What is Legal Negotiation?

John Kinsellagh

Legal negotiation is the process whereby an attorney, acting on behalf of his client either as an advocate or advisor, seeks to obtain a favorable outcome. At the same time, the attorney offers bargaining concessions by consultation and dialogue with another so as to reach a mutually satisfactory agreement. Though there are elements common to all instances where legal negotiation is employed, most notably, good communication skills and bargaining in good faith, the various techniques utilized will vary according to the legal context in which they occur. Since the vast majority of cases in the United States are settled prior to trial, the object of legal negotiation in the context of litigation is to secure an advantageous settlement of the matter in dispute prior to trial.

An attorney negotiates on behalf of a client.
An attorney negotiates on behalf of a client.

In order to negotiate successfully, an attorney must have a firm grasp of the law and how the particular circumstances or facts of his client's case will determine the probability of prevailing on the merits at trial. An astute attorney will realize that even though the preponderance of evidence may weigh in his client's favor, a trial still presents unforeseeable risks and uncertainty. There is no guarantee of the outcome once it is placed in the hands of a judge or a jury for deliberation. The comportment and demeanor of witnesses at trial may be quite different than anticipated, and a judge or jury may not draw the same favorable inferences from the evidence presented as an attorney expects.

To negotiate successfully, an attorney must have a firm grasp of the law and the particular circumstances or facts of his client's case.
To negotiate successfully, an attorney must have a firm grasp of the law and the particular circumstances or facts of his client's case.

The goal of negotiation during litigation is to ascertain through persistent communication with opposing counsel over time, the areas in which there may be consensus as to the relative weaknesses and/or strengths of each party's respective case. Litigation also seeks to find a dollar range at which the benefits of settlement outweigh the uncertainty and risks of proceeding to trial. Legal negotiation during litigation is a fluid and dynamic process. At the initial stages a common tactic is for one or both sides to posture and bluster; bargaining positions of one or both sides may remain intransigent and inflexible.

As the impending date for trial draws nearer, the former rigid positions of previously recalcitrant parties often change dramatically. The illusion of fixed positions dissipates. The realization of being subject to the risks and vagaries of the trial process has an ameliorative effect on legal negotiation and often induces a more heightened desire to reach agreement through good faith bargaining rather than through intimidation. For these reasons, it is not uncommon for cases to settle on the day of trial on the courthouse steps.

In the context of business transactions or contract discussions, the goal of legal negotiation is to structure or draft an agreement with terms and conditions that protect the interests of one's client while agreeing to stipulations that the other party requires in order to consummate the transaction. Successful negotiation tactics require the prudent exercise of an attorney's skills at drafting, communication, and effective persuasion. In attempting to secure provisions that protect his client, an attorney must be able to persuade the other party as to the necessity of the proposed provision under consideration. Often, a revised proposal, judiciously drafted, will be unobjectionable to a party who was reluctant initially to accept the wording of the original proposal.

Since a contract is a document that allocates the risks of a business or commercial transaction between the parties, counsel needs to make an assessment as to which provisions are essential for the protection of his client's interests and which terms, though desirable, can be conceded if the other party finds them objectionable. As the executed contract will be construed as the final expression of the parties' intent, good communication skills are essential in ensuring that the contract clearly and unambiguously expresses the respective obligations of the parties. The parties should be willing to be flexible and make concessions, as long as the apportionment of risks between them does not make performance of the contract unduly burdensome for one or the other.

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