Principles of Negotiation
I have a profile set up at a website dedicated to attorney/client matching. This site rates you based on years in practice, amount of client reviews, whether you paid for premium status, etc. As a way to distinguish yourself from other attorneys, you can answer questions posted by people with legal issues. You get points for answering questions, and who doesn’t like points?
I like to answer the occasional question for the same reason I keep this blog: I like talking about the law. People give you a little puzzle to solve, and it’s fun to help out. If you know your stuff, you may look competent to other attorneys, which can come in handy once in a while too.
It’s not a great way to meet actual clients. Think about it: you’re interacting with people who are per se looking for simple and free advice. Those are not the kinds of people who frequently understand the value of hiring an attorney to address a legal issue. I’ve been personally emailed a few times by people who liked my answers, but it was basically just to get more free advice. There’s a limit, ethically, to what I can offer someone without actually being their attorney, as well as the business component.
I saw one of these questions the other day. It was a little different from the norm and it got me thinking. Here was that question:
Q: Is it legal to contact a prosecutor to persuade them to dismiss your case? I was thinking about writing theprosecutor an email requesting she drop my assault 4 charges at the arraignment based on lack of evidence and the fact that the person in question did not press charges and said they were not going to testify in court, also letting her know i do not wish to waste the courts time or money nor do I want to go though the court process. is this a good or bad idea?
What I answered was that while this is legal, it’s a hideously bad idea (actually a common answer on that site). I told him the prosecutor must have a belief in the veracity of the charges or she wouldn’t bring them, that their position is so biased as to make whatever you say meaningless, and that if you start talking about witnesses not showing up, you risk adding charges of Violating a No Contact Order or Witness Tampering to the mix. I told him to get an attorney, let the process run its course, and if there was truly no evidence against him, he would get the result he was looking for.
And as I was writing that answer I realized this person was really asking about negotiating with the prosecutor. And knowing it was such a bad idea, I was able to pluck some principles of negotiation I use when speaking with opposing parties.
Understand their Interests.
Negotiation is about compromise, or if you want, crafting win/win scenarios. Neither of these can be accomplished unless you understand what the other party values.
The prosecutor generally wants (their definition of) a safer society and (their definition of) justice. Now we may disagree on how that’s best accomplished, but you cannot ignore their interests in the matter.
Every time I make an offer to the prosecutor I integrate how the outcome in some way benefits their interests. Sometimes I push for a dismissal because the victim was lying, and it’s unjust to make someone go through a trial for baseless charges. Sometimes I ask for reduced jail time because it’s someone’s first offense and they’ve been scared straight. Sometimes I ask for reduced time because the prosecutor’s case has some weaknesses in it, and they can be assured some time is better than the possibility of none. In all cases I recognize what they want out of the exchange and explain how my offer intersects with that.
Our friend with the question missed that insight. The prosecutor doesn’t care at all about this person going through the court process. Making them go through the process is literally the prosecutor’s job. Saving the State money is laudable, but still not compelling to get a prosecutor to drop charges. In all likelihood there is probably no argument the person could make because he lacked
The foundation for good negotiation starts and ends with credibility. The other side has to believe you’re 1) looking for a globally positive resolution, and 2) honest. If you’re not perceived as credible, the other side will look for reasons to work against you. If you are perceived as credible, the other side will look for reasons to work with you.
Our friend with the question had no credibility because he had such a self-interest in getting the charges dropped. Of course he did not want to through the process, no one wants to go through the process. The thin veil of looking out for the State’s interests just can’t overcome the fact that he benefits most if the charges are dropped. That’s a serious credibility burden to overcome.
Fair or not, being an attorney connotes extra credibility. I was working with a client on a debt-collection matter. When I contacted the 3rd party debt-collector, they immediately gave me serious deference on my client’s account. Their interest shifted from trying to wring as much money as possible from my client to avoiding legal troubles. That allowed me to work with them to obtain a very favorable outcome for my client.
My rule with negotiation is, always, honesty. That doesn’t mean I just lay out my case or anything like that, but if I say something, the other side knows I’m telling the truth. I’ve told prosecutors many times that some part of my case is strong and some other part is weak. They appreciate that either I’m not full of bluster or that I don’t know how to evaluate my own case. I don’t need their respect if we’re full-on going to the mat, but if there’s any negotiating to be done, it’s nice if all the parties can discuss things like adults. It’s similar to talking with the police actually, you don’t have to say much, but what you say should be the truth.
Now, the other side knows I represent my client’s interests. They know my goal is always to get the best result possible for my client. The issue is simply how to get that best result. Now on a personal level, I enjoy the fight. I like to roll up my sleeves and start attacking from every angle imaginable. But the only thing that matters is what’s best for the client. Oftentimes trial is clearly the way to go. But sometimes it’s negotiation.
Why is negotiation valuable? There are two big reasons. The first is that it lets the parties craft an outcome. Juries are notoriously unreliable; there is no such thing as a guaranteed outcome when you take a case to trial. Crafting an agreement allows all parties to lock in a resolution. Every side knows what will happen, which is quite valuable.
The second advantage is time. Having charges or a lawsuit hanging over one’s head is stressful and costly. It can take months and months before a trial is completed, while negotiation allows things to resolve in a fraction of the time. That kind of speed can save everyone a lot of stress and a lot of money.
Negotiation is an art and a science. What works with one attorney may be completely ineffective for another. Nevertheless, if I come at things trying to work with the other side, and from a position of credibility, I can usually make good inroads. For a profession dedicated to persuasion and advocacy, negotiation is a particularly critical component.