The Practice of Plea Bargaining It really is amazing how much legal work is done behind the scenes. I would estimate that what people see in court comprises only about 5% of what actually happens with a case. This applies to criminal as well as civil cases. In criminal cases, a large part of the behind the scenes work is done within the process of plea bargaining. I really don't like the term plea bargaining because it suggests that defense counsel must be operating from a standpoint of weakness. Actually, nothing could be further from the truth. Once defense counsel is employed in a case, he should soon speak with the prosecutor. The prosecutor should also encourage such a meeting. The pre-trial conference should be held at a time when neither attorney is rushed. Defense counsel should not be reluctant to approach the prosecutor about the case. The practice of plea bargaining is no more a sign of weakness than discussing the settlement of a civil case with the opposing counsel. While there are cases that cannot be resolved through the plea bargaining process and must be tried in court, attorneys should not hesitate to discuss the case with one another. If an attorney expects to obtain information which would be beneficial to the case, he will probably have to give information in exchange. If there is a basic obstacle to the state's case, and the prosecutor is not aware of the problem, from a defense standpoint he is not very likely to be reasonable in plea negotiations. However, if defense counsel is willing to point out the problem in the state's case, he may be able to dispose of a case without a plea, or trial or on the basis of a reasonable plea. Additionally, plea bargaining should not be regarded as a procedure which takes place only at one meeting. Negotiations may and often do continue over a series of meetings which can last weeks, months, and even years. Obviously, defense counsel should never agree to any plea bargaining until his client has agreed to it. Likewise, defense counsel has a duty to notify the defendant of all offers of a negotiated plea made by the district attorney. In my experience, I have observed that around 90% of all criminal cases are disposed of somewhere in the process of plea negotiation. Many of these people who fall within that percentage have managed to avoid prison and get on with their lives after criminal case is over. Also, victims of crimes are able to forge ahead and put the case behind them. There are 5 rules that the defense attorney must adhere by to ensure that the client is receiving the full benefit of the plea bargaining process: 1. Remembering that a case cannot ever be lost by properly engaging in the plea bargaining process. Cases are only lost when juries and judges find a defendant guilty or when an arrogant lawyer or client refuses to look objectively at the case. 2. Time is of the essence. The first defendant in a multi-defendant case to engage in plea bargaining usually gets the better deal. 3. Know the case from the defendant's point of view and the state's point of view. This is a fundamental rule used by military tacticians which also works well in the practice of law. 4. Know the district attorney, the judge, and the system. Every county and judicial circuit is different. 5. Be flexible, innovative, and look at the whole picture. When performed with precision, the plea bargaining process can work in most criminal cases. However, you must always be prepared to start striking a jury when necessary.