"Will you take $100,000? the defense attorney asks me.
"No, I won't."

"Will you take $150,000? the defense attorney asks with anticipation.
"No, I won't."

"Will you take $200,000? the defense lawyer asks, getting more and more frustrated.
"No, I won't."

What just happened?

During settlement discussions, the opposing lawyer offered you money.
He didn't ask how much we wanted.
He didn't ask how much we'd take to settle your case.

Instead, he made an offer, believing that this would be sufficient to resolve your case.
He was mistaken.
He came in with a low ball offer.

He had to know we wouldn't take it.
By some chance he was hoping we'd take it.
Alternatively, he was hoping that we'd begin to negotiate from that low ball starting point and work our way upward toward a number that he and his insurance company thought was appropriate.

Wouldn't it be so much easier to say "Listen, we think this case has a value of $500,000. That's the only offer that will be made on this case. If you agree, then the case is over and neither of us have to go to trial. If you don't agree, we'll let a jury decide how much this case is really worth, assuming of course the jury finds my client responsible for your client's injuries."

That would be the simplest way to negotiate a case. 

That way there's no back and forth.
There's no negotiating.
It's simply "Here it is. If you want it, great. If not, lets go to trial."

Provided the offer is a good one, then it may be something to seriously consider.
On the other hand, if the offer is crap, then there's no sense negotiating, knowing full well that the defense will not offer up any additional money.

Let's get back to the title of this article...

The power of saying "NO" during negotiations.
First, in order to use this strategy, you can't give the defense a specific number that you believe is appropriate to settle.
If you do, this strategy will not work.

"Hey counselor, how much do you need to settle this case?" the defense lawyer asks me.
"I need $1 million dollars," I respond.
"Ok, I have $100,000. Will you take that amount?" the defense lawyer asks condescendingly.

"I told you I need $1 million. You're insulting me with your low ball offer. Come back with a million and this case is settled."
"Ok, I spoke to my principals. They've agreed to offer $200,000. Will you take that?" he asks.
"What part of my $1 million dollar demand did you not understand?" 

"Are you willing to negotiate at all?" the opposing lawyer asks me.
"Yes, I'm willing to accept $1 million for your client's negligence causing my client's injuries. I could have asked for $2 million and then worked my way down to $1 million, but I thought you'd understand my intent when I said I need $1 million to settle."

On the other hand, if you have a case where you can show that the doctor or driver was careless and caused you harm, it's possible the defense will approach us first to try and settle.

"Hey Oginski, are you willing to try and settle this case before we get to trial?" the defense lawyer asks.
"Sure. What do you have?" I ask.
"I have $100,000," he responds.
"No. That won't work. Have a good day," I say.

A week later I get a call from the same attorney.
"Hey Oginski, will you take $200,000?"
"Nope. You call me back when you have a real offer," I say.

A few days later, he calls again.
"Hey Oginski, will you take $450,000?"
"No. I told you to only call me with a real offer. Take care now," I respond.

Notice I haven't made any counteroffer here.
Instead, I've only said "NO" repeatedly.
In each call, I've made the assumption that the defense truly wants to settle the case and by their sequential phone calls to me, have a real desire to resolve the case prior to trial. That will only work if we can show that we are slightly more likely right than wrong that what we're claiming is true.

Nor have I told the defense attorney my bottom line number that I will accept in order to settle your case.
I will tell you that after the first or second call, the defense lawyer is likely to ask, more out of frustration than any strategy, "Well, what exactly are you looking for so I can go back and tell my insurance company?"

The answer to that question will set the framework within which your case may be negotiated.
It depends on whether I trust my opponent.
It depends on whether I've worked with him before.

It depends on whether this insurance company is reputable and lives up to their word.
It depends on a gut feeling.
It depends on what similar cases have settled for.

It depends on what a verdict in this county is likely to generate.
It depends on what an appeals court will likely do with an excessively large verdict.
On the other hand, I may simply say "$450,000 won't do it. Make me another offer," and hope they continue to increase their offer until we reach a point where it is acceptable.

Likewise, there will come a point where the defense will turn around and say "Listen, this is our last and final offer. If this works for you, great, take it and we're done. If you don't take it, we'll go to trial."

I wish they'd simply short-circuit this process and go straight to this last option. "Here's what we have. No more. If you want more, you'll have to get it from a jury and then the appellate court." Doing that would make negotiations so much simpler.

Is saying "NO" the right settlement strategy for you and your case?
The answer will depend on many factors I've discussed here as well as many factors that I didn't even have time to touch upon.

To learn more about settlement strategies in medical malpractice and accident cases, I invite you to watch the quick video below...

Have questions about your matter that happened here in New York? If you're THINKING of starting a case, but haven't done so yet and need answers to your legal questions, then I invite you to call me at 516-487-8207 or by email: [email protected]

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer