How to Negotiate in Court

While the image of attorneys popularized in film and television is one of litigious combatants, they do more negotiating than courtroom litigating. Most negotiations occur at an attorney's office. But in many cases, prosecutors and defense attorneys actually work things out in the courtroom prior to the judge being seated. For both sides, preparation is the key to resolving the conflict. Here we will consider the steps in negotiation from the perspective of a defense attorney.

• 1

  Prepare your case. Read the police report thoroughly so that you understand what has happened. Note factual inconsistencies such as a police officer contradicting herself or two witnesses who saw the events differently. If there are any statements from the defendant, make sure that there is a signed waiver of the right to remain silent. Read the statute on your client's offense and research the case law. A relevant case might allow you to get the case against your client dismissed. Even when your findings will not lead to outright dismissal, case law that favors your client can be used to persuade the prosecutor to give you a good deal. Write a brief outlining your issues.

• 2

  Research the judge because this is the person who will have to approve any deal you strike with the prosecutor. While you can do this by reading past decisions, the best way to get a feel for the judge is to speak with other attorneys who have been before the judge. Sometimes the prosecutor will tell you that a certain judge likes to sentence offenders to probation instead of jail time.

• 3

  Speak with the prosecutor. The prosecutor will get to the court before the hearing and will usually be seated at the left table. Introduce yourself and tell him the name of your client. Hand him your brief and let him read it. If you have a fairly strong case, ask him if he will consider dismissing the charges. The answer will probably be no. If the answer is no, ask for something else. If the charge is a low-level misdemeanor and your client has a clean record, ask for probation in lieu of jail time. Depending on the facts of your case, you may want to discuss substance abuse treatment options and a diversion program that will seal the conviction record from the public. If the prosecutor will not agree to probation, ask for a sentencing cap which limits the number of days your client will spend in jail. The prosecutor will give you an offer. Sometimes it will be an offer to drop a more serious charge in exchange for confessing to guilt on a lesser charge. The prosecutor may offer a specific sentencing agreement.

• 4

  Speak with your client. Tell her the specific details of the sentencing agreement. While some clients will readily agree to the arrangement you have made with the prosecutor, others may want to go to trial. Determine if it is wiser to go to trial or accept the plea offer. While you should try to persuade your client to take a good deal, the client has to make her own decision on the matter and you must respect her decision. After meeting with your client, go back to the prosecutor and tell give him your client's answer.