A few months after I was called to the bar, I got a pretty contentious litigation file on my plate. The parties were at each other’s throats, but my client didn’t have the money to see it through to trial. I was asked to try and get the thing settled. So I wrote a three-page letter to opposing counsel, outlining all the ways in which they and their client were clearly and hopelessly wrong about the case, and offering an amount only slightly less than the value of the claim.
Opposing counsel came back a couple of days later with a letter of their own: thank you for your correspondence of X date, but you are wrong. No, we won’t spend time telling you why. No, we won’t make a counter-offer. Here are our available discovery dates.
Well, I thought, I tried. I walked into the partner’s office and told them that settlement efforts had been unsuccessful, and that I had discovery dates.
“That’s a shame, but it is what it is,” the partner said. “What did they say when you spoke to them?”
I told the partner about how my beautiful, thoroughly-written letter and the audacity of the other side’s brief non-starter response. What else was I supposed to do?
The partner sighed. “Just pick up the phone and give them a call.”
A what now? As much to save myself from the horror of a phone call as anything else, I asked if that would really change anything.
“Well, you won’t know unless you try, will you?”
I slumped back to my office and stared at the phone. I would rather have slogged through a 20-page research memo on bankruptcy law than had a real-time conversation with opposing counsel on a contentious file. Sighing, I dialled their number and prayed for voicemail.
The voicemail didn’t follow. What did follow, though, was the last thing I was expecting: a decent, only half-awkward conversation with a fellow colleague at the bar. Counsel was, rightly, put off by my pretty aggressive letter – but I learned what needed to happen for the other party to consider a settlement offer, how it needed to be characterized, what amounts were and weren’t on the table, and what risks we needed to be aware of. We didn’t settle the file in that call, but we did lay the groundwork for the settlement that came two months later.
Obviously I’m not going to pretend that all my calls with opposing counsel go that smoothly. But I learned something really valuable that day: that when it comes to settlement negotiations, I won’t know what a simple phone call might add unless I pick up the phone and try.
In that vein, here are some of the other things I’ve learned about these phone calls: