Becoming a Five-Tool Lawyer, A Serial Tip Sheet for Improving Negotiations Skills Part One: Begin with the End in Mind By Ron White, IVAMS mediator

Are you a five-tool lawyer? In baseball, five-tool players can run, throw, field, hit, and hit for power. Think Willie Mays and Mickey Mantle from yesteryear and current players, Mookie Betts and Mike Trout. Five-tool lawyers do these things well: (1) analyze (2) write (3) probe (4) persuade, and (5) negotiate. Most lawyers spend considerable effort sharpening all but the fifth tool, assuming their fine-tuned litigation skills will enable them to “knock it out of the park” during negotiations or mediation. Of course, “four-tool lawyers” settle their cases too.

However, by improving their negotiating skills, lawyers would improve their settlements. Since ninety percent of civil cases settle, their law practices would prosper too. Five-tool lawyers begin with the end in mind—a judgment or arbitration award—and take steps to evaluate the likelihood of success at the early stages of the dispute. Before discovery begins, they draft jury instructions and a special verdict form. The jury instructions provide an outline of the discovery needed to prevail at trial; the special verdict form, a constant reminder that finders of fact, not advocates, will leave the biggest mark on the case.1

Five-tool lawyers also quickly size-up the strengths and weaknesses of the opposition’s case using the jury instructions as a guide. For example, in a negligence case, was defendant’s negligence a substantial factor in causing harm to plaintiff?2 What evidence do you have to prove this element of the cause of action? What is the likelihood you can convince nine people that defendant’s negligence was a substantial factor in causing the harm? In a contract case, can you prove plaintiff was excused from having to do all, or substantially all, of the significant things that the contract required plaintiff to do?3 What evidence does the defendant have to prove plaintiff was not excused? What is the strength of that evidence? Can the claim be defeated through law and motion practice? What is the likelihood of success? If there is a trial, can damaging evidence be excluded by a motion in limine? These and other questions should be fully vetted by counsel and the results shared with clients at the earliest stages of the litigation.

Whether the conclusions of your early evaluation are positive or negative, beginning with the end in mind strengthens your negotiating position. If the evidence is positive, you will know what to emphasize in your negotiations or mediation brief. If the evidence is negative, you will have time to develop theories that put the evidence in the best light possible. Most likely, you will conclude your case is a combination of positive and negative evidence, and the seeds of dispute resolution will be planted.

In the coming weeks, check here for a series of tips to sharpen your negotiations skills. Next up, ascertaining your client’s goals and interests in the early stages of a dispute.

  1. What is the likelihood of persuading the trier(s) of fact that plaintiff has (or has not) met his or her burden of proof for every cause of action at issue? Keep CACI No. 5012 in mind from the onset of the litigation. It will keep you grounded.
    1. CACI No. 5012. Introduction to Special Verdict Form
      1. I will give you [a] verdict form[s] with questions you must answer. I have already instructed you on the law that you are to use in answering these questions. You must follow my instructions and the form[s] carefully. You must consider each question separately. Although you may discuss the evidence and the issues to be decided in any order, you must answer the questions on the verdict form[s] in the order they appear. After you answer a question, the form tells you what to do next. At least 9 of you must agree on an answer before you can move on to the next question. However, the same 9 or more people do not have to agree on each answer. All 12 of you must deliberate on and answer each question regardless of how you voted on any earlier question. Unless the verdict form tells all 12 jurors to stop and answer no further questions, every juror must deliberate and vote on all of the remaining questions. When you have finished filling out the form[s], your presiding juror must write the date and sign it at the bottom [of the last page] and then notify the [bailiff/clerk/court attendant] that you are ready to present your verdict in the courtroom.
  2. See e.g., CACI VF-400.Negligence – Single Defendant.\
  3. See, e.g., CACI VF-300.Breach of Contract