Trial Magazine

You have handled negotiations in a wide array of cases—environmental, pharmaceutical, consumer, and more. What essential negotiation skills apply across practice areas?

You have to learn to be patient—we all think that our client’s case should move more quickly. We think that we have all the answers and facts, but you’ve got to be patient to let your case develop and to understand what the issues and the facts truly are.

And you also have to be patient with the other side. They have a job to do, they need to learn the case, and you need to teach them your case. You need to stay focused and be willing to give them details, because for both of you to reach a good result, you have to get in a position where they ­understand your case and you understand theirs. The tobacco litigation was an example of showing the defendant that the plaintiff jurisdictions could all come together on one resolution for the tobacco companies to pay for smoking-related health costs while staying out of bankruptcy.

'Understand the problems that the other side has, and learn to take their problems and turn them into positives for you. Help solve their problems for them.'

Fundamentally, you need to learn your case, understand the problems you’ve got, understand the problems the other side has, and learn to take their problems and turn them into positives for you. Help solve their problems for them. For example, in the BP case, the company needed a process that would lead to finality, so a class ­settlement worked. A lot of times it’s not just about money—it may be about the timing of payment or about helping defendants put themselves in the best position for their insurance carrier to cover it. There are a lot of issues that go into reaching a ­resolution beyond just dollars.

Could you talk about the effect technology has had on the negotiation process?

Technology has made it much easier to understand a case’s facts and rulings and what’s going on across the country if it’s a multiple event or mass tort case. Before we had email and near-instantaneous exchange of information, I could be in a settlement discussion with an asbestos company that just lost a big ruling in a relevant case in South Dakota, but I’d have no way of knowing because it would take a week or two for that to get around—but the defendant probably knew about it. So we’ve leveled the playing field in that regard. You immediately know what’s going on from the internet and Twitter and Facebook.

However, you have to prepare clients to understand that everything they read on the internet or social media is not factual and that everything has to be put in context. I’ve had clients say, “Well, I’ve just read on Facebook that Ms. Jones got $3 million for her case, but you’re telling me my case is worth $400,000. Why?” You then spend a lot of time trying to figure that out, and you find out that Ms. Jones didn’t actually get $3 million or that her case was totally different from your client’s. When clients start reading blogs about other injured parties or by people who write about things without any ­background or knowledge, it sets expectations that are damaging to the process.

What are some of the lessons you’ve learned over the years?

From the BP oil spill settlement, I learned a lot of lessons about being more specific in the words I put on paper. In that case, unfortunately, the judges rewrote the settlement agreement to a large extent—they thought it was too generous to the plaintiffs. Going back, I could’ve probably put most of those issues to rest if I’d paid more attention than I ever thought was necessary to some of the minutiae of the document.

The lesson is to be more patient and pay much more attention to the detail in your settlement: When you think you’ve really got something that’s favorable, document it completely, and document what the plaintiff has to provide and the agreed-to finality. I think learning that lesson helped a lot when I later worked on settling the Volkswagen emissions fraud multidistrict litigation. Working with Elizabeth Cabraser, lead counsel of the plaintiffs’ steering committee, we were very specific about what a claimant had to give the claim administrator to qualify.

What is the biggest mistake new lawyers make in their first negotiations?

Being unrealistic in the valuation of their clients’ cases. You only have one time to establish your credibility with a defense lawyer or an insurance company. When you go into a settlement negotiation and demand $3 million, then six months later you’re negotiating for $300,000, and then you settle for $100,000, you’ve just tattooed on your resume that you’re unrealistic in your settlement demands, and people will always expect you to drop lower. You’re much better off realistically evaluating your case at the outset, being honest with yourself and your client about valuation, and maintaining your credibility.

How can lawyers help clients navigate the settlement process?

That varies so much by the type of clients, but I think the biggest thing trial lawyers fail to do is prepare their clients—particularly in a personal injury or wrongful death case—for what comes after the resolution. In a wrongful death case, the family has had a severe loss and an absolutely tragic emotional situation, and they made the often gut-wrenching decision to file a lawsuit or seek recovery. They go through years of discovery, of opening up their lives and the life of their deceased family member, trying to assign a dollar value to love and affection—because that’s what you have to do.

Then when they settle, they’re going to be depressed because they have poured all of their emotions about their loss into their dedication to right the wrong, and when the legal process is over, there’s a big hole. And often they’re not prepared for that. I think that’s one of the things that we need to be more conscious of. What are the six months after the ­settlement going to be like for that widow or for that mother who lost a child? Stay in touch with them. Write them a note to see how they’re doing. Don’t forget them after the case closes.

What is your advice for handling difficult opposing counsel?

Do not let difficult opposing counsel make you stoop to their way of negotiating. If attorneys are totally unrealistic, harsh, or not being honest with you, just don’t negotiate with them. If opposing counsel thinks the case is worth less, or that your client doesn’t have a case, or they don’t want to respect your expert, then go try the case. And that gets to the number one point—don’t take a case you’re not prepared to try. I’ve been so blessed in my career because I’ve had some fantastic trial lawyers in the courtroom behind me, and I’ve always had the option of saying, “Let’s go try the case.” But if you’re not prepared to ride the case all the way out to trial, don’t take it. It’s not fair to you, it’s not fair to your firm, and it’s definitely not fair to the client.

When a case has a lot of media attention or public scrutiny, how does that affect your approach?

Depending on who your client is, in effect, the public and the media are also judges of the reasonableness of your resolution. You often see news stories or online posts that attach a settlement amount to a case without having any real knowledge of the specific facts or the settling plaintiff’s situation. There is a lot of misinformation circulated about resolutions that just blatantly misstate facts and lead to many delays in plaintiffs getting a resolution.

'One lesson I learned is, don't ever lose sight of the impact of the case on your clients; it's the most important thing in their world.'

What’s a particularly memorable or personally satisfying negotiation experience?

I represented a gentleman who lost his arm—it got caught in a machine at a South Carolina plant—and he had two kids and just didn’t really know what his world was going to be like. When we got a good resolution that meant so much to him, it really struck me how important what trial lawyers do is for the individual clients. One lesson I learned is, don’t ever lose sight of the impact of the case on your clients; it’s the most important thing in their world.

The second thing that I smile about with pride is the effects of the tobacco litigation. I grew up in the late 1960s and 1970s, and cigarette smoking was ­everywhere. For many, if not all, of the litigating state attorneys general, the focus was children. Children were being told in media, movies, and ads that it was cool to smoke. Addiction was not part of the education they were getting.

When the litigation heated up and the news media got access to documents and testimony, people woke up. Then watching my daughter and her friends grow up in the 2000s and seeing that cigarette smoking is not a widely accepted habit anymore—it’s not in most restaurants and other public places—I’m proud of that. We really did something to change the public health of this country that never would have been achieved through the legislative process.

But the most prominent single memory I have is sitting at a table with the families of 9/11 victims and across from the lawyers representing the airlines when I negotiated many of the cases for families that opted out of the 9/11 Victim Compensation Fund. The defense lawyers wanted to focus on money, while the plaintiffs wanted facts and answers to how and why 9/11 happened. I sat with those families and heard their stories—listening to such gut-wrenching happenstance. One father was scheduled to be on a plane at 9 a.m., but he got to the airport 30 minutes early and got on an earlier flight. That earlier flight was the one that went down. In that negotiation, dealing with those families, I go back to what I said about taking care of clients.

What is the personal impact of negotiating a case like that?

The process of individually negotiating and mediating those cases and reliving that experience with different families took a big toll on me emotionally and psychologically. It makes you ask why. I’ve had some emotional highs and some very depressing lows. As trial lawyers, we face some of the same depression risks that our clients do, and young lawyers need to realize that’s part of the job.

People say to leave your job at the office, but you don’t do that. So when you’re starting out as a trial lawyer, your family needs to understand what you do and the rollercoaster that you live on—because they’re going to experience it with you, and you all need to be prepared for it. When you decide to be a trial lawyer and do this work, ­understand that you’re getting the privilege of doing it. Be sure when you’re finished that you can look back and say, “I’m proud of what I did.”

Joe Rice is a cofounder of Motley Rice in Mount Pleasant, S.C., and can be reached at jrice@motleyrice.com. Kate Halloran is the senior associate editor for Trial.