You don’t have to go to the law books to find the basic principles which apply to negotiation and settlement. In fact, these basic principles may be ones you learned growing up and possibly used before you ever entered law school. They are from clichés that we all have heard and probably used in our personal lives, but do they apply to our work as trial lawyers and litigators? Here are some I apply regularly:
“‘You can’t get blood from a stone.’ You can’t get something from someone who doesn’t have it. The proverb has been traced back to G. Torriano’s ‘Common Place of Italian Proverbs.’ First attested in the United States in the ‘Letters from William Cobbett to Edward Thornton.’ The proverb is found in varying forms: ‘You can’t get blood out of a stone; You can’t get blood from a rock; You can’t squeeze blood from a stone; You can’t get blood out of a turnip, etc….’ ” The application of the negotiation and mediation process is that you have to have a flush target as a defendant, either because of insurance coverage or assets that are reachable through any collection effort. This is the third part of the three-legged stool analogy of selection of lawsuits: liability, damages, and collection!
“…The proverb has been traced back to G. Torriano’s ‘Common Place of Italian —Proverbs.’ It first appeared in the United States in Benjamin Franklin’s ‘Poor Richard’s Almanac’ in 1744, and is found in varying forms….”
The importance of this one is that diplomacy is critical to successfully negotiating a resolution to a lawsuit. Some might think that the vigorous advocate who attacks like a pit bull will get his or her way. In my experience, that does not work in mediation, and maybe even in litigating a case. The most successful lawyers at negotiation base their “power” in negotiating on a high degree of knowledge about their case and the law and facts applicable, as well as personal skills of persuasion. Those who bang the table, and conduct themselves like attack dogs gain little respect. The diplomatic negotiator gets others to listen, believe and reach agreements. Leave the vinegar bottle at home, and take your biggest honey jar to the negotiation table.
The meaning: Nothing is irreversible until the final act is played out.
“Just to get this out of the way before we start: is it ’til, till or until? You can find all of these in print:
It ain’t over ’til the fat lady sings
It ain’t over till the fat lady sings
It ain’t over until the fat lady sings
“You might even find versions with isn’t instead of ain’t. Grammarians argue about ’til and till; I’m opting here for till. Okay; so who was the fat lady? If we knew that, the origin of this phrase would be easy to determine. Unfortunately, we don’t, so a little more effort is going to be required. The two areas of endeavor that this expression is most often associated with are the unusual bedfellows, German opera, and American sport.
“The musical connection is with the familiar operatic role of Brunnhilde in Richard Wagner’s Götterdämmerung, the last of the immensely long, four-opera Ring Cycle. Brunnhilde is usually depicted as a well-upholstered lady who appears for a ten-minute solo to conclude proceedings. ‘When the fat lady sings’ is a reasonable answer to the question ‘when will it be over?’, which must have been asked many times during Ring Cycle performances, lasting as they do upwards of 14 hours. Apart from the apparent suitability of Brunnhilde as the original ‘fat lady’ there’s nothing to associate this 20th-century phrase with Wagner’s opera.
“All the early printed references to the phrase come from US sports. Some pundits have suggested that the phrase was coined by the celebrated baseball player and manager, Yogi Berra, while others favor the US sports commentator, Dan Cook. Berra’s fracturing of the English language was on a par with that of the film producer Sam Goldwyn but, like those of Goldwyn, many of the phrases said to have been coined by him probably weren’t. Along with ‘It’s déjà vu all over again’ and ‘The future isn’t what it used to be,’ Berra is said to have originated ‘The game isn’t over till it’s over.’ All of these are what serious quotations dictionaries politely describe as ‘attributed to’ Berra, although he certainly did say ‘You can observe a lot by watching,’ at a press conference in 1963. In any case, ‘the game isn’t over till it’s over’ isn’t quite what we are looking for, missing as it is the obligatory fat lady.
“Dan Cook made a closer stab with ‘the opera ain’t over till the fat lady sings’ in a televised basketball commentary in 1978. Cook was preceded however by US sports presenter Ralph Carpenter, in a broadcast, reported in The Dallas Morning News, March 1976: Bill Morgan (Southwest Conference Information Director): ‘Hey, Ralph, this… is going to be a tight one after all.’ Ralph Carpenter (Texas Tech Sports Information Director): ‘Right. The opera ain’t over until the fat lady sings.’
“Another US sporting theory is that the fat lady was the singer Kate Smith, who was best known for her renditions of ‘God Bless America’. The Philadelphia Flyers hockey team played her recording of the song before a game in December 1969. The team won and they began playing it frequently as a good luck token. Smith later sang live at Flyer’s games and they had a long run of good results in games where the song was used. Sadly, Ms. Smith sang before games, not at the end. If the phrase were ‘It ain’t started until the fat lady sings,’ her claim would have some validity.
“Whilst printed examples of the expression haven’t been found that date from before 1976, there are numerous residents of the southern states of the USA who claim to have known the phrase throughout their lives, as far back as the early 20th century. ‘It ain’t over till the fat lady sings the blues’ and ‘Church ain’t out till the fat lady sings’ are colloquial versions that have been reported; the second example was listed in Southern Words and Sayings, by Fabia Rue and Charles Rayford Smith in 1976.
“Carpenter’s and Cook’s broadcasts did popularize the expression, which became commonplace in the late 1970s, but it appears that we are more likely to have found the first of the mysterious fat ladies in a church in the Deep South than on the opera stage or in a sports stadium.”
Here the application of this phrase to negotiation and mediation is consistent with the meaning set forth above. As long as folks are talking to each other about resolution, there is hope. Thus it is critical in negotiations to keep the dialogue ongoing. I recently was involved with a co-counsel whom I reluctantly let lead the negotiations in one of our cases. Instead of following this principle of continuing to communicate, he consistently dropped the ball and insisted that it was the other side that should call. The dialogue was inconsistent and often nonexistent, and he took no advantage of the momentum that was built up from time to time in the direct negotiations. The case took forever to resolve (several months), when it should have been resolved in several days of talks, and it took a mediation and more legal fees to finally get it done.
Communication in a settlement is the key. Trying to settle cases is no longer viewed as a sign of weakness. Make the overture of, “Let’s talk.” Then keep the talking going until the case is resolved or each side says “I have given you my last, best and final offer,” and the case cannot settle.
A deal done in negotiations means finality, certainty, and conclusion, rather than no closure, uncertainty and no resolution. You have to consider the impact that money or accepted terms have for the future. Your client can now put his/her/their life back together as best possible, recovery can begin, and the drain of litigation is over. What a relief for most people!
I’ll do a Part II before the week is out.
Let me hear your views, send me a note.
Good Mediating. . .
I have a passion for dispute resolution. It comes from my heritage – a dad who was a lawyer in the Midwest in the 50’s, 60’s and until he retired at 85 years old in the 90’s. He was a master negotiator but at the same time a supreme diplomat. His best friend – my Godfather – told me that Dad could tell someone to “go to hell” and they thought they received the Congressional Medal of Honor.
I spent a number of years as a traditional “defense” lawyer in the civil litigation arena. As part of that, I became involved in the early Insurance “bad faith” cases. I tried – as a defense lawyer – the first two first party bad faith cases to go to verdict in California (before Egan was tried in November 1974). There was no bifurcated trial with the financial worth of the insurer not being known by the jury until a “second phase.” That was the first thing the plaintiff’s lawyer wanted the jury to hear before the 1988 legislation allowing cases to be bifurcated to keep financial worth out of the case until a jury decided in phase one that punitives were warranted.
Now as a plaintiff’s (primarily) lawyer I hope I have a keen sense of “worth”. That is, what is the value of the case, and how much is it going to cost to get there? That is a critical assessment from Day One for any plaintiff’s lawyer. Not all cases are “bell ringers” with high 6 or 7 figure potential – real potential, that is.
I hope I carry a bit of Dad’s approach in my practice. I fervently insist on early evaluation, negotiation and even mediation of disputes. There are many reasons why. A primary one is that in my experience an early resolution means a larger net recovery for a client at a time when the money means more and can do more for the client at that point. Indeed, clients often ask me early in our discussions, “Do you think you can settle my case?” They are not enthusiastic about going through a trial, possibly an appeal, and waiting years to – hopefully – get a monetary recovery.
Key to any lawyer representing clients in civil litigation is the skill and insight to look down the line and see if it is worth all the hard work that a case requires. It is imperative that both sides work up the figures so they can focus on where the point of a “best” result lands. Maybe an early discussion about resolution is worth a try to see if the financial risk and emotional turmoil for a client can be avoided by a resolution using the diplomacy my Dad used to get a “just” result.
Guy O. Kornblum has been a civil trial and appellate lawyer for over four decades. He is the author of “Negotiating and Settling Tort Cases: Reaching the Settlement”, published by Thomson West and the American Association for Justice (rev. 2017).
It takes considerable effort and preparation to make the mediation process work. One complaint I hear over and over is that some lawyers — and perhaps clients — just don’t get it. Based on my experience, some of what it takes to prepare for an effective mediation:
Perhaps the most important trait of a good advocate who also serves as a mediator is listening to what the other side has to say, along with carefully assessing the position counter to the clients. If this is done — and it should be if counsel’s representation in mediation is to meet professional standards — it allows for a full discussion and exchange of information before and during the mediation. The chances of reaching a settlement increase dramatically.
I am not alone. In an article by the Honorable James L. Cott, a Magistrate Judge in the USDC, Southern District of New York, “The Dos and Don’ts of Settlement Conferences,” in the Winter 2016 issue of Litigation, the Journal of the Section of Litigation of the ABA (Vol. 42, No. 2), the author provides a list describing what is required to be ready and effective at mediating:
Most of these points seem obvious because they are. So why would Judge Cott repeat them? My guess is because in his experience many lawyers representing clients in mediation are not doing their jobs correctly and are taking the mediation process too lightly.
From the plaintiff’s perspective, it is a waste of time and money to participate in mediation if the defense is not prepared. To effectively prepare, the plaintiff — well in advance of the mediation date — lays out the client’s case fully and candidly. Key exhibits and expert reports, not just conclusions and arguments without evidence to support them, included.
From the defense perspective, counsel needs to prepare the client representative well in advance of the mediation so any internal caucus can be conducted and the appropriate authority obtained. The defense also needs time to evaluate what experts might be involved, and obtain those reports. That has to be done well in advance of the mediation date. It is often a difficult task because the client representative or the insurance company claims handler is not local or is just too busy to devote the time necessary to participate in the preparation process.
Indeed, as I sit here today, we just confirmed a mediation to take place in a bit over two months from now. I started the preparation process today by scheduling a meeting with our firm’s associate who will assist me, the client, and another lawyer who is involved. We will outline what needs to be done, confirm our objectives for preparation, and assign our tasks.
There is another point to consider: One of the important items on my agenda as a plaintiff’s lawyer is to assess how serious the other side is about going through the mediation process so as to ensure a meaningful dialogue. I often have a heart-to-heart talk with defense counsel to make sure the timing is right, the proper people are involved and the commitment is there. Or I might ask the mediator to make sure this is the case. Frankly, in most cases I do this myself, but I will inform the mediator of my intentions beforehand to make sure it is okay to proceed. Sometimes the mediator will offer to do this, which I welcome if I think the mediator has the presence to do this effectively. I have on occasion asked permission to make this call because I feel strongly that I will be more effective because of a prior relationship with opposing counsel.
The first article, “Making Certain the Settlement You Intend is the Settlement You Get,” by Robert Hugh Ellis of Dykema Gossett PLLC in Detroit, stresses thinking through the terms of your settlement and making sure all aspects are clearly covered so the deal you expect is the deal you get. Indeed, a deal may not be a deal. He emphasizes two points:
The second article, “The Seven Deadly Sins of Mediation,” by Joel Levine, an experienced mediator, explains how to avoid self-inflicted wounds in mediations. These include:
Finally, Judge Cott repeats a quote from Abraham Lincoln, which is one of my favorites and which I have in my book on negotiations (see bio):
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, and expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will be business enough.”
Good meditating. Let me hear your views. Send them to firstname.lastname@example.org — Guy O. Kornblum, The Resolution Advocate