Negotiation is at the heart of what attorneys do. Most legal matters settle before trial, which means that the ability to negotiate effectively is more important to a client’s outcome than courtroom skill. Understanding how attorneys negotiate, the strategies they use, and the principles that guide effective negotiation helps clients participate in the process and appreciate the work their attorney is doing.
## Preparation: The Foundation of Every Negotiation
Effective negotiation begins long before the conversation. The attorney must understand the facts of the case, the applicable law, and the interests of both sides. This preparation includes evaluating the strengths and weaknesses of each position, estimating what a trial would likely produce, and identifying the points where each side has leverage.
A key part of preparation is setting a clear goal. What outcome does the client want, and what is the client willing to accept? Without clear guidance from the client, the attorney cannot negotiate effectively. Before any negotiation, the attorney should discuss the goals with the client, establish a bottom line, and agree on the authority the attorney has to settle.
The attorney also prepares by understanding the other side. Who is the opposing attorney, and what is their style? What does the other side likely want, and what pressures are they under? A negotiation is between people, not just legal positions, and understanding the people involved shapes the approach.
## Understanding Leverage
Leverage is the ability to influence the other side’s decisions. In legal negotiations, leverage comes from several sources. The strength of the legal case is one source; if your case is strong and the other side knows it, they have an incentive to settle. The cost of continued litigation is another source; if the other side faces significant attorney fees and costs to continue, they may prefer to settle. Time pressure is a third source; if the other side needs a resolution quickly, they may make concessions.
A skilled attorney identifies all sources of leverage and uses them strategically. This does not mean bluffing or threatening; it means understanding what matters to the other side and framing the negotiation around those points. Leverage that is used clumsily can backfire, hardening positions and making settlement harder. Used skillfully, it can move the other side toward a reasonable outcome.
## The Opening Position
The opening position sets the frame for the negotiation. An aggressive opening can signal confidence and anchor the negotiation toward a favorable outcome, but it can also offend the other side and make them less willing to engage. A modest opening may encourage agreement but may leave value on the table.
The right opening depends on the case, the other side, and the relationship between the attorneys. If the attorneys have a history of working together and trust each other, a more direct approach may work. If the relationship is adversarial or the other side is known for aggressive tactics, a different approach may be needed.
The attorney must be prepared to justify the opening position. If the other side asks why you are asking for a particular amount or demanding specific terms, the attorney should be able to explain the reasoning, citing the facts and law that support it. An opening that cannot be justified loses credibility and weakens the negotiation.
## Concessions and Movement
Negotiation involves movement. No one gets everything they want, and the art of making concessions is central to reaching agreement. A skilled attorney plans concessions in advance, deciding what to give up and what to keep. Concessions should be made in decreasing increments, signaling that you are approaching your bottom line without revealing it prematurely.
Each concession should be paired with a request. If you reduce your demand, you should ask for something in return, even if it is small. This principle, sometimes called trading, keeps the negotiation balanced and prevents the other side from taking concessions for granted.
Timing matters. Concessions made too early can signal weakness, while concessions made too late can cause the negotiation to collapse. The attorney must read the situation and make concessions when they will have the most impact on moving toward agreement.
## Managing the Client’s Role
The client’s role in negotiation varies. In some cases, the client is present and participates directly. In others, the attorney negotiates and reports back. Either way, the client should be consulted before any agreement is reached, because the decision to settle belongs to the client.
A good attorney keeps the client informed throughout the negotiation. After each exchange, the attorney reports what happened, what the other side offered, and what the attorney recommends. The client can then decide whether to accept, counter, or walk away. This ongoing communication ensures that the settlement reflects the client’s interests, not just the attorney’s judgment.
The attorney also manages the client’s expectations. Clients often enter negotiations with unrealistic hopes, based on what they have heard about other cases or what they feel they deserve. The attorney’s job is to provide honest assessments, even when they are not what the client wants to hear. Overpromising and underdelivering damages trust and can lead to disappointed clients even when the result is objectively good.
## Deadlines and Time Pressure
Deadlines can be powerful tools in negotiation. A trial date creates pressure on both sides to settle, because neither wants the uncertainty and cost of trial. The attorney can use deadlines strategically, either by pushing toward them to create urgency or by extending them to allow more time for negotiation.
Artificial deadlines, set by the attorney to create pressure, should be used carefully. If the other side discovers that a deadline is not real, the attorney loses credibility. Real deadlines, such as court dates or regulatory deadlines, are more effective because they are beyond either side’s control.
## Walking Away
Sometimes the best negotiation strategy is to walk away. If the other side is not offering terms that are acceptable, and the attorney believes a better result is available through trial or another path, walking away can be the right choice. Walking away is not giving up; it is preserving the option to pursue a better outcome elsewhere.
The decision to walk away should be made with the client, based on a clear assessment of the alternatives. What happens if no settlement is reached? What are the costs and risks of continuing? The client should understand these alternatives before deciding to reject a settlement offer.
## Ethical Negotiation
Attorneys have ethical obligations in negotiation. They must not make false statements of material fact, though they generally can express opinions and make arguments about the value of the case. The line between persuasion and deception can be thin, and skilled attorneys navigate it carefully.
Honesty in negotiation does not mean revealing your bottom line or your strategy. It means not lying about facts, not fabricating evidence, and not making promises you cannot keep. An attorney who develops a reputation for honesty has an advantage, because the other side can trust their representations and negotiations move more efficiently.
## The Art of the Deal
Negotiation is partly art and partly science. The science is in the preparation, the analysis of the case, and the evaluation of alternatives. The art is in reading the other side, choosing the right moment for a concession, and finding creative solutions that satisfy both sides.
Creative solutions are often the key to resolving difficult negotiations. When the parties are stuck on a single issue, such as price, the attorney can look for other terms that create value. A longer payment period, a non-monetary concession, or a creative structure can break a deadlock and allow both sides to feel they have won.
## The Bottom Line
Negotiation is where most legal matters are resolved, and the skill of the attorney in negotiation often matters more than the skill in the courtroom. Clients who understand the process, communicate clearly with their attorney, and trust the preparation that has been done can achieve better outcomes. The best negotiation results come from attorneys and clients working together, with clear goals, honest communication, and the flexibility to find solutions that work for everyone involved.
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