The Resolution Advocate: Tips on Getting to the Goal Line in Civil Litigation

Before representing your client in negotiations, particularly in the more formalized environment of a mediation, it is important to assess what type of negotiator you are. You, your client, and any mediator who is used, must work together to seek a voluntary resolution. That takes a different persona than the advocate at trial. You are indeed still an advocate, but one with a different presence.

Recently I attended a mediation in which we represented a local auto retailer that made available rental cars for its customers and also to employees. An employee rented a car and was involved in an accident in which he was killed and his passenger was seriously injured. Both sued. Our client was named in the lawsuit even though there was a separate subsidiary handling the rental operation. There was a CGL policy which sought to exclude rental cars. The client’s broker had not obtained proper coverage for our client. Faced with a limits demand, the CGL carrier settled and sought reimbursement from our client. We sued the broker as well.

The broker’s attorney was difficult. At a mediation of the cases, he exhibited an antagonist and hostile attitude that interfered with the process. He just did not “get it.” It made the process difficult because my client and the carrier wanted to settle the case. I just did not understand why the broker’s lawyer had to be so difficult. Fortunately, there was a more responsive claims representative from the broker’s carrier present, and based on some excellent skills by our mediator, the whole case was resolved.

Negotiating a case is an active and dynamic process which inserts your personality into the case as an advocate for your client, just as it does at trial. The advocacy, however, is different. Instead of simple persuasion, you are using your skills to cause your adversary and his or her client to recognize the vulnerability of their case, and to voluntarily enter into the process of trying to find a point of resolution before trial. Your adversary must be motivated to seek that resolution, and your approach and personality are parts of the process of that motivation.

Each of us presents a personality in negotiations. There are some lawyers I know who are excellent in most all respects but have a hard time switching hats from pure advocacy to negotiation advocacy, which is a much different process. They are tough, hard-hitting lawyers who can push a case, work it up for trial, handle the motion practice, and try the case. However, when it comes to changing gears to a “negotiator,” they just don’t seem to understand the process well enough to be very effective. As a result, they end up with cases that do not produce good economic results: verdicts between offers and demands, or simply cases where the necessary expense of trial is not warranted, i.e., cases where liability may be strong but the damages or collection of the judgment does not justify a full-blown trial.

My sense of the personality types – generalizing of course – is as follows. Bear in mind that some present a combination of these, or in rare cases, all of these:

 

  • The Aggressive Type – no matter what the discussion, this type tries to take over and control everyone by being very aggressive.
  • The Angry Type – everything seems to evoke an angry response, sometimes raising the temperature of the negotiations. Not good, obviously
  • The Hostile/Confrontational Type – wants to give an opening statement in the first caucus to show his or her clients what a great advocate he or she is and how he or she can get in the face of the other side.
  • The “I Cannot Work in this Process” Type – just does not understand the process and how one must engage in the “give-and-take” of negotiations. It is a compromise, but this type does not understand that.
  • The “Close to the Vest” Type – wants to keep everything confidential; will not exchange mediation statements. For some reason, believes that exploring the issues is harmful.
  • The “Unprepared” Type – just is not ready, and may simply be looking for a way to resolve the case and earn a fee, rather than work the case up.
  • The “Unrealistic” Type – for many reasons, including lack of preparation or ability to evaluate a case, does not understand the issues or damages; or simply has a highly inflated view of the value or a very low deflated view of the exposure of the client.
  • The “Doesn’t Understand the Case” Type – here there is a lack of legal analytical skills and an understanding of what the case is about – legally and not emotionally, usually is the problem.
  • The “I Get Frustrated with the Process” Type – has a hard time with the process of “give-and-take” because of impatience, and also lacks a sense of how to move through the process and engage the other side in the negotiation process.
  • The “I am Trying to Get the Case Cheap” Type – this applies to the insurance company that believes if it goes to mediation, it will get a “good deal,” and that its representatives are attending a “fire sale,” not a real supervised negotiation. Carriers often approach early mediation this way, rather than taking a serious look at the carriers “down the line” costs plus exposure. Often an insurer will not spend the money to allow its counsel, panel counsel, or coverage counsel to evaluate the case in the real light of day.

You probably can describe others, but each of these represents an impediment to the process, frustrates the other parties and mediator, and simply stands in the way of resolution. For the most part these are “negative” personality types that make it difficult to resolve a case. Those who are not successful in either the negotiation or mediation process most likely exhibit traits of one or more of these types of lawyers in the negotiation setting.

The more positive personality types include:

  • The “I Understand the Process and Can Work in It” Type – they know how it all works. Their clients are ready to make decisions and they have provided both the mediator and other side with a solid, well organized statement of the case.
  • The “Diplomatic” Type – can present the case forcefully in the calm environment of negotiation process.
  • The “I Will be Up Front” Type – “Candor are a lovely virtue.”1
  • The “Well Prepared” Type – refreshingly well versed in all phases of the case. Could start trial shortly because he or she knows the case.
  • The “I Understand the Value of My Client’s Case” Type – realistic about the cost of going to trial vs. settlement; knows the verdict ranges; understands the “present value” of money; has let the client know what the financial benefits are of settlement at this time.

The successful negotiators present a combination of these positive traits. There may be occasional lapses where each of us exhibits one or more of the negative traits during the negotiation process. However, the successful negotiators are aware when these lapses occur, recognize them, and return to exhibiting the positive ones that improve the chances for resolution.

A major problem is presented when we have an adversary who truly falls into the negative personality types and is stuck there. My experience is that usually this type is reluctant to go to mediation; but if it happens, then you need to have a very candid discussion with the mediator beforehand to discuss how to approach the mediation. It may be that the mediator has to exercise some strong influence on your adversary and his or her client to assess how to approach the mediation process.

Let me hear your views. Send them to This email address is being protected from spambots. You need JavaScript enabled to view it.
Good Mediating. . .

Guy Kornblum has been a specialist in civil trials, arbitrations and appeals since graduating from the University of California, Hastings College of the Law, in 1966. He is a partner in the civil litigation firm of Kornblum, Cochran, Erickson & Harbinson, LLP, with offices in San Francisco and Santa Rosa, California. He is certified in Civil Trial Law and Civil Pretrial Practice Advocacy by the National Board of Trial Advocacy and is a Charter Fellow of the American College of Board Certified Attorneys. Mr. Kornblum is also a Charter Fellow of the Litigation Counsel of America where he is now a Senior Fellow. He is also a Life Member of the Multi-Million Dollar and Million Dollar Advocates Forum, a Platinum Member of The Verdict Club, a Silver Member of the Elite Lawyers of America, and a Legends Society Top Lawyer (Personal Injury). He has been a Super Lawyer each year since 2006. He is co-author of “Negotiating and Settling Tort Cases: Reaching the Settlement,” published by Thomson West and the American Association for Justice (formerly Association of Trial Lawyers of America), with a Third Edition released for 2015-16. See also the review of his book HERE. He has also co-authored two books on insurance coverage and bad-faith and over 200 published articles on topics relating to law practice and procedure. His firm’s website is www.kcehlaw.com.

 

1 See Carr v. Pacific Telephone and Telegraph (1972) 26 Cal. App 3d 537, which was an action for wrongful death brought by a widow and minor children of the decedent. Defendant offered evidence that the decedent had been absent from the family for a period of time because he was in jail, and also that he had had an extra marital affair with a minor and a had been convicted of issuing checks with insufficient funds which resulted in the jail time. The trial court admitted this evidence, but the Court of Appeal held that was error and reversed, In a dissent at the appellate level, Justice Gardner, a well known somewhat cynical justice, dissented, stating. “A defendant, even a rich, soulless corporation, is entitled to show the disposition of the decedent to contribute financially to support his heirs and to show his earning capacity and his habits of industry and thrift since all have a bearing on the value of his life to his wife and family. (Citation.) If the decedent had been a hard-working, law-abiding citizen and a paragon of all the virtues of honesty, thrift and probity who supported his wife and children and afforded them a stable home, the plaintiff would be entitles to so prove. If on the other hand, he was irresponsible, philandering, check- kiting jailbird, the jury would be entitled to so know. The jury is entitled to the whole picture-warts, wrinkles and all- not a sterilized, unreal, retouched portrait which amounts only to a shadowy silhouette of the real man. As Mr. Moto, that well-known Japanese philosopher of the 1930’s one said, ‘Candor are a lovely virtue.’”