Rule Seven: Never Refuse to Negotiate
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True, some cases are harder to settle than others and some cannot be settled. But you will never know unless you try. Unfortunately, a certain amount of legal services later turns out to have been avoidable, but such services were utilized in the event that it was thought necessary at the time. Settlement should be attempted in every case, no matter how remote the prospect might seem. As Winston Churchill once said, "It is better to jaw, jaw, jaw than to war, war, war."
This issue usually seems to get back again to the question of ego. I have seen cases where the parties actually get along better than their lawyers! In fact, I know of cases where the parties could have settled the cases, if left to their own devices. While this is exceedingly rare in my experience, it should never happen. Lawyers should be conduits for settlement, not impediments.
Why do lawyers refuse to negotiate? Sometimes, it is because of personality conflicts with the other lawyer. No question, some lawyers grate on each other. But no law has ever required settlement negotiations to be conducted in person. Using written negotiations takes most (although not all) of the personality conflicts out of the equation.
Sometimes, the gap between the positions seems far too wide to "waste" time negotiating. Even sitting down for negotiations seems to be a waste of time. Yet, it is amazing the number of times the gap narrows dramatically during a negotiation session. Sometimes, it is because the gap was there at the beginning only for positioning. Sometimes, a party recognizes the weakness of his or her position. The point is that the gap cannot narrow unless there is some "jawing."
This does not mean, of course, that it is never proper to walk out of a negotiating session, suspend negotiations or even stop them. It does mean that it is improper to never enter into negotiations to begin with. At least sit down with the other lawyer and see what is on his or her mind. And do not stand on ceremony! Making the first call is not a sign of weakness.
Sometimes, the reluctance to call reminds me of the teenage boy afraid to call the girl for fear of rejection, while the girl sits by the phone, hoping for the call, but too timid to call on her own.
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