Negotiating Power and How We Are Weak

Concept of powerI’ve been thinking recently about the inequalities of negotiations when you are a criminal defense attorney. We do a lot of negotiating for our clients, right? And we often lose. Badly.

We make plea deals for our clients and they end up with felony charges and jail time. When we represent a company, we seek cooperation credit after self-reporting wrongdoing, and our client ends up with massive fines. (Yes, I know I have railed against this before, but it’s a fact of life in this line of work.)

Thinking broadly, the outcome of most negotiations depends on two things—the relative power of the two parties and the trust between the parties. In negotiations between the target of a criminal investigation and the government, there is near-complete power on the government’s side and a near-complete lack of trust.

Houston, we have a problem.

The less-than-ideal circumstances for a fair negotiation play an important role in how we negotiate for our criminal clients. Let’s take a closer look at power and how it affects our negotiations on behalf of our clients. I’ll take up trust in a later post.

An article in the Harvard Negotiation Law Review  summarizes three types of power. I don’t usually cite scholarly articles here—too stuffy, too far removed from real life—but bear with me, because this one provides a useful way to think about our negotiations on behalf of our clients.

The article describes three sources of power.

The first is the power of authority, which is structural in nature. People in certain positions (like prosecutors) or people with special expertise have authority over others who aren’t in those positions or who don’t have that expertise.

The second type is the “best alternative to a negotiated agreement” (BATNA). This is a party’s Plan B if the negotiation fails. If you have a strong BANTA, then you have more power in the negotiation.

The third type of power is a threat move, usually exercised through tough rhetoric. A threat move can also be manifested through specific acts that are threatening. Either way, the threat has to be perceived as credible, i.e., the person making the threat must appear to have the ability to carry out the threat.

Playing out these types of power in white-collar defense negotiations helps explain the difficulties we have in plea bargaining or seeking cooperation credit.

The prosecutor in any criminal case has plenty of power of authority. DOJ is entrusted with incredible powers to charge individuals or companies with crimes, to bring its vast resources to bear gathering evidence against the target and to convince a court to impose serious punishment as a result of the investigation.

Perhaps even more important, the prosecutor has the “expertise” in a way that a defendant or target does not. In the plea bargaining context, this “expertise” arises from the immense amount of critical information that the government has and the fact that it does not share this information with the target.

Knowledge is power, right?

One, the Brady and discovery rules don’t apply at the pre-indictment stage. So if you are trying to figure out what evidence the government has or what evidence may be out there to exonerate your client, then you are often out of luck. Yet you still have to try to get the best deal possible for your client. You may get a “reverse proffer” from the government, during which it lays out its case against your client. But a reverse proffer is intended to get your client to plead guilty; it’s not intended to help you craft a possible defense to the charges.

What this means in reality, though, is that you have to advise your client about whether to plead guilty when you don’t have all the facts, or even all the facts that the government has. This means the government has the upper hand.

Two, if you are self-reporting quickly to take advantage of DOJ’s new guidelines, then you don’t have much information yet. You haven’t had a chance to conduct an internal investigation and you don’t know the parameters of any wrongdoing or any defenses to it.

In the self-reporting situation, the government doesn’t have that information either. But you are the one there asking for something when you don’t have information to develop your own “expertise.” In fact, at the early stage of an investigation, you are negotiating from the weakest possible position.

The government likes—thrives on, even—its power of authority. That’s why it wants you to self-report early and often and that’s why a reverse proffer is filled with information about the bad stuff your client and none of the information that helps you.These are structural “problems” that advantage only the government.

As to the second kind of power (the adorably-named BANTA), let’s face it, there is often no BANTA for the target of an investigation. The only alternative is to go to trial and face steeper consequences than what you face early in the negotiations. For many people, that’s not a great Plan B. The government’s BANTA of going to trial is a stronger position. If the government loses at trial, the prosecutors don’t end up in jail. They just move on to the next case.

Finally, the threat move. We’ve all seen it. If you push back at prosecutors about the strength of their case, then the investigation often escalates. More subpoenas are issued, more documents produced, more witnesses are brought before the grand jury. Plus, the government can always threaten more charges since the only limit is prosecutorial discretion. Those threats are credible ones, too.

The target has no threat move at all.

Final score: Government 3, Target 0.

Edmund Burke said “the greater the power, the more dangerous the abuse.” I would change that quote in this situation to say “the more dangerous the potential abuse.” Either way, I don’t have the solution (yet), but at least we can work to define the problem in our unequal negotiations with the government.

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