Negotiation of legal disputes is a subtle skill, as much art, perhaps, as science, or law. It requires not only the careful analysis of facts and law, but the nuanced, emotional interplay of conflict resolution with human opponents. Settlement value is not determined by some mathematical computation alone; it is greatly influenced by personalities and intuition.
That said, the fact remains that almost all lawsuits, at least 90% of them, are resolved by settlement, and NOT by trial. Your civil litigation attorney needs to know how to negotiate settlement.
I had a case not long ago where, in trying to convince my clients to be flexible in their settlement position, by reminding them and forcefully explaining our opponents’ strongest arguments, I succeeded instead of convincing my clients they needed a more aggressive attorney. Ouch! I was embarrassed to lose my clients’ confidence, but their concern, I know, was legitimate. If your opponents perceive you or your attorney do not feel strongly about your position, they may sense weakness, and be more stubborn in negotiations. [I don’t think I did communicate that weakness to the opponents, but I understand my clients’ concern.]
When I was a very young lawyer being supervised by an experienced partner on one of my first cases, representing a defendant sued for malpractice, I explained to the partner that I had carefully evaluated the matter and determined a fair “settlement value”, and that rather than start off with a “lowball” settlement offer, and waste time with protracted negotiations, I intended to make a fair, reasonable, “take it or leave it” settlement offer. The partner smiled, and then proceeded to tell me, firmly, that he could not allow me to do that. “That’s not how it works”, he said. “The will never believe that is your bottom line”, he said.
Well, there is only one rule in negotiation, and that is that there are no rules. But if there were any rules, that would probably be one. People will almost never believe that an initial offer is the best offer. Negotiation takes time, and requires movement. It is a process, a dance, a contest. Even if, at the end, the parties have not moved substantially from their opening positions, the negotiation process serves a human purpose. A gambler may play poker all night long, at times being “up $500” and at other times being “down $700”, before being “about even” when the game ends in the early morning hours. He has still “gambled”, played the game. The score just ended about even.
Similarly, parties often benefit by going through the negotiation process, even if a settlement is not reached quickly. They need to be heard! It is unlike trial, or an arbitration, where a judge or jury or arbitrator listens to the parties and makes a decision. In settlement negotiations the parties must be persuaded to come to an agreement. It can happen quickly, but it is almost always the wrong strategy to expect your opponent to accept your initial demand or offer. It is sometimes perceived as impolite to expect it. They need to see how you (and your attorney) handle yourself.
In the end, settlement negotiation is a skill that is learned and refined by practice. The civil litigation attorneys at Gehres Law Group are experienced negotiators, and know how to get you a good deal. And, we are also aggressive trial lawyers when a case does not settle, whether the matter involves a breach of contract claim, corporate law matter, or other business-related dispute. Contact us for your complementary evaluation and put our decades of refined legal acumen to work for you.