5 stages to successfully negotiating a guilty plea
Here is a five stage approach to a successful guilty plea. The scenario is a criminal matter in the magistrates court, but the principles apply equally in any negotiation.
Stage I : Prepare your groundwork
a) Read the prosecution papers. Is it possible that a guilty plea may have to be entered? You never abandon hope of getting your client off completely but you have to be realistic.
b) Take your client’s instructions. This will reveal whether any defence is disclosed, or there is a workable attack on the prosecution case.
c) Apply the relevant law.
d) Decide whether to pursue negotiations or proceed to trial. As with all things in the law, being flexible is key. A mature thinker is able to adjust his position in the face of changing circumstances.

Stage II: don’t be aggressive
Meet the aggressive lawyer, who has probably watched one too many Hollywood courtroom dramas:
• Rigid in his approach; he is unable to identify the subtle variations in the legal landscape as he pursues his single, narrowly-defined goal;
• As the case changes direction, he is unable to do likewise; having focused on a specific outcome, he is unwilling to change his mind. The emotional capacity to give up a long-fought-for outcome is beyond him;
• Aggressive lawyers are plagued by fear, and are the easiest opponents to manipulate, either by withholding information or by feeding them information that will generate anxiety; aggressive lawyers are so very predictable!
• Aggressive lawyers lack the ability to be creative;
• Aggressive lawyers rarely possess the capacity for guile or manipulation; Aggressive lawyers have little or no emotional intelligence;
• Aggressive lawyers would not read this blog because they think they know everything. The nature of aggression is to give the impression of strength; it is not strength itself. As soon as I come across an aggressive lawyer, I set about finding out his or her weakness, which I then use to manipulate both them and their client. The aggressive lawyer is usually masking their inadequacies, either of the emotions or of the intellect.
Aggression does not work in the law.

Stage III: negotiate with your opponent
Once it becomes obvious that negotiation is the best course, there are two specific opportunities available to negotiate with the other side. The forms of communication are quite different.
Firstly, there is the letter to the CPS in which you refer to their codes, and attempt to persuade them in writing to accept a lesser plea. The way that this letter is drafted is important: you must not give away your position while seeking to negotiate. I am never optimistic that a letter to the CPS will produce anything useful but it can be a valuable tool as part of the mitigation process before the court. Occasionally it may produce something beneficial; it very much depends on the resources that your client wishes to make available to you.
The second opportunity to negotiate can be much more influential, and that is at court with your opponent. You have here a one-on-one opportunity to personally influence an individual. If it is a member of the CPS, you will know that they are likely to be harassed and under pressure. You can use this situation to your advantage: make them an offer that makes their life easier; provide them with the necessary information by way of photocopy so they have a hard copy of the law to justify the decision you are asking them to make. Engage with them in a pleasant and reasonable basis; they are either inclined to be flexible, or not.
If they are being even vaguely responsible, they will wish to reduce the number of trials, and your negotiation position can be quite strong. Because the CPS lawyer will have an armful of files, you can quickly direct their attention to the relevant facts in your case that would justify a reduction in the charge. They will rarely have had the opportunity to fully consider the whole contents of their case, giving you a significant advantage if you have properly prepared. Make the decision for them as easy as possible.
In a road traffic matter, for example, make reference to section 28, Road Traffic Offenders Act 1988, which provides the Court with the discretion to impose one set of penalty points where two offences have been committed on the same occasion. Explain that there is no benefit to the prosecution in having two charges where the offender will only be punished for one, and that in the circumstance of a reduction in the number of charges, a plea of guilty would be entered.

Stage IV: negotiating with the court
Every person, whether at court or not, should be treated with kindness and respect. Consideration to others is the hallmark of a gentleman/lady. If you make a negative impression on the usher or receptionist, there is a good chance that their impression will be communicated either directly or indirectly to the magistrate. If you regularly appear at a particular court, your behavior will determine your reputation. If you are known to be unpleasant to members of the court staff, but attempt to ingratiate yourself with the magistrates, all credibility will be lost.
This is significant because when a plea of guilty is entered, you are then in the position to mitigate. This is another form of negotiation! The difference is that you are not in a position of strength — but this should not stop you in attempting to obtain an outcome beneficial to your client through a form of negotiation.
The sentencing guidelines are the parameters by which the court is going to determine the outcome of the case. Within the guidelines, there are opportunities to influence the outcome of the decision making process. The decision-makers rely on you to provide them with the information on which they can base their decision. By acknowledging the parameters set by the sentencing guidelines, you can literally guide the magistrates through mitigating circumstances to a decision.
The personal circumstances of the client are particularly important at this stage. If you have not spent time delving into the background of your client, you will not have the information available to provide to the magistrates to justify a lenient sentence.
Ultimately, you have the ability to appeal a decision and the magistrates know this. No one wants to be successfully appealed: it reflects badly on their judgment. The more professional you are, the more it will become apparent that you will use the appeals process. If your mitigation is clearly based on the sentencing guidelines and you advance persuasive arguments, the court will be more willing to accede.
• Give the magistrates a sensible reason to follow your suggestions.
• Identify why a certain outcome will be beneficial to the client and to the community.
• Give them a reason to feel good about the decision you wish them to make.
• Make it appear as a positive outcome for everyone. We all wish to do good.
• Make the magistrates feel like the decision was their idea.
Never, ever, mislead the court. Not only is it against the code of conduct, it is quite stupid to gain a brief advantage for your client at the expense of your reputation. It also undermines the system of justice which you have a duty to uphold.

Stage V: choose the right lawyer
If you are seduced by aggression, I am probably not the best lawyer for you, and you are probably not the best client for me. I don’t like to lose!