Ethics Negotiation Role-Play:

Commonwealth v. McGorty

Robert C. Bordone and Jeremy McClane
Four-person integrative plea bargain negotiation between two prosecutors, a public defender, and an alleged assailant

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SCENARIO:

Two police officers on routine patrol were stopped at 2:35 a.m. by a woman screaming that she had been raped by a man in a nearby car. When approached, the man fled, but was soon apprehended. The woman’s story bears a remarkable similarity to that of another woman for whose alleged brutal rape the man, Martin McGorty, was recently acquitted. However, the knife that the woman claims McGorty used cannot be found, and the woman has announced that she will not testify against McGorty in court for fear of ridicule if he is not convicted.

This negotiation involves four parties: a District Attorney, an Assistant District Attorney, the criminal defendant Martin McGorty, and McGorty’s Public Defender. The DA was the original prosecutor in McGorty’s previous trial but was disqualified for prejudice after a public remark about castration. The DA is running for higher office, and his campaign has regularly emphasized stiffer sentencing for sex crimes. The Assistant DA, a young attorney aspiring to the DA’s office, is handling the current McGorty case. The Public Defender representing McGorty here also represented him in his previous trial. Part One of the negotiation involves client interviews: the Assistant DA interviews the DA, and the Public Defender interviews defendant McGorty, in order to determine their clients’ interests and to decide how to represent them. Part Two is a plea-bargain negotiation between the Assistant DA and the Public Defender about the fate of the defendant. An optional third part may be used, in which the Assistant DA and the Public Defender brief their clients on the outcome. It should be noted that this case involves highly sensitive issues and that one-quarter of the participants are asked to assume the role of an alleged rapist. The sensitivity of the issues often makes for a provocative and memorable learning experience. At the same time, some participants may find the scenario upsetting. The Teaching Note contains suggestions for how to handle the emotional sensitivity of this case.

 

SUBJECTS:

Criminal law; government parties; legal ethics; legal representation; plea bargaining; psychological issues; rape; unpopular causes

 

MAJOR LESSONS:

  • Principal-agent tension: How does an attorney reconcile the tension between his/her own interests, the client’s interests, and societal interests? How do an attorney’s personal feelings influence the outcome of negotiation?
  • Importance of relationship building: How does the quality of attorney-client communication and the strength of the attorney-client relationship influence the outcome? How does the ongoing relationship between the Assistant DA and the Public Defender negotiate affect their ongoing relationship?
  • Ethical and policy issues: How should the legal system weigh probability of future harm against procedural rights?

 

Teacher’s Package includes:

  • Participant materials
  • Teaching Note

 

Minimum Participants: 4

Preparation Time: 80 min.

Negotiation Time: 90 min. (45 min. for Part One and 45 min. for Part Two)

Debriefing Time: 40 to 60 min.

 

SIMILAR SIMULATIONS:

  • State v. Huntley
  • People v. Malvenue
  • Probation Games

 

Commonwealth v. McGorty Attributes

Time required:
2-3 hours
Number of participants:
4
Teams involved:
Yes
Agent present:
Lawyer
Neutral third party present:
None
Scoreable:
No
Teaching notes available:
Yes
PON Teaching Negotiation Resource Center

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Soft copy vs. hard copy

You may order this role simulation in either soft copy (electronic) or hard copy (paper) format. If you select the soft copy option, you will receive an e-mail with a URL (website address) from which you may download an electronic file in Adobe Acrobat PDF format. You are then permitted to view the document on your computer and either print the number of copies you purchased, or forward the electronic file as many times as the number of copies you purchased. You will only receive a link to one electronic file per document. So, if you order 25 soft copies, you may either forward copies of the link to 25 people via e-mail, or print (and/or photocopy) 25 hard copies of the document.

If you select the hard copy option, you will receive paper copies of this role simulation via the shipping method you select.

The purchase price and handling fee are the same for both soft and hard copies. Soft copies do not entail a shipping fee.

For additional information about the soft copy option, please visit our FAQ section, or contact the PON Teaching Negotiation Resource Center at tnrc@law.harvard.edu or 800-258-4406 (within the U.S.) or 781-966-2751 (outside the U.S.).

Please note: At the present time, Teaching Negotiation Resource Center soft copies are compatible with the following versions of the Adobe Acrobat Reader: English, German, French, Spanish, Swedish, Portuguese, Japanese, and Korean. If you have a different version of the Acrobat Reader, you may wish to download one of these at http://www.adobe.com/products/acrobat/readstep2.html, or contact the PON Teaching Negotiation Resource Center at tnrc@law.harvard.edu, 800-258-4406 (within the U.S.), or 781-966-2751 (outside the U.S.) for further assistance. This restriction does not apply to the freely available Teacher’s Package Review Copies.

Ordering a single copy for review

If you wish to review the materials for a particular role simulation to decide whether you’d like to use it, then you should order a single Teacher’s Package for that role simulation. A PDF, or soft copy, version of the Teacher’s Package is also available as a free download from the description page of most role simulations and case studies. There is no need to order participant materials as well as a Teacher’s Package, as all Teacher’s Packages include copies of all participant materials. In addition, some Teacher’s Packages (but not all) include additional teaching materials such as teaching notes or overhead masters. Please note that the materials in Teacher’s Packages are for the instructor’s review and reference only, and may not be duplicated for use with participants.

Ordering copies for multiple participants

If you wish to order multiple copies of a role simulation for use in a course or workshop, simply enter the total number of participants in the box next to “Participant Copies.” There is no need to calculate how many of each role is required; the Teaching Negotiation Resource Center will calculate the appropriate numbers of each role to provide, based on the total number of participants. For example, if you wish to order a 2-party role simulation for use with a class of 30 students, you would enter “30” in the box next to “Participant Copies.” You then would receive 15 copies of one role and 15 copies of the other role, for use with your 30 participants. As another example, if you ordered 30 participant copies of a 6-party role simulation, you would receive 5 copies of each role.

In the event that the number of participant copies you order is not evenly divisible by the number of roles in the simulation, you will receive extra copies of one or more roles. Participants receiving the extra roles may partner with other participants playing the same role, thus negotiating as a team. So, for instance, if you ordered 31 copies of a 2-party role simulation, you would receive 15 copies of the first role and 16 copies of the second role. One of the participants playing the second role would partner with another participant playing that same role, and the two would negotiate as a team.