courts, divorce, family law, law, lawyers, negotiation

Know when to hold em, know when to fold em- why lawyers hair turns grey

I once employed a junior lawyer who had come the law late in life  after a first career in academia. She viewed the practice of  law through a somewhat different lens, as a result of her previous rich and varied life experience. Some of her observations were very shrewd.

One day she strode into my office with a demand for funding – she wanted to buy some single malt whiskey and a supply of playing cards and poker chips. It was a most singular request from a junior associate.

” I want to organize a women’s only poker night for my divorce clients. I’m discovering that my female clients are universally horrible negotiators. They don’t know how to bluff, they can’t hold a game face during negotiations and they don’t seem to want to win, but only to make peace. They need to learn to play poker!”

While I disagree that the deficit is  in any way gender specific, my associate was dead right- most clients are awful negotiators, totally unprepared to participate in the haggling that resolves almost every lawsuit.

In some cases, it is sheer naivete. Clients tend to view the law in high contrast black and white. “I am totally in the right, so therefore I  have no need to compromise.” Many are incensed when it is  even suggested that they accept receiving only most of what they want, in settlement, as an alternative to proceeding to trial and winning a pyrrhic victory.

Then again, in North America we have little chance to hone our  negotiation skills, unlike many parts of the world where every trip the market is a bartering session.

Whatever the cause, lawyers spend a lot of time educating their clients in the art of negotiation, and hoping they are quick learners , since the resolution of any lawsuit is a careful calculus of risk and cost. In a ‘pay as you go’ legal system the question of how much justice you can afford  is always lurking, and clients are often shocked to discover that far from being black and white, the outcome of a case may a murky shade of grey, depending  upon how  your witnesses perform, how tenacious the opposition is, and even  what the judge thinks of you and your case (they are , after all only human).

A poker night for clients ? maybe not such a bad idea – at least the single malt wont go to waste !


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