Plea Bargaining outside the Shadow of Trial

Plea-bargaining literature predicts that parties strike plea bargains in the shadow of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes. Agency costs; attorney competence, compensation, and workloads; resources; sentencing and bail rules; and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments: overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems but sometimes overcompensate. The oversimplified shadow-of-trial model of plea bargaining must thus be supplemented by a structural-psychological perspective. In this perspective, uncertainty, money, selfinterest, and demographic variation greatly influence plea bargains. Some of these influences can be ameliorated, others are difficult to correct, but each casts light on how civil and criminal bargaining differ in important respects. he conventional wisdom is that litigants bargain toward settlement in the shadow of expected trial outcomes. In this model, rational parties forecast the expected trial outcome and strike bargains that leave both sides better off by splitting the saved costs of trial. For example, imagine that a tort plaintiff suffered 100, 000 in damages but that a jury is only 50% likely to find that the defendant was negligent. The plaintiff and defendant should therefore settle for 50, 000 minus some fixed discount proportional to the costs saved. This shadow-oftrial model now dominates the literature on civil settlements.