It’s hard to negotiate a fair settlement when you represent yourself. That’s because, well, you’re representing yourself. But the problem isn’t you. It’s that lawyers see you as an easy target, a sitting duck, a chump, a sucker, even a fool.
To them, litigation becomes child’s play when you enter the case. Things get worse when they learn you have a strong case or a good defense. Then, they play head games to get you to negotiate a settlement that benefits their client a lot more than it benefits you. Unfortunately, too often it works.
A settlement is an agreement to resolve a dispute. Negotiation is an attempt to reach a compromise or agreement. The insights below will help you identify and deal with lawyer head games and negotiate a settlement you can live with.
The Games Lawyers Play
As in other areas of litigation, lawyers play head games with pro se litigants when attempting to settle a case. Don’t take it personally. It’s part of the job. They’re advocating for their client. You’re just in the way, and you happen to be pro se. If you’ve got a good case or defense, and you’re interested in settling, expect the lawyer behaviors below.
Making an Insulting Offer
If a lawyer offers you $1000.00 in a personal injury case where you were badly hurt and owe mounds of medical bills, you might call him up, curse him out, and eventually begin negotiating from that $1000.00 offer. He made you angry, but he also planted a seed of doubt. That’s his goal. Once you lose confidence in your case, you’ll settle for less. Insulting offers are not worth your time. Ignore them. Alternatively, send a polite emotionless email to the attorney thanking his client for the offer and declining it.
Ever heard something like this, “You’re violating the statute, and if you don’t [fill in the blank], I’ll ask the judge for sanctions”? That’s a familiar threat from a lawyer to a pro se litigant. The ultimate goal is fear. The lawyer wants you to be so afraid of losing or being sanctioned that you’ll start settlement negotiation on a very low amount. Since their clients are paying large amounts of money to get rid of you, they need to quickly settle. So expect to see this threat during early discovery or before. Don’t start negotiations on a foundation of fear.
Moving for Summary Judgment
This is similar to a threat because it elicits the same reaction from pro se litigants, fear. Summary judgment is a scary thing. If your opponent can get it granted, your case is over. However, if you have a strong case, and you’ve pled your case well, it’s almost impossible for your opponent to get summary judgment. In fact, the lawyer doesn’t really want to argue for summary judgment. That adds money to the tab of an anxious client who doesn’t want to spend money. What the lawyer needs is for you to fall for the threat of summary judgment. Don’t do it. Make them argue summary judgment. You win the hearing, then make them pay.
Overwhelming You With Work
Then, there’s paperwork. Lawyers file numerous motions, notices, and discovery requests. Of course, this is part of the litigation process, but with pro se litigants, lawyers can be particularly “busy”. They know you don’t have a paralegal or secretary to do your work, so they assume that giving you a ton of paperwork will encourage you to settle. But there are ways you can take your time to deal with filings from your opposition. For discovery, utilize objections and strategic delays, like waiting until the last minute and requesting more time to respond. With motions, be part of the scheduling process and make sure that any hearing on a matter is scheduled at a time that’s right for you.
Things to Remember During Settlement Negotiations
Once you’ve survived the lawyer head games it’s time to get down to business. At this point, you should know your case well. You should know its strengths and weaknesses and the likelihood that you’ll get a settlement. Below are some things to keep in mind during the settlement negotiation process.
Determine Your Settlement Window
Early in the case, calculate your damages and expenses, and keep a running total throughout. Do this whether you’re a plaintiff or defendant. Based on these figures, determine the lowest amount you’ll settle for. Work your way up from there. As part of your calculation, consider things like your chances of winning. If you just came off a hearing where you won, you might be able to negotiate a higher amount than if you’d lost. In the end, determine the highest amount you think you can get. Your settlement window is between the lowest and highest amount.
Communicate the Value of an Offer
In negotiations, you want to let the other party know the advantages of taking your offer or counteroffer. For instance, if you know of a pivotal case, witnesses or facts that would give you a strong upper hand with a jury or judge, communicate this to your opponent to encourage them to settle.
Set Reasonable Settlement Limits.
Base your limits on the strengths and weaknesses of your case, and make the limits realistic. If you’re a plaintiff, and you spent $300 to file suit, and you have damages of $20,000, don’t go for a $20,000 offer! If the value of the entire case is 10,000, don’t set a limit above this amount. There’s no better signal to the other side that you don’t know what you’re doing than to set unreasonable limits.
Don’t Respond Too Quickly to an Offer
An offer may sound good, especially after you’ve been in litigation for some months, but don’t accept the first offer. It’s usually a low ball one. If after a hearing an attorney for your opponent asks you what you want in a settlement, tell her you will get back to her when you’ve looked at your numbers. Come back in a few days with a counteroffer, acceptance, or rejection.
Research Your Opponent
Like you, your opponent has fears, desires, likes, and dislikes. Try to determine what those are in regards to the case. If you’re up against Bank of America in a foreclosure case, do some background work on them. You might find that they’ll settle for a deed-in lieu rather than continue litigation. It might be cheaper for them, especially if you’re a very capable pro se litigant. It may be good for you because it gets you out of the case without a foreclosure on your credit record and a little money in your pocket.
Consider a Range of Options
All sides involved in a settlement negotiation have options. These options can be based on the strength of your case, case law, cost of continuing to litigate and more. In the foreclosure case involving Bank of America, a deed-in lieu is one option. Continuing to litigate is another. For you, bankruptcy, which halts the case for some time, is a third. A hospital wiping out medical bills and removing derogatory information from a credit record may be desirable for some litigants. Keep all options on the table.
Don’t Let the Lawyer Dominate the Process
As a pro se litigant, you must be vigilant about hierarchy. Avoid a situation where the lawyer can get their client’s needs met without negotiating with you. In the examples described earlier in this post, the lawyers want to dominate, but you’re not giving in to them. When a lawyer is being a jerk, and you’re not being heard, cut off negotiations. Come back later when he or she is smarter.
Be Willing to Go to Trial
The majority of legal cases never reach trial, so settlement is the norm. You might want to settle, but don’t settle on terms that aren’t right for you. Too, don’t appear too eager. Assume you’re going to trial and communicate to your opponent that you’re willing to go there. Follow this up with discovery, opposition motions, hearings, depositions and so on. That way, you have leverage when you negotiate. If negotiations don’t work, go to trial.
So, you’ve come to the point where you want to avoid litigation and save time and money. It’s time to settle. You can do this successfully as a pro se litigant, just make sure you get what you deserve. These tips should help.
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