Should I take the deal or go to trial?

One of the most common questions that I get from clients in criminal cases is whether they should take a plea or go to trial. It’s a complicated, highly-personal question that you should always discuss with a lawyer who is highly familiar with your case, but I will lay out a few of the things that you should consider in making the decision.

What are your chances at trial?

The first consideration is, “can you beat the case?”  There is no certainty in this one.  I tell all of my clients that every case is winnable and losable.  I’ll discuss the more in the section on risk tolerance.  I will usually tell my clients that I think their case is “strong,” “very strong,” weak,” or “very weak.”  I won’t give percentages because my evaluation is not mathematical in nature, and I think that percentage chances are inherently misleading.  That said, I am always willing to spend time with a client discussing the pros and cons of going to trial.

In general, the stronger the case is for the defense at trial, the more attractive the plea would have to be before it is a good idea.  How you calibrate this balancing is very personal and is referred to as your “risk tolerance” or “risk preference.”  Somebody with a high tolerance for risk would take a case to trial even if their chances aren’t very good and they were offered a favorable plea, because they want to take the chance of winning and are willing to risk everything even for a small chance.  Somebody with no tolerance for risk would always take a plea unless the offer is literally the worst thing that could possibly happen at trial.  It is worth noting that a lawyer’s advice on whether to take a plea or go to trial is biased by the lawyer’s own risk preference: a risk-preferring lawyer is more likely to recommend a trial, and a risk-avoiding lawyer is more likely to recommend a plea, all else being equal.

Because of this risk of bias, I usually avoid advising clients to take the plea or go to trial, except in the most clear-cut cases.  Many clients want to be told what to do, but it’s not appropriate to do so where the decision is personal and the answer is not clear-cut.  If the client later regretted the choice, they would feel that they were pushed into doing the wrong thing, and resent the advice they got.  Instead, I help my clients to think through the pros and cons of each option so that they can make their own choices and feel fully confident that they took the best path for their needs.

Unknowns

Sometimes there are too many unknowns to predict the likelihood of success at trial.  Usually that means that more discovery or investigation is needed before the client can make an intelligent choice to take a plea or not, but sometimes those unknowns continue until the moment of trial.  For example, we might not know how a particular witness will come across on the witness stand.   We might send an investigator to interview the witness, but if the witness cannot be found or refuses to be interviewed, we may be stuck with the uncertainty.  In these situations, the risk of trial must be assumed to be high because it is difficult to make a more specific prediction.

Collateral Consequences

For some clients, the consequences of a conviction are far more onerous than any sentence the judge could impose.  This is particularly true for non-citizen clients who risk deportation if convicted, and those with security clearances or professional licenses.  Not only doctors and lawyers, but nurses and even plumbers and barbers–anybody whose livelihood depends on a license should consider how a conviction would impact their license.  In many cases, the loss of a driver’s license is the client’s greatest risk!  In these cases, clients are often likely to show a much higher risk tolerance (that is, are more likely to take the case to trial) because the consequences of any conviction are so dire, even if they serve no jail time.

Costs of Delay

Many clients ask how I can win their case quickly, and the answer is often that it cannot be done.  Many cases that are winnable at trial are not winnable in any other way, and getting a case to trial can take six months to a year in District Court, and a year or more in Superior Court.  If the client is held on bail or house arrest, or suspended from work before trial, this may give them a very strong incentive to take a deal–but only if the deal will get them out of jail or back to work.  Where a client is held on bail and offered a plea to time served or probation that would get them out immediately, it takes a much higher level of dedication and patience to choose to stay in jail and take the case to trial.

Financial Cost

In most cases, clients with private counsel will have to pay higher fees to take the case to trial than they would to take a plea.  (Clients who paid a flat fee for criminal representation, with no additional cost for going to trial may be an exception, though the fee probably reflected the lawyer’s belief as to the likelihood of going to trial).  In these cases, clients with strong defenses at trial may find the cost justified, while those who are less to success at trial may be more likely to cut their losses rather than paying several thousand dollars to “go down swinging.”  Clients with appointed counsel do not have to consider this risk.

Agency Costs

Finally, clients often wonder if their lawyer is giving them good or bad advice about whether to go trial.  This is totally reasonable–clients often do not have a good way to independently evaluate the quality of the advice that they are getting, and lawyers have very different incentives than our clients.  Every criminal defense lawyer and every client is acutely aware of the fact that if we lose a case and the client goes to jail, gets deported, or loses their livelihood, that we do not suffer those consequences ourselves.  Lawyers who are working on flat fees have an incentive to recommend a plea if it means they have to do less work for the fee, while lawyers working on hourly fees have an incentive to recommend trial as it will increase their bills.  Regardless of the fee structure, a lawyer who tries more cases will gain more respect from other lawyers (unless they think the lawyer is mishandling the cases and hurting clients), whereas lawyers whose clients plead out too often will lose the respect of their peers.  This inherent conflict of interest is called “the principal-agent problem,” and the costs of bad decisions made as a result are called “agency costs.” Lawyers’ professional ethics require that we do our best to put these considerations aside, but clients are not irrational to be concerned.  One option for a client who feels deeply conflicted about their choice to take a plea or to go to trial is to hire another lawyer for a second opinion consultation.  The consulting lawyer does not gain or lose money or respect depending on the client’s ultimate choice, and therefore can serve to counterbalance the agency costs.

So, Should I Take It?

Ultimately, there is no cookie-cutter answer to this question, and different lawyers will disagree even in particular cases.  That is why it is so important to consider all of the pros and cons in your particular situation, with the aid of a skilled criminal defense lawyer, to make sure that you are making the right choice for you.

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