In negotiations, many times what you don’t say is more important than what you do. This applies to all professionals, not just trial lawyers.
As the years have passed, I have learned to sense when not to respond to a letter, fax, email or comment. The temptation is strong to respond, especially when your negotiations partner writes something inflammatory or clearly inaccurate.
Not everything that can be said should be said. Sometimes your silence will prompt a response that is useful to your negotiation. Sometimes your silence will make the other side wonder what is on your mind. Sometimes a little mystery can work to your side’s advantage. Silence can be golden, and the key to a successful negotiation. Here is a true life example.
I sent a settlement package to the insurer in a case with minimal policy limits, $15,000.00. My case was worth around $25,000.00, in my estimation. So there was no way I was going to accept less than policy limits. I did not make an explicit settlement demand in the letter. The claims representative could read between the lines though. She knew very well that I wanted the limits. So when she called to discuss settlement, we both knew without it being said what my feelings about settlement were. She made a very weak attempt to get me to take a bit less than $15,000.00. All I had to say was, “How can I do that?” and her house of cards crumbled. If I had made the demand explicitly, would she have made a stronger stand? There is no way to know because I didn’t ask her. I believe my silence gave me a slight, but important psychological edge. She could tell she was not dealing with a rookie, and didn’t really even try to work me over. It’s a subtle point, but one that years of experience helps you sense.
Another time to keep silent is when the other side tries to get you to negotiate against yourself. In other words, once you have taken a position, the ball is in their court. Many times, in response to a settlement demand, a defense attorney or insurance adjuster will ask me what I think a case is really worth. This can happen during a phone negotiation, at a mediation or a settlement conference. Regardless of the setting, I always respond by saying that I am not going to negotiate against myself. I may admit to flexibility with my demand, but I will not drop my demand until an offer is on the table. Even if the first offer is very low, it makes sense to wait for that offer before dropping your demand.