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Litigation Journal

Winter 2024 | Litigation Road

“We Can Work It Out”: The Art of Negotiation

Kerrie Samantha Crockett


  • You may have a case in which a hard-fought battle is not required.
  • Based on the facts of your case and the needs of your client, you may decide that it would be best to work this case out.
  • Instead of bluster and bravado, you should consider a charm offensive aimed at making the best case for your client.
“We Can Work It Out”: The Art of Negotiation
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If you listen carefully, you will hear references to the Beatles, a Beatle, or the ultimate phenomenon, Beatlemania, in every form of media. For example, a local meteorologist sings a few bars of “Here Comes the Sun” before announcing a sunny day weather forecast. Or a swarm of adoring fans chases a young music idol through the streets à la Beatlemania. And for those of you who appreciate a little bit of mystery, there is the recently crowned royal referred to as a Yoko Ono.

How is it that over 50 years after the Beatles broke up in 1970 and broke the hearts of their devoted fans, this magical band of four young lads from Liverpool has seemingly taken up a permanent space in the Zeitgeist of the denizens of the late 20th century and present day? Was it their music? Was it their impact on the rapidly changing culture and social mores of the 1960s? Or was it just a matter of time, place, and person?

Well, you will be relieved to know, no one can really answer these questions, and I will not feebly attempt to describe events that occurred before I was born. However, there is something worth noting about the Beatles’ ability to connect with people of every generation and share their seemingly simple message with the world. Sometimes the simplest message holds the most profound truth—even in the legal profession, where obfuscation is the get-out-of-jail-free card.

Is there a Beatles song or lyric that can be considered when litigating a trial case? (Not a rhetorical question—please answer out loud if something comes to mind.)

The Two Extremes of Litigation

As trial attorneys, we gather facts and evidence and we research case law and statutes to determine the ultimate value of the information we collect. Once sufficiently armed with the necessary legal prowess to fully represent our clients, we consider our best litigation strategy. Essentially, there are two basic strategies, and everything else is a variation on a theme. In colloquial terms, one strategy can be described as “shock and awe,” and the other as a more conciliatory “can’t we all just get along.”

Is there a Beatles song that exemplifies these extremes? Yes, and thank you for that question—“Helter Skelter” and “We Can Work It Out” are directly on point. So here’s a bit of background on these two songs:

Paul McCartney wrote “Helter Skelter” in response to a statement a fellow musician (ahem—it was a member of The Who) made in a magazine article. This person asserted that one of his band’s songs, “I Can See for Miles,” was the loudest, dirtiest, and rawest song ever made. Paul McCartney took this statement as a challenge and set out to write a song that was just as loud, raw, and dirty as the aforementioned tune. Paul McCarthy’s effort was successful, but the song’s tone was blamed as the impetus for a dark event in American history. (That’s all I have to say about that.)

John Lennon and Paul McCartney wrote “We Can Work It Out” in 1965. The song is a basic play between the two writers in which each writer has his own approach to resolving a disagreement in a relationship. One is light and hopeful; the other is fatalistic and blunt. However, although contrasting in nature, there are little nuggets of wisdom in the lyrics that may be useful for communicating with someone who has an opposing view with the intent to, eventually, work it out.

OK, so what do these two songs have to do with litigation? Well, if you must know, “Helter Skelter” envisions the complete and utter annihilation of your opponent where (only metaphorically speaking, of course) elbows will be thrown, toes will be stepped on, and heads will be butted in the endless pursuit of the prime objective: total victory for your client. In preparation of your quest for complete domination, your suit is your armor; your accessories are your shield and sword; your game plan is to bluster, denigrate, and threaten your opponent until unconditional surrender.

Obviously, this type of approach will not help you win friends and influence people. In addition, there is no guarantee of victory for your client, as you may find yourself competing against a bigger and meaner opponent. And in “The End” (yep, another Beatles song), it may be you and your client who will be completely and utterly annihilated and you will find yourself fighting “For No One.”

Working It Out

“We Can Work It Out” envisions a different outcome than total victory. You may have a case in which a hard-fought battle is not required. Based on the facts of your case and the needs of your client, you may decide that it would be best to work this case out. Instead of bluster and bravado, you should consider a charm offensive aimed at making the best case for your client. As they say, you can attract more flies with honey than with vinegar. So how can the lyrics of “We Can Work It Out” be a source of inspiration for an effective strategy for resolving a case?

Let us consider the very first line of the song: “Try to see it my way.” This line, translated to legal speak, asks for the opportunity to be heard. By asking to be heard, you are taking the initiative and beginning a discussion that could lead to the successful resolution of your client’s case. By leading the discussion, you could frame the conversation in the light most favorable to your client. (OK, seems like a good start but definitely approaching the realm of Pollyanna.)

After stating your case to opposing counsel, you may become aware of the fact that your words are not resonating with said counsel, which leads us to the very next line of the song: “Do I have to keep on talking till I can’t go on?” At some point during your brilliant Shakespearean soliloquy accentuating your client’s virtues, you may become aware of a curious glassy-eyed stare or a deafening silence on the other end of the phone that portends a disappointing end to your endeavors. You ponder, what is the point of casting out pearls of wisdom and only receiving a pork chop in return? (Shout-out to Ayn Rand’s The Fountainhead.) Now is the time to shift strategies and consider opposing counsel’s point of view. Which of course leads to the next line of the song: “While you see it your way.”

OK, not the most magnanimous assertion. Especially, when you consider the rest of the line: “Think of what you’re saying. You can get it wrong and still think that it’s alright.” In the spirit of negotiation, we should unpack this accusation and look to its deeper meaning. (The Beatles always have hidden messages in their songs, right?) There is an implication that the opposing side’s argument has been presented and heard. After considering the opposing counsel’s position, you may conclude that opposing counsel’s argument is based on false premises. Well, this is an excellent time to brush off ye olde classic syllogism from your logic class and put it to work to make your case. If you become discouraged by opposing counsel’s unwillingness to move from an untenable position, have no fear—the case can still be worked out. However, it may take a little longer than anticipated. Therefore, there is no shame in taking a break and saying “Good Night.” (Ah yes, all you need is love! Is negotiating a case really this simple?)

For the skeptics in the room, maybe a more direct approach is required. The following lyric articulates John’s opinion of Paul’s diplomatic approach: “Life is very short and there’s no time for fussing and fighting, my friend.” First, we have the very abrupt “Life is very short.” After all, as this line was written by John, the resident genius of the Beatles (who failed every single class in high school), this is obviously a reference to philosopher Thomas Hobbes’s observation that, among other descriptive terms, life is “nasty, brutish and short.” Thus, John implores the listener to stop wasting time fussing and fighting. If you want to work something out, get on with it and get it done.

The next line of John’s contribution ends with “So I will ask you once again.” There you have it. The entire strategy in a nutshell. These lyrics suggest, in a very blunt and direct manner, that you should present your case, state your position, and reveal your bottom line, because any other conversation is a waste of time. The opposing counsel is left with a take-it-or-leave-it offer.

Taking a step back, it may be fair to point out that dissecting this Beatles song, line by line, takes away from the overall sentiment of the song. On its surface, “We Can Work It Out” is about a couple who are going through a rough patch in their relationship, and the two songwriters present two opposing solutions. Paul, true to his nature, presents a diplomatic approach whereby the problem can be resolved by discussion and contemplation. John, on the other hand, presents an ultimatum. He wants his partner to make the decision to be either in or out. Which is best? I guess the answer is the eternal “it depends.” (Wow, relativism at its best. . . . Thanks for the kind-of-sort-of insight.)

Further Fab Four Litigation Strategies

Outside of lyrics and song titles, you can look to the Beatles themselves for insight into litigation strategies. Beatles’ fans bestowed the following descriptive terms for each Beatle: John was the “smart” Beatle, Paul was the “cute” Beatle, George was the “quiet” Beatle, and Ringo was, umm, Ringo! Part of the mystique of the Beatles is how did four seemingly different personalities “come together” and make such groundbreaking and lasting music. (Did you know the Beatles did not release a song on their records unless all members agreed?)

Through years of friendship and hardship (and up until their breakup), each Beatle mastered the art of compromise and contribution. Paul McCartney often recalls the time when he had difficulty with the beginning of “And I Love Her.” George offered a solution by playing four notes on his guitar that changed the entire tone of the song, and Paul loved it. There were times when John chastised Paul for his tendency to write “granny” music. (Yep, looking at you, “Honey Pie.”) In turn, Paul made sure John remained a productive songwriter. And Ringo had the gift of adaptability and an intuitive feel for what each song needed to make it better.

In litigation, you need the same kind of adaptability. If you find opposing counsel to be bombastic and off-putting, you can counter with calm and composed. (You say goodbye and I say hello!) If opposing counsel is quiet and reserved, listen for what is not being said. (Very Zen, I know.) Once again, there is no need for “fussing and fighting” if the ultimate goal is to work out a case.

In the end, the Beatles have some timeless twists of phrases and essential truths embedded in their seemingly simple lyrics. Litigators can take heed of some of their lyrics to carry them through landmines in litigation. “Imagine” a world where someone is open enough to see it your way at mediation? Let’s be real—for some people “nothing’s gonna change [their] world.” And litigation will never be “Strawberry Fields Forever,” but at least we can make a small difference to suggest that we “come together” and maybe, just maybe, “we can work it out” after all.