As many young lawyers will come to understand, one of the joys of being a lawyer – and the key to becoming a successful one – is achieving favorable results for your clients. These favorable results usually come in the form of agreements Law tutoring. Therefore, negotiating is a skill that any lawyer must develop in order to enjoy what he does and be successful at it.
However, for a young lawyer, resolving cases with long-serving members of the bar can seem like a daunting task. However, there are several pieces of advice I can give to my fellow junior lawyers that can help alleviate those concerns and lead to successful case resolutions. Here are five of them.
Know the files
What you lack in wisdom, you can make up for with preparation. You never want to be on the phone with opposing counsel or attend a mediation on behalf of your client and be surprised by key information you didn’t know. I recommend that you read the transcripts of the depositions or hearings that have taken place. Don’t just read someone else’s notes from the deposition. What another lawyer at his firm did not consider relevant and left out of his notes could be more relevant for the purposes of the agreement.
For example, you might read in a deposition that a fact witness for the employer stated on cross-examination that there are no “light” jobs at the employer. In a mediation, you could use this information to rule out the influence of an employer’s defense attorney who might offer you light work in the future (to limit his exposure). This is just an example, but the bottom line is that you must be prepared in a mediation to use case information to increase the value of your client’s case.
I would also recommend reviewing all the discovery available to you. In workers’ compensation cases, this would include your client’s medical records, adjusters’ records, surveillance, performance reviews or writings, and investigations into past traffic accidents. I’m going to state the obvious: the last thing you want is to show up to a mediation without knowing of a previous traffic accident your client was in and have the mediator presented with an investigation report citing an accident record a year before the work injury.
Understand what a good case is and build it from the beginning
It is necessary to create an advantage and have several “aces” in hand before negotiating. Along the same lines, you will have to anticipate what is on the horizon for litigation and whether you could lose one of the aces in your hand in the future if an agreement is not reached. Your client has to understand it too.
The case may seem great now, but could the same be said a year from now, after a few defense medical exams and surveillance investigations? (After all, the Atlanta Falcons were leading the New England Patriots 28-3 with 2 minutes and 12 seconds remaining in the third quarter of Super Bowl LI and ended up losing.) The same thing can happen to your case with a bad surveillance report, investigative report, or pre-injury medical history. You may now have four aces in your hand, but all young lawyers should understand that losing an ace can have detrimental effects on the value of their client’s case. Be wary of that possibility no matter how strong your client’s case may seem at the present time.
Understand the strengths and weaknesses of your case before negotiations
Consider the unfavorable evidence in its entirety. Take off any rose-colored glasses you may be wearing and take an objective view of your client’s case. Also, put aside any animosity you may feel toward your opposing attorney or your client. It is even more important that your client understands the strengths and weaknesses of your case. As a young lawyer, you must be honest with your client about the likelihood of success and failure. These can be difficult conversations, but you have to rip off the proverbial band-aid so that the customer can make an informed decision about whether he should reject or accept an offer.
“Workshop” of your case
You may be a young lawyer with a lack of experience, but of course other lawyers at your firm have a decade or two (or four) of experience. Discuss the strengths and weaknesses of your case with other attorneys at your firm. As a young lawyer, I think the biggest disadvantage of working from home during the pandemic has been the inability to go to a partner’s office at a moment’s notice to have an in-person conversation about a case and settlement negotiations. Coming to the office offers the opportunity to exchange ideas and discuss cases with your firm’s partners about value, jurisprudence, client welfare and strategy. However, if your firm is completely remote, don’t be afraid to pick up the phone and call a colleague to discuss a case and settlement negotiations.
Additionally, as a young lawyer, you may not be well versed in the biases of judges. It is important to understand how a judge typically decides certain issues in a case. Other attorneys at your firm may have previously had the same problems in a case you now have before the same judge. Discuss with the most experienced attorneys at your firm how a judge might decide an issue in your case.
Finally, conduct a workshop with your firm’s experienced attorneys about your adversary. Chances are good that your firm’s senior associates or partners have dealt with your defense attorney or client in the past. It is helpful to find out if the defense attorney or her client has a typical modus operandi when it comes to settlements. Are these low offers until the final stretch so that your client is left with nothing? Do they usually come to the table with their best offer and get to the point? Find out from a partner in your company.
The decision to reach an agreement will always have to be made by your client.
Returning for a moment to relationships with the people on whose behalf we negotiate, working with older clients can be challenging. I think one thing that is forgotten with eager young lawyers is that, ethically, the settlement is always the client’s decision. You may be confident and willing to seek value beyond what advocacy can provide, but your client could be at a place in their life based on their health and well-being where they are ready to move on and not deal with depositions, hearings, surveillance and the constant stress of litigation.
For example, if your client is over 40 and building up a pension, they may not want to give up your company in exchange for a settlement. Another possibility is that your client is of retirement age and is ready to collect his pension and move on. You have to listen to your client about the agreement and defer with him on his decisions. While that doesn’t mean you can’t explain the pros and cons of your decision or try to demonstrate why your decision might not be the best one for them, at the end of the day, what your client says about the deal is the final say.
A way to negotiate successfully
Solving cases as a young lawyer is not as daunting as it may seem. Prepare, build a good case, understand the strengths and weaknesses of your case, work with other attorneys at your firm, and consult with your clients. By doing these five things, I have no doubt that any young lawyer will develop excellent negotiation skills and deliver excellent results to their clients.