“This is not how things are done.”

Lawyers are trained to work on known knowns – what legislation say, what the past cases say, what the current procedure is. It is natural for people to seek out certainty and even more so for lawyers because we are trained to think based on precedent. As a result many of us are loathe to deviate from old habits and familiar heuristics – and this sometimes becomes an obstacle to everyone else.

I was defending a client from a personal injury claim by an ex-employee, which was taken out very close to the end of the limitation period. There were many aspects of the claim which we could not agree with, including the allegation that the ex-employee suffered some permanent disability, because according to the client he was able to carry on with manual work for a few years until they terminated his emlpoyment. It didn’t help that the client felt that the claimant was simply trying to obtain a windfall, because he had apparently boasted to his colleagues that he had earned money through previous personal injury claims.

Both counsel had to slowly push clients towards compromise. However the negotiations threatened to stall when the claimant’s lawyers purported to serve an “offer to settle” based on the old Rules of Court (which I happened to mention in my previous article that it no longer seems to be available under the current Rules of Court) – it contained a lump sum offer without addressing the underlying heads of claim.

When I tried to explain the difficulty of persuading the client to accept the offer due to the seemingly arbitrary amount contained in the offer, opposing counsel said that part of the amount represented future medical costs – and here I had to ask, if the claimant was really bothered by his injuries, why had he deferred treatment for so long? I thought I had uncovered an underlying interest when opposing counsel said in return that he was cash strapped and couldn’t pay for treatment all along. So in an effort to introduce an objective standard, I said I could try persuading my client to undertake to pay the hospital directly for the future medical costs, so that parties didn’t have to wrangle at the present about the exact amount that represented this concern.

“This is not how things are done.”

That was followed by a litany of personal injury claim norms (which I won’t bother to recount here) but essentially, I was told that I was violating expectations by trying to get a better deal for both sides – that the claimant would not have to fork out a single cent for his treatment and my client would feel justified in paying money, even though it might be more than what the claimant was asking for now – instead of simply entering consent judgment for a lump sum.

Sometimes I advise clients that if an option gets rejected despite superficially matching the stated interests, then there might be something else to uncover. However I decided not to push the point because in the absence of a neutral third party, it might be received as an accusation. In this case it seemed that opposing counsel could be interested in other priorities besides engaging in creative negotiation to ensure nothing got left on the table. So I left it at that and went back to the client instead.

Eventually the client accepted the last “offer to settle” and everyone was able to move on. But I wonder if everyone might have been happier (of course, I’m taking all statements at face value here) with a more creative approach – my client might feel justified in making payment, the claimant would get a potentially larger benefit and opposing counsel might have a happier client. I the other parties perceive that too much effort would be required to push the speaker out of the familiar mental groove, “this is not the way things are done” might result in money being left on the table.