How to Win: Why Litigation May Not Be The Best Choice

by Laurie Israel, Esq.

Most of the work of a lawyer is to help a client achieve his or her goals in the most sensible and effective way, and at the least cost – financial and otherwise. We attorneys are trained as problem-solvers. In interviewing clients, we try to find out all facts which are relevant to a client’s situation and which may lead to a solution.

Most of the lawyers I deal with on a daily basis in my practice are not combative, and, like me, are looking for a peaceful solution for our clients’ problems. Many times (but not always) this is possible to achieve.

We solve disputes peacefully by working collaboratively with the opposing counsel to see if both our clients’ needs can be adequately addressed at the same time. This is actually achievable in many situations, perhaps with some minor compromising on both clients’ parts. This is unlike the “zero sum game” in which if one client wins, the other client loses. Rather, clients trade off on their desires, much like the division of tangible property between children upon their parents’ deaths.

In getting to this sort of peaceful conclusion, the old-fashioned “hired gun” lawyering which encompasses scorched-earth tactics, demands, rudeness, and unkindness will not get you to a peaceful solution. Clients are able to be reasonable if guided by their lawyers in a non-threatening negotiation founded on reasonableness, openness, and good faith. Luckily, most lawyers realize this and practice law this way, although the situation was quite different when I began to practice law.

The manner of articulating in communications between the attorney and the client is very important. Blaming or speaking disparagingly about the other party usually leads to no helpful benefit, even if your own client is hurting and the other party is objectively at fault. It is important that the lawyer and the lawyer’s client listen to the other side with an open mind, and try not to prejudge. When you do that, you find out many things that might lead to a solution, in addition to giving the other side credence for their feelings and thoughts. Listening often gets the negotiation “unstuck”. Even if you cannot or decide not to give them what they want, at least they know they’ve been heard.

There is also the question of karma in the practice of law. In negotiations and in the course of business transactions, many good deeds do get rewarded. For instance, giving something up in a real estate transaction at the Purchase and Sale Agreement stage may lead towards the other party saying “yes” when a problem arises prior to or at the closing, when you may need the other party’s cooperation. In a divorce negotiation, having the parties finish the divorce with a memory of good feelings towards each other during the negotiations will improve the rest of their lives ? and their lives will be forever intertwined if they had children together.

So when does your client need to litigate?

Clients often believe wherever there’s a wrong there’s a right. Although this may be technically correct in many instances, it does not make sense to pay $20,000 in attorney’s fees and court costs to possibly win $5,000 in a case. It is often far better to settle, even when you’re right. This is a hard lesson for clients to learn.

Cases must be evaluated to make sure that the damages (and liability) are such that it makes sense to spend the attorney’s fees. Litigation is extremely time-consuming for the attorney, and fees can build up very quickly to very high amounts. All this needs to be considered. Getting one-half a recovery in a settlement is often better than a 50% chance of getting the entire recovery, because the attorney’s fees will have to be added on to the cost.

As a negotiating attorney, it is very important to know what the “litigation case scenario” of your client’s dispute is. It will be an important factor in the negotiation process. If your case is “very strong,” this will play into what the negotiated settlement should be. It’s also very important to let the other side know (if it is true) that you will litigate the case if a reasonable settlement is not reached. The other side needs to know you can and will “dig in your heels” if the situation warrants. Saying this, and meaning it, often leads to a settlement if the other side has been advised correctly.

So winning is not always winning. Sometimes winning is knowing when and under what terms to compromise.

© 2006 Laurie Israel. All rights reserved.


Laurie Israel

Laurie Israel is an attorney, consultant, and mediator, concentrating her practice on both prenuptial and postnuptial agreements. She works as a consultant and mediator nationwide. She previously practiced for 35 years in the areas of tax law, divorce, collaborative law, estate planning, probate of estates and trust administration, as well… MORE >

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