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December 31, 2006
The Role of Negotiation in Criminal Law Teaching
One of the classes I teach is a four-credit course on "Criminal Practice," in which students work on all the elements of a criminal case save the trial. In constructing this course, I have tried to include negotiation as a central component. Over 90% of criminal cases plead out in most jurisdictions, so negotiation is a key skill for criminal practitioners.
My problem is that nearly all the negotiation materials I have come across are focused on $-based civil cases. While some of the techniques are applicable, others just don't fit. I have been using the classic text "Getting to Yes," but wonder what other materials people might be using to teach these skills in the specific criminal law context. Any tips or advice?
-- Mark Osler
December 31, 2006 | Permalink
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Many clinical programs teach negotiation skills in the context of criminal defense representation. Some materials I have been using here at the University of Tennessee's Advocacy Clinic include the NLADA Performance Guidelines for Criminal Defense Representation and the ABA Standards for Criminal Justice. They are useful in describing both the nuts and bolts of plea negotiations and some best practices.
Posted by: Mae Quinn | Jan 1, 2007 5:25:26 PM
Mark, I'm curious what distinguishes negotiation in the criminal law setting from the civil setting. Do those difference alter the dynamics of the negotiations themselves?
The negotiation course we teach to legal aid lawyers on the civil side (over distance, incidentally) uses the classic PON materials. After speaking with several PON folks I was convinced that using cases outside the familiarity of our lawyers helped keep them focused on the negotiation itself rather than the accuracy (or lack thereof) of the scenarios. I've found this to be true to an extent. However, one concern that participants have raised is that they feel that the cases they normally negotiate are not quite so well balanced as the PON scenarios, which are purposefully designed to give both negotiators an equal experience. Our lawyers wanted more practice playing the underdog.
Another factor that the "Getting to Yes" model doesn't seem to cover, which is of crucial importance to legal aid and many other lawyers, is the effect of cultural difference in negotiations. I'd love to find out if anyone has any resources in that regard.
Posted by: Gene Koo | Jan 5, 2007 1:48:08 PM
Gene,
Look at The Handbook of Conflict Resolution, by Deutsch & Coleman, editors. Chapter 22 on "Culture and Conflict" will be useful for you.
Tom
Posted by: Thomas Newcomb Hyde | Jan 11, 2007 2:38:55 PM
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