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A good negotiation should
be fair and reasonable to both sides. It is very important that
the accused is aware of the maximum sentence permitted by law before
determining whether the plea offer is fair and reasonable under
the circumstances.
Attorneys who
fight during negotiations are probably bad negotiators. Even children
know that, when negotiating, "you catch more flies with honey than
you do with vinegar". If a young child wants the child's mother
to buy the child a candy bar, the child might tell the mother that
she is kind, beautiful, and wonderful. If the mother says "no",
then the child might bargain by saying "I will clean my room if
you let me have the candy bar". If the mother says "no", then the
child might remind the mother how good the child has been all day.
If the mother still says "no", the negotiations might end and the
child might have a temper-tantrum (fighting). The child having a
temper-tantrum will probably not get the candy bar and might even
get punished. Fighting is for trial; not for negotiating. To be
a good negotiator, the criminal defense attorney should be logical,
reasonable, and rational.
It is unethical
for an attorney to guarantee that the attorney will be able to get
the client a certain deal. That attorney is "selling the client
the Brooklyn Bridge or the moon". The attorney does not have
the offer to give. The prosecutor makes the plea offer and
the judge determines the sentence. The criminal defense attorney
should present to the prosecutor the client's truthful circumstances
(in the light most favorable to the client). Most prosecutors
appreciate candor and will be more willing to negotiate with an
honest and ethical criminal defense attorney who they can trust.
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