, there can be
vast differences in how individual cases are treated, what standard offers
are, and therefore, what the zone of possible agreement is in that court or
county or state.34
Past the facts, the prep sheet can help consider next steps. For example,
defense lawyers are supposed to consider collateral consequences. The U.S.
Supreme Court demands that lawyers advise about immigration
consequences in any plea deal.35 However, defense lawyers may not take
the time to find out if pleading to a certain case will mean the defendant will
be evicted, or lose their job, or lose their professional license.36 This may
be even more true with less serious cases, like misdemeanors, which can
still carry significant collateral consequences.37 The preparation sheet flags
the importance of asking about these consequences for defense lawyers. It
also flags that these things may be points of impasse to prosecutors. One of
us did her first jury trial, a misdemeanor petty theft, entirely due to her
client’s concerns about immigration consequences.38 This concern was
mentioned during plea negotiations, but the prosecutor seemed to reject it
without serious consideration of other possible options. It matters for both
prosecutors and defense lawyers to think about collateral consequences and
to consider whether another outcome, without the collateral consequence, is
an option.
In the above case, it might have helped if there were a range of possible
other charges, without the immigration consequences. And the negotiation
prep sheet pushes us to consider these options as well. Penal codes in the
United States are written with a full range of possible options and ways to
34.
35.
36.

ALKON & SCHNEIDER, supra note 19, at 129-30.
Padilla v. Kentucky, 559 U.S. 356, 374 (2010).
Sarah Berson, Beyond the Sentence—Understanding Collateral Consequences,
NATIONAL INSTITUTE OF JUSTICE (Feb. 26, 2013), https://nij.ojp.gov/topics/articles/beyond-sentenceunderstanding-collateral-consequences [https://perma.cc/DS4T-HHHU?type=image] (“Although these
consequences can have a profound impact on the lives of those convicted, until recently, judges,
prosecutors or defense counsel seldom discussed or considered collateral consequences.”) See also,
INVENTORY
OF
COLLATERAL
CONSEQUENCES
ON
CRIM.
CONVICTION,
NAT’L
https://niccc.nationalreentryresourcecenter.org/ [https://perma.cc/69V3-49U2].
37.
See generally Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in
Lower Criminal Courts, 45 U.C. DAVIS L. REV. 277 (2011).
38.
Unfortunately, the trial ended in a guilty verdict as not wanting the collateral consequence
of deportation was not a defense to the criminal charges.

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charge the same acts.39 It is useful, before starting a negotiation, to have a
list of what those options are. What are lesser offenses? What are
enhancements that can be charged or dropped? And, what are the alternative
processes? Does one charge or another qualify for a drug court? Lawyers
can often overlook the full range of options without recognizing that option
generation can be an important part of any negotiation. One of the reasons
plea bargaining is often thought of as a highly constrained negotiation is the
concern that there are few options. Defense lawyers and prosecutors are
often trapped into thinking about every case with the same charge in the
same way. This section reminds them to not think so narrowly. It is not
possible to have a unique outcome for every drug sales case, but when it is
possible, it is more likely to happen if the lawyers have other options to
propose during the negotiation.
C. How to Use a Prep Sheet
The plea preparation sheet is a starting point and tool to help learn how
to prepare for a plea negotiation. Using the plea preparation sheet regularly
can help to develop standard routines for cases—so students (and then
lawyers) are thinking expansively about what matters, what they know, and
what they need to know, before starting a plea negotiation. It helps to create
good habits in preparation.
II. THE ELEMENTS OF THE PREP SHEET
This next section of the Article runs through the elements of the plea
bargaining preparation sheet that we created to understand two primary
concepts. First, we will explain why each element is important to
negotiation in general using both negotiation theory and empirical studies
to demonstrate the significance of this preparation. Second, we will review
how these elements are manifested in plea bargaining negotiation in
39.
Alkon, supra note 9 (proposing legislative change to reduce prosecutorial power in plea
bargaining); Cynthia Alkon, What’s Law Got to Do With It? Plea Bargaining Reform after Lafler and Frye,
7 Y.B. ARB. & MEDIATION 1, 22-26 (2015) (discussing reform to penal codes to reform plea bargaining
practice); Alkon, The U.S. Supreme Court’s Failure to Fix Plea Bargaining at 582-588 (discussing how
the variety of charging options gives prosecutors extraordinary power in the plea bargaining).

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particular and how both the defense attorney and prosecutor will be better
served—and more effective—if they have prepared on these elements in
advance.
A. Interests & Goals
It is usually logical to start the preparation for a negotiation by
considering what is important—needs, motivations, and interests—and then
setting a goal for measuring those accomplishments. Effective
negotiators—and lawyers negotiating on behalf of clients—recognize that,
while intuitive, clear specific thinking about interests and goals make it far
more likely that they will be achieved.
Case Name
Charge
Sentence Minimum/Maximum
Interests & Goals
Defendant

Defense Prosecutor Victim/Public/Press
Attorney

Interests
Goals

1. Interests
The first thing to think about in every negotiation is the interests of the
parties.40 We might imagine that this is pretty simple—the prosecutor wants
to punish the perpetrator and the defendant wants to avoid that. And yet
understanding the real interests of the parties—versus their opening offers
or assumed positions—is crucial in terms of meeting their needs. In
negotiation theory, the difference between positions and interests is often
40.
ROGER FISHER, WILLIAM L. URY, & BRUCE PATTON, GETTING TO YES: NEGOTIATING
AGREEMENT WITHOUT GIVING IN 42-57 (3d. ed., 2011); David A. Lax & James K. Sebenius, Interests:
The Measure of Negotiation, 2 NEGOT. J. 73 (1986).

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highlighted as the crux of more effective negotiations,41 and the skills to
prepare those—interviewing, gathering facts, active listening—are
highlighted as necessary for client-centered counseling.42 In two-party
negotiations, where lawyers represent single clients, lawyers are expected
to help clients recognize their own interests beyond positions (i.e. the client
wants to sue and the interest is financial security or precedent or getting the
job back). Lawyers can then assist their client in prioritizing their interests,
giving the lawyers a road map for more successful negotiations.
Note that the prep sheet does include all sides in the negotiation. We
want to be clear—it is not enough to understand your own interests and that
of your client’s. In order to better persuade your counterpart, it is quite
useful to understand (or make a good guess about) their interests. You
might be wrong and miss something completely. At the same time, given
the amount of repeat play in the legal field and what experience can teach
us, working hypotheses of the counterpart’s respective interests can be
useful. These hypotheses can form the basis of conversation and
information gathering, will then likely help frame potential elements of the
agreement, and can also serve as persuasive tools themselves (i.e. “both of
us want what is best for this family” or “let’s talk about how we keep this
neighborhood safe while getting treatment for the mentally ill”).
In sophisticated negotiation training for lawyers, we often note that the
lawyers themselves might have interests in the negotiation—perhaps getting
it done quickly or looking good to the senior partner—that are in addition
to the client’s interests. Being aware of these sometimes common interests
can also help move the negotiation along efficiently. (“We both would
prefer to minimize discovery costs. Can we agree on a limit of two
depositions?”).
Yet plea bargaining is already more complicated on its face and our prep
sheet reflects that. The defense attorney and prosecutor each have their own
interests (perhaps the shared one of managing their case load) as does the
defendant. We have also added a column for victim interests or the press or
the public, which might align, but often do not. Each case, each victim, and
each jurisdiction will play out differently as to how impactful the interests
41.
FISHER ET AL., supra note 40, at 42-57.
42.
Katherine R. Kruse, Beyond Cardboard Clients in Legal Ethics, 23 GEO. J. LEGAL ETHICS
103 (2010); STEFAN H. KRIEGER & RICHARD K. NEUMANN, ESSENTIAL LAWYERING SKILLS:
INTERVIEWING, COUNSELING, NEGOTIATION, AND PERSUASIVE FACT ANALYSIS 21-32 (2015).

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are on the actual negotiation. The pressure of the press or public to be tough
or to drop charges should be considered. Similarly, some victims will desire
more involvement while others will not. Their interests—and cooperation—
should also be prepared for in a negotiation so that the prosecutor is not
blind-sided, having not considered this.
In the plea negotiation context, interests include those that may be
beyond the case itself.43 For example, both defense lawyers and prosecutors
have an interest in managing their caseloads. Prosecutors may have an
interest in career advancement.44 Prosecutors have office policies to which
they need to adhere. Defendants may be concerned about collateral
consequences (will they lose housing, jobs, custody of their children?)45
Defense lawyers that understand the underlying interest of the prosecutor
with whom they are working are in a better position to frame their arguments
in more persuasive ways. Prosecutors are often less concerned about what
a defendant wants than how they can explain or justify a particular deal to
their boss. Defense lawyers that understand those interests are better able
to pull out facts that support making an exception to an office policy, such
as dropping a school zone enhancement, or mandatory jail time. Why is this
case different? Why should a prosecutor look at this case differently?
43.
ALKON & SCHNEIDER, supra note 19, at 73-74 (underlying interests can include case
management, career advancement, reelection (for judges and district attorneys), reputation, and
maintaining good working relationships).
44.
See Richard T. Boylan & Cheryl X. Long, Salaries, Plea Rates, and the Career Objectives
of Federal Prosecutors, 48 J.L. & ECON. 627 (2005) (reporting higher trial rates in jurisdictions where
prosecutors would make more money in private practice, after leaving the prosecutor’s office).
45.
See, e.g., NAT’L INVENTORY OF COLLATERAL CONSEQUENCES ON CRIM. CONVICTION,
supra note 36.

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2. Goals
Having clarified and prioritized the interests of the parties, it is now
time to turn to setting goals. Negotiation literature (as well as business
literature) has repeatedly demonstrated that setting specific, optimistic and
realistic goals will be most successful.46 First, goals should be specific—as
in, the defendant should be locked up for 3 years or the charges should be
dropped. When goals are vague (let’s just hope for the best or let’s see what
they have to say), negotiators are less likely to work toward their
achievement. It is the difference between a new year’s resolution to be
“more healthy” and a commitment to stop smoking or walk for twenty
minutes a day. While vague pledges to change behavior make us feel better
in the moment, they are completely ineffective in actually changing
behavior. Similarly, setting negotiation goals that are specific are needed to
engage our own incentive structure. With specific goals, negotiators are
willing to go back and forth more often, be patient while negotiating (rather
than prematurely accepting a less optimal outcome), and work harder to
reach that goal. 47
Second, goals need to be optimistic or aspirational. An easily achievable
goal might sound safe (I know that I can get the prosecutor to drop the gun
charge) but shortchanges the client in terms of what you might achieve.
These aspirational goals help frame our first offer (few of us get more than
what we ask) and triggers the patience and effort that are needed to succeed.
Jennifer Brown calls this the satiation theory of hope.48 One can plan to
drop back to a “safe” offer as a second or third bid (we will discuss
concession management later in the article) but there is no good reason to
start with the “safe” first bid. The aspirational goal also serves to “anchor”
46.
Andrea Kupfer Schneider, Aspirations in Negotiation, 87 MARQ . L. R EV . 675 (2004)
(“Negotiators should establish optimistic aspirations because empirical evidence has shown negotiators
with higher aspirations tend to achieve better bargaining results.”); Jennifer Gerarda Brown, The Role of
Hope in Negotiation, 44 UCLA L. REV . 1661, 1669-70 (1997); Russell Korobkin, Aspirations and
Settlement, 88 CORNELL L. REV . 1 (2002); G. RICHARD SHELL, BARGAINING FOR A DVANTAGE :
N EGOTIATION STRATEGIES FOR REASONABLE PEOPLE 34 (2d ed. 2006) (“Research has repeatedly
shown that people who have higher aspirations in negotiations perform better and get more than people who
have modest or ‘I’ll do my best’ goals.”).
47.
Korobkin, supra note 46; Brown supra note 46, at 1670.; Sally Blount White & Margaret
A. Neale, The Role of Negotiation Aspirations and Settlement expectancies in Bargaining Outcomes, 57
ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 303 (1994).
48.
Brown, supra note 46.

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the negotiator to hold onto these goals as long as possible.49
Finally, goals do need to be justifiable and realistic. This takes research
in understanding what the typical range of outcomes have been.50 Perhaps
the outcomes might be different in various neighboring jurisdictions or with
different judges. As we will discuss in the next section, having a grounding
in law and policy is crucial for understanding what is fair and just.
Similarly, as you set your goals, this understanding of fairness will inform
your thinking. If no one has ever been released after a sixth DUI, asking for
this will make a defense attorney look ill-informed and naïve. On the other
hand, demanding that this driver be sentenced to life in prison could make
the prosecutor look equally disconnected from reality.51
There are cases that lend themselves to standard deals, like driving
under the influence or possession of drugs. To agree to a deal that is outside
the norm requires that there is something different about the case (e.g., are
there problems with the evidence? Is the defendant in a unique situation?).
In these types of cases, lawyers should know what the standard deals are
and should be able to decide if there is some reason to set a different goal
for a plea outcome.
There are also a wide variety of cases, such as crimes of violence
(ranging from misdemeanor assault to first degree murder), that are very
fact specific. In these cases, it is arguably even more important to set clear
goals for the negotiation. In many jurisdictions, standard cases have first
offers at arraignment. This puts defense attorneys in the position of having
to make a counter offer, if the first offer is not acceptable. By contrast, cases
that don’t lend themselves to standard deals often don’t receive early offers
by the prosecutor. In some cases, particularly more serious cases, the
prosecutor may never make an offer.52 In death penalty cases the plea
49.
See infra Section D for a further discussion of negotiation errors and how to prepare to
minimize them.
50.
Doing this kind of research can be a challenge because of the lack of data. See generally,
Schneider & Alkon, supra note 8, at 447.
51.
We recognize that there might be circumstances where the law would allow for such a
sentence and where defendants are sentenced to long terms over offenses that do not seem to deserve
such terms. If the law allows for absurdly long sentences, and if these kinds of sentences are routine in
a particular jurisdiction, it might not, in fact, be disconnected from reality.
52.
Not every case has a plea offer and plea bargaining rates vary by the type of charge. For
example, in Texas, 94% of all criminal convictions in district courts were due to a guilty plea in 2017.
However, 62.5% of capital murder and murder convictions were due to a guilty plea, and over 95% of
drug convictions were due to a guilty plea. See, Annual Statistical Report for the Texas Judiciary, Fiscal
Year 2017, OFF. OF CT. ADM’R 111, 112 (2018), https://www.txcourts.gov/media/1441397/ar-fy-17-

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negotiation may be around whether the prosecution will agree to life in
prison without parole—as any sentence less than death may be the goal of
the negotiation.53 In other factually unique cases, prosecutors may not make
an offer at arraignment as they may want to gather more information about
the case, such as the extent of injuries, and to be sure about the defendant’s
prior record. Setting a clear goal can make all the difference in these kinds
of cases. From the defense perspective, these cases can be some of the few
cases where they may be able to set the anchor with a clearly articulated
first offer (based on setting a clear goal).54
B. Investigation & Criteria
In many of the articles on plea bargaining skills, authors noted how little
time both defense attorneys and prosecutors have per case—and how hard
it is to perform the needed research for a particular defendant.55 From a
negotiation perspective, this is damning.56 Few would disagree with the
proposition that assertiveness is one of the key skills in negotiation. Yet,
without having the facts, assertiveness starts to represent the old adage that
when you don’t have the law, argue the facts. And when you don’t have the
facts, pound the table. Effective negotiators save pounding the table for
selected cases and do not rely on it as a regular feature of their skillset. To
turn to the other part of this adage, understanding the law is also crucial in
negotiation for setting the criteria and understanding what is a fair outcome.
final.pdf [https://perma.cc/GZ9C-W8M7].
53.
See, e.g., Sherod Thaxton, Leveraging Death, 103 J. CRIM. L. & CRIMINOLOGY 475, 483
(2013) (“[T]he threat of the death penalty increases the likelihood of reaching a plea agreement by
approximately 20 percentage points. In practical terms, the death penalty increases the pleabargaining rate from approximately 40% to 60%. In other words, the threat of capital punishment deters
roughly two out of every ten death-noticed defendants from pursuing a trial.”); Albert W. Alschuler,
Plea Bargaining and the Death Penalty, 58 DEPAUL L. REV. 671, 678-80 (2009) (concluding that “Plea
bargaining perverts the role of counsel as it trivializes the purposes of the death penalty.”).
54.
See infra Section II.D.5. (discussing negotiation errors and strategies regarding
anchoring).
55.
Doyel, supra note 29, at 1026-27.
56.
Doyel, supra note 29; see also Roberts & Wright, supra note 3.

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Investigation & Criteria
Facts
Good/Bad
Defendant’s Priors
Defendant’s Personal
History
Defendant’s Confidential
Information?
Prosecutor Exculpatory
Information?
1. Knowing the Case
For beginning negotiators, understanding the facts of the case is often
the easiest way to start to improve your skills. With knowledge comes
confidence, and with confidence comes the ability to speak calmly about
one’s interests and goals. Each lawyer should be their own expert about the
facts of their case, what actually happened, and reports from the scene. In
criminal law, more so than in other areas, this knowledge of the facts should
also extend to the defendant and the broader context as punishment and
rehabilitation often depend on the judge’s or prosecutor’s personal
judgment about the individual defendant.57 Will this defendant be a danger?
Will this defendant commit another crime? Does this defendant have a
supportive family, job, or other reason to believe that the accused behavior
is an anomaly? Without knowledge of defendant’s family or history,
57.
See generally HERMAN, supra note 2 (background information to know about the
defendant as part of preparation for plea bargaining). In an effort to move beyond personal judgements,
a number of states and jurisdictions are using risk assessment tools, which have their own challenges in
terms of bias. See Rick Jones, The Siren Song of Objectivity: Risk Assessment Tools and Racial
Disparity, CHAMPION, Apr. 2018. Risk assessment tools are being used at sentencing, which arguably
is not their intended use. See, e.g., Erin Collins, Punishing Risk, 107 GEO L.J. 57 (2018) (arguing that
risk assessment tools not designed to be used in sentencing); see also Megan Stevenson, Assessing Risk
Assessment in Action, 103, MINN. L. REV. 303, 314-16 (2018) (describing the type of information
collected).

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defense attorneys have less ammunition with which to argue. Similarly,
prosecutors may end up sending to jail (and spending taxpayer dollars) on
defendants who do not warrant that punishment (and then potentially facing
press and community criticism for doing so). It would seem that this is an
easy fix—preparation is “just” a matter of spending the time. And yet we
know, for many practicing criminal lawyers, this is no easy fix at all.
Defense lawyers often have high caseloads58 and, if they are paid by the
case, their pay may be so low that they cannot afford to spend any serious
time on each case.59 The combined impact of high caseloads and inadequate
pay often means that the structure is such that defense lawyers cannot
adequately prepare. But, putting aside that important issue for now, good
lawyering demands that we train lawyers to prepare fully, by knowing at
least the facts and the law for their cases.60 The plea preparation sheet
reminds the preparer to make sure they know the elements of the offense,
that they have the facts to support each element, or to highlight a lack of
evidence to support a particular element as a possible area for negotiation.
For example, if a defendant is charged with possession for sale of a
controlled substance, and the only facts in the case are that the defendant
was found with a controlled substance, in an amount that is small enough to
be for personal use, it may be difficult for the prosecution to prove that it
was possessed for sale. The lack of evidence could support reducing the
charge to a simple possession.
Finally, good facts for either side or the law itself may give that side
leverage in the plea negotiation. Prosecutors more often have this
advantage. For example, if a case has been charged without possible
enhancements, that can be leverage in the plea negotiation, threatening the
58.
See generally Oliver Laughland, The Human Toll of America’s Public Defender Crisis,
THE GUARDIAN (Sept. 7, 2016, 6:55 AM), https://www.theguardian.com/us-news/2016/sep/07/publicdefender-us-criminal-justice-system [https://perma.cc/F7C9-4NZC] (reporting on high caseloads for
public defenders); see also Richard A. Oppel Jr. & Jugal K. Patel, One Lawyer, 194 Felony Cases, and
No Time, N.Y. TIMES (Jan. 31, 2019), https://www.nytimes.com/interactive/2019/01/31/us/publicdefender-case-loads.html [https://perma.cc/SJF4-67FV]. For an article detailing the problem in Texas,
see Satija, supra note 28.
59.
See Alkon, Plea Bargain Negotiations: Defining Competence, supra note 19, at 394
(discussing the problem of the “meet and plead” defense in the context of plea negotiations); see also
Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122 (W.D. Wash. 2013).
60.
See Alkon, Plea Bargain Negotiations: Defining Competence, supra note 19, at 391
(discussing three basic questions competent defense lawyers should answer in plea preparation: are there
any possible defenses to the charges; are there any possible pre-trial motions, and are there possible
additional charges or sentencing enhancements.)

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defendant that if they reject the deal, that the enhancement will be added.61
2. Law/Policy/Criteria
Law & Policy
Min/Max/Standard offers?
Collateral Consequences
(Immigration, Family
Court, Professional
Licensing, etc.)
Motions/Procedure?
Prosecutorial Policies?
Court History/Judge
Every negotiation textbook, and almost every popular negotiation book
as well, discusses the importance of standards or criteria as a way of
grounding the negotiation in fairness.62 Finding standards help negotiators
in a myriad of ways. First, it helps the negotiator set their own parameters—
what appears reasonable? What seems to be an excellent outcome
comparatively (and therefore might be the optimistic goal) and what seems
absolutely terrible (in which it would be worth it to proceed to trial)? By
understanding the range of outcomes, negotiators can anchor themselves,
knowing that what they propose is reasonable and justifiable. Moreover,
these standards can be used to persuade the negotiation counterpart.63 The
61. Brady v. United States, 397 U.S. 742 (1970) (holding that the threat to seek death if the
defendant did not accept the guilty plea did not make the plea involuntarily and unintelligently made);
see also Alkon, Hard Bargaining, supra note 19 (recommending better regulation of prosecutors to
prevent threats in plea bargaining).
62. Even the most popular negotiation books devote whole chapters to criteria. For example,
scholar Richard Shell includes a chapter entitled “Third Foundation of Negotiation Effectiveness,” and
Getting to Yes has an entire chapter devoted to fairness, “Insist on Using Objective Criteria.” See SHELL,
supra note 46, at 40; FISHER ET AL., supra note 40, at 82-95; see also MENKEL-MEADOW ET AL., supra
note 5, at 116-19; RISKIN ET AL., supra note 5, at 166-67.
63. Wesley MacNeil Oliver & Rishi Batra, Standards of Legitimacy in Criminal Negotiations,
20 HARV. NEGOT. L. REV. 61, 72-73 (2015). Using objective criteria is a critical part of negotiation

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counterpart will also want to feel fairly treated—that the deal they are
getting for their defendant or on behalf of the state and, in some cases, the
victim, is within the range of what other outcomes have been. Few lawyers
will come into a negotiation claiming they want or expect “more than is
fair,” so a full comprehension of these criteria is needed to persuade them.
In plea bargaining, one might assume that the only standards are trial
outcomes and that researching these would be sufficient. Yet, when 97%
of criminal convictions come without a trial, one needs to understand how
those cases were resolved. This is why the prep sheet we have created forces
both sides to fully understand all the different elements that go into creating
criteria and the ways in which “fairness” can change based on the defendant,
the court, the prosecutors, or evolving policies.
As discussed earlier, competent assistance of counsel requires that
defense attorneys advise their clients of any immigration consequences if
they plead guilty.64 Beyond that, good lawyering demands that defense
lawyers advise their clients about other collateral consequences such as
concerns about losing professional licensing, public housing, impacts on
family law cases, etc.65
strategy in terms of setting one’s goals, and it also helps to frame persuasive arguments to the negotiation
counterpart. As Professors Batra and Oliver write:
One less obvious advantage of raising criteria to justify offers is simply that raising
criteria provides a justification for defense counsel to make a demand. Research
has shown that the simple step of providing a justification for a demand, even a
frivolous one, has the power to induce compliance. Defense counsel, then, may
find themselves at an advantage by using norms for judicial exercise of
prosecutorial discretion. They will be able to better justify their offer and thus
increase the likelihood that prosecutors will not reject the offer out of hand. By
saying, “I think this offer is acceptable because … ,” defense attorneys can
bolster their bargaining position and induce the same psychological effect on
their negotiation partners—prosecutors—as in any other negotiation context. Id.
64.
Padilla v. Kentucky, 559 U.S. 356, 374 (2010).
65.
Criminal Justice Standards for the Defense Function, ABA (4th ed. 2017),
https://www.americanbar.org/groups/criminal_justice/standards/DefenseFunctionFourthEdition/[https:
//perma.cc/BZ85-MYC6] (ABA Standard 4-1.3(h) for the Defense Function indicates that defense
lawyers have “a duty to consider the collateral consequences of decisions and actions, including but not
limited to the collateral consequences of conviction.”). Holistic defense means assisting the client
beyond the single criminal case and considering (and assisting) in a variety of ways to minimize or
decrease collateral consequences of convictions and addressing problems that may contribute to criminal
behavior (such as homelessness, poverty, mental illness, and addiction), see e.g., the Bronx Defenders
definition of Holistic Defense available at https://www.bronxdefenders.org/holistic-defense/. See also
NAT’L INVENTORY OF COLLATERAL CONSEQUENCES ON CRIM. CONVICTION, supra note 36 (providing
a state-by-state listing of collateral consequences of criminal convictions).

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Prosecutors and defense attorneys alike should also know whether the
facts in a case give rise to particular motions. For example, was the search
one that will give rise to a motion to suppress the evidence?66 There may
be times when the prosecutor recognizes that the search was problematic,
or otherwise doesn’t want to risk a particular motion succeeding. In those
situations, a prosecutor may want to make a better plea offer. Defense
lawyers know that simply having a motion to run, doesn’t mean it will be
granted in their client’s favor. It may, however, be useful leverage in the
plea negotiation.67
Finally, location matters in plea negotiations. The single most important
fact in what happens on a criminal case is where it happens. Who is the
prosecutor? What are the prosecutor’s office policies? What judge will the
case go in front of? What is the history and culture of the particular
courthouse and courtroom? If a judge is harsher on drug cases, it may make
it more difficult to resolve a case in that court.68 Judges must approve the
plea bargain, so understanding if a particular judge has had issues with
certain kinds of plea deals is important. It may be possible to get the case
out of a particular courtroom and into another to resolve it. For example, in
more crowded jurisdictions, the calendar court may not be the trial court. In
such a jurisdiction (and situation) it is not unusual for prosecutors and
defense lawyers to agree to send the case out to trial so it would go in front
of another judge who would accept the plea deal.
66.
See Alkon, Plea Bargain Negotiations: Defining Competence, supra note 19, at 396-97.
67.
Id. at 391.
68.
For an extreme example, see Very Tough Love, THIS AMERICAN LIFE (Mar. 25, 2011),
https://www.thisamericanlife.org/430/very-tough-love [https://perma.cc/JN35-LBAU] (discussing a
judge in a small town in Georgia whose strong views about drugs and drug addiction change how she
handles these cases both in terms of pressuring defendants to do her version of drug court and how she
treats the defendants in her drug court).

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C. Elements of an Agreement
Once negotiators have figured out their interests, priorities, goals and
criteria, they can start to consider the elements of the agreement. This
includes both the particular pieces of the potential agreement—in
negotiation scholarship, these are called options—and what happens if the
negotiation fails. Both are crucial to consider in advance of the negotiation.
Element of Agreement/Plea Bargaining Options/BATNA
Charge(s)
(Minimum/Maximum)
Possible Other Charges?
Enhancements?
Leverage (Law? Facts?
Procedural?
Jurisdictional?)
Alternative Processes
Available? (diversion,
problem solving courts,
restorative justice process,
other?)
Dismiss?

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1. BATNA
BATNA is perhaps the most ubiquitous term in negotiation literature,
discussed everywhere since it’s coinage in Getting to Yes forty years ago.69
It literally translates as Best Alternative to a Negotiated Agreement. The
concept is that a negotiator should know at what point she would walk away
from this negotiation and go to her “best alternative.” This prevents the
negotiator from making a bad deal, a deal that would be worse than the
alternative.70 In negotiating the rent for an apartment, for example, one
might prefer an apartment with a nice view but, if the price is not lowered
sufficiently, determine that the second-choice apartment with less sunlight
makes more sense for her budget. The BATNA is the action one would take
(rent the other apartment) without needing the agreement of the negotiation
counterpart. In plea bargaining, if a negotiation is not successful, the
BATNA for the defense attorney will almost always be going to trial (the
prosecutor would have no choice but to proceed). The prosecutor, on the
other hand, might determine that the BATNA would also be going to trial
or that the BATNA might be dropping the charges completely (and yet is
unlikely to signal that during the negotiation).
The second part of the BATNA analysis is knowing when to proceed to
that BATNA—a concept that the negotiation literature often refers to as the
reservation point or the walk-away point. 71 Understanding the point at
which to go to the BATNA also takes separate preparation. In plea
bargaining, it might be easy to figure out that going to trial is the BATNA,
but then one should predict what will happen in trial. Looking at recent
outcomes in this court, by this judge, with this jury pool, will help. And yet,
with the paucity of cases going to trial, it is often hard to predict—and
therein lies one of the challenges of plea bargaining.72
BATNA may be, therefore, a less important concept in plea
negotiations. Depending on the case, the facts, the particular prosecutor and
judge, a defendant may be left with two choices: take a bad deal or go to
69.
FISHER ET AL., supra note 40, at 99-108.
70.
Russell Korobkin, A Positive Theory of Legal Negotiation, 88 GEO L. J. 1789 (2000);
Jeffrey Senger, Decisionmaking Under Uncertainty, in 1 THE NEGOTIATOR’S DESK REFERENCE 379
(Chris Honeyman & Andrea Kupfer Schneider eds., 2017).
71.
See, e.g., CARRIE J. MENKEL-MEADOW ET AL., NEGOTIATION: PROCESS FOR PROBLEM
SOLVING at 97-98 (3d ed. 2020).
72.
Hollander-Blumoff, supra note 19; Roberts & Wright, supra note 3.

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trial and risk an even worse outcome. In these situations, the defendant may
simply have a WATNA, worst alternative to a negotiated agreement.73
Prosecutors, by contrast, may think of trial as a BATNA. If their facts are
strong, and the law supports them, they can often expect a much tougher
sentence after trial, due to the trial penalty.74
2. Options
Another part of negotiation preparation is to consider elements of the
agreement, recognizing that each plea bargain can comprise more than time
and jail. Particularly in the midst of the COVID-19 pandemic, both
prosecutors and defense attorneys may be, at times, getting more creative
with individualized responses to each particular case due to the increasing
recognition that mass incarceration is disproportional to the goal it purports
to serve.75 The core of problem-solving negotiation literature focuses on
creativity and flexibility—how the pareto optimal solutions in negotiation
will only be achieved with more fluid and dynamic thinking. While some
of this can (and does) occur at the table with the negotiation counterpart, it
is also worth the time to prepare in advance so that you can demonstrate
your openness and flexibility at the table. Taking different perspectives,
considering various designs and structures, and thinking about analogous
situations can help open a negotiator’s mind to creativity.76 Moreover, the
73.
74.

Alkon, The U.S. Supreme Court’s Failure to Fix Plea Bargaining, supra note 19.
See, e.g., NAT’L ASS’N OF CRIM. DEF. LAWS., THE TRIAL PENALTY: THE SIXTH
AMENDMENT RIGHT TO TRIAL ON THE VERGE OF EXTINCTION AND HOW TO SAVE IT 17–18 (2018),
available at https://www.nacdl.org/Document/TrialPenaltySixthAmendmentRighttoTrialNearExtinct
[https://perma.cc/2M6E-7F99] (“because plea negotiations are off the record and because most cases
plead out, data regarding plea offers is largely unavailable, so there is no way to accurately calculate the full
extent of the trial penalty . . . a combination of anecdotal evidence and an analysis of prosecutorial
practices, sentencing laws, and judicial decisions, strongly suggests that coercion plays a major role in the
ever-increasing percentage of defendants who forego their right to a trial.”). For a general discussion of
coercion in plea bargaining, see Alkon, Hard Bargaining, supra note 1 9 , at 413–15; see also ALKON
& SCHNEIDER, supra note 19, at 129-33.
75.
For example, problem solving courts developed due to the creativity plea bargaining
allows. Cynthia Alkon, Have Problem-Solving Courts Changed the Practice of Law, 21 CARDOZO J.
CONFLICT RESOL. 597, 612 (2020).
76.
Carrie Menkel-Meadow, Aha? Is Creativity Possible in Legal Problem Solving and
Teachable in Legal Education?, 6 H ARV . N EGOT . L. REV . 97, 97 (2001); Jennifer Gerarda Brown,
Creativity and Problem-Solving, 87 MARQ . L. REV . 697, 697 (2004); Janet Weinstein & Linda Morton,
Stuck in a Rut: The Role of Creative Thinking in Problem Solving and Legal Education, 9 CLINICAL L.
REV . 835 (2003).

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process of being creative—giving oneself time and space to be creative,
consulting with others and brainstorming, wordplay or other activities—
need to be built into negotiation preparation so that a negotiator can mull
over different ideas. Lawyers are not necessarily trained or particularly
skilled in this type of thinking and, yet, as a society moving away from
incarceration as an only option, this is an area where skilled lawyering can
quickly make a difference.
Different court processes and sentencing options are now common.
Drug courts are widely available, both in large urban areas and in rural
areas. 77 Mental health courts and veterans’ courts are also widely
available.78 In some jurisdictions restorative justice may be an option.79 In
most jurisdictions there is some kind of diversion program—with problem
solving courts being more widely available in some communities.80
Prosecutors and defense lawyers need to know the full array of options
in terms of alternative processes to handle criminal cases in their
jurisdiction. In addition to the threshold question of whether a particular
defendant qualifies for an alternative process, defense lawyers also need to
understand how those processes work in their jurisdiction and whether it is
a good option for their particular client on that particular case.
Well prepared lawyers know not only the charges that have been filed
on a particular case but also what could be filed. Are there additional
enhancements that could be added (or threatened)? For example, if a
defendant has a prior conviction, can that be added as an enhancement to
increase the amount of possible prison time? Was there a weapon used in
the case? Are there other possible charges? Lawyers should know what
could be added, what lesser charges might possibly fit with the facts, and
what the minimum and maximum sentences could be. Sentencing can be
77.
There are over 3,000 drug courts in the United States. See, e.g., Drug Courts, U.S. DEP’T
JUST., OFF. OF JUST. PROGRAMS (Nov. 2020), https://www.ojp.gov/pdffiles1/nij/238527.pdf
[https://perma.cc/8K5E-RJFX].
78.
There are over 300 Mental Health Courts in the United States. See Mental Health Courts,
COUNCIL OF STATE GOV'TS JUST. CTR., https://csgjusticecenter.org/projects/mental-health-courts/
[https://perma.cc/U5EE-9MAG]. There are 461 Veterans Courts in the United States as of June 30,
2016. Veterans Courts, NAT’L CTR. FOR STATE CTS., [https://perma.cc/KSK7-T8WM].
79.
Shannon M. Silva & Carolyn G. Lambert, Restorative Justice Legislation in the American
States: A Statutory Analysis of Emerging Legal Doctrine, J. OF POL’Y PRAC., 77, 85 (2015) (“32 states
had statutory support for the use of restorative justice or specific restorative justice practices in their
criminal or juvenile justice codes.”).
80.
ALKON & SCHNEIDER, supra note 19, at 53-58 (describing diversion and concerns about
how it prosecutors use this common option).
OF

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highly complicated on its own. Competent lawyering requires that defense
counsel accurately advise clients on what is the possible maximum under
the existing charges, as well as any possible additional charges and
enhancements.81
D. Approach & Communication
This last segment of the preparation sheet focuses on how negotiators
interact with one another before and during the negotiation, understanding
that everything from the previous relationship to the mode and timing of the
communication all impact the substantive outcome of the negotiation.
Effective negotiators consider these elements in advance rather than
passively letting them happen.
Approach/Communications
Reputation & Relationship
between lawyers
Negotiation Style (yours &
counterpart)
Timing (What stage? How
close to trial?)
Concession Management
(1st offer, 2nd offer, etc.)
Potential
Negotiation
Errors?
Communication
Mode
(email, face-to-face, phone,
etc.)

81.
The Supreme Court has not yet held that this is required. See generally Alkon, Plea
Bargain Negotiations: Defining Competence, supra note 19 (discussing what competence standards
could be and that minimal competence includes requiring that defense lawyers adequately advise their
clients about possible additional charges and enhancements).

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1. Relationship
There is so much analyzed under the concept of relationship in
negotiation that entire books have been written on how to build the
relationship,82 how to manage it, how to rebuild trust that has been broken,83
and so forth. A short exposition to this element of negotiation is woefully
inadequate so let us just note here that there is much more to explore. Why
have relationships been the focus of so much negotiation literature? The
relationship often sets the tone for how much information is exchanged,
whether the parties trust each other to bargain in good faith and consider
fairly the information shared by the other side, if the parties are willing to
be creative with each other and problem-solve solutions, and even the extent
to which negotiators trust each other to comply with the terms of the
agreement. Building rapport within the negotiation has shown to lessen the
likelihood of duplicity,84 increase the likelihood of integrative agreements,
and leave the parties feeling like they were treated fairly.85 Particularly in
repeat interactions, in which so many criminal lawyers are engaged, the
relationship that prosecutors and defense attorneys have with each other can
impact every element of negotiation we have already discussed.86
In advance of the negotiation, one should consider the relationship
between the negotiators and if there is any way to improve that beforehand.
For example, as we will discuss below, how does the negotiation
communication commence? Are there ways to build rapport before
exchanging substantive information or offers? Additionally, during the
negotiation, it is helpful to consider the relationship of the future
recognizing that behavior now sets the reputation and relationship for the
next interaction.87
82.
Rebecca Hollander-Blumoff, Building Relationships as Negotiation Strategy, in 1 THE
NEGOTIATOR’S DESK REFERENCE 295 (Chris Honeyman & Andrea Kupfer Schneider eds., 2017);
ROGER FISHER & SCOTT BROWN, GETTING TOGETHER: BUILDING RELATIONSHIPS AS WE NEGOTIATE
(1989); DOUGLAS STONE, BRUCE PATTON & SHEILA HEEN, DIFFICULT CONVERSATIONS: HOW TO
DISCUSS WHAT MATTERS MOST (2d ed. 2010).
83.
See e.g. Roy Lewicki, Repairing Trust, in 1 THE NEGOTIATION DESK REFERENCE 217
(Chris Honeyman & Andrea Kupfer Schneider eds., 2017).
84.
Peter Reilly, Was Machiavelli Right? Lying in Negotiation and the Art of Defensive SelfHelp, 24 Ohio St. J. on Disp. Resol. 481, 527-28 (2009).
85.
Nancy Welsh, Perceptions of Fairness in Negotiation, in 2 THE NEGOT. DESK REF. 516–
31(Chris Honeyman & Andrea Kupfer Schneider eds., 2017).
86.
Schneider, supra note 19.
87.
ALKON & SCHNEIDER, supra note 19, at 235-38.

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Getting to Yes encourages negotiators to “separate the people from the
problem”88 recognizing relationships separately from the roles adversaries
can play. Defense lawyers and prosecutors often have long standing and
close professional relationships. They may be assigned to the same court
for several years. They may have worked together in different courts over
decades. As lawyers, they are by definition repeat players.89 Reputations
are also well known and can impact how plea negotiations happen. Defense
lawyers will share less information with prosecutors who have a reputation
for withholding evidence, or otherwise not being ethical. Prosecutors may
not have as much patience to negotiate with a defense lawyer who is known
to be dishonest or who has a reputation as someone who is fighting all the
time, regardless of whether the facts support the fight.
2. Negotiation Style
Another part of the interaction between the negotiators will be the
negotiation style that each brings to the table. Psychologists and others have
outlined five primary approaches to conflict across an x-y-z axis of
empathy, assertiveness, and flexibility: competitive, compromising,
accommodating, avoiding, and collaborative.90 Effective negotiators
understand that their style in negotiation should depend on the counterpart,
client, and context and should recognize the advantages and disadvantages
of each style in resolving a particular dispute.91 Moreover, this style might
shift within the negotiation based on the item being negotiated as well as
the ongoing progress and emotional tenor of the negotiation. Overusing one
style can be problematic. Too much competitive behavior leads to others
responding with increasing competitiveness, a lack of creative ideas, and
harm to the relationship. Too much accommodating behavior leads to a
reputation as a doormat, also a lack of creative ideas, and a litany of unmet
interests. Even too much collaboration can be exhausting if time and energy
is always devoted regardless of the need or complexity of the case.
Similarly, not having all styles in one’s repertoire can also be limiting.
88.
FISHER ET AL., supra note 40, at 99-108.
89.
Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal
Change, 9 L. & SOC’Y REV. 95, 97-101 (1974).
90.
Schneider, supra note 24.
91.
Id.

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While lawyers cannot avoid conflicts for which they are hired forever,
choosing how and when to engage can make an avoiding style the best
temporary choice. Perhaps more factual research is needed. Perhaps more
brainstorming about creative options would make sense. Perhaps you’ve
already had a tough day and know that you need more energy to really
engage.
Choosing an appropriate style also should reflect the likely or typical
behavior of the negotiation counterpart—and, therefore, the ability to assess
the other side also falls within this preparation.92 How have they
approached cases like this in the past? What is their reputation in the field
and among your peers? Again, this is where reputation and repeat play can
be advantageous to those negotiators who consider it carefully during the
preparation phase and respond accordingly.93
As discussed above, defense lawyers and prosecutors often have longstanding work relationships. This means that they may know what style or
styles to expect with a particular defense lawyer or prosecutor. We also
encourage negotiators to recognize their own styles and how that might
work with particular negotiating counterparts. For example, a defense
attorney who prefers a more collaborative approach to negotiation, may
have to be more competitive, at least initially, against a prosecutor who is
highly competitive.94
Recognizing that you might be starting a long-standing relationship can
also make a difference in the approach. For example, when one of us was
a public defender in Los Angeles, the standard advice when moving to a
new courthouse, was to do a jury trial as quickly as possible in the new
posting. The idea was that it was important to quickly establish that you are
a good trial lawyer and that you are not afraid of going to trial. This can
help when negotiating against a more competitive prosecutor—so they
know that this particular defense lawyer is not a push-over and is a worthy
adversary. This can help to open up the possibility for more collaborative
92.
Id.
93.
Catherine Tinsley, Jack J. Cambria & Andrea Kupfer Schneider, Reputation in
Negotiation, in 1 THE NEGOTIATOR’S DESK REFERENCE 249 (Chris Honeyman & Andrea Kupfer
Schneider eds., 2017); Catherine H. Tinsley et al., Tough Guys Finish Last: The Perils of a Distributive
Reputation 88 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 621 (2002).
94.
See Schneider, supra note 19.See also Schneider supra note 24; See also, Andrea Kupfer
Schneider and Jennifer Gerarda Brown, Negotiation Barometry: A Dynamic Measure of Conflict
Management Style 28 OHIO STATE UNIVERSITY JOURNAL OF DISPUTE RESOLUTION 557, 577-8 (2013).

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negotiations down the road. Of course, ethics demand that defense lawyers
not sacrifice one client for another—so the cases that go to trial should be
those that would otherwise go to trial.
The timing of a negotiation is another element to track. We hear both
anecdotally about settling on the courthouse steps and also know
empirically that there is much pressure to settle cases when deadlines are
set (even when these are “false” deadlines). So, it logically behooves
negotiators to consider both when in the course of the interaction they first
make contact, as well as when they first exchange offers and how patient
the negotiators can be in going back and forth. If one considers negotiation
to be linear, as Gerry Williams explained,95 then each stage has a certain
timing to it as well as cultural assumptions about how long each stage can
last. The first stage of orientation might be the charging document or
indictment in the criminal legal system. The second stage, argumentation,
might be considered when the first plea offers are exchanged and then the
back and forth of the offers, and explanations that each side gives. The third
stage is the decision point—accepting the offer or not. And then the fourth
stage is reaching that agreement—writing up the details of the plea or
diversion. In particular, the length of the second stage of back-and-forth
argumentation, has a lot of cultural and professional norms built into it. For
example, in the Midwest, the back and forth on home buying might be
expected to be much shorter than other regions of the country that tolerate
or expect numerous exchanges. Similarly, in plea bargaining, jurisdictions,
courthouses, and individual lawyers might each have different expectations
or tolerances for this stage of negotiation.
One challenge in plea negotiations is that first offers are often made
before discovery is complete. Lab reports on substances may not be back
yet—so there is no confirmation that the white powdery substance is, in fact,
a controlled substance.96 In the absence of laws requiring discovery,97
95.
Gerald R. Williams, LEGAL NEGOTIATION AND SETTLEMENT 70-89 (1983).
96.
Field tests of drugs can be highly unreliable, and defendants can plead guilty before more
reliable lab testing is done. See, e.g., Ryan Gabrielson, Houston Police End Use of Drug Tests that
Helped Produce Wrongful Convictions, PROPUBLICA (July 14, 2017), https://www.propublica.org/artic
le/houston-police-end-drug-tests-that-helped-produce-wrongful-convictions [https://perma.cc/29LQYE3Q]; see also Antonia Noori Farzan, He Pleaded Guilty to Cocaine Possession and Was Sentenced
to 15 Years in Prison. It Turned Out To Be Powdered Milk, WASH. POST (Oct. 16, 2019, 3:42 AM),
https://www.washingtonpost.com/nation/2019/10/16/oklahoma-man-pleads-guilty-cocaine-possessionit-was-powdered-milk/ [https://perma.cc/ZH3M-SD4U].
97.
For examples of more comprehensive discovery laws, see, e.g., N.Y. CRIM. PROC. LAW

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prosecutors may make offers that are “good today only” to force defendants
to accept the offer before full discovery is provided.98 In many jurisdictions,
it may be challenging for defense lawyers to get full discovery even if they
are not rushed. Defendants may also not want to wait for any future court
dates and discovery if they are in custody and will be released immediately
if they accept the time-served guilty plea.
3. Concession Management
Linked to the timing of the negotiation is how a negotiator should
decide counteroffers. We have already outlined the importance of an
optimistic and justifiable goal. To be clear, the first offer should be at least
that if not above it. In a settlement negotiation, if the plaintiff would like to
settle for $50,000 (for pain and suffering on top of expenses), would hope
to settle for $40,000 (covering expenses), and would walk away at $30,000
(having calculated that trial would be worth it at that point), the first offer
could well be $60,000 with an optimistic reach and a justification of extreme
pain and suffering. It is a rare negotiation where the counterpart will give
even more than the first offer so that offer likely sets the upper limit of the
negotiation. Because of anchoring, which we will explain further below,
the first offer can set the stage for the negotiation in key ways, adjusting the
counterpart’s goals and even their perceived alternatives. At the bottom
end, the reservation point (here $30,000) sets the lower limit of the
negotiation range. Effective negotiators, therefore, will consider how many
steps they will make between $60,000 and $30,000 and what the size of the
concessions will be. Immediately lowering from $60,000 to $45,000, for
example, sends a signal that the first number was not that realistic and that
there are more concessions to come. Understanding the general timing
expectations of the negotiation (How long do we have to negotiate? How
many times should I plan to counter?) will help figure out the best way to
counteroffer both in terms of how much to concede and how quickly to do
so.
Yet many plea negotiations begin and end at the arraignment.99 A
§§ 245.10–.85 (McKinney 2020); TEX. CODE CRIM. PROC. ANN. art. 39.14 (West 2017).
98.
See Alkon, The Right to Defense Discovery in Plea Bargaining, supra note 19, at 407.
99.
But, it is hard to know how many as that data is not collected, see Schneider & Alkon,
supra note 8, at 447.

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significant percentage also likely plead out to the first offer without a
counter offer being made. Not making a counter offer and accepting the
first offer may be good negotiation, depending on the circumstances.100 If,
for example, a defense lawyer knows that their client has prior convictions
that would increase the possible sentence, it might make good sense, and
save years in prison, for their client to accept the first offer if the prosecutor
doesn’t know about those priors yet. It might also make good sense to
accept the first offer if it is a standard offer, there are no particularly unique
facts or arguments to persuade a prosecutor to treat this case differently, and
the defendant wants the case resolved so they can get out of jail or stop
having to come to court and take time off their job for the court
appearances.101
However, there are also cases that demand more negotiation. It may be
that once the lawyer has fully investigated the case, there is additional
information that can encourage additional concessions by the prosecution.
For example, if evidence or witnesses are discovered that support a selfdefense claim, that can be used to encourage the prosecutor to make more
concessions and reduce the offer. The reverse is probably more common:
that prosecutors threaten to add charges or enhancements, to encourage
taking the deal.102 As one of us experienced, threats were not uncommon in
three strikes cases in California, depending on the policies of the particular
prosecutor office. Some prosecutors, on discovering a prior conviction,
would offer the defendant to take the deal “today only” before the new strike
was added.
Because plea negotiations often happen quickly, and because there are
often only so many opportunities for the negotiation, an extended plan of
concessions is less likely to work. But prosecutors and defense lawyers
need to know where, when, and how concessions might work in their
particular case.
100.
Alkon, Plea Bargain Negotiations: Defining Competence, supra note 19, at 403-04.
101.
See, e.g., Alkon, Hard Bargaining, supra note 1 9 , a t 4 1 3 -1 4 ; A LKON & SCHNEIDER,
supra note 19, at 129-35, 197-209; MALCOM M. FEELY, THE PROCESS IS THE PUNISHMENT: HANDLING
CASES IN A LOWER CRIMINAL COURT (1992) (describing the problem of repeated court appearances and
the hardships that can create for defendants).
102.
See e.g., Alkon, Hard Bargaining, supra note 1 9 , at 406-08.

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4. Negotiation Errors
In the last twenty years, negotiation textbooks have enthusiastically
integrated behavioral economics and cognitive psychology into decision
making to better understand the common mistakes that negotiators make.
The first is the phenomenon called anchoring, referenced above, or the
concept that the first number that negotiators encounter “anchors” our
estimation of the value of the item. Even when these first numbers are not
based on realistic criteria, they have a strong psychological pull. In research
studying topics ranging from home buying to average temperature guessing,
these criteria can anchor the range of the negotiation.103 Within the legal
context, things like statutory damage or insurance caps or opening offers
serve this purpose as well. Negotiators need to recognize this psychological
pull and be prepared to counter with their own anchor in order to set the
range.
As noted above, in plea bargaining, defense attorneys might not have
the option to create an anchor by making the first offer. Prosecutors often
make the first offer when giving discovery. This may be at arraignment or
in electronic discovery pre-arraignment, before the defense attorney has
seen any information about the case and before the defense attorney could
make a first offer. However, when there is no first offer, a defense lawyer
may decide to wait for the prosecutor’s first offer, not recognizing the
potential power of a first offer or that making the first offer might move the
prosecutor lower in her own offer. It might not be rational, and yet it appears
that these anchors can shift parties away from their goals and limits. When
a defense attorney has those “good” facts, it may well behoove her to anchor
the negotiation with a low first offer. It could help to establish that this case
is different and should be handled differently. Similarly, prosecutors who
want to scare defendants (and their attorneys) can use this phenomenon
when making offers that include all sorts of added-on charges—or threats
to add on charges.104
103.
SCOTT PLOUS , THE PSYCHOLOGY OF J UDGEMENT AND D ECISION MAKING 146
(1993); see also MAX H. BAZERMAN & MARGARET A. NEALE, NEGOTIATING RATIONALLY 26-28
(1992).
104.
One recent example is when federal prosecutors added charges to the case against
actress Lori Loughlin, and other parents charged in the admissions bribery cases. Prosecutors added
these charges after Loughlin and the others rejected the first plea offer. Ultimately Loughlin plead guilty.
David Welna, New Charges Against Lori Loughlin and 10 Other Parents in Admissions Case, NPR

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The challenge in plea negotiations is that the maximum sentence in a
case, even if that is not the offer, can act as an anchor. This may happen
due to the trial penalty (the likelihood that a sentence after losing at trial can
be up to four times the length of sentence offered during a plea). Prosecutors
and defense lawyers recognize that in some cases, judges may sentence
defendants to much more time, including the maximum, if the defendant
goes to trial and is convicted.105 Understanding this, the trial penalty can
serve as an anchor to all parties.
Defense lawyers should be aware of the variety of anchors that may
impact plea negotiations in their cases. Making a first offer could help to
set the anchor lower, but it depends on a variety of factors and can be
complicated by existing laws and practices. In some places, such as the
federal system, it may be hard to anchor lower than the sentencing
guidelines (even though the guidelines are not mandatory)106 and the
guidelines may act as their own anchor. Defense attorneys should be aware
of the pull of the anchor and prepare how to counter-balance it when they
can.
A second phenomenon that can impact how negotiators view an offer is
loss aversion—the fear of losing what one has (or changing the status quo).
Loss aversion makes the current situation seem more attractive, even when
that is unwarranted.107 For example, fear of going to prison when one is not
yet there might increase loss aversion for defendants.108 Defense lawyers
may fear worse consequences for their clients, based on previous cases
(Oct. 22, 2019), https://www.npr.org/2019/10/22/772443604/new-charges-against-lori-loughlin-and10-other-parents-in-admissions-case [https://perma.cc/S6UG-CRL3].
105.
This is often referred to as the trial penalty. See e.g., Alkon, The U.S. Supreme Court’s
Failure to Fix Plea Bargaining supra note 17, 603-605 (2014); Alkon & Schneider, supra note 19 at
133-35; Nancy J. King et. al., When Process Affects Punishment: Difference in Sentences after Guilty
Plea, Bench Trial, and Jury Trial in Five Guidelines States, 105 COLUM. L. REV. 959, 992 (2005).
106.
United States v. Booker, 543 U.S. 220 (2005).
107.
See Daniel Kahneman & Amos Tversky, Conflict Resolution: A Cognitive Perspective in
Barriers to Conflict Resolution, in BARRIERS TO CONFLICT RESOLUTION 44, 54-55 (Kenneth Arrow et al.
eds., 1995)
108.
Id.; Birke, supra note 19, at 247-54; Bibas, Plea Bargaining Outside the Shadow of
Trial, supra note 17, at 2507-13; Covey, supra note 19, at 229–30 (“However, where defendants are
offered the opportunity to avoid a 600% trial penalty, even substantial variances in estimated
probabilities fail to undermine the rational inducement to plead guilty. Rationality may be bounded,
but it is not inoperative. Large sentencing differentials dramatically reduce ambiguity by
exaggerating the penal consequences of the choice to contest a criminal charge, and thus make it easier
for even boundedly-rational and loss-averse decision makers to make a utility-enhancing decision to
plead guilty.”).

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where they saw a client get a much worse sentence after not accepting a plea
deal. Prosecutors generally have high conviction rates, yet they may fear
losing a case and be willing to reduce charges or make a better offer if they
are not confident that they have the facts needed to convict.109
A third error is reactive devaluation, the tendency to undervalue a
proposal because it is offered by the negotiation counterpart.110
Understanding that negotiators might not appreciate an offer from a
counterpart, negotiators can test their own perceptions against the criteria
for fairness that they have researched (as noted above).111 Additionally,
negotiators should recognize that their own offers can suffer from automatic
discounting and consider carefully how to frame the offers as a more neutral
proposition.112
Both defense attorneys and prosecutors could suffer from reactive
devaluation. Prosecutors who do not like or respect a particular defense
lawyer, may be less likely to listen to their counter offer and the reasons an
exception should be made in a particular case. Defense lawyers may not
trust a prosecutor who has previously withheld key discovery or has
otherwise not been honest. In that situation, if a prosecutor makes an offer
on a case that might seem like a good offer, their first instinct might be to
distrust it and wonder what they don’t know. Did a key witness die? Is
there a problem with the evidence? Defendants themselves can also suffer
from reactive devaluation. Often defendants do not have a good relationship
or have not had time to build a good relationship, with their defense
lawyer.113 They may be influenced by others in the jail who speak of “public
109.
Prosecutors have an ethical duty to not prosecute cases they do not have facts to support.
See CRIM. JUST. STANDARDS FOR THE PROSECUTION FUNCTION § 3-4.3(a) (AM. BAR ASS’N 2017) (“A
prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges
are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond
a reasonable doubt, and that the decision to charge is in the interests of justice.” Standard 3-4.3 Minimum
Requirements for Filing and Maintaining Criminal Charges).
110.
See e.g., Russell Korobkin, Psychological impediments to Mediation Success: Theory and
Practice, 21 OHIO ST. J. ON DISP. RESOL. 281, 316 (2006) (“a negotiator might devalue an offer made
by an adversary on the assumption that, if one's adversary is proposing a particular set of agreement
terms, there is a good chance that those terms are good for the proposer and bad for the recipient.”). For
a discussion of reactive devaluation in a criminal context see, Colin Miller, Anchors Away: Why the
Anchoring Effect Suggests That Judges Should Be Able to Participate in Plea Discussions, 54 B.C. L.
REV. 1667, 1703 (2013).
111.
See discussion infra Section II.B.2.
112.
See e.g., Richard Birke & Craig R. Fox, Psychological Principles in Negotiating Civil
Settlements, 4 HARV. NEGOT. L. REV. 1, 48-50 (1999).
113.
Extreme examples of this are “meet them and plead them” lawyering, see Alkon, Plea

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pretenders” and appointed counsel who are “dump trucks” and don’t fight
for their clients.114 This can create a situation where the defendant does not
trust when his lawyer conveys the plea offer and advises that it is a good
deal. 115
A last mistake is overconfidence, a common phenomenon in which we
overestimate the strengths of our case and underestimate the weaknesses.116
Even in studying lawyers, where one might assume that expertise would
prevent irrational optimism, lawyers on both sides assume they have a
winning case. This can impact plea bargaining, obviously, if both sides
think they will win at trial and make it less likely that they will find some
middle ground. Experience and perspective tend to help in this area and so,
to the extent that a lawyer (or the counterpart) is less experienced, consulting
with others and getting a more realistic range of outcomes can be helpful.
In criminal practice, newer lawyers may be more prone to
overconfidence. A defense attorney may not recognize the fact that juries
are often biased against their clients (because of their race, or the charges,
or that many juries are quick to make up their mind that the defendant is
guilty).117 Prosecutors are even more likely to suffer from overconfidence.
They tend to enjoy high conviction rates and bias tends to work in their
favor.118 Particularly newer prosecutors may not recognize when they do
Bargain Negotiations: Defining Competence at 394-95 supra note 19.
114.
For a longer discussion of dump truck lawyers and how to avoid being one, see Peter
Johnson, You Might be a Dump Truck if… CONTRA COSTA CNTY BAR ASS’N (Apr. 2019)
https://www.cccba.org/article/you-might-be-a-dump-truck-if/ [https://perma.cc/ZK6Q-A6X2].
115.
See Morris v. Slappy, 461 U.S. 1, 21 n.4 (1983) (Brennan, J., and Marshall, J., concurring
in the result) (“‘Nothing is more fundamental to the lawyer-client relationship than the establishment of
trust and confidence.’. . . ‘Basic trust . . . is the cornerstone of the adversary system and effective
assistance of counsel.’” (quoting ABA Standards for Criminal Justice Standard 4-3.1 cmt. (2d ed. 1980);
Linton v. Perini, 656 F.2d 207, 212 (6th Cir. 1981); See also, Rodney J. Uphoff & Peter B. Wood, The
Allocation of Decisionmaking between Defense Counsel and Criminal Defendant: An Empirical Study
of Attorney-Client Decisionmaking, 47 U. KAN. L. REV. 1, 54-(1998); Lynn Mather, What do Clients
Want? What Do Lawyers Do? 52 EMORY L. J. 1065, 1072-1075 (2003) (discussing defense lawyers’
attitudes towards client counseling and decision making).
116.
Bibas, Plea Bargaining Outside the Shadow of Trial, supra note 17, at 2498-503; Burke,
supra note 19; see also Alafair S. Burke, Improving Prosecutorial Decision Making: Some Lessons of
Cognitive Science, 47 WILLIAM & MARY L. REV. 1587 (2006).
117.
See, e.g., Tim Eigo, Jurors, Lawyers and the Myth of The Open Mind, 48 ARIZ. ATT’Y
MAG., June 2012, at 28, 30 (“As our data show, 80 percent of them begin making up their mind during
the opening statements.”).
118.
Burke, supra note 19, at 186-87, 192, 194–203 (“A growing body of scholarship on
prosecutorial decision making explores the ways that the biased assimilation of evidence can prevent
prosecutors from believing defendants’ claims of innocence .”).

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not have the evidence to support a conviction, at least not on all charges.119
Defense attorneys can push young prosecutors to talk to others in the office
to help mitigate this.120 Defense lawyers who are sure they have a winning
case, should talk to other defense lawyers who practice in the same
jurisdiction to run the facts by them to get other views.
5. Communication Modes
The last element on our prep sheet is a focus on different types of
communication and understanding the pros and cons of these choices. Even
before the pandemic put everyone on videoconferences, lawyers have been
using different ways to exchange offers from in person to text messaging to
emails (and now on video). These choices matter in negotiation in general
because each have their advantages and disadvantages over the course of a
negotiation.121 These modes are different in three ways: media richness (or
how much you pick up in terms of social cues, mood, body language, tone,
etc.); content (how formal or informal are the modes and what type of
information is typically shared in that mode); and timing (is the
communication synchronous or asynchronous and what are expectations for
response time). While we understand this intuitively, it is useful to spell out
that face to face (or videoconferencing) provides the most richness in terms
of seeing and reading the other party, often includes both informal (how is
the weather? How about that game yesterday?) and formal content and
occurs simultaneously with parties going back and forth in terms of
conversation. Every other technology is different in one way or another.
Phone calls, for example also vary in content and have synchronous
communication but do not provide visual cues. Email is different in all of
these ways—we may or may not correctly read the tenor and tone of the
email, we may or may not respond quickly (and can end up reading the email
chain in reverse order), and we often consider it to be more formal
communication. If there is any greeting at the beginning, it tends to be one
or two lines and not the typical length of a face-to-face interaction. Text
119.
Ronald F. Wright & Kay L. Levine, The Cure for Young Prosecutors’ Syndrome, 56 ARIZ.
L. REV. 1065 (2014).
120.
Id.
121.
Noam Ebner, Negotiating via Email, in 2 THE NEGOT.’S DESK REF. 115 (Chris Honeyman
& Andrea Kupfer Schneider eds., 2017).

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messages, which are now being used to exchange plea bargaining offers in
some cases, may shift this yet again as they are even shorter (although
people often assume the response time is faster).
Understanding all of these differences can help negotiators make wise
choices given the advantages and disadvantages of these modes. Studies
have found, for example, that trust is much harder to build over email.122
We tend to read these literally, make assumptions about intentions, and fill
in the blanks. Responses to emails are also more analytical, may send
miscues about the tone, and may not share all of the information needed. On
the other hand, emails can be excellent ways of keeping records, following
up on details from a face-to-face conversation, and are easier to track than
are text messages. Negotiators should also consider their own comfort level
with each mode of communication, and which plays to his or her strengths
as well as which is more likely to be persuasive.123 Understanding how the
counterpart negotiates can lead to more effective choices (i.e. ask for things
face to face but immediately follow up with an email record or write out the
arguments in an email to give the counterpart time to consider the ask and
then make a call).
It is not always possible to pick the mode of communication in plea
bargaining. There may be set practices, such as first offers being included
in pre-arraignment electronic discovery. Some jurisdictions have settlement
days, with prosecutors expecting defense lawyers to come into the court and
talk with them, at one time and only on those days.124 It is also common
that plea negotiations happen in between cases being called for arraignment
or other pre-trial appearances. These conversations may be rushed and there
may not be any specific time set aside for negotiations. However, it may be
possible to carve out different ways to negotiate particular cases. If the
norm is to negotiate quickly, in court, on the day a case is called, it might
be that a defense lawyer could let the prosecutor know in advance that there
is a case that is more involved and that it might be good to find a few
122.
See, e.g., Noam Ebner, ORD and Interpersonal Trust, in ONLINE DISP. RESOL.: THEORY
AND PRAC. 203 (Mohamed S. Abdel Wahab, et al. eds., 2012); Brian Farkas, Old Problem, New Medium:
Deception in Computer-Facilitated Negotiation and Dispute Resolution, 14 CARDOZO J. OF CONFLICT
RESOL. 161 (2012).
123.
Andrea Kupfer Schneider & Sean McCarthy, Choosing Among Modes of Communication,
in 2 THE NEGOT.’S DESK REF. 107 (Chris Honeyman & Andrea Kupfer Schneider eds., 2017).
124.
The pandemic has changed some of these practices and it is too early to know what will
return once in person court appearances return to being the norm.

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moments to talk about it in advance of the court date. Negotiating over the
telephone is probably not the best approach.125 But, it might work to do a
video conference. Most prosecutors and defense lawyers are managing
heavy caseloads. They don’t tend to have the luxury of being able to do a
long and extended settlement conferences. But, this does not mean that it
should always be quick or always be done just like every other negotiation.
The prep sheet encourages lawyers to think strategically about how they
negotiate and where they negotiate to be more likely to get what they want.
Prosecutors and defense lawyers should recognize that this is a strategic
decision that could impact the outcome of the negotiation.
CONCLUSION
For negotiation scholars, some of the explanation in the elements of
preparation might be repetitive. Similarly, for criminal law experts, some
of the elements of preparation might be obvious and seem automatic. Yet
we hope by bringing these streams together, this prep sheet is a useful tool
that helps lawyers, and future lawyers, to approach plea bargaining in a
more comprehensive way. Plea bargaining is negotiation, albeit with
constraints, and all negotiators can benefit from clear, organized thinking in
advance. Preparing for negotiation is a key skill in negotiation. Moreover,
this advance thinking needs to go further than typical law and facts to
comprehend the elements of negotiation that make us more effective—from
understanding the counterpart, to thinking creatively about options, to
assessing whether to pursue trial, to recognizing that how and when we
communicate impacts the relationship between the lawyers, and therefore,
the outcome as well. We also hope that having a joint prep sheet continues
to send the message that criminal lawyers are engaged in joint enterprise in
which they often have more in common, in terms of interests, goals, and
practice, than assumed. And, although there are key differences between
prosecutors and defense lawyers, the same information matters (or should
matter) in seeking justice. Finally, we hope that this is not the last word in
plea bargaining preparation but rather part of an ongoing conversation with
lawyers, other scholars and clinicians in which we continue to consider how
to improve the practice of law for the benefit of all.
125.

Schneider & McCarthy, supra note 123.

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APPENDIX
PLEA PREPARATION SHEET126
Case Name
Charge
Sentence Minimum/Maximum
Interests & Goals
Defendant

Defense Prosecutor Victim/Public/Press
Attorney

Interests
Goals
Investigation & Criteria
Facts
Good/Bad
Defendant’s Priors
Defendant’s
Personal
History
Defendant’s Confidential
Information?
Prosecutor
Exculpatory
Information?
Law & Policy
Min/Max/Standard offers?
Collateral
Consequences
(Immigration,
Family
Court,
Professional
Licensing, etc.)
Motions/Procedure?
Prosecutorial Policies?
Court History/Judge

126.

ALKON & SCHNEIDER, supra note 19, at 210-11.

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Element of Agreement/Plea Bargaining Options/BATNA
Charge(s)
(Minimum/Maximum)
Possible Other Charges?
Enhancements?
Leverage (Law? Facts?
Procedural?
Jurisdictional?)
Alternative
Processes
Available?
(diversion,
problem solving courts,
restorative justice process,
other?)
Dismiss?
Approach/Communications
Reputation & Relationship
between lawyers
Negotiation Style (yours &
counterpart)
Timing (What stage? How
close to trial?)
Concession Management
(1st offer, 2nd offer, etc.)
Potential
Negotiation
Errors?
Communication
Mode
(email, face-to-face, phone,
etc.)

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