Lawyering with Planned Early Negotiation

Professor John Lande wants to liberate litigators from unplanned late negotiations. In Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money, Lande shows us how. Not limited by an “ivory tower” approach to the subject, Lande includes suggestions from practicing attorneys interviewed for thebook. He supplies detailed forms to anchor key negotiation theory points in a “real world” context. At the same time, he outlines a general client-centered approach to practicing law that seeks to meet client interests.

Planned Early Negotiation (PEN)

Clients typically do not benefit from acrimonious relationships among the parties, combative lawyers, or protracted discovery followed by settlement on the courthouse steps. To address these and other issues related to costly litigation, many corporations and their law firms have pledged to use alternative dispute resolution (ADR).[1] But actual practice does not always meet aspirational goals.[2]

Applying his expertise in dispute systems design, Professor Lande shows how lawyers can improve the way they handle disputes for their clients. He proposes satisfying clients’ interests (the Getting to Yes mantra) through a system he calls Planned Early Negotiation (PEN). He believes PEN should lead to more of what lawyers want: client referrals, repeat business, income (through mutually profitable fee arrangements as well as increased fee collection) and job satisfaction. His goal is to provide practical forms and techniques to use PEN skillfully and systematically during the entire life of a case.

Following an introductory chapter on PEN’s benefits, Lande covers several stages where negotiation comes into play in a case: 1) developing productive relationships with clients; 2) billing systems such as contingency fees with triggers and premiums for early settlement; 3) developing good relationships with the other side in a dispute; 4) planning and conducting negotiation effectively; 5) dealing with impasse; 6) engaging other professionals, including cost-effective joint retention of neutral experts; and 7) improving the quality of negotiations through further education, client surveys, self-assessment, and revising case management and negotiation procedures within a firm and in court programs. He concludes with a short discussion of PEN-related ethics issues.

Lande’s main focus is on three PEN processes: settlement counsel, cooperative negotiation and collaborative negotiation.[3] Traditional litigation counsel can adapt several of the techniques and forms related to these processes, in order to improve their law practices. For example, regardless of whether a client hires separate settlement counsel or not, a litigator may adopt a practice philosophy that routinely includes approaching opposing counsel at the front end to negotiate their relationship in the case. That relationship will later foster effective negotiations to set up a discovery plan tailored first to access key, settlement-relevant information in the case, followed by early case evaluation with the client and reasoned settlement negotiations.

Lande supplements his concise 10 chapters with an extensive bibliography and a treasure-trove of forms — more than 100 pages of checklists, client questionnaires, contracts and other forms duplicated on a CD included with the book, with most forms in Word format for easy adaptation. For example, Lande provides retainer agreement addenda, a conflict analysis form for clients, a chart of factors that affect appropriateness of mediation, collaborative law and cooperative law procedures, a letter to the other party inviting negotiation, and a checklist to prepare clients for the first negotiation session.

The book’s concluding chapter on selected ethics issues briefly addresses diligence and loyalty, client informed consent, discussing ADR options with clients, screening cases for appropriate use of collaborative law processes, conflicts, confidentiality, truthfulness to others, conflicts with collaborative practice norms, advertising and membership in a negotiation practice organization, and withdrawal from representation. The discussion should inspire lawyers to learn more on the ethical dilemmas and malpractice risk management issues that arise in connection with PEN processes.

Assessment

Clients are demanding more cost-effective ways to resolve disputes. Traditional litigation systems were not designed to achieve a satisfactory negotiated result, even though settlement is the most typical outcome.

In Lawyering with Planned Early Negotiation, Lande posits that lawyers are imprisoned by the fear of negotiation, such as the fear of appearing weak, the fear of leaving too much on the table, and the fear of malpractice risk if settlement occurs before full discovery. He suggests overcoming these fears by planning systematic incorporation of negotiation at each stage of a case, if appropriate and with client informed consent.     

Planned Early Negotiation should increase the likelihood of client satisfaction. Rather than engage in ad hoc negotiations, attorneys can implement a plan to integrate negotiation in the representation of the client, using the forms, strategies and practical suggestions in the book. Law professors might consider using it for lawyering, negotiation or ADR courses. Sophisticated clients interested in managing their lawyers to control costs will draw insights from the book.

In a chapter on handling problems in negotiation (so-called “impasse” issues), Lawyering with PEN does offer general tips, plus ideas for dealing with clients, the other side, and relationships with difficult lawyers. That chapter would have benefited from more information on the psychology of negotiation as it relates to impasse, with endnotes directing the reader to the key literature on the subject.

The “make money” part of the book’s two-part subtitle, “How You Can Get Good Results for Clients and Make Money” may suggest more than it intends to deliver. Indeed, Professor Lande has noted elsewhere that early case handling (ECH) “could be problematic for some lawyers, especially those paid on an hourly basis, because using ECH could cause them to ‘lose’ substantial revenue when cases are not handled as litigation-as-usual.”[4] Lawyering with PEN suggests various fee arrangements that might be mutually beneficial for clients and lawyers interested in implementing Planned Early Negotiation, and reasonably suggests that satisfied clients are more likely to pay their fees and refer business. We need more empirical research and debate on ADR practice development and management.

Conclusion

Lawyering with PEN is a “how to” book — an organized, helpful blueprint for attorneys who wish to add settlement counsel, collaborative law or cooperative law negotiation to their law practices. Advocates in litigation, clients, and law professors will welcome this well-written, practical book on effective planned early negotiation.

Notes

  1. E.g., more than 1,500 law firms have signed a CPR ADR pledge:
    We recognize that for many disputes there may be methods more effective for resolution than traditional litigation. Alternative dispute resolution (ADR) procedures – used in conjunction with litigation or independently – can significantly reduce the costs and burdens of litigation and result in solutions not available in court.

    In recognition of the foregoing, we subscribe to the following statements of policy on behalf of our firm. First, appropriate lawyers in our firm will be knowledgeable about ADR. Second, where appropriate, the responsible attorney will discuss with the client the availability of ADR procedures so the client can make an informed choice concerning resolution of the dispute.


    CPR Law Firm Policy Statement on Alternatives to Litigation, International Institute for Conflict Prevention and Resolution (CPR) Pledges to use ADR at http://cpradr.org/About/ADRPledge/LawFirmPledgeSigners.aspx (last visited May 31, 2011).
  2. John Lande, “The Movement Toward Early Case Handling in Courts and Private Dispute Resolution,” 24 Ohio St. J. on Disp, Res. 83, 109 n. 157(2008) (citing studies that found “no connection between corporate ADR policy and ADR usage”).
  3. In the Settlement counsel process, the client retains a lawyer to negotiate, while typically also hiring separate litigation counsel. Cooperative negotiation is a process where all parties explicitly agree to use a planned negotiation process, with the lawyers able also to represent their clients if the matter goes to litigation. Collaborative negotiation is a process where all parties explicitly agree to use a planned negotiation process, with the added feature that the collaborative lawyers are disqualified from representing their clients if the matter goes to litigation.
  4. Supra n. 2, 24 Ohio St. J. on Disp. Res. at 89. In the same article, Lande cites a study of a law firm using a process with early exchanges of information and structured negotiations. The first 40 cases “typically were completed in 1-3 months and … fees averaged $16,760 per case compared with three to nine months in traditional litigation and average fees of $63,323.” Id. at 128.

MARGARET M. (“MARNIE”) HUFF is an attorney/mediator in Nashville. She is past chair and a member of the TBA Dispute Resolution Section, a member of the ABA Section of Dispute Resolution Council, co-chairs its Ethics Committee and vice-chairs its Membership Committee.