1.6 Strategies and Tactics

• Library: Negotiating and Drafting Marital Agreements (Virginia CLE) (2023 Ed.)

1.6 STRATEGIES AND TACTICS

1.601 Initial Contact with the Opposition.

The initial contact should be with opposing counsel, if he or she is known. The attorney should inform the other spouse, directly or through the client, that if the spouse will be represented, the spouse should have his or her counsel contact the attorney.

1.602 Nature of Contact.

A. Telephone Calls.

1. First Telephone Call.

In the first telephone conversation with the other party, counsel should introduce himself or herself as the attorney for the client and determine whether the other spouse has retained or will retain counsel. If the first call is to opposing counsel, the attorney should inquire whether opposing counsel has had an opportunity to interview the other spouse and if there are any immediate concerns. If the client knows the identity of the other spouse's counsel, the contact must be with the attorney rather than with the other spouse. ¹⁸⁰

The initial contact by phone usually does not produce any startling facts or financial revelations but offers an opportunity to share certain priority concerns. For example, one spouse may wish to remain in the house and is concerned about the upcoming mortgage installment or is unemployed and needs cash immediately to buy food for the children.

2. Characteristics of Telephone Negotiations.

a. Lack of Feedback.

A lack of visual feedback leads to misinterpretation. Not only can voice tones be "misread," but innuendoes and hidden meanings can be conjured up where none exist (or missed where they do exist).

b. Easier to Say No.

It is effortless and uncomplicated to say "No" on the telephone. Ideas or proposals must be presented in person to be conveyed in proper fashion and without misunderstanding.

c. Issues with Preparedness.

If you catch the other attorney off-guard, he or she may not have relevant materials handy and will be unprepared to discuss your issue; therefore, scheduling a teleconference is recommended. Nonetheless, the caller normally has the advantage in telephone negotiations. The caller is prepared with a proposal and has arguments and computations ready. The attorney being called, on the other hand, may not have given recent attention to the case and may be relying on stale facts.

d. Shorter.

Telephone negotiations are always shorter than person-to-person dealings because the length of a face-to-face meeting must justify the time, travel, and expense invested.

e. More Competitive.

The reality that telephone negotiations afford insufficient time to share information and experiences and to explore the satisfaction of mutual needs produces a more formal contact in which competitive "win-lose" behavior flourishes. Because conversation by telephone is not as spontaneous, people tend to be impersonal and stick more to the point. As a result, the side with the stronger case usually prevails. Theoretically, then, a competitive negotiator with more power will have an advantage in negotiating by telephone.

On the other hand, in a face-to-face meeting, each attorney sees the other as a human being. Involvement in the normal exchange of greetings, nods, smiles, and head-scratching dilutes antagonism. Discussion is freer, and there is less time pressure and more opportunity for a mutually beneficial outcome.

f. Greater Risk.

In any negotiation, speed is always synonymous with risk. Whether a conflict is resolved by telephone or in person, undue haste puts one party in potential jeopardy.

The less prepared attorney, who cannot determine the equities, bears the greater risk in a quick settlement. An attorney who is less prepared than his or her opponent, cannot verify the statements made, and has no basis to trust the other attorney from past dealings, should wait for a later opportunity to reach an agreement. Generally, success comes to the negotiator with the greater patience and staying power.

3. Suggestions for Telephone Contacts.

a. Do Not Be Caught Off-Guard.

If the attorney is called unexpectedly, he or she should indicate that the call will be returned at a more suitable time.

b. Plan and Prepare.

The following strategies for telephone negotiations will help ensure success:

· Prepare a checklist of points to be covered;

· Call your client and tell him or her your intended agenda;

· "Dry run" the negotiation in your mind;

· Try to anticipate your adversary's tactics;

· Have all the relevant facts on hand;

· Do not make off-the-cuff queries or statements. Remember that there is no indignity in admitting lack of knowledge;

· Concentrate and avoid distractions. Close the door to prevent intrusions;

· Keep a calculator handy;

· Take careful notes during the conversation so that you can remember the important points discussed and any concessions that were made; and

· At the end, summarize what was agreed upon and define the responsibility for follow-up action.

c. Prepare a Graceful Exit.

The attorney should have a ready excuse to get off the telephone if the discussion turns in a direction that is detrimental to the client's interests.

d. Listen.

The attorney should be an attentive and disciplined listener, paying particular attention to the "listen-versus-talk ratio." It is also wise to make use of the "pregnant pause," which may impel the other party to begin talking compulsively in response to a prolonged silence.

e. Write a Summary of the Conversation.

A written summary of the conversation, with the date indicated, should be made as soon as the call has ended. Memories of telephone calls should not be relied upon.

B. Written Correspondence.

1. In General.

Initial contact by letter or email gives the opponent a written reference for future communications. Written correspondence also provides a better-documented file and eliminates any possible confusion about what was said.

2. Matters Covered.

As with telephone contact, it is advisable to state any immediate problems, short-term objectives, and possibly some of the major or long-term problems. For example, the letter or email might raise the issue of children's clothing for the new school year as a short-term objective, while the client's goal of acquiring a portion of the other spouse's retirement pension is a long-range objective that may be touched upon. In the latter case, the attorney for the nonemployee spouse might consider requesting information about the retirement benefits in order to plant the seed that the client is entitled to share in those benefits and to encourage the employee to obtain the information early in the negotiations.

C. Face-to-Face Meetings.

1. Preliminary Meetings.

Preliminary meetings between the attorneys give each an opportunity to be candid about client needs and financial positions and establish a framework for processing an exchange of information and future discussions. These types of meetings can also clear the air of client-generated animosity.

2. Four-Way Conference.

A four-way conference can be productive, but only after there has been some preliminary exchange of financial information and prioritizing of goals and objectives by each side. These exchanges tend to crystallize the issues and eliminate problem areas. Therefore, a conference is advisable when the parties have reached an impasse in their negotiations. It is more difficult for persons to say "No" in a face-to-face meeting.

Assuming there have been preliminary exchanges, the attorney should inform the client before such a conference that this may be the last hope before attempting to resolve the matter by extended depositions or court appearances. Counsel should subtly push the client into a spirit of compromise.

Face-to-face negotiations, however, may not always yield the desired result because of each client's attitude toward the other. A three-room arrangement may be more appropriate: a meeting place for the attorney and client, a separate room for opposing counsel and his or her client, and a neutral third site for four-way meetings or counsel discussions.

3. Client Preparation.

The following concerns should be reviewed with the client before any conference:

a. The client should try to control his or her emotions. If the client wants to do nothing other than vent emotions, little will be accomplished. Some display of feelings can be helpful, however. Underplaying one's hand and showing no emotion can sometimes have a more detrimental effect than excessive emotional displays;

b. The client should be warned about possible tactics of opposing counsel;

c. The client must anticipate underhanded comments from the other spouse. Showing no reaction may disarm the opposition; and

d. The client should be advised in advance as to who will talk in the conference. It may be better for the attorney to lead the discussions and request client input only where appropriate. Client "volunteering" should be limited.

4. Partial Agreement.

Conferences often yield partial agreements that may be acceptable to the client. Counsel must weigh carefully whether or not such an agreement is in the client's best interests, as it may prejudice the client's rights at a later time or reduce the leverage on the opposition. For

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