Vail Law: Negotiation and litigation are what’s in a lawyer’s toolbox (column)
September 4, 2018
Everybody likes a little tit.
Especially of the "tit for tat" variety.
And that is the essence of a litigator's world.
The phrase itself seems to originate from alliteration of the old English "tip for tap," or "blow for blow." With that in mind, let's rephrase it; negotiation may be thought of as one blow for another or, perhaps a bit more civilly, "this in exchange for that." "You yield on this and I will budge on that." And in this way — one step leading to the next — the parties will reach accord on what divides them.
Which brings me, in a roundabout way, to a recent conversation with a client. I have fudged the conversation just a bit to, as the "Dragnet" TV show was famous for disclaiming, "protect the innocent," which may be a bit grand here as guilt or innocence was not in play in this civil action.
My client, understandably, had a large burr in his saddle. He had been slugging out a painful and overly expense dispute with his opponent in a litigation matter for way too long. Through some legal wrangling and dragging of foot, the dispute was making only aching progress. He looked me in the eye and said, "I want you to make them agree."
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This is a client I am quiet fond of and who I flatter myself to think I "get," Were I in his shoes, I might have told myself the same thing.
After measuring him, I said, "The problem is, I only have two tools."
He ruminated for a moment and then he said, "Go on."
"The only way I have to 'make' anyone do anything is in a courtroom. In a courtroom, I can make pigs fly."
"If the court will back me in my arguments — if I have a legal leg to stand on — I can command a pig to sprout wings and order it to perform loop-de-loops that would put a Cirque du Soleil show to shame. But absent that …"
"You see a lawyer only has two tools."
"Negotiation and litigation. And when you toil and trouble, fuss and boil, that's really about it."
"What's this got to do with …?"
"A lawyer can try to persuade, cajole, engage, argue, convince, stamp his feet, and hold his breath until he turns blue. But if the other side is having none of it, then his hammer is the courtroom. No matter how good my argument is — no matter how right I am or am not — regardless of the rectitude of my cause of the firmness of the legal ground upon which I've taken a stand, if the other side tells me to go take a hike, well strap on my size 10 Salomon X Ultra 3 Low Hikers and off to Berry Picker I go."
I paused and leaned my elbows on the acreage of my ancient walnut desk. "Or else," I said, I lace up my Cole Haan Oxfords, tighten the Windsor knot of my tie, and, hi-ho, hi-ho, it's off to court I go."
"You're losing me."
Perhaps I'd taken a bit more license than I should have. I said, "It's simple really. First stop on the bullet train of law is always to try to work things out. You try to find some common ground and build from there. 'What can we agree on? How do we narrow the field of battle? What are the hills for both side that are worth dying on? What can be yielded with only a slight wince of pain on both sides?' Once the issue upon which the dispute rests its weary fanny is whittled down to its essential elements, then it is up to the lawyers to try to find a way out of the morass. Their charge, if they are worth their salt, is to try and find a solution short of litigation. Sometimes this means mediation. Sometimes this means putting on their thinking caps. Most times, this means thinking — dare I employ this overused meme — thinking out of the box."
"If negotiation fails, however, if the thing is dear enough to you, you've got to be willing to roll up your sleeves and put your dukes up in the courtroom. Only in a courtroom can I 'make' another lawyer or the other party 'do' anything. Before then, it's all goodwill and the common interest in finding a solution that will be acceptable to all."
He said "OK" again and then appended it with this. "But I still want you to make them agree."
"Understood," I said. "I can try another angle. But at the end of the day, if they dig their heels in, we will have to go to court. At some point, negotiation becomes exhausted. Both sides have tried everything they know and can still not reach accord. A lawyer's toolbox," I said, "may have a bunch of tools but they only do two things. The first set — compass, sextant, measuring tapes and calipers — try to find the course to a cooperative resolution. The second set — hammers, wrenches, pliers, cutting tools and chisels — are for litigation.
"Uh-huh," he said numbly. "So what you're telling me is …?"
"We can give it one last go," I said, "but when push comes to shove, we've got to shove back. Blow for blow," I said. "Tit for tat."
I smiled at him. "And everyone, you have to admit, likes a little tit."
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.