Every case involves some element of negotiation.
Regardless of the case, or even the field of law, there will come a point at which you have the option to settle, or keep fighting. In family law, there's always an offer that covers custody and financials, in evictions there's usually an offer to move out in X months, with or without a payment, and in criminal law it's the ever-present plea bargain. Start-up law, actually, involves a lot of offers of settlement, though they're not always obvious to the non-lawyer. This post addresses some of the factors you should consider in deciding whether or not to accept a given offer, regardless of what kind of case you have.
Do the math first.
Most cases involve a lot of raw emotion, and it can be very difficult to see past that when a settlement offer comes in. You will probably feel insulted, because a settlement offer never contains everything you think you should get. I advise clients to actually sit down and do a quick calculation: How much will it cost you to keep fighting, versus how much do you lose in the settlement? Often having a case finished with is worth it, and if you do elect to keep fighting, you want to know about how much that's going to cost.
For example, in a landlord/tenant case, an offer of settlement from the tenant might ask for 3 months to move out, and a payment of $500. The landlord should calculate what three months' rent for the property comes to, and get an estimate for the lawyer time involved in actually going to trial. Most eviction firms, we find, attract clients with low rates to get started and then ask for literally thousands of dollars to cover a simple residential eviction trial. If your legal costs are going to be that high, then you'd be well advised to take the offer, even if you strongly dislike the client.
Notably, this is an area where I feel Verbeck Law does a much better job than many firms. Our flat-fee structures allow us to give you a final number, not a low-ball estimate, and so you can make the decision without worrying about a large, surprising bill later.The above question is a lot easier to resolve if you know that your case will cost $800, start to finish, with no giant surcharge for trial.
Ask if you can do better.
This is where your attorney's specialized knowledge and experience can help you. How strong is the other party's case, really? How strong is their negotiating position? A counter-offer is generally a good idea, and an attorney with excellent negotiating skills can more than pay for her services here. Consider a divorce case with a house and a retirement account in play. An offer of 1/2 the house and 1/3 of the account might come to a million five, and a counter-offer might be 1/2 of both. If this is accepted, the attorney has just saved you a few hundred thousand dollars. An attorney who isn't good at negotiation may not be able to improve your offer, and this can cost you a lot more than the attorney's fee.
Make sure it can be enforced.
This is a big one that's often overlooked. Some 'deals' aren't worth much until they're written down, and in some cases, not even then. For example, in start-up law, a deal in which your company retains a star programmer can be very exciting, but remember, the court can't order someone to perform a services contract if they don't want to. If your programmer gets mad and bails, you can't force him or her to keep working for you, and there are a lot of difficulties in proving damages in this sort of case. Your lawyer should address with you what happens if the other party doesn't abide by their agreement. There are also often ways to make deals more enforceable, and to shorten the amount of time you'll need to enforce a deal that isn't kept.
At Verbeck Law, we approach all negotiations with vigor, and we feel like negotiation skills are just as important as legal skill. Most likely, you won't spend most of your case time in court, you'll spend it arguing with the other party. Knowing what to look for, and what to ask for, can save you a lot of time and money. We hope that you'll think of running your matter by us, a firm that actively practices excellent negotiation, but whoever you go with, keep these tips in mind.