The right to a fair trial is a cornerstone of the American justice system. The 6th Amendment of the U.S. Constitution guarantees defendants the right to a “speedy and public trial, by an impartial jury.” Despite this, plea bargains dominate the criminal justice system. In 2023, over 90% of federal criminal cases were resolved by plea deals, often compelling defendants—some innocent—to plead guilty. This practice, criticized by experts like Jed Rakoff, forces many into difficult choices with long-lasting consequences.

The Power of the Offer

Plea deals are typically driven by prosecutors, who wield considerable power over the terms. For defendants, the offer is often “take it or leave it,” with the threat of harsher punishment if the case goes to trial. Over the years, as drug laws became stricter and court dockets overloaded, plea deals became an expedient way to clear cases.

In civil law, the equivalent to a plea bargain is the settlement agreement. Much like in criminal cases, settlements are negotiated privately between the parties. However, civil courts are also overwhelmed, and more than 95% of civil cases end in settlements. The imbalance of power between plaintiffs and better-resourced defendants plays a major role in why plaintiffs, especially those financially disadvantaged, often settle prematurely.

Delay Tactics

Litigation is costly, and defendants can exploit this. A plaintiff may begin a lawsuit with high hopes but can soon become bogged down in endless discovery requests, depositions, and procedural delays. As their attorney fees accumulate and they miss work, plaintiffs often find themselves with no choice but to settle for less than what they deserve. The legal system, unfortunately, favors those who can endure drawn-out proceedings.

Even contingency agreements, where attorneys are only paid if they win, don’t entirely eliminate the risks. Attorneys may prioritize hourly-paying clients over contingency cases, leaving plaintiffs waiting indefinitely for resolution. This situation is especially prevalent in lower-value or more complex cases, where the potential payout may not justify the attorney’s resources.

Financing for Justice

In the civil realm, one alternative for plaintiffs is litigation funding. This type of financing allows plaintiffs to secure funds during the lawsuit to cover living expenses or litigation costs, preventing premature settlements. We’ve written before about cases where plaintiff financing, known colloquially and incorrectly as a “lawsuit loan,” made an otherwise impossible case a success, most recently the Adam Carolla case against patent trolls. Personal Audio LLC sued Carolla for allegedly infringing on its patent for “episodic content,” but Carolla fought back with support from his listeners. In the end, the case settled, and while Carolla didn’t pay Personal Audio, the patent troll’s claim remained intact. You can read more details about the case here on FindLaw. Without options like litigation funding, many plaintiffs would settle prematurely for much lower amounts.

Litigation funding is becoming a solution to a systemic problem. For plaintiffs seeking to understand more, they can explore options like Get Legal Funding , which provides plaintiffs with financial means to continue their pursuit of justice. While this option exists in civil cases, criminal defendants do not have a similar mechanism to help them fight prosecutorial intimidation.

Tipping the Scales

The unfortunate reality is that both plea bargains and settlement agreements can force individuals into decisions that are not in their best interest. In criminal cases, innocent defendants may plead guilty to avoid a lengthy and uncertain trial. In civil cases, plaintiffs may settle out of financial necessity, not because it’s the best option. The balance of power is often tilted against those who are already disadvantaged.

Rakoff, in the Review of Books, proposes a series of reforms to keep innocent people out of prison. Clearly, we support plaintiff financing as a means of helping civil plaintiffs find justice. Our legal system is imperfect—this is no secret—but these are two reasons we believe it is far from hopeless.