Settlement and plea bargaining are priced by the anticipated trial outcome

Evidence

Defendants charged with serious offenses may be willing to take their chances with a jury, because they fear the punishment that a guilty plea would bring; and prosecutors may refuse to plea bargain, because public opinion supports severe punishment for those who commit serious crimes. In addition, both criminal and civil trials have an effect on cases resolved without trial. Trials provide a baseline, a point of reference for resolving cases without trial. In plea bargaining, the negotiations of prosecutor and defense attorney are influenced by the punishment an offender would likely receive if the case were to go to trial. In civil cases, the willingness of the plaintiff and the defendant to settle depends on their perception of how they would fare if the case went to trial. Thus, even when cases are settled without trial, the negotiations take place in the shadow of the law. — G. Alan Tarr, Judicial Process and Judicial…, 1256

Categorization

• DEFINE: Supplies the classic ‘shadow of the law’ formulation for how pretrial bargaining works.
• XREF: connects to: Civil trials are anomalies in a system built to promote settlement — G. Alan Tarr, Judicial Process and Judicial…, 1195; A judge’s settlement suggestion can double as a signal of likely verdict — , Harr Jonathan - A Civil Action , 253; Settling with one defendant can be worth less than the case it removes — , Harr Jonathan - A Civil Action , 1687 (+20 more)

Broader Connections

• Settlement terms are shaped by predictions about trial outcomes #corroborates (0.95) — Lawrence M. Friedman and Grant M. Hayden, American Law, 362
• Risk and expense of trial drive both sides toward settlement #corroborates (0.90) — Lawrence M. Friedman and Grant M. Hayden, American Law, 361
• Civil settlements happen in the shadow of what a trial would produce #corroborates (0.90) — G. Alan Tarr, Judicial Process and Judicial…, 1045
• Case negotiations occur in the shadow of the law set by trial outcomes #corroborates (0.90)
• Credible settlement leverage requires genuine willingness to proceed to trial #expands (0.85) — Jonathan Harr, A Civil Action, 2447
• Settlement terms can be engineered to publicly obscure a defendant’s guilt #complicates (0.85) — Jonathan Harr, A Civil Action, 2600
• Settlement structure can be engineered to launder a guilty verdict. #complicates (0.85) — , Harr Jonathan - A Civil Action, 2622
• Rising caseloads without matching resources drove the spread of plea bargaining #qualifies (0.85) — G. Alan Tarr, Judicial Process and Judicial…, 1765
• Caseload pressures alone cannot explain plea bargaining rates #contradicts (0.85)
• Active trial judging extends into negotiating pleas and settlements between parties #qualifies (0.80) — G. Alan Tarr, Judicial Process and Judicial…, 568
• Severity of potential penalty drives felony defendants toward trials or plea bargains #qualifies (0.80) — G. Alan Tarr, Judicial Process and Judicial…, 1664
• Severity of charges drives defendants toward trial or negotiated pleas #qualifies (0.75) — G. Alan Tarr, Judicial Process and Judicial…, 1664
• Past plea outcomes supply the sentencing benchmarks that structure later negotiations #qualifies (0.75) — G. Alan Tarr, Judicial Process and Judicial…, 1750
• Plea bargaining operates as a rough informal system of precedent #expands (0.75) — G. Alan Tarr, Judicial Process and Judicial…, 1751
• Plea bargaining persists even when caseload and evidence cannot explain it #qualifies (0.70) — G. Alan Tarr, Judicial Process and Judicial…, 1773