Most of us would agree that we should listen to what our lawyer has to say.  After all, you hired a lawyer because you lacked the specialized knowledge that they possess.  Moreover, you are paying dearly for their advice so it makes sense that you should listen.  However, when it comes to following their advice, there are times when it pays to do the opposite.

Let me give you an example.  We were deep in a mediation on a hotel project that my client had completed with considerable difficulty.  My client (a contractor), his lawyer and I had been through the facts, causation, costs and the reasons why he was entitled to be paid what he had requested.  It had been quite a long day, since the owner had also started with a demand for payment from my client.

After our initial presentations and several rounds of negotiations, we had crossed a major hurdle and my client was on the receiving end of a modest offer to settle.  In the first break after crossing that threshold, my client’s attorney was leaning towards accepting the offer.  My client refused to consider the idea at that point with such a low offer.  I also felt there was more financial merit based on the strength of the facts in his case.

There were two or three more rounds of back and forth private meetings, with the mediator showing great frustration to the point of anger with our position.

With each subsequent round, my client’s lawyer was more forceful with his advice that the latest offer should be accepted, fearing that the increased offer would be withdrawn if it was rejected.

The tension in our private caucus room was becoming palpable.  My client’s lawyer was investing a great deal of energy and emotion in his failed efforts to convince my client that he was making a fatal mistake if he rejected the latest offer.

Finally, after several “FINAL” offers, my client reluctantly accepted a settlement.  He was getting several hundred thousand dollars more than when my client’s lawyer began recommending accepting the offer!

Visibly relieved, my client’s lawyer invited us for drinks after the mediation.  I recall how he seemed almost apologetic afterward for having been so forceful in his advice which would have resulted in a much lower settlement for my client.  He was clearly confused about what had taken place and wanted to know how both our client and I appeared to be so undisturbed while those escalating offers were refused.

Our client said – “that’s because we think like contractors.”

As I look back at this experience, I am reminded that not all lawyers are created equal.  I have worked with some who have been excellent negotiators in addition to being good lawyers.  However, I always advise my clients whenever we are about to enter a setting that requires negotiation that it is most important to use your business skills in making a decision.

The lesson learned is that when negotiating, sometimes you shouldn’t follow your lawyer’s advice!

“Smile and say no until your tongue bleeds.” – Harvey Mackay

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