In the first issue of the Clinical Law Review, Peter Hoffman challenged clinical legal educators to produce clinical scholarship that is “practical in its orientation and design” and written so as to enhance the ability of lawyers to represent their clients and to help law students prepare for law practice. This article takes up Hoffman's challenge in the context of examining the skill of negotiating or plea bargaining from the perspective of the criminal defense lawyer. Before discussing the methods, approach or techniques that lawyers can use to enhance their ability to bargain effectively, it is critical to understand what it is about the practices of criminal defense lawyers and the criminal justice system that produces poor plea bargaining. This article, then, seeks to bridge the proverbial gap between theory and practice by providing law students, lawyers and new clinicians a practical but analytical guide to the skill of plea bargaining. Section I is intended to ensure that readers have the necessary background -- in other words, are sufficiently grounded in experience -- so that they can fully appreciate the importance of proper preparation and the significant pressures lawyers face to shortcut that preparation. Section II briefly examines the importance of client consultation and raises the issue of the need to obtain the client's consent before plea bargaining. Section III then examines additional factors and considerations that are likely to affect the implementation of counsel's strategic approach. Finally, Section IV concludes by urging defense counsel to engage in a reflective critique of each negotiating session in order to improve counsel's ability to select and to implement a successful negotiation strategy.
Rodney J. Uphoff, The Criminal Defense Lawyer As Effective Negotiator: A Systemic Approach, 2 Clinical L. Rev. 73 (1995)