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. [Read more…]