The Under-Rated Lawyering Skill For Ohio DUI/OVI Cases

Plea bargaining is an under-rated lawyering skill. Each Law And Order episode has about one minute of plea negotiations and 20 minutes of trial. That show would have us believe every case goes to trial. The reality is that fewer than five percent of criminal cases go to trial. The other 95 percent or more are resolved with plea agreements. Negotiating plea agreements may not be the sexy substance of television and movies, but it’s an important skill for criminal defense attorneys.

By ‘negotiating’ I do not mean taking a high volume of cases and pleading everyone guilty at the arraignment. That’s not negotiating, it’s being a “dump truck lawyer”. I’m talking about investing energy and resources to structure an agreement that is a win for both sides. Win-win agreements require defense counsel to understand the client’s goals and priorities, then communicate those to opposing counsel with logical and emotional appeal. Effective negotiations require thorough investigation and trial preparation before the negotiations even occur.

Interacting with opposing counsel is only part of reaching agreed resolutions. The other part is evaluating plea bargain offers with clients. To do this, I use the following approach: 1. What is the best case scenario? 2. What is the likelihood of the best case scenario? 3. What is the worst case scenario? 4. What is the likelihood of the worst case scenario? 5. What is the certain scenario of the proposed settlement? 6. Determine the client’s risk tolerance. 7. Analyze the factors in steps 3-6.

Although it’s not the stuff movies are made of, the art of negotiation is an important subject in criminal defense. It will be the subject of a chapter I’m writing for the upcoming book Defending DUI Vehicular Homicide Cases. The book, part of the Inside The Minds series by Aspatore Books, is expected to be published in early 2012.