We all love an underdog.
There is something intrinsically satisfying when we see a weaker opponent thwarting a more powerful one by use of their reason, tactics and skill, in a victory of David over Goliath.
In popular culture, we often see that with repeated victories a powerful opponent will become complacent. They stop training, stop being magnanimous, and this culminates in their undoing. In the end, they always lose their way.
But in real life, strong still beats weak. Competitive advantage drives natural selection. The rich get richer, and the poor get poorer.
In ordinary settlement negotiations, most of what lawyers will do is to argue over their client’s positions as they attempt to bridge the dichotomy in their client’s favour. As stated by Roger Fisher & William Fury in their negotiation text, Getting to Yes:
“In positional bargaining you try to improve the chance that any settlement reached is favourable to you by starting with an extreme position, by stubbornly holding to it, by deceiving the other party as to your true views, and by making small concessions only as necessary to keep the negotiation going.”
In practicing Queensland personal injury law, I have never before seen a statement more accurately describe a typical compulsory conference.
Positional bargaining is a consequence of our adversarial legal system. The more money a plaintiff receives, the less for a defendant, their insurer, and their stakeholders.
With the commencement of the legal claim a bitter fight then ensues over this fixed pie, and together with it invariably surfaces those ugly corollaries of non-disclosure, surveillance, and secrecy as each side attempts to obtain advantage for the benefit of their client. It’s a nasty game at a human cost.
There is a person behind every problem. In my experience in the personal injury field, money is a low priority reason why lawsuits begin. The more common reason is a desire of the injured party to achieve the basic human need of closure from a traumatic incident. Or in other words, justice for what has happened to them.
However, closure is not easily forthcoming. It’s difficult not to feel wronged when you are injured in a preventable workplace accident and then terminated unfairly, or when you rent a house on the promise it is safe only to be told it is your fault when you fall through a rotten balcony and end up in hospital – as in the words of the landlord, you were the one who stood on the planks.
As long as attitudes like this linger around, our adversarial system is here to stay. Plaintiff lawyers are then left with the job of devising strategies how to best advocate for our clients in a system where defendants and their insurers hold the advantage – after all, they are the ones with the cheque book, the resources, the statistics, and the support of parliament to keep insurance premiums down – and who by virtue of this advantage negotiate against claimants by leveraging their position.
For the typical dispute, modern-day negotiation schools promote integrative negotiation strategy as the preferred means of reaching agreement between the parties.
Integrative bargaining encourages creative collaboration between parties to a dispute to discuss and expand the negotiable interests held between them, so that sources of new value may be created and can form part of the bargain to ‘expand the pie’, leaving each party with a greater slice and a win-win solution when the negotiation pie is ultimately divided.
Unfortunately, integrative negotiation strategy does not translate well into personal injury suits wherein the vast majority are only ever an argument over a finite resource between a claimant and insurer – money. Such suits are an example of a distributive negotiation, involving its own school of theory.
There is research to suggest that in distributive bargaining negotiations over price, the point where each party pitches their opening offer and each subsequent ‘jump’ and ‘bounce’ towards a middle ground can make the difference between an agreement being reached or not.
During these negotiations it then becomes an artform based on the experience of the advocate and the circumstances of the case about where best to pitch these offers, jumps and bounces in the hopes of reaching agreement.
Although the strategy has merit, I find that in practice it is mostly based on gut feel and at times can be unconsciously influenced by bias and emotion.
Against a Goliath you will always be negotiating with your back against a wall. No matter how many clever strategies you may deploy, rarely will distributive bargaining strategy alone be enough to secure a fair outcome for yourself or your client. I prefer to go back to basics.
In any negotiation requiring the cooperation of another person whose actions you cannot control but only hope to influence through your words or actions, there will always be an element of power at play between the parties.
Power is defined by options and the ability to manoeuvre. In any human relationship or negotiation, the person with the most power is the one who needs the other the least.
In makes sense then, that in order to increase one’s negotiation strength and ability to get what they want in a positional bargaining context, the solution is to increase one’s relative negotiation power as against their opponent by reducing their reliance on the other party’s agreement.
This can be done simply by defining, and thereafter developing, a BATNA and WATNA – that is, a Best and Worst Alternative to a Negotiated Agreement.
Defined another way, any offers made in a negotiation should be judged against any available alternatives and the cost of those alternatives. When negotiating with a positional opponent where the offer is unlikely to get better, the solution is to not work on your opponent but rather to work on yourself and towards developing your options alternative to agreement.
Once carefully defined, decision making becomes easy: your BATNA keeps you confident; your WATNA keeps you grounded.
Applied in the personal injury context in which I practice, I find the greatest challenge facing plaintiffs and their advocates is that in face of this power imbalance against a Goliath and an ill-defined BATNA, often plaintiffs are too amenable to reaching agreement: they become disheartened at the prospect of negotiations breaking off that any negotiated agreement is better than none.
With the increasing number of practitioners lacking trial experience, the prospect of a trial should negotiations fail becomes daunting and that influences the advice provided to clients – settle, as if push came to shove, I wouldn’t know how to run a trial anyway.
In the face of a Goliath offering below the mark, you do not become disheartened or hesitate, but rather continue to progress your claim towards trial. You secure more evidence, refine your allegations, prepare your witnesses, study the law and procedure, and do what you can to increase the security of your client against any adverse outcome – and with this, your increased willingness to go the distance exudes confidence and invariably leads to more cases being resolved on terms favourable to your client.
The more you prepare for trial, the less likely you are to go. Preparedness produces resolution. Confidence wins cases as it wins people.
All plaintiff personal injury advocates should remember: we are civil prosecutors. Our clients are entrusting us to champion their cause; to seek justice for their suffered civil wrongs in a system where the house almost always wins.
Whilst defendants and their insurers have the prize and guard it well, we have the sword – or in other words, the pen ready to sign the request for trial date.
In the words of retired Queensland Supreme Court justice The Hon Duncan McMeekin KC:[1]
“If your client is honest, and their problems are real, and they are supported by independent evidence (which is your job to identify and gather), and the impact of the injuries is significant in an economic sense, maybe you should trust the judges?”
And when through your actions you triumph against the odds, the deceit, the power plays and the dirty tricks, there is no better feeling.
Or if all else fails, as the saying goes: if the facts are against you, argue the law. If the law is against you, argue the facts. If both are against you, pound the table.
[1] The Hon Duncan McMeekin KC, ‘Resolution by Mediation or Judgment’ (2020) Issue 160, Precedent, 46.
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