Change your Approach

Clients hire attorneys for all sorts of reasons: to defend them in criminal prosecutions, to enforce contracts, to uphold rights defined by statute, and to get money for injuries to their person or property. But in all cases one thing is the same: the client is seeking to offload their grievance to the attorney. Usually, the client wants to put the case in a black box and have a positive outcome on the other side. And attorneys, for one reason (to bill) or another (to keep the client pacified) are happy to oblige this way of seeing the relationship.

Image Source: Assembly Archive.

But two recent podcasts got me thinking that this might not be the best way of looking at the relationship.

The first was the Center for Inquiry's interview with Steven Novella, physician and podcaster for the New England Skeptical Society. In the interview, Novella describes his evolving approach to evangelizing and popularizing science and critical thinking. He describes early attempts at challenging popular superstitions — such as shattering mirrors to prove that nothing bad will happen — morphing over time into putting on a reasonable face, minimizing controversy, when confronting charlatans, even though they are selling snake oil. His point, I think, was that not all approaches work with all audiences. Thus, to get your message across, you have to be both savvy enough to know you're not succeeding and flexible enough to change your approach.

The same is true in evaluating how to pursue your case against your adversary in litigation. The art of litigation is getting someone to do something they won't otherwise do. What litigants forget is that doing so is time-consuming and expensive. But, depending on the circumstances, there must be a better way which minimizes the costs in time and money. The only way to do so is for the client and the attorney to work together — and for both you and your adversary to realize that only compromise can hope to minimize expense.

The second was a Freakonomics podcast about the economics of spite. This episode asked the question: why do we do things to hurt others — even when they hurt ourselves — from which we obtain no particular benefit? Now, I don't think they got the definition right — they appeared to emphasize the doing harm to yourself part, where as the dictionary (and my) definition is simply "malicious ill will" or simply "doing harm to others." Spite carries the connotation that the intent is the harm and not some other gain.

What got me thinking, though, was a set of experiments they described. Two individuals, paired off, who could not see each other were given $10. In the first experiment, one of the pair was required to offer the other a portion of the $10 so that the pair could walk away with some money. The other could either accept what was offered or could reject it and cause both parties to walk away with nothing. The researchers found that if the offer was less than 20% of the total, the other would consistently reject it, even though it meant that he (and the offeror) walked away with nothing.

In the second experiment, both parties were given $10. One of the pair could choose to allow both parties to walk away with the full $10 each, or could give up $1 to cause the other to lose $5. The researchers found that subject consistently sought not the greatest gain for themselves, but to maximize their own gain over that of the other — meaning that the often chose to shaft the other player, giving up the $1 so that they would earn a higher percentage.

In both cases, the players were harming themselves for the sole purpose of "spiting" the other player. And that so describes the approach many litigants hold in their lawsuit on both sides of the table. Does this say anything about human nature that can be used in litigation? Maybe, but does give rise to an idea which is uncommon in litigation: where can I place my number so that the other side thinks he's prevailing, while still getting me what I need?

Now, usually, negotiation tactics are all about convincing the other side that they are going to lose big time. But these experiments indicate that approach may be fruitless if the other side is willing to punish at any cost to him, her, or itself. Thus, neither party wants to give an inch, even if it saves them a yard.

And attorneys — wittingly or unwittingly — lead their clients into this money-trap. By offloading 100% of the problem and by doing the client's bidding, attorneys are often a barrier to a mutually beneficial settlement early in the case, rather than being a promoter of settlement when costs are low and the pressures of litigation haven't killed both sides.

A different approach is in order in most cases. Attorneys should be savvy enough in their unique fields to guide the parties to eliminate side issues or non-issues, and to either come up with a number which satisfies everyone's needs (before attorney fees eat away at that total) or to focus the litigation on what is really at stake — skipping the mud-slinging phase and getting the job done in a minimum amount of time.