Most of the work of a lawyer involves helping a client achieve his or her goals in the most sensible and effective way, and at the least cost – financial and otherwise. Attorneys are trained as problem-solvers. In interviewing clients, we try to find out all facts which are relevant to a client’s situation that may lead to a solution.

Most of the lawyers I work with on a daily basis in my practice are not combative, and, like me, are looking for a peaceful solution for our clients’ problems. Many times (but not always) this is possible to achieve.

We solve disputes peacefully by working collaboratively with opposing counsel to see if both of our clients’ needs can be adequately addressed at the same time. This is actually achievable in many situations, perhaps with some minor compromising on the parts of both parties. This is not like the “zero sum game” where if one client wins, the other client loses. Rather, clients trade off on their desires, much like the division of tangible property between children upon their parents’ deaths.

In reaching this sort of peaceful conclusion, the old-fashioned “hired gun” lawyering, which encompasses scorched-earth tactics, demands, rudeness, and unkindness, will not get you to a peaceful solution. Clients are able to be reasonable if guided by their lawyers in non-threatening negotiation founded on reasonableness, openness, and good faith. Luckily, most lawyers realize this and practice law accordingly, although the situation was quite different when I began to practice law.

The manner of articulating in communications between attorney and client is very important. Blaming or speaking disparagingly about the other party usually leads to no helpful benefit, even if your own client is hurting and the other party is objectively at fault. It is important that the lawyer and the lawyer’s client listen to the other side with an open mind, and try not to prejudge. By doing that, you may find out many things that could lead to a solution. In addition, you give the other side credence for his or her feelings and thoughts. Listening often gets the negotiation “unstuck.” Even if you cannot or decide not to give the other side what he or she wants, at least the other side knows it has been heard.

There is also the question of karma in the practice of law. In negotiations and in the course of business transactions, many good deeds do get rewarded. For instance, giving something up in a real estate transaction at the Purchase and Sale Agreement stage may lead to the other party saying “yes” when a problem arises at closing, when you may need the other party’s cooperation. In a divorce negotiation, having the parties finish the divorce with a memory of good feelings towards each other will improve the rest of their lives  and their lives will be forever intertwined if they have children together.

So when does a client need to litigate?

Clients often believe that where there’s a wrong, there’s a right. Although this may be technically correct in many instances, it does not make sense to pay $20,000 in attorney’s fees and court costs to possibly win $5,000 in a case. It is often far better to settle, even when right. This is a hard lesson for clients to learn.

Cases must be evaluated to make sure that the damages (and liability) are such that it makes sense to spend the necessary attorney’s fees. Litigation is extremely time-consuming for the attorney, and fees can build up very quickly to very high amounts. All of these facts need to be considered. Getting one-half a recovery in a settlement is often better than a 50% chance of getting the entire recovery, because the attorney’s fees will be added to the costs.

A negotiating attorney should know the “litigation case scenario” of a client’s dispute. It will be an important factor in the negotiation process. If a case is “very strong,” this fact will play into what the negotiated settlement should be. It’s also very important to let the other side know (if it is true) that the case will be litigated if a reasonable settlement is not reached. The other side needs to know you can and will “dig in your heels” if the situation warrants. Saying this, and meaning it, often leads to a settlement if the other side has been advised correctly.

So, winning is not always winning. Sometimes winning is knowing when and under what terms to compromise.