“Oh Boy! A fight.” That’s often what I say in class when students vigorously disagree. I like these “fights” because they usually lead to helpful discussions that clarify differing views.
So when Andrea wrote her post, Puffing Sucks, I thought, “Oh Boy! A fight.”
She argues that puffing is “[l]ying, through and through,” and that “the rules should be cleaner–no lying.”
Let me start by noting areas of agreement. I’m against lying and bad puffing. (I’m also against bad faith in mediation, hatred, arrogance, the three things Michael opposes in his excellent critique of Owen Fiss’s article, “Against Settlement,” and anchovies on pizza – though I don’t know how Andrea feels about these subjects.)
I have mixed feelings about not-so-bad puffing and am wary about establishing a bright-line rule against puffing. This is where Andrea and I part company because she believes that there ain’t no such thing as not-so-bad puffing if I understand her correctly. And I am skeptical that an absolute prohibition of puffing would ever be enacted or would be effective.
To me, bad puffing is when a knowledgeable person tries to take advantage of an unsophisticated and/or dependent person by intentionally using vague and misleading language about things like their interests, positions, intentions, or opinions.
In negotiations of legal matters, especially when lawyers exchange a series of counteroffers starting from extreme positions, I have mixed feelings about puffing. Normally, these negotiations are conducted at arm’s length and people expect some puffing as part of the “negotiation game” and aren’t really fooled by it.
Personally, I really hate playing that game.
But, like it or not, I recognize that this “game” is a frequent part of negotiations between lawyers – and between lots of laypeople in everyday life. Puffing is also deeply established as part of substantive legal doctrine. So it’s hard for me to believe that the ABA or states would adopt a rule prohibiting puffing.
It’s understandable that we law-trained folks would want to use rules as tools to deal with problems. Sometimes rules are the right tools. But often we don’t consider the limitations of rules or the possibility of using non-regulatory policy options instead of or in addition to rules.
This reminds me of the controversy over rules prohibiting bad faith in mediation. In general, I’m agin’ bad faith. But I have argued that rules prohibiting bad faith are problematic for many reasons and unlikely to deter bad actors. So I recommend using dispute system design processes and consideration of non-regulatory policies before adopting rules prohibiting bad faith. In another article, I suggested first considering non-regulatory policies as one of a number of general principles for ADR policymaking.
I have also suggested that counterpart lawyers (aka “opposing counsel”) generally should try to develop good relationships with each other at the outset of a matter. This idea is reinforced in my study of good pretrial lawyering. “[I]f counterpart lawyers have a good relationship, they are more open to discussion, communicate more easily, trust each other more, are more candid, and take more reasonable positions, which obviously can make it easier to reach agreement and to save clients’ time and money.”
I cited the article that Andrea, Art, and Peter Reilly wrote recommending, among other things, that lawyers develop relationships with their counterparts as a technique to counter lying in negotiation. They cite research finding that people often cannot detect lying in negotiation but that a reliable indication of lying is a change of behavior. By developing good relationships, people are better able to identify signs of deception. Having good relationships probably also makes people less likely to try to deceive their counterparts.
Peter’s Machiavelli article argues that “the applicable ethics rules will likely never be strengthened, and, furthermore, that even if they were, they would be difficult to enforce in any meaningful way, at least in the context of negotiation.” Rather than changing the rules, he suggests that negotiators use “defensive self-help” “ mindsets, strategies, and techniques,” including developing long-term relationships.
Of course, developing good relationships with counterparts and other self-help techniques are no panacea to prevent or counter deception. (What is?) But negotiators can use them without changing the rules or negotiation culture.
I think that’s a better approach than waiting for a new ABA rule (or Godot).