I personally hand out the vast majority of my business cards to opposing counsels for my litigation cases while we're in the courtroom. One thing that attorneys get acclimated towards quickly is the idea that the people who are most interested in you are rarely your clients, but those other counsels who do not have your best interests in mind. This is reflected in each and every morning's email inbox and my voicemail reports.
This isn't "a bad thing." Establishing a line of communication with the adverse party is often the first and best step that attorneys take to negotiate towards a mutually agreeable resolution. I'm sure that we all have seen an action thriller movie where the negotiator makes sure to keep the bad guy on the phone and talk to him, find his demands and ultimate assure him that he's winning.
This is the most basic of negotiation strategies, and it is foundational because it is so effective. I'm going to detail the first steps in any typical opposing negotiation in this article:
1: Call Your Opposition (Or Answer the Phone!)
It's important to let the other party to know that you are accessible and to cooperate with the other party in a way that eliminates their idle worries. Practitioners regularly see temporary restraining orders, emergency motions and other very inconvenient court dates that can be avoided by simply talking to the other party and getting a handle on what it is they want and intend to do. By having the line of communication open, it's easy to call the other side and explore the options to resolve a case without so much contention.
This is typically the ideal situation once we can get past "needing to be right" and towards "creating value." If we can be cooperative with the other side, we can create value for our client while not necessarily eliminating value for the opposing party. If we can be concessionary, we can sometimes save vast sums of money on legal fees while still not giving up anything we hope to get. This is broadly the philosophy of creating value, in that you resolve the personal anxieties of litigation prior to resolving the actual complexities of the controversy. More on that in a later post!
2. Establish the Opposition's Issues (And Define your Own!)
Broadly, there is a very difficult skill in resolving negotiations, and that is the skill of distinguishing issues from positions. Positions are the loud, public stances we have on aspects of our case. Positions are things like "You're wrong!," "You deserve to be punished!," and "I don't have to tell you anything." Positions are necessarily contentious because they are all ego. Stating your position tells your counterpart nothing about what you actually want, but only about how you feel. That's why it's important to find the issues.
"You're Wrong!" is an issue on liability. When someone says "you're wrong!" what they are saying is that they believe your conduct to be improper and they want to resolve the facts of that conduct in a court proceeding. Instead of arguing about whether the conduct is improper or proper, the discussion of liability can be kept factual and sterile. This helps practitioners resolve the liability questions without the emotional overhead of needing to be right.
"You deserve to be punished!" is an issue on damages. When we hear that statement as practitioners (outside of criminal court), we attorneys look at this as an issue on punitive damages. Few cases carry awards of punitive damages, but the thought that they should be awarded is consistent to many people who have been injured. If we are to view this statement as an issue, what we view is the injured party stating "just fixing the problem isn't enough to solve my concerns." That's a place to start negotiating.
"I don't have to tell you anything!" is an issue on disclosures and privacy. When someone states that they don't have to talk to me, I frequently find that what they are telling me is that their issue is with being right. Being right, in itself, can be an issue for some parties. When we navigate that issue of being right, we can address the case in terms of financial concerns and have a discussion about generating value and saving costs, and resolve this concern in a way that benefits all parties out of the controversy.
3. Empathize Your Losses
It's good practice to empathize your losses to the other side. It makes them cognizant of their gains, and of your willingness to negotiate and generate value. It's important to do things like acknowledge the times you have set your differences aside, be nostalgic about your previous relationships and bring up the cooperative nature of the work history. A court case is made of many battles, not all of which will actually determine the outcome. Sometimes it can be important to acknowledge your own difficulties to work towards concessions and get back to the issues.
If we can keep the lines of communication open, identify the topics effectively and sort out our wins, losses and ties, it can be made more cooperative to resolve the controversies between two parties and those two parties can generate value that they did not know they controlled. - J/A