Negotiation plays a prominent role in our adversarial legal system. Litigating through the court system can be notoriously slow and expensive, so parties to a dispute have a strong incentive to work things out amongst themselves. Before a case gets to the point of mediation or arbitration, the parties can and must negotiate. With this blog post I want to talk about how negotiation should function.
One of the biggest impediments to successful negotiation is the jealous way in which parties guard information. In other words, like in any philosophical discussion, negotiation functions best when each side starts with a robust and shared set of facts. In the law, this is chiefly accomplished through a process known as discovery. In discovery, whether in a criminal case or a family law case, each side asks the other to disclose all pertinent information about the case at hand which is in the other party’s possession. Once this exchange has occurred, each party should be able to construct logical arguments from the same basic premises. And if the lawyers for each party have perfectly functioning “logic machines” (i.e. brains), then they should be able to anticipate the conclusion(s) necessitated by the application of the law to the shared set of facts. In short, hiding the ball gets you nowhere and just makes the legal case slower and more expensive for the parties involved. Recognizing this can be hard on attorneys raised on “Perry Mason moments” who fantasize about surprising opposing counsel at trial.
Another part of negotiation that may feel counter-intuitive to attorneys born and raised in an adversarial system is the importance of remaining reasonable about the goals of a legal dispute. Given that our legal system requires at least two opposing sides with (at least ostensibly) adverse interests, the temptation is to define success as complete and total victory for our side and a corresponding global loss by our opponent. But such partisanship does a disservice to a lawyer’s client. First, total victory is a rare occurrence, whether the battlefield is a literal battlefield or a courtroom. So promising total victory is often hubris at best and an outright lie at worst. Furthermore, creating such unreasonable expectations just lays the groundwork for disappointment down the road. Conversely, starting the legal process with a considered understanding of the likely outcomes allows clients and lawyers alike to remain cooly rational as the case progresses. A corollary to remaining reasonable about one’s goals is remembering that the legal system exists to further the pursuit of justice rather than to allow the strong to impose their will on the weak.
Finally, for negotiation (or litigation) to function properly each side needs to be adequately represented. In other words, our adversarial system assumes a battle of equals. To that end, it is immoral and unethical to engage in battle with an over-matched opponent. For example, it would be wrong for a prosecutor to pursue an innocent man simply because the prosecutor thought that she could win the case. If the justice system was working appropriately, it would be irrelevant whether the prosecutor did her damnedest or not, the innocent would go free and the guilty would be convicted. But given resource limitations, court cases don’t always meet the ideal of a battle of equals. Attorneys should recognize this and not seek to abuse an opposing party simply because that party’s attorney isn’t up to snuff.
In short, negotiation in a legal case represents an opportunity for the parties to efficiently achieve a fair and just result. But this can only occur if the parties respect the premises underlying good faith negotiation. The very phrase “negotiating in good faith” captures the idea that negotiation is only effective if the parties engaged in the negotiation believe that the process will conclude with a result with which they can live. Negotiating in bad faith is just a waste of time. Negotiation as it should be done offers parties to a legal dispute a way to achieve a cost-effective and fair result. Furthermore, negotiated resolutions can generally be more creative than a judge would be willing to be otherwise. Keep all of this in mind when considering whether or not to pursue a negotiated resolution in your case.
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