by George Kiser
HeplerBroom LLC is an IMA Member
We hear that as many as 95% of all civil cases settle or are otherwise resolved without a trial. A civil trial lawyer’s job is to be ready, willing, and able to handle the 5% of cases that do go to trial. We read appellate cases that decide issues in those cases that go to trial. We sell our legal abilities by emphasizing our trial experience. But our ability to negotiate a favorable settlement for our clients can be just as valuable.
We negotiate settlements all of the time. We each approach a particular settlement differently. We negotiate in our own way. Our negotiation styles reflect our own personalities and our temperament. Yet, there are guiding principles or rules that a good negotiator follows. Here are three of them.
SET A GOAL
It’s a simple concept, but the best way to give your client a chance to resolve their case favorably is to accurately evaluate the case. Be realistic about the strength of the plaintiff’s case and realistic about the chances of a favorable trial outcome for the defendant. If a defendant undervalues the plaintiff’s damages or the potential sympathy of the case to a jury, the amount of authority may not be enough to settle the case. Determine the amount of relevant special damages that the plaintiff will claim, any future medical or special damages applicable, any future medical or financial outlays, and whether the plaintiff has collected settlements from other parties the plaintiff has access to or that can be used for a sole proximate cause defense. Don’t over value the case, either. In situations where similar claims may be filed by the same plaintiff’s firm, the value your client pays today will have an effect on what they pay tomorrow.
Don’t enter a negotiation without a final value in mind, and develop a strategy for approaching each discussion with opposing counsel.
KEEP YOUR COMPOSURE
While you should not abandon your personality or temperament during negotiations, remember that you are speaking on behalf of your client. Don’t let your discussions get personal. Negotiations should be kept on a professional level. But you will violate this rule; we all do at some point. When you lose your temper, you place yourself and, therefore, your client at an immediate disadvantage. And you can affect your ability to settle cases in the future with the same lawyer or with other lawyers if your temper becomes a known quantity. But if you do lose your composure, don’t fall over yourself apologizing immediately. Rather, continue negotiations without reclaiming your anger and make your necessary apologies after your case is concluded.
If you or your opposing counsel throw down the gauntlet and draw the line at a certain number or at certain terms, you have effectively backed yourself into a corner. When you tell plaintiff’s counsel “this is my final offer” or when plaintiff’s counsel tells you “my client can’t accept a penny less,” you better mean it. What happens, though, when your client can come very close to the plaintiff’s final offer but simply cannot meet it? What do you do now? In this situation, you have to find a way to allow opposing counsel to “save face.” You need to give him a reason to settle for less than what he said was his client’s bottom line without appearing to have done so. You need to find a way to change the facts that underlie the discussions, add new facts to the talks, or change the terms ever so slightly to justify the plaintiff abandoning his or her bottom line. When strategizing about the negotiations, consider holding back some facts or terms from the negotiations in case you need them to allow the other side to save face.
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