A recent Washington Post editorial concerning plea bargaining in criminal cases came to my attention recently and I think readers will find it interesting for several reasons.
First, many of the arguments in the Post editorial should sound familiar to regular readers of this blog. Here is a sample:
“In plea bargains, defendants can minimize the risks they face, and prosecutors can save time, effort and money. This keeps the courts from becoming totally overloaded. Yet there’s a risk that those who have reasonable claims to innocence will be unreasonably discouraged from pressing for a trial.”
“Prosecutors can load up on charges they can later drop, pressuring defendants to cooperate before trial and plead guilty.”
Sound familiar to anyone? If you substitute a few key words (i.e., “settlement” instead of “plea bargain” and “greedy plaintiff’s lawyers” instead of “prosecutors”) you have the same exact arguments made against the federal False Claims Act (and against state level false claims act legislation) by health care providers, the U.S. Chamber of Commerce (among others.) This line of argument continues that the false claims act is a bad idea, because companies and individuals will be so frightened of trial or so burdened by the civil discovery process that they will be inclined to accept a nuisance-value settlement proposal just to be done with a false claims act case.
The WaPo argument begins with an undeniable premise — that there are few criminal trials today. The same thing holds true for civil trials, of course, and to a much greater extent. I don’t agree, however, that the mere lack of trials in and of itself means much of anything, and it certainly doesn’t mean that the system is broken. In fact, I think the fact that there are fewer civil and/or criminal trials probably means that they system works better, not worse, for one simple reason.
The simple reason is this — most of the time, when a case goes to trial, it goes to trial because one side or the other has made an error in evaluating the strengths and weaknesses of its case. About the only other reasons a case would go to trial would be if (1) there are facts at issue which are irreconcilable (i.e., either the defendant was at the scene of the crime on a given day and time or he or she was someplace else) or (2) if there is a question about the application of a given set of facts to a particular law and the lawyers can’t agree.
So if you ask me, I am inclined to say that the lack of trials indicates that prosecutors and plaintiff’s lawyers are exercising more discretion in the cases they choose. Certainly I think this is true for the qui tam lawyers I know — a qui tam case is just too much work and too much risk and too much stress to not pick your cases wisely.
Moreover, as regular readers know, when qui tam cases are litigated, they are by their very nature usually in category number (2) above. That is because the presence of a qui tam relator usually means that there are very few, if any, facts in dispute in one of the cases….