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Legal negotiation involves a lawyer advocating for their client while seeking a mutually satisfactory agreement. Communication skills and good faith bargaining are important. In litigation, the goal is to settle before trial, while in commercial transactions, the goal is to protect the client’s interests through effective drafting and persuasion. Flexibility and concessions are necessary for successful negotiation.
Legal negotiation is the process by which a lawyer, acting on behalf of his client as both an advocate and counsel, seeks to obtain a favorable outcome. At the same time, the lawyer offers negotiating concessions by consulting and conversing with one another so as to reach a mutually satisfactory agreement. While there are elements common to all instances where legal negotiation is employed, particularly good communication skills and good faith bargaining, the various techniques used will vary depending on the legal context in which they occur. Since the vast majority of cases in the United States are resolved before trial, the object of legal negotiation in the context of litigation is to ensure a win-win settlement of the dispute before trial.
To successfully negotiate, an attorney must have a solid understanding of the law and how the particular facts or circumstances of his client’s case will determine the likelihood of prevailing on the merits of the trial. An astute lawyer will appreciate that while the preponderance of evidence may weigh in his client’s favor, a trial still presents unpredictable risks and uncertainties. There is no guarantee of the outcome once it has been placed in the hands of a judge or jury for deliberation. The behavior and behavior of witnesses at trial can be very different than expected, and a judge or jury may not draw the same favorable conclusions from the evidence presented as a lawyer expects.
The goal of negotiation during litigation is to ascertain through persistent communication with the opposing counsel over time, the areas where there may be consensus about the relative weaknesses and/or strengths of each side’s respective case. Litigation also seeks to find a dollar range where the benefits of the settlement outweigh the uncertainty and risks of proceeding to trial. Legal negotiation during litigation is a fluid and dynamic process. In the early stages a common tactic is for one or both sides to play their part and split; the negotiating positions of one or both parties may remain intransigent and inflexible.
As the impending trial date approaches, the previously rigid positions of previously recalcitrant parties often change dramatically. The illusion of fixed positions dissipates. An awareness of being subject to the risks and vagaries of the process has an ameliorative effect on legal negotiation and often induces a heightened desire to reach an agreement through good faith bargaining rather than through intimidation. For these reasons, it is not uncommon for cases to settle on trial day on the courthouse steps.
In the context of commercial transactions or contractual discussions, the objective of legal negotiation is to structure or draft an agreement with terms and conditions that protect your client’s interests by accepting the clauses that the other party requires to conclude the transaction. Successful negotiation tactics require the prudent exercise of an attorney’s skills of effective drafting, communication, and persuasion. In trying to obtain provisions that protect his client, an attorney must be able to persuade the other party of the need for the proposed provision under consideration. Often, a judiciously drafted revised proposal will be sound to a party who was initially reluctant to accept the wording of the original proposal.
Since a contract is a document that distributes the risks of a business or commercial transaction between the parties, the consultant must evaluate which provisions are essential for the protection of his client’s interests and which conditions, although desirable, can be granted if the The other party finds them objectionable. Since the contract entered into will be interpreted as the final expression of the parties’ intent, good communication skills are essential to ensure that the contract clearly and unambiguously expresses the parties’ respective obligations. The parties should be willing to be flexible and to make concessions, provided that the sharing of risks between them does not make performance of the contract unduly burdensome for one or the other.
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