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"Is That All?" Attorneys Need to Prepare Their Clients for Mediated Settlements

By Jeff Kichaven

As the sun begins to inch below the western horizon, everybody in the mediation understands that it's time to stop the blustery tirades against "injustice," time to make a deal, time to let today become the first day of the rest of their lives.

Well, everybody except one. At one corner of the table sits a disillusioned plaintiff, with no appetite for the pizza the mediator has had delivered. Tears will up in his eyes as he struggles to lift his gaze to meet that of his lawyer. He whispers, "Is that really all they're willing to offer, after all I've been through?"

The preceding hours of mediation have been naught but a prelude to this one moment - the climactic question. It is a moment of great intensity. But in need not be the least bit tense. The best trial lawyers know that sooner or later, the climactic question will be asked. And they will be prepared to answer "yes" - not without disappointment, but with conviction that it is indeed the best the defense will offer.

The best trial lawyers know, too, that the plaintiff must share the conviction that no dollar has been left on the table. Otherwise, cases that should settle won't. And the trial lawyer will be left with the worst of it - not with a settlement done and a tolerably disappointed client, but rather with a lawsuit alive, and a client with serious doubts as to whether his lawyer has been a fully effective advocate. The first scenario goes with the turf in the plaintiff's bar, but the second is poison. Smart trial lawyers use mediation to minimize client disappointment and just about eliminate client doubt as to the effectiveness of counsel's advocacy.

Negotiation strategy in mediation moves on at least three planes. The trial lawyer tires to persuade the defense to pay more money. He tries to enroll the mediator in that cause. And he explores whether his client shouldn't take the best deal available and live with it.

This third task is especially tricky. Often accomplishing the first two under-mines the quest for the third. Not infrequently, the person most surely persuaded by the trial lawyer's zealous advocacy is the plaintiff himself. The plaintiff hears his lawyer speak and becomes more convinced than every that the defense should offer more, more, more.

How, then, do good trial lawyers get cases settled? How do they strike the proper balance between effectiveness on negotiation's three planes? How do trial lawyers protect themselves from the unintended consequences of their own rhetorical excellence?

There are proven ways for trial lawyers to lay the groundwork for an effective answer to the climactic question. Many of the most effective advocates use the following three tools and begin the effort well before the day of mediation itself. The three steps are: a forceful opening statement in joint session, a full opportunity for plaintiff to speak in the opening joint session; and a large opening demand. While these three steps do not guarantee a successful settlement of a satisfied client, they to tend particularly in concert, to help maximize the likelihood that, as the little hand moves toward larger and then smaller numerals on the clock, lawyer and client both will believe that not a nickel has been left on the table.

The forceful opening statement. When the trial lawyer looks the plaintiff in the eye and answers "yes" to the climactic question, maximum creditability is a must. In order to achieve maximum credibility, the trial lawyer must have taken every available step along the way to reassure the plaintiff that the lawyer is still his zealous advocate. Few opportunities to convey this reassurance are more powerful than the forceful opening statement.

Forceful, that is, but not belligerent.

In many effective, forceful, opening statements, the trial lawyer first acknowledges that he does not expect the defendants, in their hearts, to admit that they have done anything wrong. Rather, the trial lawyer simply asks the defendants to view the situation from afar, as a jury might, and to listen to the way the trial lawyer plans to weave facts and law together for the 12 strangers who will be the ultimate finders of fact.

The effective trial lawyer then makes a seemingly modest request: Try to understand why the plaintiff's side of the aisle feels it has a reasonable opportunity to persuade those 12 strangers based on a limited exposure to the facts and the law, to see things their way. The rest of such an opening statement is largely an adjective-free zone, and all the more effective as a result.

Having acknowledged the defendant's ability to take intelligent cognizance of what he has to say, the trial lawyer can limit himself to the facts and the facts alone. The defendant, thus acknowledged and thereby calmed, is more likely to take the factual recitation to heart and react properly in the negotiations.

The trial lawyer should also first have advised the plaintiff that this is the style he plans to adopt. So advised, the plaintiff can clearly observe the process at work and clearly understand the effectiveness of the advocacy deployed on his behalf. If the trial lawyer effectively uses the forceful opening statement, in conjunction with other tools, to maximize the plaintiff's perception of him as a forceful advocate, then the trial lawyer will have the creditability needed to get through to the plaintiff when it is time to advise him to cut a deal.

The plaintiff who speaks in opening session. Many trial lawyers are reluctant to allow their clients to speak in opening sessions. "Free discovery for the defense," they complain. "What's in it for me?" The answer in a word is "lots."

When the defense perceives that the trial lawyer is trying to hide the plaintiff from their scrutiny, only one inference is ever drawn: Plaintiff's side has something to be afraid of. Rarely is a plaintiff's actual performance as dismal as defense is prepared - scripted, even - to make a creditable presentation in mediation. Moreover, a defense that perceives that the plaintiff is hiding is reluctant to settle in a meaningful range unless and until the plaintiff's deposition is taken. So, what sense does it make to hide the ball? If the goal is to get the defense to up its offer, it rarely benefits the plaintiff's side to keep the plaintiff quiet.

In addition, it's easier to answer "yes," with conviction, to the climactic question when the plaintiff himself has participated meaningfully in the mediation's joint session. To such a plaintiff, the trial lawyer need not answer the climatic question with just one word. This trial lawyer can continue: "We have not pulled our punches. We have put every best foot forward. You yourself have had the opportunity to impress them by showing them what a good witness you will make. We have been as persuasive as we can possible be with every tool at our disposal. So, yes, I do believe that this is all they're willing to offer".

Will the plaintiff still feel disappointed with the settlement? Probably. But it's inevitable. Will the plaintiff doubt that the trial lawyer has done everything conceivable on his behalf? Probably not.

The large opening demand. In the initial caucus with a plaintiff and his trial lawyer, mediators often get to watch an important debate. The plaintiff wants to make an opening demand so large that the defense is likely to get up and leave. The trial lawyer urges moderation. In fact, the trial lawyer is probably better off, at this stage, to let the plaintiff have his way. Leave it to the mediator to get the defense to stay. Expect the defense to make an offer that the plaintiff will find as offensive as they found the plaintiff's. Once this "throat-clearing" is done, real bargaining can begin.

Do not think no less than in most other aspects of the craft, good lawyering is proactive lawyering, and managing the relationship with one' own client is at least as important as managing the relationship with the other side. Advance planning through forceful opening statements, encouraging client participation in joint sessions and making large opening demands all help the trial lawyer to reassure the plaintiff that the deal that's available is the best they can get. Cases that should settle, therefore, will. Will the plaintiff be somewhat disappointed in the result? Well, maybe a little. But, will that plaintiff be disappointed with the trial lawyer's representation? Maybe not at all.

Originally published in the Los Angeles Daily Journal, March 8, 2000, Page 7.
©Copyright 2000, Jeff Kichaven.

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