JAKE: That’s great. I guess I’d like you to represent me in this matter.
TONY: Here’s a copy of the firm’s standard fee agreement letter. Take it home and read it carefully. Call if you have any questions. If it’s OK, sign one copy and send it back with your retainer check. Before you leave today, let’s make an appointment to meet again, preferably in the next week. After that, I’ll contact Samantha’s lawyer and put into writing a proposal concerning the temporary financial and custody arrangements for the period while the divorce is pending. I’d also like to meet with her lawyer to find out about Samantha’s attitude toward joint custody, as well as her work plans.
BUT WHAT IF . . .
Some clients will make it easy to establish a relationship that supports a problem-solving approach to negotiation. These clients will share your orientation from the outset. Others, like Jake, may have concerns and questions but are open to learning and see the potential for a collaborative approach. But some clients are much more difficult. Some only want to show that they can be tougher than the other side. Others have extreme and unfounded expectations. In these situations, a lawyer must negotiate with his client about the client’s beliefs and assumptions. But it can be difficult to assert with a client—after all, the client is paying the bills. Here we offer advice on productive ways to engage, and often persuade, difficult clients without either imposing your views unilaterally or withdrawing too quickly.
What If My Client Has a Zero-Sum Mindset?
A lawyer may be committed to creating value but feel constrained by his client. What should you do if your client has a zero-sum mindset?
LEARN WHY
The first step is to ascertain why a client can’t, or doesn’t want to, see the potential for value creation. The reasons vary. Sometimes the client wants to punish the other side. Sometimes the client feels angry or betrayed or wants revenge. Emotions may distort the client’s ability to act in ways that satisfy his long-term interests. In still other situations, clients see no way of being able to end a dispute while also saving face.
In addition, a client may doubt the utility of problem-solving. Some common concerns are:
• “Problem-solving seems to require me to get along with the other side; I don’t want a relationship with them”
• “I don’t understand the benefits of this problem-solving approach”
• “It sounds too risky; the other side will exploit us”
• “Problem-solving sounds like it will take more of my lawyer’s time and cost me more money in fees”
Your client may have some or all of these concerns, or others. The key is first to acknowledge his fears. Rather than trying to sell your client on problem-solving, listen. Let the client know that he has been heard. And then help the client work through the costs and benefits of different approaches.
DISCUSS THE BENEFITS AND COSTS OF ALTERNATIVE APPROACHES
A client may not understand creating value. She may be so accustomed to distributive, exhausting disputes that she simply has no idea that other ways to negotiate exist. In this situation, lawyers can point out how both sides might be made better off through problem-solving.
To have this conversation, lawyers need not use negotiation theory or jargon. You don’t need to say: “Let’s brainstorm!” or “Let’s focus on your underlying interests and those of the other side” or “Let’s figure out your BATNA.” Lawyers can simply say something like, “I’ve been thinking a lot about how you can come out ahead in this negotiation. We may not have to wage war with them. I think it would be worth talking about the possibility of resolving your dispute in some way that’s less costly than litigation.”
In explaining problem-solving to a client, it helps to be concrete and offer some examples. “Problem-solving can create value for you” isn’t nearly as persuasive as “In one divorce I negotiated involving a long-term marriage, rather than paying substantial alimony indefinitely, we worked out a deal where the husband paid all the wife’s expenses to go to law school at Columbia for three years with no alimony thereafter.”
Often your client may see his negotiation as purely distributive because the client is considering only one of his interests and so doesn’t see the possibility of trades. Or, he may believe that anything that could benefit the other side would necessarily have to be bad for him. It is important to understand—and help your client understand—all of your client’s interests and goals so that you can find creative ways to meet them.
A lawyer in a large San Francisco law firm told us a story that illustrated this. The negotiation involved the dissolution of a joint venture between two corporations. This lawyer’s client, the CEO of one of the corporations, was furious at the CEO on the other side. He was so eager to end the relationship that he would not speak to the other CEO or even agree to be in the same room. The other CEO felt the same way. Nevertheless, each of these clients also had an interest in maximizing the value of the assets that had been owned jointly. The lawyers were able to design a process that accomplished this goal despite the animosity between the clients.
The lawyers explained to their clients why permitting a court to break up their business made little sense for either side. Consulting with their respective clients, the lawyers divided the company’s assets into clusters that preserved the synergies and complementarities of those specific assets. If there was one thing the clients could agree on, it was which assets should be held together so as to maximize their value. The lawyers then brought their clients to the same building (not the same room) and conducted an auction of the asset clusters. The lawyers would—quite literally—walk the bids back and forth to the opposing side. By auctioning the assets, the lawyers ensured that the assets went to the client who prized them more highly (the classic definition of efficiency). And the clients did not need to meet face to face. Thus, clients who initially saw no way for problem-solving secured a much better deal than the likely litigation alternative because their lawyers educated them about a process that would better serve their interests.
SPEAK TO YOUR CLIENT’S FEAR OF EXPLOITATION
A client may accept that if both sides hire cooperative lawyers, they may achieve a creative and mutually advantageous settlement. But a client may fear that if her lawyer tries to be a problem-solver and the other side’s doesn’t, she will get taken advantage of. The only rational choice—as the client sees it—is to hire a gladiator.
The task in these situations is to explain that you can protect your client from exploitation while working to persuade the other side that both parties can benefit from a problem-solving approach. To convince your client, you will have to convince yourself. As we explain in Chapter 8, there are ways to minimize the risk of exploitation. Have you become proficient enough as a negotiator to employ these techniques? If so, and if you are confident in your abilities, many clients will see that trying to problem-solve will not leave them vulnerable.
What If My Client Has Unreasonable Expectations?
Lawyers typically dislike dealing with clients who have unreasonable expectations about the likely outcome at trial, the size of the pie they should receive in a negotiated settlement, the length of time it may take the lawyer to finish up the deal, or the ease with which a particular negotiation can be handled. Frustrated, some lawyers stop trying to communicate with such clients, telling themselves that they’ve tried their best or that their client will never get it. Rather than disengage, our advice is to listen well, inquire into the source of your client’s expectations, and then discuss candidly what you perceive the opportunities and risks to be.
LEARN WHY
Labeling your client as unreasonable is not the best way to establish a process for talking about legal risk. Where do these “unreasonable” expectations come from? Maybe your client is legally sophisticated and simply reasons to a different conclusion from the same legal precedents you’ve read. Maybe your client has factual information about the case that you don’t. Maybe the clien
t is simply more open to running risks that you would not. You should be open to learning that your client might be operating on different basic premises than you are.
Asking questions such as “Why is that what you think is reasonable?” will provide information about why the client holds the views that she does.
EXPRESS YOUR CONCERNS
Sometimes clients set their expectations in terms of what they want, rather than in terms of the legal opportunities and risks. A client might say, “I’ll only pay $1,200 a month child support and not a penny more.” If you think this is unrealistic, you need to explain why.
Don’t ease in. If you beat around the bush, hedge, or qualify, your client may become frustrated, apprehensive, or angry. It’s not hard to tell when someone is being evasive. It’s better to put the bad news up front, and empathize as your client reacts. Recall that Tony did this very well in discussing custody with Jake. Tony was direct; he didn’t avoid the bad news. A good lawyer isn’t seeking his client’s approval—he’s communicating his assessment clearly and framing his purpose as providing sound advice in order to make effective decisions. There is no magic here. If the client remains unpersuaded, give him some time. Sometimes a client needs time to let go of his initial aspirations, even in the face of solid legal advice. Or you may need to raise it again. If the client persists, and you’ve explained your reasons well, you might follow the client’s suggestion even though you disagree. Alternatively, if the stakes are high enough, the client may find it helpful to get a second opinion. Perhaps there’s someone else in the firm who could offer an assessment. Or there may be a respected outsider who could be consulted.
What If My Client Is Very Emotional?
In many legal contexts, clients have strong feelings that may cloud their judgment. Divorcing couples, angry business partners, alienated employees, spiteful corporate rivals, accident victims—all may at times become very emotional. Working with such a client can be difficult. “I wish my clients would be more reasonable, more rational, less emotional” is a common refrain from lawyers. “Dealing with emotions and holding my client’s hand isn’t my job.”
To address your client’s emotions more effectively, reorient your stance away from surprise and annoyance and toward empathy and engagement. Lawyers should expect strong feelings from their clients. Disputes and deals are often nerve-wracking. Rather than thinking, “Why are they acting this way?” you might more logically think, “This is perfectly natural behavior, given the circumstances this person is in.” You can help your clients explore their emotions and become more adept at understanding and expressing them. An emotionally intelligent lawyer has much to offer a client.5
The first step is clear: demonstrate understanding. If your client is angry, upset, sad, anxious, or afraid, merely acknowledging that you’ve heard his emotion can reassure him. Sometimes it can help just to hear a lawyer say, “I bet it’s hard for you to sell this business after all the years you’ve spent building it up”; “Since this is your first deposition, it may seem a little scary to you”; “Having to spend all this time on the details of these representations and warranties must be frustrating”; or “Do you feel disappointed that this joint venture is coming to an end?”
After acknowledging the client’s feelings, you can sometimes go further and help your client discover a more subtle and complex range of feelings. Our colleagues Doug Stone, Bruce Patton, and Sheila Heen have written that people often express only one feeling—the dominant or headline emotion—when they in fact have a more complicated mix.6 As you work with your client, you can help him through the process of coming to understand and express—at least to you—the range of emotions he is experiencing so that he will have a better, more complete grasp of the situation. In a divorce proceeding, for example, in addition to feeling anger, a client may also feel fear, regret, and guilt.
Second, you can help your client determine what possibly unfounded beliefs, assumptions, and attributions about the other side his emotions are based on. Sometimes those emotions derive their intensity from the mistaken belief that the other side wants to take advantage of him or has done something cruel or unfair. We often conflate impact and intent. A client, for example, may be very aware of the adverse impact that the other party’s actions had on him, and may infer that this harmful impact is what the other side intended. While this sometimes may be true, often it’s not. You can help your client untangle these attributions.7 For example, a client may believe that his wife asked for alimony with no termination date in order to punish him. A lawyer might check these assumptions by saying, “What your wife asked for in her petition is a pretty standard lawyer’s opening move. It may also reflect her economic anxieties. I wouldn’t put too much weight on that.” If the picture the client is looking at changes, his emotions may as well.
Third, you can help your client make choices about what feelings to express in negotiations across the table. Not all emotions need to be shared with the other side. Sometimes it is best not to tell the other side your feelings. Maybe you think that your divorcing client would be better to restrain his emotions when meeting with his spouse to avoid descending into a familiar pattern of bitter recrimination. Perhaps a business merger would be completed more easily if emotional discussions were put off until the deal was struck. These choices are context-specific and difficult. But a lawyer can often act as an emotional sounding board and filter to raise a client’s awareness about what emotions to communicate to the other side.
All of these techniques can help when your client’s emotions get in the way. But in the most extreme cases, you may feel that the client is so upset that it would be unwise for him to make important and irreversible decisions at that time. You may need to tell your client that explicitly. And, of course, you may need to suggest that a distraught client seek professional help.
What If My Client Doesn’t Know What He Wants?
Some lawyers are annoyed when a client doesn’t enter the law office with a well-formulated set of priorities and a coherent set of interests. They may assume that a client will, or should, know what ends she wants her lawyer to pursue. But this isn’t always the case. Many clients’ interests are inchoate and unformed when they seek representation. A client’s interests will often be determined, in part, through interaction with her lawyer in preparation for and during a negotiation.8 Sometimes a client’s goals will shift over time.
The more difficult situation is when a client’s priorities are unstable and erratic. “Last week my client wanted to keep the house, to make sure he received joint custody, and to limit spousal support to three years,” a lawyer might complain. “This week he’s telling me that the house isn’t so important after all and mostly he wants a visitation arrangement where he has the kids for six weeks each summer.” This can be frustrating (and embarrassing) for attorneys, and obviously it complicates negotiations enormously. What should you do?
Clients’ interests shift for several reasons. Some clients simply may not be ready to commit and reach a deal. Consciously or unconsciously, they may be delaying the process to avoid making a decision. Others may be genuinely ambivalent about what they want. The proposal on the table may sacrifice some interests and satisfy others, and a client may not be clear on whether it is acceptable. Still other clients may not yet feel heard, by their lawyer or by the other side, and may therefore be reluctant to end the negotiations. Finally, for some people the trade-offs may be very different at the end of a negotiation, when they’re confronted with a concrete option, than at the beginning, when they’re considering an abstract possibility. Like those of us prone to switching our order at the last minute when the waiter arrives, when it comes time to do the deal a client may realize that her priorities have shifted.
A lawyer in this situation can be tempted to try to take control and tell the client what to do. Other lawyers may avoid such a confrontation and half-heartedly start marching down the client’s new trail. Our advice is to try to engage patie
ntly with the client. Work hard to learn what’s going on. What are the client’s reasons for changing his mind? If you hold up a mirror to the client’s behavior and explain the consequences for you and for the negotiation, the client may be able to explain his shifting priorities. The client may not be ready to reach agreement, which you can discuss explicitly. Notwithstanding the costs, delay may, on balance, be appropriate. Or, if the consequences will be severe, you may need to explain your concerns to your client and help the client understand the risks of continuing to change positions.
CONCLUSION
Some clients do not have particularly good communication or negotiation skills. They don’t know how to listen actively or assert themselves clearly. They avoid or accommodate and therefore leave their interests unexpressed, or they assert too forcefully, leaving little room for others’ views. Though such clients can be hard to work with, they often benefit when their lawyer takes on the role of a coach. By being explicit about what’s needed—more empathy, more assertion, or more of both—the lawyer can help the client develop negotiation skills within the relatively safe confines of the lawyer-client relationship.
When a relationship isn’t working well, lawyers, like most people, often blame the other person. In our view, creating the right kind of relationship is a shared responsibility. As a professional, however, the lawyer should take the lead. Being candid enough to ask yourself “What’s my contribution?”; having clear goals in mind; getting your own head straight; being self-aware; and working on your own communication skills—all these can go a long way toward improving the lawyer-client relationship, even with difficult clients.
Beyond Winning Page 23