Negotiating a settlement is not easy. There are a few pointers and skills, however, that have helped me settle many cases successfully while remaining civil with the other side. Remember negotiating is an art form. There is no right or wrong way to do it. The tips below are general guidance that can be employed by any personality to achieve a settlement.
(1) Know the strength of your case and believe in it.
Before entering into negotiations, I make sure I know the substantive law cold. I know the types of damages that I will seek, the amounts of those damages and the civil penalties that are available to me if applicable. This is all ammunition to bring my opponent to its knees during settlement talks. I also make sure I know the facts of my case and stand my ground. If you waiver at all, that will weaken your client’s bargaining position.
(2) Be kind.
For women litigators this may seem counter-intuitive in the modern practice of law, but trust me, it truly works to our advantage. When I say be kind, I do not mean wink and bat your eye lashes at the other side. I mean be pleasant when interacting with them. For example, if the holidays are approaching I may ask opposing counsel what their plans are and if they will get to spend much time out of the office. All of these tools help ease the tension and humanize me as an attorney. My opponent, in turn, becomes less defensive and I can ease into settlement talks with a conversational tone versus an adversarial one. Works every time.
(3) Listen effectively.
No one likes to be cut off mid-sentence or mid-thought. It is rude, obnoxious and is also disadvantageous to your client. Resist the temptation to be that lawyer who fails to listen to their opponent. It will pay tangible and intangible dividends.
(4) Be prepared to go to trial.
Nothing is worse than lawyers who posture as if they are going to try a case when they are not ready or willing to do it. Be careful about threatening to file suit because the other side may just wait and see if you do. This is not good if your client has advised you that they do not want to go to trial or cannot afford to go to trial. In the latter instance, if you are advancing the costs this may not matter to you but if your client is footing the bill, you need to negotiate the best settlement you can while managing costs for your client. On the other hand, if my client is ready for battle, I enter settlement negotiations with that in mind and advise the other side that the matter must settle within a certain time frame and at a certain price. I ask for what I want and I leave wiggle room to make concessions. But if there is a bottom line, opposing counsel must give it to me if they wish to settle the matter. Otherwise, I immediately file a complaint or take the next appropriate step towards trial. Most of the time, the case will settle before I file a complaint but I still have one ready to go in case negotiations break down.
(5) Manage your client’s expectations.
Sometimes clients have unrealistic demands. They may think you can get a two million dollar settlement for a claim that is really worth $50,000.00. If your client is bitter (even justifiably so) you will have to talk them off the ledge (so to speak) so they don’t end up wasting time and money. While you cannot force a client to settle, your job as their counsel is to advise them of the pros and cons of accepting an offer or rejecting one. For example, if you have an employment case where the claim is that the employer failed to pay your client (the employee) wages due, you need to advise your client that any wages he or she receives as a part of the settlement will be treated as wages for tax purposes and thus, the employer will deduct all taxes from the agreed upon settlement amount. This will help your client understand what he or she can reasonably expect to receive out of the settlement and will keep you free and clear of bar complaints down the road.
In the end negotiating settlements is a skill set with no standard outline or formula. Use the aforementioned tips to help you develop your style and go conquer.