Litigation
May 26, 2001
Don't Blow Your Top in Settlement Talks
The formal settlement conference. We all know that the reasonable resolution of a lawsuit is in the best interest of all parties. Thus, I offer a suggestion for enhancing your chances of achieving this goal.
The formal settlement conference. We all know that the reasonable resolution of a lawsuit is in the best interest of all parties. Thus, I offer a suggestion for enhancing your chances of achieving this goal.
In the setting of the usual three-part conversation before the judge in chambers, as well as in other negotiating contexts, it's invariably best to avoid adopting a combative attitude, no matter how much you may have grown to dislike that unreasonable lawyer on the other side. If you're loaded for bear (and even if you're not), don't try to blow the other side away with a nuclear attack.
Don't say things like: "We're gonna kill you in trial! We've nailed your phony whiplash plaintiff lying 75 ways from Sunday in his deposition. And we even caught him bungee jumping! Give up. Your case is crap."
Well, even if all this might be true, this kind of diatribe (admittedly exaggerated for the sake of illustration) will only obstruct your chance of settlement. Why? Because a condescending, confrontational attitude forces your opponent to lose face in order to implicitly concede the weakness in his or her case and posit a reasonable demand or offer.
Instead of advancing the prospect of settlement, you've just erected a huge barrier to it.
Negotiation theories advocating attack, "feigned anger" and other modes of self-righteous declamation are wrong. You can be plenty tough and firm in fighting for the right deal without being rude. Courtesy does not signal weakness. You can tactfully yet firmly and persuasively raise the problems in your opponent's case without hyperbole or hostility, especially in light of the fact your adversary already knows the weaknesses of the case, and your gentle reminders are quite sufficient to dash his or her vain hopes that you might have missed these points.
Remember the old saying: "You can catch more flies with honey than with vinegar."
David H. Brickner is an Orange County Superior Court judge.
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