''Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.'' - Abraham Lincoln
Lawyers have many roles in the advocacy process. These roles can range from drafting memoranda of law to conducting oral arguments in the courtroom. However, the majority of cases are settled before they even get to trial. Therefore, it is necessary for attorneys to also be good negotiators. For the attorneys with tons of negotiating experience or the recent law school graduates with prior experience negotiating in business settings, negotiation is probably second nature.
However, for the inexperienced negotiators, here are some negotiation tactics that work:
Listen carefully to the other side. The solutions to most disputes are often matters of common sense. Listening carefully without interrupting the other side will yield good information. Interrupting the other side may make the other side less receptive to your position. If this happens, the meeting has just been wasted, as your client may not get the best outcome; or, worse, negotiations fail and your client has just lost time and money in attorney's fees.
Do not take anything personally. The generals who were most easily angered were the ones that lost the most battles or were killed. Getting aggravated by the other side is counter-productive because it may lead to a breakdown in communication or a failed negotiation. Either case can be detrimental to your client and is usually costly to recuperate.
Know the territory. Trying to negotiate or argue your position based on general knowledge of the facts or issues is not as good as knowing exactly how the facts apply to each of the disputed issues. If the facts are in dispute, then know which facts are relevant. For example, in an assault and battery case, the plaintiff will generally say that he/she was assaulted first, while the defendant will generally assert the opposite. Who assaulted whom is relevant if payment of medical fees is in dispute. In this case, the defendant may not yield until it is certain that he/she was the cause of the plaintiff's injuries. However, if both sides were minimally injured, that fact may not be as relevant. Instead, it might be better to figure out how a similar situation might be avoided in the future, particularly if both parties have to work together again. Also, know exactly how you want your solutions to be implemented for the benefit of your client.
Figure out the best alternative to a negotiated agreement. This addresses the question of what happens if negotiations fail. If the alternative for your position is litigation, what is the other side's best alternative? This means knowing what the other side wants. Based on what the other side wants, one can determine if litigation will yield better results or if it might be better to just gain as much ground as possible in negotiations.
Learn how to deal with different personalities. This is where preparation ahead of time helps. Preparation will mean that the other side will be less likely to rile you up or outmaneuver you because you are not aware of all the issues and facts. Very often, the informal nature of the negotiation will mean that the discussion may get off track. Knowing what is relevant and what is not will help expedite the process. Knowing what you want and how those solutions are to be implemented is also helpful. Finally, know what your "throwaways" are. In the majority of cases, the hard-liners want to feel as if they've won. Additionally, not all of the things your client wants are important to the overall claim. Therefore, knowing what your client needs, as opposed to what your client wants, is helpful. Then it is a matter of continuing to play the weaker cards and throwing them away for stronger ones. An example is if your client wants medical fees and an apology in the assault and battery case. If the defendant also has an attorney, it is unlikely that the defendant will apologize, as he/she might consider it an admission of guilt. Because your client needs the medical fees, but can live without the apology, it is a good idea not to budge on the apology until the defendant cracks. If the defendant begins to offer to pay for medical fees, then give up the apology and take the medical fees.
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