“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).
3 thoughts on “Some Puffing Sucks . . . But Developing Good Relationships Is More Likely to be Effective than a New Rule”
I had never before considered the utility of lawyer relationships in countering deception in negotiation, but I agree with what you say on the topic. From my own experiences, I can certainly say it’s easier to tell if someone is lying when you know the person – he might change his behavior, as research finds, or you might be accustomed to the specific way that person behaves when lying, making it easy to detect.
Furthermore, as you stated, if lawyers have a good relationship with one another, they likely will not want to lie to each other. Lying to your arch nemesis is much more tempting than lying to your best friend, after all.
Machiavelli makes a very valid suggestion, then, when he says mediators should develop long-term relationships as a strategy to prevent deception during negotiation.
The problem, of course, is that the ABA or a similar body cannot easily mandate the creation of these relationships, nor regulate them. It’s a good strategy for lawyers, but unless the ABA creates a new rule about forming and developing relationships, I doubt many attorneys will voluntarily take part. Usually these sort of long-term relationships occur naturally as the result of working closely together for a period of time – I doubt lawyers do or will actively seek them out.
I have a feeling most lawyers aren’t going to go out of their way to form (genuine) relationships with each other for the purpose of mediation, but I could be wrong.
Like Professor Lande, I agree that a bright-line rule against puffing may not be a good idea or a practical idea. First, it seems that a bright-line rule against puffing could cause some negotiations to suffer. If parties and their attorneys were required to respond candidly to inquiries about acceptable settlement offers, a party could strategically start with a low offer (or a high demand) and hope to find the minimum of what the other party is willing to accept (or the maximum of what the other party will pay). This could lead to settlement offers that more extremely favor one party over the other because the parties cannot effectively negotiate to an amount somewhere in the middle of their acceptable settlement amounts. Second, I am not completely convinced that in situations where real offers are being given, avoiding the question or deflecting the question will really be that effective. It seems unlikely that the other side will not realize what you are doing. Further, it seems even more unlikely that the other side will simply forget that they made you an offer and not bring the offer back up. In addition to these flaws of a bright-line rule, I am unconvinced that all puffery is bad. In most instances, it seems that parties and their attorneys are aware that puffing occurs. It does not seem extremely harmful to allow lawyers to continue a practice that the parties are aware of, when the result is retaining some secrecy on behalf of the client.
In addition, I agree with Professor Lande that a rule against puffing seems unlikely but I am not convinced that his solution would work either. While I agree that establishing a good relationship with someone can be an effective took to help against protect against lying, I am not convinced that these types of relationships are realistic in all negotiation settings. For example, in situations were a client is looking for a purely monetary settlement it does not seem like an honest, open, relationship with the other side will always be in their best interest. This could lead the lawyer and their client open to the problems noted above.
Thanks, Alex and Rachel, for your comments. Apologies for the delay in responding.
You both raised questions about the efficacy of developing relationships between counterpart lawyers as a means to reduce puffing or other deception. Alex, you doubt that many lawyers will take part voluntarily in relationships with other lawyers. In fact, lawyers do this all the time as a normal part of professional life without any rule requiring them to do so. Rachel, you are not convinced that these relationships are realistic in all negotiation settings. You’re right that they are not realistic in all situations – nothing will work in all situations.
Even when lawyers want to get the most favorable outcome for their side, having a good relationship with their counterparts can help. One of the best plaintiff’s PI lawyers in my area told my class said he makes a point of being friendly with his counterpart lawyers because he needs them to agree to pay his clients and they are less likely to do so if they are mad at him.
Many people mistakenly assume that one cannot advocate effectively by being polite and friendly. I think that the best lawyers who get the best results generally are friendly rather than hostile and threatening. Of course, that’s not always the situation and sometimes it is appropriate to be tough, but that strategy is risky and can backfire.
When I teach students in my classes and talk with lawyers in CLE presentations, I encourage lawyers to take the initiative to develop good relationships with their counterpart lawyers. Sometimes lawyers develop these relationships due to natural affinity, without any planning.
Often, lawyers would not develop such relationships without intentionally taking the initiative to do so. There are lots of reasons for lawyers to do so. My interviews with lawyers suggests that “if 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.” These are valuable benefits in themselves. From my perspective, reducing deception is a bonus.
I discuss these issues in more detail in the following two articles: Getting Good Results for Clients by Building Good Working Relationships with “Opposing Counsel,” 33 U. La Verne L. Rev. 107 (2011) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1968619 ; Good Pretrial Lawyering: Planning to Get to Yes Sooner, Cheaper, and Better, 16 Cardozo J. Conflict Resol. 63 (2014) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2405625. (The quote in the preceding paragraph is from the Good Pretrial Lawyering article.)
Thanks again for your comments.