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 recently came across this helpful article by fellow insurance attorney for policyholders, Erica Villanueva at the fine firm of Farella Braun + Martel LLP here in San Francisco. Her summary of recent appellate court decisions includes pointers for attorneys in seeking a Motion to Stay an insurance coverage action:
“When a liability insurer wishes to avoid all coverage obligations with respect to a claim against its insured, it may seek an adjudication that it has no duty to defend or indemnify the policyholder. If the insurer files for such declaratory relief while the underlying litigation is still pending, California insureds will frequently move to stay the coverage action, pursuant to Montrose Chemical Corp. v. Superior Court, 6 Cal. 4th 287 (1993) (“Montrose I”). The purpose of such a Montrose stay is to avoid the risk of prejudice to the insured in the underlying action, if it is simultaneously forced to litigate an insurance coverage dispute.
In these situations, the insured faces a dilemma: Should it immediately move to stay the coverage litigation, or wait until it has filed an answer and cross-complaint? The more principled position might be to minimize any public filings which could force the insured to take positions on factual matters at issue in the underlying litigation. However, a recent California Court of Appeal decision, Great American Insurance Company v. Superior Court, 178 Cal. App. 4th 221 (2009), suggests that the better practice may be to answer and cross-complain before moving to stay … Read the entire article
After our presentations, we will engage in a live question and answer session with participants so we can answer your questions about these important issues directly.
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).