Let’s say you’re sitting at your desk Monday morning, your telephone rings, and it’s Jane, opposing counsel in one of your cases, calling to see if you might be interested in discussing the offer she e-mailed you last week. Because you’re mostly up-to-speed on it, you jump right in. What just happened? You — like thousands of lawyers in countless negotiations every day — just made a common negotiation mistake even the most experienced lawyers consistently make. Who has the advantage here? Jane. Why? You agreed to speak with Jane before you had strategically prepared. Here’s what you should have said: “I’m right in the middle of something. Can I get back with you shortly?” Then you should have strategically prepared. The fact is, lawyers negotiate constantly. Whether you’re trying to settle a lawsuit or attempting to close a merger, you’re negotiating. Yet relatively few lawyers have ever learned the strategies and techniques of effective negotiation. Instead, most lawyers negotiate instinctively or intuitively. It’s natural. It can also be devastating. To avoid this mistake and others — and to strategically negotiate and thus increase your ability to get what you and your clients want, follow my Five Golden Rules of Negotiation.
1. Information is Power — So Get It!
Self-described “expert” lawyer-negotiators often enter negotiations with arguments intended to persuade the other side of the legitimacy of their positions. Unknowingly, they’re giving up power from the first time they open their mouths. Negotiation power goes to those who listen and learn. It’s thus critical to ask questions and get as much relevant information as you can throughout the negotiation process. With information in your pocket, you have power. Without it, you ’ll be scrambling. Effective lawyer-negotiators know this well. Instead of trying to convince the other side of the strength of their case or why the other side should agree to the merger, they start by getting information. How? By building rapport, developing relationships, asking questions (especially open-ended ones like what, how and why), finding out their counterparts’ negotiation reputations, and probing their and the other sides’ fundamental goals, needs, interests and options. 2. Maximize Your Leverage
How much does your client want or need that deal or settlement, and how much does your client’s counterpart need it? What are your and their client’s alternatives if an agreement is not reached? What can you and your client do to strengthen your leverage? What might your counterparts be doing? Finding the answers to these leverage questions can be the key to success. Ignoring them can be a recipe for failure. Maximizing leverage can be especially challenging for litigators. Why? They must, in effect, simultaneously send two seemingly inconsistent signals. On the one hand, they should convey to opposing counsel that they are ready, willing and able to take the case all the way through trial. After all, most litigators’ best alternative to settling the case — a critical element of leverage — is trying it. And the higher the likelihood of their winning at trial, the stronger their negotiation leverage. Yet over 95 percent of litigation matters settle. So litigators must also signal an interest in settling. But the more they signal an interest in settling (and thus not trying their case), the weaker their leverage. So how can litigators credibly send both signals? Pursue each on parallel tracks in the following way. On the litigation track, always push forward to trial in an appropriately aggressive fashion. On the settlement track, get the other side to initiate the process (thus signaling their relatively strong interest in settling), or suggest that it’s your policy in all your cases to discuss settlement at that stage of the matter (signaling that you do it then in your strong and weak cases, and avoid sending the “We’re interested in settling because we have a weak case” message). 3. Employ “Fair” Objective Criteria
The quest for fairness and the perception of fairness are key elements in many legal negotiations. Fairness, in most instances, boils down to a matter of relatively objective standards, like market value, precedent, efficiency or expert opinion. If both sides can agree on a fair and reasonable standard, many negotiations will be successful. If not, it ’s far more difficult to reach agreement. For transactional lawyers, standards can play an especially crucial role. Why? Because many transactions involve parties with future relationships, and standards can provide an independent and objective view of the issues. This can depersonalize the negotiation and help preserve their relationships. “The reason my client’s purchase price and terms are fair and reasonable,” you might suggest, “is because they are in line with the market and they are the equivalent of what it paid last year for a similar company, factoring in inflation and the unique elements of your client’s business.” Or “it’s standard in the industry for the losing party to pay attorneys’ fees if a future dispute goes to arbitration.” Focus on standards. While applicable also for litigators (critical standards include jury verdict research, expert opinions and precedent), it can be an especially powerful move in many transactional contexts. And it will give you credibility and help keep that “fair and reasonable” hat on your head – a critical factor in many legal negotiations. 4. Design an Offer-Concession Strategy
No one wants to leave valuable items on the table gratuitously. The best way to avoid this is to design the right offer-concession strategy. Doing this will require you to understand the psychological dynamics underlying concession behavior, as well as improve your ability to evaluate your counterpart’s “flinch” point. It’s not an exact science, but you can learn to draw out and recognize certain signals that will give you the edge in your negotiations. A crucial offer-concession element in the legal arena involves making sure your counterpart walks away feeling like they achieved a good deal. How can you make sure of this? Build in sufficient “room to move” with your offers so your counterpart will feel like they received a decent result. How often have you left a negotiation feeling you achieved a good deal based on how far you were able to get the other side to move? “I know we negotiated a great deal when we settled that lawsuit,” you might say, “because John increased his offer by $100,000 and we only moved down $35,000.” This is common. So don’t just start at one point and refuse to move. Instead, start more aggressively and make some significant moves. Provide them with the ability to walk away feeling like they negotiated a decent result 5. Control the Agenda
Effectively managing the negotiation process — overtly or covertly — is one of the most challenging elements in striking the perfect deal or settlement, even for the most expert negotiators. Understanding when to use deadlines, how to effectively operate within them, and the psychological tendencies underlying them will give you a leg up in your negotiations. Controlling the agenda can make or break your negotiation. Early in my career, I set up an appointment for an hour with a prospective client and arrived promptly at our scheduled time. She kept me waiting for 30 minutes, and then escorted me to a conference room where she told me she was running late and that I had 15 minutes to explain what I could provide to her and my fee. “Cut to the chase,” she told me. I did. And it was a mistake. I should have said “Wait a second. Before we discuss my fee, why don’t you tell me what you want, why and how you think we might be able to help each other? Then we can discuss the value I add, which provides the basis for my fee. And if we run out of time, I’ll be happy to come back or put together a written proposal for you based on your needs, what we’ve discussed and include my fee.” In short, control the agenda. And if your counterpart tries to control the agenda, negotiate it. Not in an overly aggressive way. But in a way that satisfies both parties’ interests. * * * Experienced lawyers often tell me they wish they had been exposed to the strategic elements of the negotiation process earlier in their careers. “Just think of the difference it could have made,” they say. My response? “Experience does not equal expertise in negotiations. It’s never too late to learn and improve.” Remember that before your next negotiation. 
Very helpful to an English litigator. Thank you.
I’m so glad you found useful. Thanks for your comment.
extremely helpful for me as a student of law
So happy to hear that Adeel.
Hi could you tell who is best at negotiating a deal a barrister or a Solictors.
Thanks Asam
Hi Asam,
Negotiating skill is generally determined by the skill of the individual and not their solely their job title. Thanks for your question.
My attorney seems reticent to negotiate. We lost part of our case in arbitration and are now heading to trial. A large client left due to investment performace but they fired me and said it was because I missed an email (after 10 years of working with this client with not one complaint). The client is a big name and has said they want to help me and wrote a declaration. It’s a big deal, but my attorney doesn’t seem to get it. On my behest, he called the other attorney and told him the client is willing to back me. The opposing attorney said that we should put an offer in for a settlement. The problem is we have already put in three offers (each one a good drop) when we were in mediation (to no resolve) and they never gave a serious counter. I believe we should say that they need to put in a serious offer, but my attorney thinks we should put in a resonable settlement offer (our fourth) that we think they will accept. I do not believe this is the best approach. You?
Very convincing.
Thanks a lot!
I’m glad you benefited from this. If you’d like to get more resources like this, feel free to sign up for my column here or attend one of my public legal seminars.
Good read. Spot on. Info confirms my feelings 100% that you need to be prepared to walk away and file suit. Don’t be afraid to do whatever it takes and for however long it takes to resolve case. Put client’s interest first. If the lawyer is too focused on his fees, he will lose a lot. Client will sense it.
Add me to your email list.
Paul Cannarella
Hartsville S.C.
Clear and helping
Great! Glad you found it useful Mcbenton.
I feel like I’m being pressured (bullied) by my attorney to settle my dad’s nursing home abuse case – he died of sepsis which is on the death cert. I have photos of very bad conditions there along with hundreds of other people putting into writing, all over the internet, that this Place still hasnt cleaned up its act.
It’s like my attorney did a 180…like it’s before x-mas & he needs $ or something….opposition jerked us around for years trying to force arbitration & that was denied by judge as well as their appeal for it. I’m willing to wait & go to trial if it comes to that, I guess attorney isn’t. Our asking Amounts aren’t unreasonable, but theirs havent even hit 6 figures. But I don’t like being bullied. What should I do? Can I change attorneys?
Hi Jeffrey, if you’re feeling bullied, let me suggest this column on dealing with corporate bullies. Generally speaking, clients always have the ability to fire their lawyers. That is a possible plan B. But I also want to make it clear that I cannot provide legal advice based on this comment. I don’t know all the facts of your case, and you may want to seek additional advisement on that. All the best to you.
I can relate to that. Lawyers are supposed to fight for you. Not against you. Ie or get you wrongfully arrested.
This is a great, point by point map for legal negotiations. I’m a lawyer and trained mediator but have to remind myself constantly to go back to the basics; the main one being listen and don’t give into the temptation to get off track by arguing. Thank you!
That’s very true J. Moore. Keep your eye on your goals.
Glad I found this, and thank you! I’m merely a rube at this process, but am about to delve into it and doing some “research workouts” in preparation. My wife was fired from a 17,000-employee corp. for a hilarious reason. She has zero negative history in her 31-year career, and none with the subject employer of 11 years. The only leverage we have is the threat of going public (the story itself writes its own goofy headline). I’m thinking of demanding a severance, along with a redaction to her termination file, for future job references. At the termination, she did not sign anything referencing non-disclosure, future claims nor hold harmless. Our first attorney search produced nothing but the ubiquitous ‘they can fire you for wrong-colored shoelaces’ which sent my wife into deeper depression. I feel that a 2 week/yr severance would help her out of the funk, but still wary about pulling the trigger.
It doesn’t cost anything to ask! But in most cases I would also recommend asking for more than what you are willing to accept – so you have some room to move in the negotiation.
Can you recommend someone.. How do you find a good negotiator?
Hi LeeLee, I am available to consult and negotiate on your important negotiations. Please get in touch with me here: https://www.expertnegotiator.com/contact/.
I’m in an interesting position where I have a ton on leverage against Kaiser. I want to settle a w/c case. The leverage I have is I can either kick off a very large class action sexual discrimination lawsuit which will cost them at least 100 million or settle my little case for say 18.
Points 3 and 4 conflict with each other heavily. If a fair and reasonable offer is out there should be no need to adopt an offer/concession strategy. A negotiator needs to choose one or the other. There might be wiggle room if the other party has leverage on you but if not, then there should be no reason to make a feeble attempt to do both which will only end up in a loss.
Hi Brian, First ask yourself what information is communicated when using the terms “fair” and “reasonable” or “unfair” and “unreasonable”? The answer is “nothing.” But having standards that determine what seems to be “fair” and “reasonable” can adjust and determine the final results of a negotiation. That is why finding results and standards that are in your favor and communicating that to your counterpart will help you get the best results possible. You could be leaving money on the table or missing out on other favorable outcomes by agreeing to a deal too quickly without doing your due diligence. That is why I encourage everyone to follow my 5 Golden Rules to negotiation to get the best results.
Helpful info to note, article appeared just as i was about to commit this mistake.
Glad to hear I could help prevent you from making this common mistake, Sandy. All the best.
Thanks heavily Mart! Just what I needed as information !
Thank you so much for your expert and amazing guide. Keep it up. Thanks for sharing.
During a negotiation attempt with a lawyer for the defendant, I provided the information and evidence to prove the allegations against them. I informed this attorney that the virtual meeting was recorded. This attorney confessed and conceded to actions that were conducted by the defendant. In their reply to my suit, they used different attorneys and denied all the allegations, unaware of my previous meeting. In response to their reply, I removed mediation from the procedure and filed a request to move straight to trial. Did I over compensate my leverage and position.
Amazing information and I thank you for allowing you to let the public read it for free. Learning more about litigation, arbitration, hiring an attorney and the whole having an attorney process is crucial.
Having an attorney with a solid ethical professional background where the client interests are concern!! Unethical attorney’s are breeding by the day and not wanted, where are the honest ones??
Please step forward and make moves in society with clients to make communities healthy for all. Thank you