Lawyers like text. We trust it. Whenever possible, we send emails and letters confirming agreements (or even disagreements) with the other side. And there are good reasons to favor the written word when negotiating, such as the fact that it favors deliberation rather than fast-talking.
But sometimes, text can put us at a disadvantage. As Professor Carrie Sperling argues in her article Priming Legal Negotiations Through Written Demands, demand letters–which often open any negotiation of legal dispute (and are sometimes legally required)–can actually provoke behavior that would undermine any negotiation. The difficulty arises from a phenomenon known as priming, the tendency of people to human beings are susceptible to being placed in various emotional states simply by exposure to words that reflect those states.
When a person’s recent perceptions incidentally and unknowingly influence his behavior, his behavior has been "primed." For instance, when people play a word game that contains terms "relevant to the elderly," like grey, old, wrinkle, and Florida, they walk more slowly after finishing the word game than people who played a word game with "age non-specific words" like birds, tree, and book. Unbeknownst to the players with the first set of words, they were primed to conjure the "elderly" stereotype. By unconsciously priming this stereotype, the players behaved more like their perception of the stereotype, that is, they walked more slowly.
(Emphasis added.) Why should lawyers care about this? Well, as Professor Sperling points out,
Although few studies have attempted to link the effects of priming to legal negotiations, a couple of studies are of particular importance to lawyers crafting initial demands. An early study in priming demonstrated that exposing participants to competitive words, even subliminally, led participants to play a Prisoner’s Dilemma Game more competitively. The prime had particularly strong effects on participants already predisposed to competitive behavior. Therefore, demand letters delivered in a framework of competition with competitive terms may likely cause already competitive lawyers to intensify their aggressive behaviors.
(Emphasis added.) Similarly, studies of students who have been primed with words that might encourage cooperation before negotiating a used-car purchase have resulted in the students’ reaching agreement faster, and report more satisfaction with the outcome of the negotiation.
As Professor Sperling observes (and at least my experience would corroborate), many lawyers frame their demand letters by putting out a strong version of their case. For most of us, that tactic may very well prime a competitive response rather than one that seeks to reach an agreement.
Defense counsel in class actions often face two different kinds of cases. In one, the plaintiff files a class action that is clearly meritless, even if the plaintiff hasn’t realized it yet. In these cases, priming may not matter that much. But in the other kind of case, a consumer may stumble across a widespread problem that the defendant has been looking to correct. In these cases, it may actually make sense to make a more conciliatory approach, one that would prime cooperation rather than competitive behavior.
But wouldn’t that conciliatory approach signal there’s something to the plaintiff’s case? A fair question, and it would be interesting to see some studies devoted specifically to this issue. In the meantime, however, it makes sense for defense lawyers to consider the possibility that–in certain cases–being less aggressive at the beginning of the case may actually reduce the costs of litigation long-term.