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Laying In The Weeds - There Is No Free Lunch

Author Richard Solomon is a conflicts and crisis management lawyer with 50 years of experience in business development, antitrust and franchise law, management counseling and dispute resolution including trials and crisis management.

With 55 years of law practice, almost all of it as a major case business litigator, I understand the human psychological drama associated with decisions to confront versus attempts to negotiate for acceptable results.

It is universally true that among sentient grownups no one wants a fight unless what is at stake if critical and rational attempts at negotiation have failed. Conflict is the most expensive way to resolve anything, even when it may have the attraction of being the quickest. Those unwilling to come to terms seem always to want to drag out the negotiating process, going back to the boss for approval on every question except bathroom breaks.

Those seeking resolution become more and more frustrated in the process. Eventually it becomes obvious that someone simply chooses not to agree and will make the talking stage last as long as possible, to wear out the other side, run them out of resources or cause them simply to walk away unrewarded for their attempt at civility.

At this first stage, when it is hoped that negotiation has a good chance to produce a favorable result, people seek out counsel known for negotiating skills. Most of the time this very intelligent decision produces a desired or at least tolerable result. Only fools choose confrontation as their opening gambit.

Rational people so desire rational resolution that they are very late in recognition of the point at which NO is really the final answer. Moreover, lawyers who make their living talking about things often want to continue talking about them endlessly, hoping beyond hope that eventually the opposition will simply be worn down. Why and when is that simply absurd?

Continued discussion is absurd when the context of refusal to deal is a rather draconian contract. The refusing party is in the power position according to the agreement and believes, usually on advice of counsel, that there is no need to concede anything at all. This is always the case in a franchising context, for example. What is difficult for clients to accept is that their counsel either lacks the insight to recognize this dynamic or fears losing clients who pay promptly. Negotiators go to seminars endlessly and annually to "improve" their negotiating skills, learn to apply game theory to negotiations, and pride themselves on certificates of achievement like Super Lawyer or Leading Lawyer or, worse yet, Likeable Lawyer (Yes, there is such a seminar in every state bar association). They have drunk the Kool-Aid of their persuasive skills, no matter the intransigence before them.

This is when clients eventually come to recognize that the matter is simply not going to get resolved through discussion. Because they are not nuts, they resist accepting the need to confront for as long as they possibly can. However, in this kind of scenario, they will either seek out counsel known for successful confrontation skills or surrender.

There is nothing wrong with surrender if the metrics of the situation makes that the most rational business decision. Metrics should drive the decision to confront, not anger and not ego. The litigator they select should ask them the tough questions before accepting them as clients. That makes it evident what the direction the metrics point to. This is not a process of simply trying to show potential clients how tough you can be. It is rather the indispensable process of being a devil's advocate who asks them the tough questions for which the answers could indicate that surrender might in the end yield the best financial/economic result. If the clients can't stand the devil's advocate stage of pre litigation due diligence, they will not be effective litigation clients and counsel should decline being retained.

Declining retention is a tough decision for any lawyer. However, competent lawyers have to have the ability and the gumption to elicit the information that is outcome predictive. If they can't/won't do that, as sociable as they may be, they are not worth hiring. Clients have to leave that discussion hot and sweaty from having to deal with really tough questioning and explanations about why this and why that if the meeting is to have been worthwhile. They will face the same kind of questioning from the opposition, and they might as well ascertain their ability and willingness to deal with adversarial confrontation before going to the mat in lawsuits or arbitration proceedings.

If they can pass that kind of smell test with really competent trial counsel, they can then go out to the bar and allow fellowship to end their day on a happier note.

One question that always comes up in the mind of every litigation group member is whether he should simply not join in the litigation and wait to see how those who face up to it come out. This is the thinking process of expectation that whatever the litigation parties accomplish will automatically be available to them. They falsely want to believe that a precedent set by the brave will be usable by the reluctant. In all my years of practice I have only rarely seen that happen, and then it requires a result that utterly destroys the opposing party. Almost never will confrontation destroy the opposition. Moreover, litigation counsel will so configure the effort that the non-participants will not see a precedent that they can reliably use. What they get from laying in the weeds is just a chance to finance another and somewhat different confrontation, without the support of those who went before them. There is no free lunch and wishful thinking is erroneous thinking.

Sometimes their negotiation counsel advises laying in the weeds. That advice is facially almost worthless for the reasons just stated and for the additional reasons that the non-litigator has no clue how litigation really works, and the adversary will have made immediate adjustments to make follow on claimants less able to achieve a similar result. Having never been a warrior in that sense, it is the same as watching cowboy movies and expecting that to turn you into John Wayne.

In the American Revolution less than 20% of the colonial population participated in the fight. The noncombatants became citizens of a free country due to the efforts of the brave. The British were forced to withdraw from country entirely. That is almost never the result of any litigation scenario. And even then, the British returned in 1812 to try again. The lesson is that all available resources need to be brought to the fight in the first instance. Those who don't learn from history will end up repeating history.