Whether through reading material, courses, or personal efforts, all divorce lawyers should be making continuous efforts to improve their negotiating skills.
By Gregg Herman, Family Lawyer
Among the anomalies involved in the practice of law is the disparity between the substance of continuing legal education (CLE) programs and the reality of practice. As a rough, totally unscientific estimate, 90 percent of CLE programs in family law involve, in one sense or another, litigation skills. However, my surveys of family law attorneys across the country reveal that 90 percent—or more—of family law cases are resolved through negotiations. If you accept these estimates (or anywhere near them), that means that 90 percent of CLE deals with what lawyers actually do only 10 percent of their time.
Being a good trial lawyer requires skills and experience. The same applies to being a good negotiator, rather than just being a lawyer who negotiates. The difference in negotiations is more profound, however. Not only do the enhanced skills afford the client a better financial result, but, done skillfully, negotiating can enhance the opportunity for a more peaceful relationship with the ex-spouse in the future.
So, if negotiating is not solely intuitive, what can you do to become a better negotiator? Below are a few suggestions on the topic.
Read Other Material
There is a huge amount of material on the art of negotiations, ranging from philosophical to practical to intellectual. A starting point surely is Roger Fisher and William Ury’s classic book Getting to YES: Negotiating Agreement Without Giving In. In addition, there are substantial resources on how to negotiate in numerous different forums, many of which can be adopted for family law cases.
Watch Other Lawyers
I had the privilege of watching Leonard Loeb, my boss and later my partner, negotiate divorce cases. Although some of his style does not fit my personality, I learned and adopted a great deal of his technique.
For example, I saw one session in which Leonard was representing a wife in a long-term marriage whose wealthy husband had been caught philandering. Leonard opened the negotiating session as follows:
“When I asked my client what she truly wanted arising from this divorce, she assured me that she really didn’t care about property division or support. What she really wanted was to use a rusty razor and make him eligible for membership in the Vienna Boys Choir. Now, I assured her that the goal was not attainable in a literal sense, so I’ve had her translate it to dollars.”
Although there is no way that I could ever make such an “opening statement” and keep a straight face, watching his style—and the reaction of the other lawyer—was highly instructive.
Take Courses in Negotiating
Just because you have been negotiating for years doesn’t mean you can’t do it better. Although, as stated above, there are far more courses offered on litigation, there are, fortunately, quite a few on the skills of negotiating.
Take Courses in Related Skills
Negotiating well requires a large set of skills, not all of which are taught in courses on negotiations. Courses in psychology, physiology, human development, marketing, and conflict negotiations all have skill sets that can be highly useful in negotiation sessions.
I heard a story once about a professional speaker. He said that when he gives a speech, there are three versions. There is the one that he plans to give. There is the one that he actually delivers when he improves on the original version while actually giving the speech. And “[i]f you want to hear a truly great speech,” he said, “drive home with me afterward and hear the speech that I should have given.”
Get Feedback from Other Attorneys
Many times, our egos prevent us from asking for assistance. However, especially if you are a young lawyer, there is a great deal of experience available from lawyers who have been doing this for a long time. And many of these experienced lawyers would be pleased—even flattered—to share feedback.
Get Feedback from Former Clients
Asking a former client for feedback may be helpful. Yes, there is a danger in this as you may hear things you don’t want to hear. And there is a natural tendency to get defensive. But if you can park your ego at the door for a while, you may get a lot out of this exercise. It is, after all, the client whom you are serving.
In my firm, we do this in two different ways. First, we hold a post-judgement meeting after every case. And approximately once a year, we mail an evaluation form that can be sent in anonymously.
Don’t believe that just because “that’s the way it’s always been done” means that “that’s the only way to do it.” Experiment. Learn. Then, please, share. Life is a learning process.
*This excerpt has been condensed and reprinted from “Settlement Negotiation Techniques in Family Law” © 2013 American Bar Association. With permission from the author.
Gregg Herman is a Family Law attorney with Loeb & Herman, S.C., Milwaukee, Wisconsin. He is certified as a specialist in family law trial advocacy by the National Board of Trial Advocacy and is a past chair of the Family Law Section of the American Bar Association. His law firm website is www.loebherman.com.