This blog mainly deals with identifying, forming law firms and practicing in the realm of the Third Wave practice of law. But, let us face facts. You are not going to much succeed in the practice of law if you do not learn to settle. This does not mean that cases do not have to tried from time to time, but settlement is a key.
Frankly, it is one of the hardest things that clients must get use to. It is unclear, and the process and reasons for settlement can be messy. Clients often want to win, and it is difficult to predict from a settlement who has won.
Contrary to the Tea Party and Occupy Wall Street movements, most things in this world are not that black and white. If someone tells you that this is the case, then run. I like to tell people that I have only had one perfect case in my life, and I lost it at trial. I can say that I have lost cases that I do not think I should have lost, and I have won cases that in hindsight I probably should not have won.
So, when the courts, Bar and law schools promote mediation, understand that all lawyers in some big way engage in mediation every day in most every case. They have to act to bring the expectations of not only the other party, but their client, down.
There are a few lawyers that almost never settle. Almost universally, however, their clients pay them on an hourly basis. They have clients that, whether they know they are right or wrong, are psychopathic in the way they handle cases, and they have shareholder, depositor, or some other money to back them up. This does not speak to most lawyers that take cases on a fixed fee, contingency, or fee-shifting basis. It also does not describe attorneys that have hourly paying clients with limited resources.
This is also not to say that you should not litigate cases fully. If you do not do this to some extent, you get a reputation of never taking a case to trial. This inhibits your ability to reasonably settle with your colleagues. Believe me, it is not hard to find out if you ever try a case to conclusion.
I know that negotiation can seem like a daunting task, but it should be deemed a positive approach rather than a negative one. It does not have to be about strong arming the other side. It does not have to be looked upon as a win or lose situation. It is a complex process.
I can also tell you that a lot of the problem is that neither the lawyer nor law firm wants to be the first one to drop their pants, so to speak.
This is the reason that I engage early and stay on top of it. Be as polite as you can muster.
You have to reach the realization, and you have to get opposing counsel and your client to realize, that a good deal is never one-sided.
Determine the factors that are most important to other side. It is often the terms, structure and cost of a deal as opposed to who is winning or losing.
The best way to approach this is to:
1. Point out distinctions in arguments without differences.
2. Work on the overall cost of each side moving forward instead of trying to prove who is right and who is wrong.
3. Accentuate the risks moving forward regardless of each counsel's opinion.
4. Keep egos at bay.
5. Focus on common interests.
6. Use the phone, fax, email, and do not let opposing counsel hide from you.
7. Try to always be polite and helpful.