Sunday, January 4, 2015

Do Trial Lawyers Make Good Negotiators?

Trial lawyers are different from most people. They live their lives embroiled in a battle, ethically bound to fight, non-violently in most cases, for their clients. Yet, the tactical and oratorical skills that make lawyers fine trial lawyers, may differ from those of a master negotiator. But, trial lawyers serve a dual function.

In today's day and age, there are fewer lawyers who battle in a courtroom all the way from jury selection through verdict than there has ever been. Civil cases can cost a lot of money and require skill and strategy from a lawyer and monumental grit from parties to a lawsuit. Jury trials take emotional and physical tolls on the parties and on their lawyers. As time for trial approaches, the parties and lawyers lose the little objectivity they can possibly have.  As trial looms large, any normal trial lawyer thinks, dreams and imagines only preparation, strategy, and arguments. The lawyer acts as playwright, actor and director of his or her client's case/story/play, except the other side has a competing play and the outcome is determined by strangers legally compelled to judge the play. The necessary talents of a trial lawyer differ from those of a negotiator. Yet, more often than not, the trial lawyer is called upon either during the preparation of the case, or, even more unnervingly, during the second act of the play itself.

Negotiations and jury trials require entirely different skill sets. Perhaps that is why there is a distinction between barristers and solicitors in Great Britain. It is unnerving to switch gears from trial to settlement.  Can you imagine a runner being removed from competition to negotiate with another runner who will place first or second. In battles of war, which has some similarities to a trial, it would be ludicrous to expect a commander to leave the battlefield to negotiate with the opposing commander before the battle is concluded.

Later this week I am attending mediator training. I see much benefit of mediation in most cases. It's better for countries to enter into treaties than to engage in war. Yet, there are some times when war is inevitable, and occasionally necessary. Hitler could not be stopped by skilled negotiators. I believe negotiators should be students of the human condition, schooled in conflict resolution, by means more peaceful than trial. Of course, jury trials are far less significant than a real war. Lives are not lost in trial and the outcome usually affects a very few people. But, to the individual litigants, a trial can be of the utmost importance. Lives are altered through civil trials.  Some lawyers say there are no winners in trial. That's balderdash. But, there are sometimes that the parties are better served by avoiding conflict. We need more peaceful conflict resolution in this world. But are the warriors the best choice for peace-makers?  I don't know. I guess it depends on the person. I will see if I think I have the empathetic qualities of a peace-maker. I hope that the emotional toll of being in charge of mediating a case is considerably less than that of trying a case.

1 comment:

  1. I' m gonna respond to two of your idiotic posts at the same time. Troll Busters would be a hilarious tv show. I can see it now, tonight on NCS at 8 Troll Busters, and then immediately following, Scumbag attorneys that file lawsuits without actually investigating the lawsuit they filed, then the scumbag attorney hopes for a settlement because the decent person they sued would rather pay the scumbags off then spend the next two years in court. That would be a great Thursday night lineup. This post sounds like the beginning of a joke. Joke question: Do trial lawyers make good negotiators? Punch line, No trail lawyers dont make good anythings. HAHA

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