In honor of an approaching book deadline, I’m introducing a new feature. Most Wednesdays, there will be a brief piece here on negotiation strategy, pulled from a case study or scholarly literature on negotiations. (Negotiation is an important part of a class action lawyer’s life, particularly because so many cases end in settlement.) This will likely continue until the book itself is out sometime in early 2013.
So, today’s question: Why do so many lawyers make arguments during settlement negotiations, if the real goal is to reach some kind of an agreement? They can’t possibly think they’re going to persuade the other side, can they?
This is the question Robert Condlin asks in an old Maryland Law Review article: "Cases on Both Sides": Patterns of Argument in Legal Dispute Negotiation, 44 Md. L. Rev. 65 (1985). Condlin’s thesis is that when it comes to negotiation, lawyers are terrible arguers:
Negotiation argument is seen as more simplistic, chaotic, predictable, and illogical than is generally believed to be the case, partaking more of stylized dance or game-playing than of political discourse or analytical investigation. These qualities suggest that it is discounted in negotiation because it ought to be.
As Condlin observes after reviewing several transcripts of a negotiation exercise, the law students engaging in the exercise offer "little more than unsupported, self-serving conclusions." Condlin doesn’t have a great explanation for this phenomenon. He blames legal education in part, since in 1985, law school focused almost entirely on doctrinal analysis. However, 28 years later, most law schools offer at least some practical courses, including courses in negotiation. (The most famous at this point is Harvard’s Program on Negotiation.) And yet, most lawyers engage in the same patterns of argument as they did then.
So we could blame law schools for teaching poorly, or we could look to see whether there’s some use to the shallower legal arguments used in negotiation.
And there is. Condlin himself, while he doesn’t focus on it, provides two telling pieces of evidence. The first comes from one of the exercise transcripts, where a law student roleplaying a Legal Aid lawyer says:
Let me just ask you one question. How much is it worth to you to litigate this question, to determine once and for all, to get a judicial determination as to whether this regulation creates a legally protected expectation not to be transferred absent, according to Meachum, serious misconduct or other occurrences? I mean, I think you will recognize that this regulation was only promulgated to get around the whole reclassification hearing requirement, the ICC [Institutional Classification Committee] reclassification hearing requirement. This is a blatant attempt to try to circumvent that. There hasn’t been any judicial determination. The Legal Aid Society would just love nothing better than a case like this, which involves the transfer from a minimum security to a maximum security, and most importantly in our case, the fact that our prisoner, our client, was not given any medical treatment for his heroin addiction in a maximum security prison. I think that the Society would like nothing better than to have a case as egregious as that to test this regulation.
(Emphases added.) The other comes from the transcript of a negotiation training video, where the lawyer says:
I’m always agreeable to resolving cases at an early stage. There really is only one issue though and that is how much your client wants to pay my client before we get this matter into court. This is the type of case, Mr. Harris, that I like to try and I want to try. I think you know why. When you have someone ripping off the public as your client has been doing and I’ll have no difficulty establishing fraud in this case. I’ve got a client who is an indigent gal, whose husband is an invalid. First of all, I can’t understand why you even sued her. You’re not going to collect any money anyway and you know that. And the counterclaim is as valid a counterclaim as I’ve ever filed, and you know I’ve been successful in the past and I’ll be successful in the future. And as emotional as this case is, where you knock a gal out of her job because of selling her a car which is defective. I’m absolutely convinced we’re going to prevail and we’re going to get a substantial judgment of compensatory damages.
(Emphasis added.) These both provide, in the course of their bluster, a primary reason lawyers may argue (and do so shallowly) during negotiations. They’re previewing the arguments they’ll make during any substantive motions or trial. Since most class-action negotiations take place against the not-so-implicit threat of bet-the-company litigation, providing a preview of one’s best arguments may in fact make for compelling leverage in negotiation.
So why not make the arguments better? Why are they so often off-the-cuff instead of carefully researched for maximum effect? Most lawyers are loath to give away their best arguments, even if that fear is largely groundless.
What can defense lawyers take from this? First, it pays to have some sense of your argument before going into negotiation. But more importantly, negotiations can be an important tool for seeing just what plaintiffs think they have as a case.