The Art of Legal Negotiating

Updated: Sep 20, 2018

As humans we are incredibly emotional, and often are subject to irrational actions at any given moment. These irrational actions do not happen for no reason though, they happen because something in our lives creates excitement, anger, pain, sadness, happiness, or one of the many other emotions that we are capable of feeling, and as a result we act on that said emotion in a manner that does not actually provide a benefit to us. As a consequence of these emotional missteps and irrational actions, people every day make many minor mistakes, and sometimes even colossal ones. Now, why am I saying this, and how does it relate to legal negotiating? I am saying this because at the core of any type of negotiation, one must be able to control their emotions to avoid missteps, and it relates so very well to the legal field because the legal field is often a very adversarial environment where people are trying to gain leverage on one another. This leads me to my next point.

How do you choose an attorney that knows how to properly negotiate? This is not necessarily an easy question to answer, but there are 3 primary factors that I believe you should assess with every attorney you potentially want to hire. These 3 factors are as follows: (1) Does the attorney understand leverage and how to use it to his or her advantage, (2) Does the attorney understand how to deal with adversarial situations and people, and (3) Does the attorney understand how to control their own emotions so not to give away any of your important information to the other side? All 3 of these questions are somewhat intertwined, and they all have an effect on the total negotiation. Let us examine these 3 aspects individually, and then connect them at the end.

Leverage from a negotiations standpoint is the "power that one side of a negotiation has to influence the other side to move closer to their negotiating position." This is very important for an attorney to understand, because if he is blind to it, then it can cause an array of problems for you and your legal issue(s). The key point here is understanding that leverage has to do with power, and everyone has different types of power in a negotiation. Some people have more power and some have less, but ultimately it is the ability to understand these different aspects of power in a negotiation that makes you more powerful and capable. Let me give an example of leverage as it applies to personal injury from a simplistic perspective. As an attorney my goal is often to negotiate a favorable settlement for my client, and I negotiate with insurance adjusters in order to come to a settlement result. In this simplistic situation, the insurance adjuster (and the claims department) has the "power" to issue the funds for a settlement, thus I can not get any money unless the adjuster by his authority agrees to give me money, I can not force the adjuster to give me money (and if I tried to do that, I would go to jail for robbery). Next, I, as the attorney for my client, have the power to file a claim against the insurance company in court if we can not come to an agreement. This is within my power, and the insurance adjuster can not do anything to prevent me from doing that. An example of an attorney not understanding leverage using this simplistic scenario, would exist if the attorney carried the mistaken belief that he and only he would dictate the terms of the settlement agreement. No matter how simple or complex a situation may get, there are many different ways in which parties have leverage over one another, and you need a good attorney who can identify these aspects, and the best way to understand whether an attorney actually knows what he is doing is to ask him questions regarding the negotiation, and see how he responds. Does he act overly confident? This could be a sign that he will overlook something because he believes he understands everything. Does he shy away when you ask him a difficult question regarding payment? this could be a sign that he struggles to deal with confrontation. When you ask him a question, does he empathize with you and does he answer your question directly? Does the attorney explain the issues to you and does he tell you the weaknesses with your case, or does he brush those to the side? These are all important aspects that you should be looking at when selecting an attorney, and determining if they will be able to understand real leverage when negotiating your position.

Next, let us look at an attorney's ability to control their own emotions. This is very important, because someone who does not control their emotions, will often end up putting the client in an undesirable situation. Have you ever seen the kid on the play ground that gets in trouble for punching another kid because he did not get what he wanted? It never turns out well for either party, because this emotional action brings about an emotional reaction, and now both kids find themselves clobbering each other until they are black and blue. This is the same thing that occurs when attorneys do not control their emotions in the negotiating realm (without the fist fighting of course). For example, sometimes in a negotiation, an opposing party/attorney may make a ridiculously low offer that absolutely shocks the conscious. As a result of this offer, most attorneys want to hang up the phone or yell at the top of their lungs, they are filled with anger and they can't believe what they just heard, but a good attorney will formulate a rational response to this offer, and will continue with the polite chess match. You see, often the other side will throw out ridiculous offers, and make ridiculous assertions just to see what your weaknesses are. The uncontrolled attorney will play right into these hands, yet the controlled attorney will smile and have already formulated the perfect response. The controlled attorney does not let silly antics get to her or him, and they understand the chess match that exists. In order to find out if the attorney can handle their emotions well enough to take on your case, ask them some silly questions yourself, and see how they respond. Do they talk to fast, do they talk too much, does their tone of voice change for the worse, do they get angered when you ask them a ridiculous question? These are all things you can use to assess whether or not you have an attorney that is in control of his or her emotions.

Finally, an attorney needs to be able to deal with adversarial situations, because if he can not handle confrontation and adversarial situations, he will likely get you much less then your case is worth. This is because he will look to settle as fast as possible, just so he does not have to either litigate a case or deal with the opposing party. When an attorney tries to avoid an adversarial situation, they will often give up more than is necessary, and as a result they will get less in return. If you want to find out if your attorney is someone like this, then ask them about their trial experiences. Did they get good results? How often do they go to trial? This will help you analyze whether your attorney is confident and able to handle an adversarial situation, or if they are insecure and willing to roll over at the first sign of one.

Lastly, an attorney that does not understand leverage will often get angered over the use of leverage against him or her, and this is where the tie in between leverage and emotion exists. If you understand the leverage then you cannot be caught off guard, and you can be prepared for an appropriate response. The attorney must be willing to accept the leverage that the other party wields, and they must know how to use their own leverage to tip the scales in your favor.

Find an attorney that understands these elements well, and you will be just fine.

By Rocco Turzi

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