One Reason to Manage the Other Side’s Expectations

From John DeGroote’s Settlement Perspectives

There’s an old saying that “victory has a hundred fathers, but defeat is an orphan.”  It might have taken me a long time to learn why, but there is a good reason you should put that lesson to use at the beginning of many cases.

Would you rather be associated with a good case or a bad case?  If you had a choice, you’d pick the good case, right?  Everyone loves a winner, and at law firms it’s no different.  Associates, staff and even partners can smell a winning case, and a firm’s best lawyers often manage to work their way onto the team when they hear about a hot new matter.  It’s human nature, and it shouldn’t surprise anyone – just like it shouldn’t surprise us when good lawyers are able to migrate away from bad cases.

I wrote recently about how important it is to manage client expectations skillfully and realistically in Managing Expectations:  An Unexpected Lesson on the Bus to Hertz, but when it comes to their opponents, most people would rather surprise the other side than manage their expectations.  This post explores why you might not want to listen to most people.

When Are Client Expectations the Highest?

A plaintiff’s expectations are rarely higher than when a lawsuit is filed.  By the time the complaint is signed and served the plaintiff and his team have basked unchallenged in their own perspective, their own documents, and their own rhetoric for weeks.  Expectations fly high, and the case looks more and more like a real winner. 

The traditional wisdom of newly hired defense counsel has been to respond initially with as little substance as possible — countering instead with venue challenges, procedural motions and other devices that delay the substance of the case and cause the plaintiff to invest in it further.  The defendant’s team privately develops its substantive response to the plaintiff’s case theory while these procedural battles drone on.  As they await a fight on the merits, each side’s confidence deepens.

Motivating their Best Lawyers to Better Cases

I don’t write this to suggest lawyers ignore their clients’ procedural rights — although streamlining your case is often a good idea, I’ll explore that thought further in another post.  But if you have a good substantive case, try managing the other side’s expectations earlier than traditional wisdom might suggest while the procedural battles play themselves out.  Consider an informal exchange of information with the other side while you await the court’s early rulings, send your opponent some draft discovery that highlights your theory of the case facts, or even sit down with your opposing counsel and her client to walk them through a perspective they might not have seen.  Their expectations might become more realistic, they might invest less in the case, and other breaks might cut your way.

Admittedly an early exchange of information might not lead to immediate settlement.  But managing the other side’s expectations as case perceptions are hardened may help in ways you won’t see at the outset.  Don’t be shocked if the superstar young partner on the case soon gets pulled into another matter, and don’t be surprised if that sharp associate rotates off to another case — perhaps to the case the superstar young partner is working on.  Whether it settles or not, internal defections mean your case is in a much better position to mature favorably in the months to come.

Obviously this tactic won’t work on the few cases where surprise really is an organizing theme, but in most cases a little early expectation management can go a long way.  Give it a try.

                       

John DeGroote

John serves as a mediator and arbitrator in complex business, technology, and intellectual property matters involving parties and interests around the country and beyond — often before litigation is filed. Prior to his service as a mediator and arbitrator, John served as the lead settlement negotiator in hundreds of cases,… MORE >