Rule Ten: Be Prepared
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Going into settlement negotiations without a prior face-to-face meeting with your client is as wrong as going into trial without such a meeting. Worse, it wastes the time and money of not only your client but the lawyer and client on the other side. Spend time with the client to discuss starting points and ending points for negotiations. Make sure the client understands that, although it is in many ways the equivalent of a knife fight, there are rules which will be followed.
If you make a habit out of not being prepared for settlement negotiations, you will earn a reputation for not being prepared. At least my reaction to lawyers with this reputation is not to prepare myself for the negotiation session. The result is that it is far less likely that the case will be settled. On the other hand, if I know that the lawyer on the other side prepares hard for settlement, I will work hard as well. The result is a good session which will make great progress towards a resolution, if not reach one.
True, there are some lawyers who bluff well. But most do not. It is usually clear early in the negotiating session the degree of preparation the other side put into preparing. In many settlement conferences, after both sides lay out their positions, there is a palpable pause as both sides hesitate to see who will make the first compromise. If it is clear that the other side is not prepared, why would we start to compromise? By not being prepared to negotiate, they are not prepared to match our compromises. The result is a standoff. The bottom line is to follow the Boy Scout motto: Be Prepared!
Following these rules does not, of course, guarantee a settlement. The rules do, however, create the type of atmosphere which makes a settlement more likely. As with many other things in life, improving the odds is often the best we can do when we do not have full control over the circumstances. And, we owe it to our clients to do the best we can.
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© National Legal Research Group, Inc.
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