Carrie Sperling (Arizona State) has posted on SSRN an article (to be published at 60 Catholic U. L. Rev. 1 (2010)), on the role of lawyers’ demand letters in negotiations, arguing that scholars have not integrated negotiation theory and legal writing practice when it comes to pre-negotiation demand letters. Here is the abstract:
Lawyers frequently start negotiations with a written demand. But legal scholars have not, until now, considered the demand letter part of the negotiation process. Negotiation theory focuses almost exclusively on face-to-face negotiations and incorporates research from psychology, economics, and other social sciences to explain lawyers’ and clients’ emotions and decisions. By contrast, legal writing texts give lawyers guidance about how to effectively write a demand letter, but this advice lacks any connection to the multi-disciplinary empirical research seen as so important in the negotiation context. This disconnect may serve as an impediment to more favorable negotiations. In fact, this untested advice about how to write demand letters could actually have the unwanted effect of causing protracted litigation and less favorable settlements.
This article draws upon research in social psychology to demonstrate that demand letters deserve more attention and study. The words lawyers use to convey their demands can have powerful, lasting effects on the course and nature of negotiations because they almost certainly frame the issues, anchor a recipient’s perceptions, and prime the recipient’s goals and behaviors. If we are to fully understand what causes protracted, hostile litigation as opposed to cooperative negotiations and lasting resolutions, we must start by applying sound negotiation theory to the written demand.
Thanks for
Legal Skills Prof Blog
for alerting me to this very valuable contribution to the literature on negotiation theory and practice.
Carrie Sperling’s article hits the nail right on the head. The summer after my first-year of law school I had the opportunity to draft numerous demand letters while clerking at a law firm. It was the firm’s policy to usually set a high bar/high demand amount. The demand would typically get rejected firmly as the other side would send a letter back that usually included the phrase, “I suggest you make your demand more reasonable, before we can even begin serious negotiation.”
At the time, I failed to understand the effect the high demand was having on both future negotiations and client expectations. Now, after having been a part of Prof. Schneider’s ADR class for a semester, I realize that the demand letter should be the starting point for integrative, value creating negotiation, in which a party can attempt to start solving the problem(s) as opposed to setting an unreasonable anchor.