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January 28, 2020 Dispute Resolution Magazine

Plea Bargaining 101

In New Hampshire, a court ADR coordinator has introduced training for prosecutors, defenders, and judges

Jennifer Reynolds

More than 95 percent of all criminal convictions are the result of plea bargaining, a process in which a defendant pleads guilty in exchange for some sort of favorable treatment from the prosecutor. Pleading guilty leads to conviction and sentencing as well as possible probationary requirements and “collateral consequences,” such as losing eligibility for certain jobs, housing, or social services, that defendants must grapple with after completing their sentences. 

Given how common the practice of plea bargaining has become and keeping in mind the serious and sometimes lifelong consequences that flow from guilty pleas, one would think that law schools would train lawyers to participate in plea bargaining. Yet most criminal attorneys learn to plea bargain on the job.

Is this really the best way for plea bargaining practice to evolve? I sat down recently with Heather Kulp, the ADR Coordinator for the New Hampshire judicial branch, to talk about this question. Before working with the judicial branch, Heather was a Fellow and Clinical Instructor at the Harvard Negotiation and Mediation Clinical Project and a Lecturer on Law at Harvard Law School, teaching classes in negotiation and facilitation while working with clinical students on dispute systems design. Her experience developing plea bargaining training while at Harvard and then again in New Hampshire has given her a unique perspective into the challenges and possibilities around teaching plea bargaining effectively. What follows is an edited version of our conversation.

When you were a fellow at Harvard, you worked with law students on putting together plea bargaining training. How did that project come about?

In the fall of 2014, the chief justice of the New Hampshire Superior Court, Tina Nadeau, agreed to have the Harvard Negotiation and Mediation Clinical Project perform an assessment of the court’s new program for felony settlement conferences. Two of my clinical students did that assessment, and one of their recommendations was to offer interest-based negotiation training to members of the criminal bar and judges in New Hampshire. The idea was that this training could help everyone participate more effectively in the settlement conference program and benefit their practice around plea bargaining. We offered to provide the training as a clinical project, and the chief justice agreed.

Did you design this training from scratch? 

We did. The students had completed basic criminal law coursework but had no other background in criminal law, which turned out to be an advantage in some ways. Before designing anything, the students looked at how plea negotiation in New Hampshire actually worked, through interviews with county attorneys, public defenders, private defenders, judges, and court administrators. What was the culture? What was the practice? The students also observed some court processes, including some plea negotiations, that gave them a sense of the current state and helped spark ideas around what an effective training might look like. 

The assessment piece was key. Students tend to get a picture of criminal negotiations as heated banging on the table, and that’s not what my students saw in New Hampshire. After seeing how things were actually done, the students did not include unnecessary advice in the training (such as “Don’t yell”) and were able to acknowledge what was already working (such as the way New Hampshire lawyers tended to be respectful in exchanges and returned each other’s calls). That helped the students design a tailored training that focused on the interest-based skills they thought were most useful for the population.

What did the actual training look like?

The students put together a full day of training consisting of mini-lectures and skill practice that was held in 2015 for criminal justice practitioners and judges. For the mini-lectures, the students focused on the basics of interest-based negotiation. For the skills piece, they created an extensive scenario based on research they’d done about New Hampshire law and court practice, based on real people who had been arrested and gone through a plea process. This scenario resonated with participants, more than a generic burglary example might have, for example. And it gave the students credibility in the room.

The students used this scenario from the beginning of the training, carving off pieces for the short skill practice sessions and then concluding the longer session with the actual plea negotiation. One example of the shorter skill practice sessions was an interest-based interview with the defendant, who was played by one of the students.

Who sent out the invitations to potential participants?

That was a critical piece. It came from the chief justice. Whenever a judge champions some kind of training or process shift, it helps bring people in the door.

How did the training go?  

About 40 people came, a good mix of county attorneys, public defenders, and private defenders. We also had a couple of judges and some neutrals. The training itself went incredibly well. The students did the entire training, trading off who did the mini-lectures and who led discussions. I sat off to the side and helped when needed. It was amazing to see students engaging in this way – they were so skilled and put so much time and work into the training. The training manual they created is 200 pages long. The participants were impressed by how much the students were able to cover in such a short period of time, and they appreciated having a practice scenario based on real life in New Hampshire.

As you might expect, there were some “this is nice, but it will never work here” comments. Luckily, the students left a chunk of time in the afternoon to talk about the barriers that participants saw to using interest-based skills in New Hampshire plea negotiations. That discussion was really rich, because attorneys were able to raise issues about how certain judges try to speed the negotiations along, how some attorneys send one-line offers through email, and how some of the required timelines make things challenging in terms of doing interest-based work with the client. This conversation was critical to making the training effective, because it made people talk about what would be needed to make a cultural shift around plea negotiations.

What did you learn about teaching plea bargaining?

First, having a multidisciplinary audience – prosecutors, defenders, judges, neutrals – was critical, especially when we had the conversation around barriers. Having just one type of participant does not provide the same insight as having different people with different roles and responsibilities present. When people from different parts of the process are present, they can hear about barriers that they may be creating without even realizing it. 

Second, words are important. The students thought a lot about what language to use in the training. Do we use the language of the seven elements of a negotiation, as articulated in Roger Fisher and Daniel Shapiro’s book Beyond Reason: Using Emotions as You Negotiate? The language of criminal practice? Some kind of hybrid? We wanted to get rid of language that might be framing the process in unhelpful ways. For example, the students decided to call the training a “plea negotiation training” instead of a “plea bargaining training.” They figured that using the word “negotiation” would put the activity in a context similar to that of negotiating a contract, where people pay attention to the details and the underlying interests. The word “bargain” encourages us to simplify the situation and to haggle. Another example: during the assessment phase, the students often heard the phrase “that’s what this case is worth” as justification for offers, usually without additional explanation. Identifying what a case is worth is not necessarily a bad strategy for preparing for a negotiation, but it can become damaging in two ways: one, as the sole justification for an offer (because we have no idea what it’s based on); and two, because we are talking about people, not cases. “What the case is worth” moves the focus from something involving people to something abstract, a numbers game. It’s like an auction. It doesn’t help the lawyers unpack where the numbers are coming from.  

Maybe lawyers base the “worth” of a case on their experience?

And that right there is a useful entry point to a broader conversation. If someone says, “this case is worth X,” and we ask, “based on what?” and they respond, “years of experience,” we can follow up by asking them to say more about their experience. Is there specific data they are relying on? Are they keeping track of cases? Are they referring to a pattern or policy around what the office has authorized them to offer? The assessment of worth could be coming from a hundred different places. People may be using very different sources for what the case is worth, and if they don’t ask further questions, they could be talking past each other. With this in mind, in the training the students talked about objective criteria and how to unpack these ideas of worth in more helpful detail, so that participants could see what might be behind a particular offer. People may not agree on each other’s criteria, but at least if they can identify what sources both sides are using, they have somewhere to go.

Anything that didn’t work?

Looking back on it, we should have conducted more research in advance about what options were available for pleas in the communities in which people were operating. Maybe we could have conducted more interviews with attorneys or asked more probing questions around options in those interviews so we could have stayed as specific to New Hampshire as possible. When it came to the discussion around generating options, for example, the students had a list of the kinds of programs, alternatives to jail, et cetera, that were available in Massachusetts, which was somewhat unhelpful. 

I imagine that one challenge in training people to do plea negotiations is how local and jurisdiction-specific the practice can be.

That’s true. So much is based on the actual people, offices, policies, and statutes involved. 

Did you do the plea bargaining training again?

After I supervised the 2015 training, one of the original students and I conducted an adaptation of the training two times, both times in New Hampshire. By the time we finished the second training, we had spoken to many of the criminal lawyers in the state. So the language of plea negotiation is out there. It may be time to do it again in the Superior Court setting, now that almost five years have passed.

You left Harvard in 2017 for your current position as ADR Coordinator for the New Hampshire state courts.  Was providing plea bargaining training part of your job description?  

Although I have not offered the plea negotiation training that we developed in the clinic lately, I have done trainings around how to participate effectively in felony settlement conferences. These trainings have much in common with training people for plea negotiations. Felony settlement conferences often result in negotiated pleas, but they are a little different from the regular plea bargain in the way they are structured. Plea bargaining usually involves a prosecutor and a defender. Felony settlement conferences involve the prosecutor and defender, and also a judge (not the same judge presiding over the defendant’s case) and the defendant. Sometimes other people, like family members or the victim, participate.

These conferences offer a great deal of interaction between the various parties. The judges let the attorneys and parties talk to each another pretty openly before stepping in and redirecting an unhelpful comment, for example. Third parties can participate in the conferences, so victims of the crime can come – as can police officers, advocates, family members, and others – and the defendant is almost always invited to talk.

Sounds a little like restorative justice.

There is a restorative component, which is one benefit of the settlement conference. Also, everyone benefits from the evaluation of the judge, who can give an opinion of what might happen at the trial. Judges tend to share this later in a conference and generally only if asked. This expert knowledge helps people think through how various options might meet their interests. 

In New Hampshire we are expanding the felony settlement conferences statewide because attorneys are recommending it and people are asking for this program. One challenge from the court’s perspective is to make sure there are enough resources to meet this demand. In my role, I have been providing the training and will be doing additional meetings soon to support the state-wide rollout. 

How do judges get trained to participate in the felony settlement conferences?

Some of the judges took the original students’ training in 2015, and I have provided additional facilitation training, along with coaching on when to give advice. To manage these conferences well, judges really need to have facilitation and interest-based negotiation skills. In our settlement conference trainings, I have seen that lawyers and judges appreciate the opportunity to talk about best practices. It has especially been helpful to hear from judges about what has worked and what has not.  

Plea bargaining training could happen in many places: in law school, through the courts, or in prosecutor or defender offices, just to name a few.  It could be offered by different people, such as professors, court administrators, senior attorneys in prosecutor or defender offices, or people in training firms. Given that plea bargaining is so important to criminal justice yet so often is location- and personnel-dependent, what are your final thoughts on the best ways to teach plea bargaining?  

One of the participants in the felony settlement conference trainings last year told me that she had tried to take negotiation in law school but couldn’t get in because the class was full. She said having taken negotiation would have enhanced her practice from the start. 

Culture is set at the beginning of one’s life as a criminal attorney. If attorneys can start to do more interest-based negotiation at the beginning of their practice, if they see how the culture they create around negotiation impacts their reputation and how others respond to them, they will be able to reap the benefits of interest-based practice. It would be helpful to do this early. It is harder to train someone who’s been a public defender for 30 years, because they may be asked to reexamine what has been effective for them.

With this in mind, I think that law schools are key players in providing the support, like training and assessments, needed for making positive change in plea negotiation. I am so grateful for the students I worked with on these issues. Conflict resolution organizations are also great resources. I hope that other people in my position in the country can tap into the support provided by law schools, law students, and conflict resolution organizations to help everyone look at their legal culture and processes. 

Jennifer Reynolds

Jennifer Reynolds is an Associate Professor of Law and the Faculty Director of the ADR Center at the University of Oregon School of Law, where she teaches civil procedure, conflict of laws, negotiation, and dispute systems design. Her research interests include public disputes, plea bargaining and specialty courts, and cultural influences and implications of alternative processes. She can be reached at [email protected].