Leveraging Written Demands to Obtain Better Results in Legal Negotiations

Posted By Andrew Alfonso, Jan 14, 2014

Effective communication is a hallmark trait of effective advocacy.

In the litigation context, effective communication can include delivering a powerful closing statement to a jury or deftly arguing a motion to a judge. The importance of skillful oral communication to good lawyering is evident both from Law & Order’s Jack McCoy and from the moot court and mock trial programs found at almost every law school. In both training and practice, trial lawyers recognize the importance of strong oral communication skills. Competent written communication is equally valued in the legal profession. The effective advocate knows that a demurrer can defeat a poorly drafted complaint and well-drafted discovery requests can win a case on summary judgment. For career litigators, the power of dispositive motions is never far from mind. Because of this, the legal academy wisely places an emphasis on efficient and effective writing in first-year legal writing and civil procedure courses. Lawyers are trained and retrained, in law school as well as in practice, that strong oral and written communication skills are essential to effective advocacy in litigation.

In today’s legal landscape, however, huge court backlogs and the long shadow of lawsuits’ immense costs mean that an effective advocate must be as comfortable at the negotiating table as they are at counsel’s table. The vital role played by alternative dispute resolution (ADR) — settlement negotiation, mediation, arbitration, and other ADR procedures — in the modern legal landscape is well recognized by both legal practitioners and the legal academy alike. Courts also recognize the utility of ADR: in many jurisdictions, before parties are given their “day in court,” they must participate in court-annexed ADR proceedings.

Researchers have recognized this significant shift in the law. Since the 1970s, a growing body of empirical research has shown that the communication skill set used by effective litigators is different from that of effective negotiators. Instead of the all-or-nothing approach of a trial, in negotiations, both parties need to agree to (and ostensively, be satisfied with) a resolution. The empirical research literature on how to be a better advocate in the legal negotiation context is robust. Studies investigate how to best ask questions to gather information, how to emphasize the other party’s interests when making an offer to promote agreement, and how to pursue integrative solutions through narratives. Largely ignored in this research, however, are the ways in which written communication can facilitate — or thwart — the negotiation process.

The lack of research regarding written communication in legal negotiations is surprising. Especially because written communication, in the form of a demand letter, is almost always the first contact between the parties to a legal dispute. Professor Carrie Sperling, in her thoughtful article, Priming Legal Negotiations Through Legal Negotiations Through Written Demands, posits that many of the lessons of empirical research into the non-written aspects legal negotiations can be applied to written demands.

The chief characteristic of written demands that Professor Sperling points-out as particularly salient in the negotiation process is their first-in-time nature. Because written demands are often the first communications between parties, they serve as a lens that frames the rest of the dispute resolution process. In essence, demand letters “prime” opposing counsel and shape subsequent negotiations by anchoring the parties’ positions and their perceptions of each other.

If a lawyer delivers an initial written demand to opposing counsel that is poorly drafted, unreasonable, or rude, the opposing counsel’s reaction to those maladies form a foundation for their impression of that lawyer. The lawyer is perceived as sloppy, irrational, and boorish. Often, lawyers respond in kind and a partisan row results — instead of focusing on the substance of the dispute and pursuing a resolution, lawyers can escalate it. These first impressions can create negative impressions that become pervasive and difficult to overcome. Subsequent negotiation communications (written or otherwise) may be viewed with skepticism by opposing counsel. The lawyer is definitely not an effective advocate if the initial communication forecloses the opportunity to settle a case that otherwise could have settled.

An effective advocate, however, recognizes the opportunity that the demand letter presents. If the lawyer delivers a written demand that is well-drafted, courteous, and objectively reasonable, opposing counsel is more likely to perceive the lawyer — and more importantly, the lawyer’s position — as reasonable. For example, instead of presenting only her client’s positions and legal rights in a written demand, the effective advocate also presents the interests that underlie her client’s positions. Not only does this add legitimacy to her client’s positions, it also facilitates an integrative dialog between the lawyers and presents an opportunity to find overlapping interests. In future negotiations, with this foundation laid, the effective advocate can take advantage of positive heuristics (mental “shortcuts”) used by opposing counsel in assessing their subsequent communications. Positively priming negotiations through the demand letter can encourage the collaboration needed to reach a favorable settlement for all parties and often results in a better outcome for the effective advocate’s client.

Professor Sperling notes that other techniques, proven sound by empirical research in legal negotiations, might be applicable to leveraging written demands. For example, by contrasting favorable and unfavorable possible outcomes of a dispute in a written demand, the effective advocate might obtain a better result for their client. A better result might also be obtained by using a narrative style in a written demand to incorporate law and facts in an empathetic way. Humanizing a dispute in a way that highlights the equities at play allows opposing counsel to more easily identify overlapping interests and see a favorable settlement outcome. That said, Professor Sperling rightly points out that more empirical research should be done to confirm the efficacy of these techniques and add more tools to the effective advocate’s toolbox.

Written demands are usually the first point of contact for lawyers when resolving a dispute. Empirical research shows that the old adage about the importance of first impressions is largely true. When written demands go awry and put a negative spin on a dispute’s resolution, tooth-and-nail fights are probably in the forecast. The effective advocate, however, should put this knowledge to work when drafting demand letters and have an eye toward encouraging a positive dispute resolution process. When this done well, happy clients (and referrals!) are likely to be on the horizon.

For further information on ways to use written demands to positively shape future legal negotiations, see Carrie Sperling, Priming Legal Negotiations Through Written Demands, 60 Cath. U. L. Rev. 107 (2010).