Toddlers are indeed the best of the best when it comes to negotiating. Every parent is put to the test when it comes to enforcing the rules and avoiding temper tantrums. Even the savviest of attorneys have caved when dealing with their kids. There are some lessons we can learn from these little, but fierce negotiators.
First is the slow game. This is when the parties are very far apart on coming to terms on a settlement and one party is only moving in the smallest of increments towards a compromise. This is similar to the toddler who keeps asking for another bed time story. Of course, the toddler wants to drag out bedtime as long as possible. It doesn’t seem like he has a number of stories in mind, except the infinite “one more.”
It is Plaintiff’s counsel’s role to identify and understand the approach in order to play it successfully. Plaintiff must not make large jumps in negotiating. Plaintiff’s counsel must demand that Defendant reiterate and clarify his position at each step. Most importantly, Plaintiff must have patience. If the Defendant wants to take it slow, with patience, you might get to your goal.
The second toddler strategy is when they only take a couple bites of their vegetables at dinner, but refuse to eat them all. In cases where liability is unclear, evidence is missing or has been spoiled, persons of interest are unavailable, and/or there are other legal bars, evidentiary issues, or time limits to prevent a full recovery, obtaining some recovery, even if nominal, is a win. Especially considering the costs to the client.
Some Defendants recognize that litigating the matter is not worth their time, but that some liability for the loss can be placed in their corner. If the Defendant offers a nominal settlement (i.e., cost of defense offer), Plaintiff’s counsel will advise the client on the costs and benefits of pushing the case further. Plaintiff’s counsel never wants to needlessly waste a client’s money, time, or resources on litigation where there are significant weaknesses in a case.
Lastly, if a Defendant digs his heels in, standing firm on denying liability, this is basically the toddler equivalent- the “nut-uh” defense. While the Defendant can sit at a mediation with his arms folded across his chest, Plaintiff’s counsel will lay out on the table a well prepared case of facts, evidence, and charm. With articulating the theories of liability, presenting the evidence step by step, providing expert reports, photographs, diagrams, etc., Plaintiff’s counsel can successfully convince the mediator of Defendant’s liability without another word uttered from the Defendant.
Just like a parent equipped with a bag of treats, subrogation counsel has mastered these negotiating strategies; however, communication with the client is key.