CONTROLLING THE EFFECTS OF POWER IMBALANCES IN SETTLEMENT NEGOTIATIONS

by: Ellen J. Messing
© 2001 Ellen J. Messing

Most plaintiffs' lawyers have experienced the pride and sense of accomplishment that come from negotiating a solid settlement package for a client. On the other hand, most of us have also experienced the frustration of handling cases in which every rational consideration calls out for settlement, but which cannot be settled because of the egos or emotions interjected into the process by one or more participants. These irrational factors so frequently impede or prevent settlement as to demand a careful analysis and response. While negotiations in employment cases cannot be fully divorced from the intense and complex emotions and power issues they generate, irrational impediments to settlement can be understood and once understood, better controlled.

I. IRRATIONAL DEFENDANTS AND DEFENSE LAWYERS

1. THE PROBLEM

A certain irreducible minimum of the defense lawyers with whom we deal bring enormous irrationality to the negotiation process. One form that this takes is nastiness/ bullying / abrasiveness, including yelling, put-downs of us and our clients, etc. Another form of irrationality, less easily recognizable as such, is the demand for deference to the employer's own idosyncratic and usually arbitrary "rules": e.g., "we never settle cases for more than $_____ [no matter what]," "your client only worked _____ years so we can only pay _____ weeks' severance [no matter what]." Such irrationalities tend to overwhelm the negotiations process and frequently are fatal to it.

Sometimes the defense lawyer's irrationality is simply a reflection of that of his client. This shouldn't surprise us. It's useful to remember that if the key actors at the employer weren't, at some level, jerks, they wouldn't have created or tolerated the situation that forced our client to seek a legal remedy. Thus, defendants who were mean to our clients when they were employees may demand or simply expect that their lawyers treat us and our clients now with parallel nastiness.

In other settings, abusive defense attorney behavior emanates from the attorney herself, not her client. Some defense attorneys may have earned a reputation for difficult behavior in every case they handle, regardless of the nature or business culture of their client or any other factors. Other attorneys may only act badly in certain settings - e.g., with particular plaintiffs' attorneys, with particular types of employment cases, etc. When a defense attorney's behavior is not client-driven, it may be an act adopted for its perceived strategic value to the lawyer in negotiations, or it may represent simply a natural feature of a person with genuinely horrible personal qualities. This is less common.

B. DIAGNOSIS - THE KEY TO CURE

Different sorts of defendant / defense attorney abusiveness need to be addressed by different strategies. Thus the first step is to determine the exact source of the problem, as best one can from the available evidence. Some tips on how to do this:

1. Recognizing Client-Driven Abusiveness

To determine if the nasty lawyer is merely assuming a role assigned by his client, ask your own client if the behavior patterns you're observing parallel those that the client has observed among the higher-ups while actually at work. If your client can't answer the question (client has had no exposure to that level of executive, client is too emotionally overwhelmed to help the analysis, client is not skilled at observing human behaviors), then you need to ask these questions of eyewitness co-workers or ex-co-workers, and/or your client's family members, and/or other lawyers who've sued the same company before.

2. Recognizing Lawyer-Driven Abusiveness - The Game
(and Lawyer-Driven Abusiveness - The Rotten Personality)

Again, the key here is research. Determine whether the "SOB lawyer" acts the way she is acting in your case when she is engaged in other cases or is dealing with other lawyers. If the persona changes depending on who her adversary is, then it is likely that the nasty act is an assumed role or "game." If the person changes depending on the type of case - for example, she is nicer when the case concerns a high-level executive than when it concerns a laborer or secretary - then it is likely that the nasty act may be a game, or may be a function of elitism (the most common) or some other value system that the lawyer is superimposing on the case. If this person is simply always a jerk to everyone in every type of case, then we are dealing with the less usual case - an overall personality issue.

C. TREATMENT AND CURE

Abusive behaviors with different origins require different responses from plaintiff's attorneys.

1. Handling Client-Driven Lawyer Abusiveness

If the lawyer is being difficult because of his client, then his client is probably the obstacle to settlement. These behaviors on the part of the Human Resources or management types who are driving the defense side of the litigation likely result from one or more of the following: arrogance ("we can't lose, we're always right"); bullying (the need to push around people perceived as weaker); elitism ("your client is a mere bug to be squashed"); or rage ("how dare they sue us!"). So you need to reach the defense client directly and change the client's attitude.

Some ways to accomplish this:

• Try to enlist the defense lawyer in the effort. Of course, this is much easier if you have some past dealings or pre-existing relationship with her. But even if you don't, it sometimes helps to appeal to the lawyer's professionalism and image-consciousness, for example by saying "Gee, I don't understand the level of anger you're bringing to this phone call. I understand your client is very upset about this suit. Is there a way we can figure out to get past that and just deal lawyer-to-lawyer about the issues? Can we work on getting your client to be less angry and more focused on resolving this case?" This frank approach will often take the defense lawyer by surprise and open up lines of communication very usefully. I've been astonished how often defense lawyers will respond to such an approach by backing off and complaining about the unreasonableness of their clients. (Remember that we usually like our clients a lot more than the other side does!)
  
  
• Take advantage of situations when you have a chance to deal directly with the defense client, such as depositions. Often a case with an angry management is simply unsettleable until after the angry person's deposition is taken. Taking the deposition allows you to engage in some direct attitude adjustment of that person. At a deposition, you are in charge and that makes it hard for a bullying deponent to abuse you. The very structure of a deposition levels the playing field. Moreover, a well-taken deposition tends to undercut significantly the arrogance of deponents by exposing and banging away at the weaknesses in their positions. Finally, a deposition is an excellent opportunity to use disarming tactics (see below).
  
  
• Disarm the defense client. That is, simply refuse to be bullied. As your mother said when you were in eighth grade: Don't rise to their bait. Ignore insults, responding to them only with charming manners. Agree with the bully, making his tactics worthless. For example, in a deposition where the CEO of our opponent started to repeat that each of my questions was "too stupid to answer," I responded by telling him gee, he might well be right, and wasn't it just a darn shame that the rules were that he just had to sit there for four more hours and answer them anyway. He quieted down.
  
  
• I always tell self-deprecating stories about my kids - in the most interactive manner I can muster - with bullying management types, and they often respond in kind, surprising me and perhaps themselves by exposing their human side, and undercutting the bullying dynamic. Also, at the morning break when I am taking the deposition of a defense executive, I always offer everyone in the deposition room a snack of a bag of animal crackers. By then (usually about 11:30 am.) everyone is hungry and it's hard to refuse the crackers. It's really hard for an adult in a suit to abuse someone while chomping on a little kid's snack.
  
  
• Use humor - but humor with a point. Telling self-deprecating humorous stories about yourself sends a message that you are self-confident enough to make fun of yourself - i.e., an unlikely candidate for victimization by bullying. However, make sure to deprecate yourself about things that don't matter to the case (your poor fashion sense, your addiction to your hobbies, your kids' view of you as clueless, etc.), while sending the message that as a lawyer, you are not clueless at all. For example, tell a story about how you were so engrossed in a trial that you put on mismatched shoes (or whatever) the day the jury came in with your big verdict.

2. Handling Lawyers Who Play the Bully "Game"

Some of the tactics described above may also work on management lawyers who are role-playing the bully role. All those tactics make it harder to treat someone hierarchically. In addition, it sometimes helps to let the bully know you recognize the game as a game: "Gee, is there a reason the dealings between us have been so difficult? I ask because I know that [in the XYZ case] [in your dealings with Attorney _____] I understand counsel were able to work together very smoothly." This may shame the bully into dropping or modifying the "act." At least, it lets the bully know that you are on close terms with other lawyers whom he has previously treated with respect - making it increasingly hard for him to treat you with disrespect.

However, sometimes all this in not enough, and it may be necessary to bring a third party (such as a mediator, a discovery master, etc.) to insure that you are treated as an equal. It will be crucial to pick a third party who is unimpressed with bully tactics and does not tolerate them, and (ideally) has personal qualities (like a sense of humor) that marginalize the value of such tactics.

3. Handling Management Lawyers Who Are Truly Jerks

If a defense lawyer is simply a nasty, hateful person, it is possible that none of the approaches outlined above will work, or work sufficiently to alter significantly the bullying dynamic. In such circumstances, you need to focus on looking for third party involvement: a tough-minded mediator or some other structure that will exert some control over the jerk. Alternatively or in addition, try to use every encounter with the lawyer's client as an opportunity to let the client know how the lawyer has been behaving, and how unproductive it is, thus creating the potential to make common cause with the client and thus exert pressure on the lawyer.

Of course, this must be handled delicately or it will backfire. Humor is a useful tool here (for example, make a joke, in front of the other lawyer's client, out of the fact that the other lawyer won't return your calls, or yells at you on the phone, by sympathetically expressing the hope that the lawyer doesn't treat corporate management the same way on the phone). Gentle ridicule may deflate the bully. Even if you lose the battle over that issue, any "alliance" you have forged with corporate representatives around the bully's behavior may persist, ultimately boosting your credibility and the case's "settle-ability" with the corporate client.

2. IRRATIONAL CLIENTS

A. THE PROBLEM

Our own clients, as well as management and their lawyers, can contribute significantly to the irrationality of the settlement process. Clients often confront us with unpleasant surprises - ranging from rejecting eminently reasonable settlement offers, to insisting on the early acceptance of bad offers, to attempting inappropriately to cede all authority over settlement decisions to us.

While there are varying reasons for client irrationality, many of the roots of its most common manifestations are found in the power imbalance inherent in employment litigation. The employer, virtually by definition, is larger, more powerful and richer than the plaintiff. Further, the plaintiff has ordinarily had a history as an employee of deferring to the employer's superior authority and power, not to mention a likely recent history of victimization by the employer, frequently followed by increasingly stressful, unpleasant, scary and ultimately unsuccessful encounters with corporate officials in efforts to solve the client's employment problems. Thus, the plaintiff is likely to start off feeling fearful and anxious, with a tendency to acquiesce to the wishes (demands) of corporate authority. Hence the parties stand in dramatically unequal postures, even before settlement efforts begin. If defendants or their lawyers engage in bullying or other harsh litigation behavior, as described in the preceding section, of course this inequality is exacerbated

How do clients respond to feeling abused by the overall inequalities inherent in the process, especially when coupled with demeaning and disrespectful treatment by the defendants? If clients are not well equipped to deal with these issues, problems are likely to manifest themselves in one or more of the following ways:

• Ineffectual forms of resistance, in a misguided effort to reassert the client's dignity and not feel pushed around. Examples: "I'm walking out of this mediation right now;" "I won't take their lousy [actually, quite reasonable] offer";
  
  
• Capitulating to the "you - are - worthless" theme. Examples: "you [lawyer] decide if we should settle, it doesn't matter, I don't care any more"; "Whatever they offer, let's just accept it and get out of here";
  
  
• Projecting a non-credible image. If your client does not believe in herself, or feels intimidated, anxious and inadequate, she will not project as a good witness to a mediator or the opponent;
  
  
• Suppressing appropriate emotions (such as tears, hurt) to appear "professional" and in control when being demeaned;
  
  
• Misdirecting appropriate emotions (e.g., into angry outbursts).

2. SOME SOLUTIONS

We can help our clients resist the pressures to succumb to an irrational reaction to power imbalances. Some tools for resistance include:

• We need to explain to our clients how the power dynamic works and how it pressures plaintiffs to behave irrationally. Clients' understanding of these issue can help them gain needed perspective, and is the first step in helping them get past their wounded sense of self and hurt feelings.
  
  
• ·We need to make sure we ourselves treat our clients with utmost respect. We need to set an example of appropriate power dynamics in our own relationships with clients as a counterweight to the relations between the plaintiff and the defendants. This does not mean we allow clients to mistreat us or let their emotional factors overwhelm our judgment. However, our ability to influence our clients' unreasonableness will be enhanced if we have established a mutually respectful relationship.
  
  
• We need to give our clients sophisticated, dignified roles in the settlement process that the client perceives (accurately) as important. Example: Ask the client to provide you thumbnail sketches of the personalities of all the different people with whom you will be dealing; the client can help research facts for you, or prepare tables, charts or other settlement aids; the client can prepare his/her own advance worksheets and analyses of settlement positions that you can discuss with her and work from.
  
  
• Last, but probably most important: demand respect for your client throughout the settlement process. Do not accept any abusive behavior directed toward your client (interruptions, putdowns, yelling). It may be possible to settle a case on reasonable terms when your opponent is being unreasonable toward you, but it is virtually impossible for your client to act rationally under intense provocation from the opponent. If necessary, end a difficult meeting or mediation session, or continue it without your client, but make sure you speak out in your client's presence against disrespectful treatment.
  
  
  3. CONCLUSION

Remember that our best defense against our opponents' and our clients' irrationalities is to focus on creating a settlement atmosphere of dignity, respect and equality. Essential to this undertaking - and to dealing with the many irrationalities described in this article - is the development of a very thick skin.