Settlement can feel just plain weird, and it often is, especially when you’re used to fighting. But to be a good trial lawyer who wins for clients, you need to know how to play the settlement game.
If you’re in the business of being a trial lawyer, you better like to fight. I was reminded how much I like fighting — need it, even — when not long ago, my mother was sick in a hospital (she is out and fine now) and I was in the role that, in my view, all patients need: the advocate. My mother didn’t graduate from high school, and is one of those working-class people very ready to accept whatever any professional tells her. But we all know how professionals can be cocky and dismissive (even, believe it or not, lawyers) so I think every hospital patient needs someone to stick up for them and even fight for them when needed.
However, for a few days in such role for my mother I didn’t need to fight about anything until some doctor promised her some particular treatment, almost offhandedly. A short time later, while I was at the nurse’s station getting a pen for my mother, this doctor fairly dismissively told me that what he promised my mother really wasn’t needed and was ready to walk away, even though my mother thought it was needed, I thought it was needed, and he had anyway promised it to her.
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After being frankly bored at times over the previous few days I silently thanked the doctor, then proceeded to cross examine him for several minutes in front of a half dozen of his colleagues (and a dozen suddenly silent, rapt nurses). Within minutes the doctor promised to provide my mother what he previously promised (and he followed through).
I was glad to get what I wanted for my mother. But I have to admit that I was so glad to have gotten into my first fight in days.
That’s our inclination (or, at least, should be if we’re spending decades doing this as my colleagues and I do). But to win for our clients we have to be ready to set aside the fighting sometimes and try to get to settlement.
It’s a complete shift from the fighting. And it can be strange. Suddenly you’re trying to make a good impression on your adversary when, in my view, you shouldn’t care one bit what she thinks when it’s not settlement time (put aside the ego: let them underestimate you). While you hopefully have been managing your clients’ expectations, there probably were times where you needed to work your client up to be ready to fight, such as at a deposition, or an evidentiary hearing. Now you hear yourself sharing with your client how getting rid of this fight might be good for him. And then there is the whole Moroccan bazaar element of any settlement where money is involved: you profess you could never sell the rug for less than 200 dirhams, the other guy says he could never pay more than 100 dirhams, and you both know right away the deal is happening right in the middle for 150 dirhams. That is hardly all settlements, but it is a lot of them, especially with less experienced lawyers.
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It can feel like a game, and it certainly feels different than advocacy. It doesn’t feel like fighting, because it isn’t. But if our goal is truly to win for our clients, we have to be ready to play that game, and not just dismiss settlement negotiation, as I hear some real trial lawyers sometimes say, whether they are trying to be macho or not. I even hear some trial lawyers say with a kind of pride that they are not good at settlement, and only know how to litigate or try cases.
That’s not winning for your clients. The best trial lawyers need to be good at negotiation to resolve disputes. Be ready to fight when needed — as I was for my mom — but winning for the client means playing the settlement game well when needed.
John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at [email protected].