How criminal lawyers negotiate – industry knowledge for the SQE1

By Freedom Law Clinic | blog, debates-and-dialogues | Published on June 11, 2024

Mediation is central to civil litigation. In criminal law, negotiation and settlement can sometimes seem like a dirty word.

Clients often expect their lawyers to be combative, to “take every point,” and to fight relentlessly on their behalf. However, an important aspect of client care involves balancing this aggressive stance with an effective approach to the Court.

Portraying the defence team as authoritative and reasonable can often yield better results for the client than being unreasonably combative. So, how can lawyers communicate this strategy to clients without appearing unwilling to fight?

Clients understand that a “yes man” lawyer is not beneficial. They do not want someone who merely agrees with everything they suggest about trial strategy. At the same time, clients may be wary of lawyers who appear toxically opposed to working with the prosecution to secure a favourable outcome. Striking a balance is crucial. Clients want to feel heard and want their points explored thoroughly, but lawyers must navigate this without being overly agreeable or dismissive.

A fundamental principle lawyers should remember is that this is the client’s trial. It is the client, not the lawyer, who will live with the outcome. Therefore, no point raised by the client should be dismissed lightly. Instead, an effective approach is to explore how a client’s concern can be translated or adapted to fit within the boundaries of what is possible in court. This approach avoids being a “yes man” while also not being a “no man.”

Collaborative working means engaging with lawyers at the Crown to move a case towards the best possible outcome for the client. This involves balancing the needs of the Crown with those of the client and reasonably assessing the strength of the evidence.

I have found that active engagement with the Crown often achieves far better results than unthinkingly taking every point.

When the other side perceives you as erecting barriers to a case’s progress, cooperation from the Crown ceases. Their guard goes up, making the process more adversarial and less productive. It is important to remember that the Crown lawyer is also a human being, striving to convict your client just as you are trying to acquit them. Understanding the Crown lawyer’s concerns and adapting your approach to be more collaborative can demonstrate to the court that you are authoritative and realistic. It shows your opponent that you understand their position, making the possibility of favourable agreements more likely.

Clients need to understand that working collaboratively does not mean compromising on their defence. Instead, it is about being strategic and realistic. Effective communication is key. Lawyers should explain to clients that being combative on every point can often backfire and that a measured, collaborative approach can portray the defence team as more credible and reasonable, both in the eyes of the court and the Crown.

By actively listening to clients and giving due deference to their concerns, lawyers can ensure that clients feel involved and respected. At the same time, by engaging constructively with the Crown, lawyers can navigate the legal landscape more effectively, potentially leading to more favourable outcomes for the client.

In conclusion, collaborative working in criminal defence is not a sign of weakness but a strategic approach that balances client care with effective court craft. By explaining this balance to clients and demonstrating how their concerns will be addressed within the framework of the legal system, lawyers can maintain their clients’ trust while navigating the complexities of the criminal justice system more effectively.

Don’t be a “yes man,” but don’t be a “no man” either. Strive to be a lawyer who listens, adapts, and collaborates for the best possible outcome.

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