As many young attorneys will come to understand, one joy of being an attorney—and the key to becoming a successful one—is securing favorable results for your clients. These favorable results often come in the form of settlements. For that reason, negotiating is a skill that any lawyer will need to develop so they can enjoy what they do—and be successful at it.
But for a younger attorney, settling cases with long-tenured members of the bar can seem like a daunting endeavor. However, there are several tips I can provide to my fellow junior members of the bar that can help ease those concerns and lead to successful resolutions of cases. Here are five of them.
Know the files
What you lack in wisdom, you can make up for in preparation. You never want to get on the phone with your opposing counsel or attend a mediation on behalf of your client and be blindsided with key information that you were unaware of. I would recommend reading transcripts from depositions or hearings that have taken place. Do not read someone else’s notes from the deposition alone. What another attorney at your firm did not find relevant and left out of their notes might be more relevant for settlement purposes.
For instance, you could read in a deposition that a fact witness for the employer testified on cross examination that there are no “light duty” jobs at the employer. At a mediation, you could use this information to dismiss leverage from an employer’s defense counsel that a light duty job could be offered in the future (to limit their exposure). This is just an example, but the takeaway is to be prepared at a mediation to use case information to increase the value of your client’s case.
I would also recommend reviewing all discovery available to you. In workers’ compensation cases, this would include medical records, adjuster logs, surveillance, performance reviews or write ups of your client, and investigations into past motor vehicle accidents. I’ll state the obvious: the last thing you want is to show up for a mediation unaware of a prior motor vehicle accident your client was in and have an investigation report presented to the mediator that cites an accident record a year prior to the work injury.
Understand what makes a good case—and build it from the start
You want to create leverage and have multiple “aces” in your hand prior to negotiating. In the same vein, you’ll need to anticipate what is on the horizon for litigation and if you could lose one of the aces in your hand down the road if a settlement is not reached. Your client needs to understand this as well.
The case might look great now, but could the same be said in a year after a few defense medical examinations and surveillance investigations? (After all, the Atlanta Falcons were up 28 to 3 over the New England Patriots with 2 minutes, 12 seconds left in the third quarter of Super Bowl LI and ended up losing). The same can happen to your case with a bad surveillance report, investigation report, or pre-injury medical records. You might haves four aces in your hand now, but all younger attorneys need to 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 might seem at present.
Understand the strengths and weaknesses of your case prior to negotiations
Consider the unfavorable evidence in full. Remove the rose-colored glasses you might be wearing and take an objective view of your client’s case. Also, put aside any animosity you might feel toward your opposing counsel or their client. It’s even more important that your client understands the strength and weaknesses of their case. As a young attorney, you must be honest with your client about the odds of success and failure. These can be tough conversations, but you need to rip the proverbial Band-Aid off so your client can make an informed decision as to whether they should reject or accept an offer.
“Workshop” your case
You may be a young attorney with a lack of experience, but of course, other attorneys 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 attorney, I believe the largest downside of working from home during the pandemic has been the inability to pop into a partner’s office at a moment’s notice to have an in-person conversation about a case and the settlement negotiations around it. Coming into the office provides an opportunity to bat around ideas and discuss cases with partners at your firm about value, caselaw, clients’ wellbeing, and strategy. Nevertheless, if your firm is fully 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 attorney you might not have a full understanding of judges’ tendencies. It’s important to understand how a judge normally decides certain issues in a case. Other attorneys at your firm might have previously had the same issues in a case that you have now in front of the same judge. Discuss with the more seasoned attorneys at your firm how a judge might decide an issue in your case.
Lastly, workshop with your firm’s seasoned attorneys about your adversary. Chances are good that senior associates or partners at your firm have dealt with your defense counsel or their client in the past. It’s helpful to find out if the defense counsel or their client have a typical modus operandi when it comes to settlements. Do they low ball offers until the home stretch to starve your client out? Do they usually come to the table with their best offer and cut to the honest chase? Find out from a partner at your firm.
The decision to settle will always be your client’s call to make
Turning for a moment to relationships with the people on whose behalf we’re negotiating, working with older clients can be challenging. I think one thing that gets forgotten with eager young attorneys is that, ethically speaking, settlement is always the client’s call to make. You might be confident and willing to seek value beyond what the defense can provide, but your client might be at a place in their life based on their health and wellbeing 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 in their late 40s and building a pension, they might not want to resign from their employer in exchange for a settlement. Alternatively, your client could be at retirement age and ready to take their pension and move on. You need to listen to your client about settlement and defer to them about their decisions. While that doesn’t mean you can’t explain to them the pros and cons of their decision or attempt to show why their decision might not be the best for them, when all is said and done, what your client says about settlement is the final word.
A path to negotiating successfully
Settling cases as a young attorney is not as daunting as it may seem. Be prepared, build a good case, understand the strengths and weaknesses of your case, workshop with other attorneys at your firm, and defer to your clients. If you do these five things, I have no doubt that any young attorney will develop excellent negotiating skills and deliver excellent results for their clients.