General Practice, Solo & Small Firm DivisionTechnology & Practice GuideThe Compleat Lawyer, Spring 1996, Vol. 13, No. 2
Coping with the Difficult Lawyer in Settlement NegotiationsBY LINDA J. RAVDIN
Linda J. Ravdin is a shareholder in Ravdin & Wofford, P.C., a small firm that specializes in family law and estate planning and administration in Washington, D.C., Maryland, and Virginia.
Have you ever had a case that both you and your client wanted to settle, but you just could not seem to make a settlement happen? Did it seem that the other lawyer was standing in the way; that the other lawyer was being difficult and uncooperative? Fortunately, there are techniques to overcome the obstacles posed by the difficult lawyer in settlement negotiations.
Assume that both you and your client really want to settle. Really wanting to settle does not mean wanting to settle in the abstract or wanting to settle but only if you get complete capitulation from as well as public humiliation of the other side. It means that you and your client are prepared to make the necessary compromises to reach a resolution that both sides can accept.
In analyzing why settlement negotiations are not going well, first examine whether you are in fact the difficult lawyer. Your perception of the other side as being difficult and needing to be handled may be clouded by your own bias, ego, overinvolvement in the case, belief in the client's cause, or loss of perspective. ("We have seen the enemy and the enemy is us.")
Assuming you can honestly say that you are not the one preventing a settlement, the next step is to try to analyze the problem. It is helpful to examine why negotiations are not making progress. There are all kinds of reasons why settlement negotiations go badly:
- Neither opposing party nor opposing counsel really wants to settle. Remember, really wanting to settle means being prepared to make the necessary compromises to get there, not merely being prepared to accept the other side's surrender. One clue: opposing counsel makes outrageous demands--demands so outrageous that you might as well take your best shot at trial because you could not possibly do any worse than what they are offering. Another clue: opposing counsel refuses to take your phone calls or respond to your written offers.
Perhaps opposing counsel says she wants to settle, but repeatedly files lengthy, frivolous motions. Or, the other side will not focus on the issues, but instead appears to be obsessed with your client's morally reprehensible behavior--your client walked out on her husband, had a baby with her paramour, took the paramour to Barbados on the husband's American Express Card, and is therefore morally bankrupt and has no right to half the equity in the marital home. This kind of attitude is a hint that these people are not quite ready to deal with the real issues and maybe never will be.
- Opposing counsel wants to settle but the opposing party does not. Some people simply do not know how to compromise. It is not in their nature. Giving up something seems like surrender. Often such people tend to see everything in moral absolutes--"He done me wrong, so he has to pay." Anything the other side gets is seen as a reward for wrongdoing. Often such people are genuinely unable to see any other point of view but their own. Settling a case with someone like that on the other side is extremely difficult, and sometimes impossible.
Some people have a need--albeit misguided--to have their drama played out in a courtroom. They believe what they see on TV. They think they are not only going to win but also will be vindicated publicly, given a verbal pat on the back by the judge, and told they are the victim of a great wrong perpetrated by the other party. People like this cannot settle. And when they do give into pressure to settle, they invariably try to renege before the ink is dry on the deal.
In other words, sometimes it may seem as though you are dealing with a difficult lawyer when in reality the opposing counsel has a very difficult client he or she cannot control.
- The opposing party may want to settle but opposing counsel does not. Again, there are clues that this may be the case. For example, your written offers are apparently not being communicated to the other party, you cannot get any feedback from opposing counsel about your offer, or opposing counsel won't return your phone calls. Perhaps opposing counsel makes totally absurd and outrageous demands. The clues can sometimes be ambiguous; they may be the result of the party's unreasonableness, the other lawyer's unreasonableness, or both.
- Opposing party and counsel want to settle but there is something standing in the way. It may be that opposing counsel is unskilled in the techniques of good negotiation. Perhaps he does not understand that most of the time you need a win-win result. Or, she will not put her cards on the table and tell you what she wants; for example, she says her client wants alimony but will not say how much or for how long.
It may be that opposing counsel is ignorant of important legal issues that must be understood to reach a resolution--for example, there are tax consequences flowing from the deal and the opposing lawyer does not understand them. Sometimes opposing counsel is misinformed about the facts or has not done his homework. He may not have gotten out a calculator or used a spreadsheet to actually calculate the result mathematically and may not understand what their offer really means to your client. He may not even understand what it means to his own client. Therefore, he may not understand that the deal they are proposing cannot possibly work.
There is also the opposing counsel who is either lazy or overloaded and therefore waits until the last possible moment to get serious about talking settlement. Quite often this person is also ignorant of relevant law or essential facts, thus compounding your problem.
What do you do to solve the problem and bring about a settlement?
Get the Parties Talking to Each Other
In some situations it is perfectly appropriate for the parties to talk to each other. For example, in a marital dispute the parties often have their own lines of communication already. But there are other kinds of disputes--for example, disputes between former business partners--where parties have occasion to speak with each other and where there is an opportunity for one to say to the other, "Look, let's try to settle this thing," or, "Why haven't you responded to the settlement offer my lawyer sent your lawyer?"
Whether the parties should actually attempt to negotiate the terms of their own settlement depends on many factors. But at the least, they can discuss a better process for reaching the desired goal of settlement. They could agree, for example, to have a four-way meeting, to go to mediation, or to insist that the recalcitrant lawyer prepare a response to a pending offer.
Get the parties in the same room together. If the parties want to settle, but the other lawyer is standing in the way, figure out a way to lessen that lawyer's hold over her client. The best way to do that is to arrange for the parties to be in the same room.
Set up a four-way meeting. If you have to use a pretext, use one. Try to start it first thing in the morning when people are fresh and you have plenty of time. Of course, some cooperation from the other side is necessary. But if the other side refuses to participate in a four-way meeting, and their reasons are not good enough and they have no alternative to propose, consider whether to give up your settlement efforts and start preparing for trial.
Schedule back-to-back party depositions. When opposing counsel arrives, take her aside and say, "Hey, look, while our clients are in the same room together, why don't we take a few moments and talk settlement." Alternatively, when both parties and counsel are in the room, suggest a discussion about settlement. Again, if you plan on trying this, start first thing in the morning and do not schedule anything for the afternoon. If they do not want to take the time set aside for the deposition, try to secure a firm future date for a four-way meeting.
Provide some hospitality. Serve tea and coffee, of course, but also make some microwave popcorn or offer bagels (and if the stakes are really high, throw in some smoked salmon as well). This is especially important if it gets to be late morning and people are starting to feel irritable because of low blood sugar. Moreover, it is more difficult to refuse reasonable attempts at settlement with someone with whom you have broken bread.
Try to establish some rapport with the opposing party. Address the opposing party directly. Listen to the opposing party's views respectfully. At least pretend that you understand his or her point of view. Try to control your client's behavior and keep recriminations to a minimum. Try to figure out the other party's real concerns. Understanding often leads to a solution.
Try to get it in writing. If you get the parties in a room and they hammer out a settlement, try to get something in writing before they leave. For example, if the meeting happens to take place while a court reporter is available, go on the record and read the terms of settlement and have parties acknowledge their agreement. If prior rounds of negotiations yielded a draft settlement document that has already been circulated, use it. Mark it up, make the changes, and have the parties sign before they leave your office.
Try mediation. If during the initial scheduling conference the judge asks if a form of alternative dispute resolution is appropriate, propose mediation. If the custom in your jurisdiction is for the lawyers to attend the mediation sessions, you can use that opportunity to establish rapport with the other party and to state directly to him or her the rationale for your offer. If you will not attend the mediation, you can coach your client through the process. Give your client a detailed checklist of all the issues requiring resolution. Give him guidance about the range of reasonable resolutions of each issue and where a concession by the opponent on one point should point him to a concession on another. If more than one mediation session is planned, debrief the client after each session. Make suggestions for responses to arguments made by the opponent and refine his bargaining position based on the progress made at the last session. Of course, the client should not sign anything until you have reviewed it.
Beat Them in a Round or Two
Sometimes you just have to show the other side that you are not to be toyed with. Maybe they are bluffing and you have to call their bluff. Perhaps opposing counsel has underestimated your ability or the strength of your case. Or, opposing counsel arrogantly overestimates his own ability or the strength of his case. After you win a round or two, perhaps settlement negotiations can profitably be renewed.
Communicate a Detailed Offer in Writing
Prepare a detailed offer or counteroffer that addresses each issue requiring resolution. Put it in writing. Do not be coy. Include the factual and legal basis for each aspect of your offer. Opposing counsel should be sending copies of correspondence to her client. Model Rule of Professional Conduct 1.4 requires a lawyer to keep his or her client informed and to communicate settlement offers. If the opposing party wants to settle and you send a detailed offer, seeing the detailed offer supported by facts and argument ought to make her take the offer seriously and respond to it. If there are relevant tax consequences, send the other side your spreadsheet analysis. Give them a brief synopsis of the law supporting your position with citations. Show them that you are confident of your position.
What can you do if you suspect your offers are not being communicated? You cannot call the opposing party and ask. If the parties themselves are in communication you might find out that way. Find an opportunity to bring the fact that an offer has been made to the attention of the opposing party or the court. For example, find a reason to mark your letter as an exhibit during a deposition and question the opposing party about statements made in it. Then, when you go to court for the status conference and the judge asks if there is any chance of settlement, you can say that you communicated a very detailed settlement offer three months ago and opposing counsel has not responded.
Do not leave your offer on the table forever. Set a deadline for response. But do not do that unless you really mean it.
Play the Waiting Game
Figure out a way for your client to be in a position where he can afford to wait until the other side is ready to get serious. Perhaps you can help your client negotiate a line of credit to enable him to pursue another endeavor while the dispute is being resolved; obtain a different position with the employer or another employer; or otherwise figure out a way for life to go on while the lawsuit is pending and nothing is happening on the negotiation front.
Wait for a while until some of the anger cools or some new opportunity presents itself to the other side that makes them want to move on; for example, a new paramour, a new business opportunity, or a job transfer.
Romance the Opposing Lawyer
Not literally, of course. But often when settlement efforts break down, there has been a lot of posturing or the lawyers have exchanged angry words or accusations about each other or the parties. You naturally become very offended; she naturally becomes offended. You cannot talk to each other and it is getting in the way. Even if she is a much bigger jerk than you are, try to make friends. Buy her a cup of coffee the next time you are in the courthouse cafeteria. Find out if you have anything in common and talk about it. Give him a friendly pat on the back and say, "I'm so glad we had this opportunity to talk." Then start the next communication about settlement on a friendly note and forget all the ugliness that went before.
Make the Other Side Put Their Offers in Writing
Where you cannot get the other side to commit to a position, or they make offers and then seem to renege, refuse to respond to any offer that is not a full and final, detailed settlement proposal that includes all the terms--an offer that if acceptable to your client can be signed and executed before the other side has an opportunity to think of something new. Tell opposing counsel your client will not accept any offer that is not in writing and signed.
Rule 68 Offer of Judgment
If you are defending against a claim and you cannot get the other side to either make a reasonable offer or respond to your reasonable offer, then prepare an Offer of Judgment under Federal Rule of Civil Procedure 68, or your local equivalent, and send it to opposing counsel. Tell him you are going to file it within five days unless he gets serious about talking settlement.
Threaten Them with Someone Much Worse Than You
If you are pretty reasonable, tell the other lawyer that if current settlement efforts fail, your client is going to fire you and hire the meanest, most vicious lawyer who practices in that particular specialty. Everyone in town knows who that person is. He is legendary for his unwillingness to settle any case, or, in his more reasonable manifestations, unwillingness to settle until the day of trial when all the preparation has been done and most of the fees incurred. Of course, this threat will only work if that lawyer is not already your opposing counsel. If this person is already your opposing counsel, forget trying to settle and prepare for trial.
Sidebar: Some Cases Will Never Settle
Recognize that some cases will not settle no matter what you do. Therefore, stop aggravating yourself over your failure to bring about a settlement and get ready for trial. Failure to recognize that a case is unlikely to settle may result in your making fruitless efforts at the expense of your client. You could spend $20,000 in fees in a failed attempt to settle and another $20,000 to try the case. One of the most important things you can learn, usually from harsh experience, is to identify those cases that will likely never settle and save your client the wasted effort. In other words, sometimes you have to recognize that the way to deal with a difficult lawyer in settlement negotiations is to not deal with him in settlement negotiations. You may still have to deal with him in discovery, but that's another problem.
Be prepared to walk away from settlement efforts and do your discovery, file your summary judgment motion, and start your trial notebook. It may be just what that other lawyer needs to bring her client around to seeing the merit to settlement.
When you deliberately decide to walk away from settlement efforts, do not then make a first offer in response to opposing counsel's entreaties to put an offer on the table. Also, do not make a counteroffer when he makes an outrageous demand. Say, "Your offer stinks, try again."