Vail Daily column: Negotiation and settlement
Assistant Dean Mike Navin stood at the head of the lecture amphitheater in Warren Hall. It was a scene right out of Paper Chase.
We were 1-Ls, first year law students, and we were about three weeks into what promised to be a long and trying year.
Hersh had said, “But isn’t it the principal of the thing?” which had brought Assistant Dean Navin to a sudden standstill, the kind of halt one makes when hiking in the woods and one hears an otherworldly screech. He cocked his large head, crowned with a flop of graying blonde hair as if to make sure he had heard it right.
This was first year real property law and the lecture hall held about a hundred students.
Gathering his wits about him like a cloak, Assistant Dean Navin found Hersh about six rows up and locked a chilling gaze on him. “Mr. Hersh?”
“Y.. y.. yes?”
“Principal is a wonderful thing.” He let go his grasp on Hersh and gazed out the wall of windows that allowed the fall colors into the room. Then he said, “This, however, is not Philosophy 1-A, Mr. Hersh. No. This is real property law. You must learn to think like a lawyer.”
Someone wise-cracked—Petzie more than likely—“and lawyers don’t have principals.”
Although Assistant Dean Navin had been looking out the window, he already knew every voice in the room. “No, Mr. Petzie,” he said without altering his view. “That isn’t it at all. Lawyers must have principals. The highest principals, in fact.” Here he breathed, long and deep and then went on. “And one of those principals, Mr. Hersh and Mr. Petzie, is to do right by your client.”
I decided this was one of those things that you didn’t take notes on and so I put my pen down, grateful for the break for what was sizing up to be three year’s of writer’s cramp.
Assistant Dean Navin turned his large bulk towards the room and squared his shoulders. He said, “The first time a client stands up, bangs on your desk and says, ‘It’s the principal of the thing,’ it is your duty as a lawyer — and one day, God willing, you will all be lawyers — is to stand up taller, bang louder, summon up your most sonorous voice — and Mr. Petzie, one day, you may have one — and reply, ‘Mr. So-and-so, let me tell you what that principal will cost you.’”
LAW IS HUMAN
That was 35 years ago. I’ve quoted it more than once. And more than once, I’ve witnessed clients bending themselves like Bavarian pretzels — and asking me to bend along with them — to prove a point. Usually, I say, “I get it” and after quoting Assistant Dean Navin, I say, “Law is human. Law is human stories. It is filled with emotion. Your marriage didn’t work out the way you dreamed. That SOB you trusted cheated you. You were run down by a callous teen who cared more about her Instagram than you. But that’s not what law’s about.”
“Listen to me. On a personal level, those things matter. And they matter a lot. You feel betrayed or cheated or disappointed and you should. But when you’re trying to reach settlement in court matters, the focus should be — must be — made on the basis of a clear-eyed business decision. Will you get enough to be made whole? Will the division of marital assets and time with your children be equitable? Will you get the benefit of the bargain you entered into when you signed the contract. Karma,” I often say, “is the universe’s to dispense, not the law’s.”
I will usually get a flicker of recognition here, and a nod. “You believe in karma?”
“Martin Luther King famously said, ‘the arc of the moral universe is long, but it bends towards justice.’ I believe that.”
YOU KNOW WHAT’S RIGHT FOR YOU
My first handful of years in the Vail Valley, I was trying a divorce which, like many, was emotional and fractious. During a break, the now-retired judge, call counsel into chambers. He sat us down and without preamble or fanfare, he said — splaying both hands open on his desktop — “Why do these people want me to decide the most intimate things about them? I don’t know them. I don’t know their values or what’s important to them. And yet, they want me to decide which of them gets what assets, who gets what they’ve amassed in a lifetime, who will have the kids and when.”
His eyes were large through his eyeglass lenses. After a deep breath which he held like a pearl diver, he looked from opposing counsel to me and back, “Is there yet any hope of settlement?”
We promised we would make a last attempt.
The point is this. You are in the best position to know what’s right for you, to know what you can live with and what you cannot. A good settlement is one where there is “give” on both sides. Like life itself, no one gets exactly what they want. And the decisions made in settlement must be guided by reason, not vitriol, vengeance or proving a point for the sole sake of proving a point. In settlement, one must discipline the mind towards logic.
The art of negotiation is one of being certain of the facts and the law as they apply and then keeping a clear focus. In a courtroom—or hopefully before you walk through the courtroom door—“principal” alone should be left like a pair of shoes in the doma of a traditional Japanese home. While perhaps appropriate for the warfare of city streets, to clomp around inside with the heavy footfall of principal disturbs the inner serenity of settlement. And reaching settlement, while not always possible, should be in the foreground of any dispute.
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, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461, firstname.lastname@example.org and email@example.com.