Denver Bar Association
June 2009
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The Rector Scale: The Power of Negative Thinking

by L. Dan Rector

A little history lesson for everyone today.

Before there was a Dr. Phil, or a Dr. Laura, or even a Dr. James Dobson, or any other talking head with a doctorate that has nothing to do with their supposed expertise, there was Dr. Norman Vincent Peale.

As with the aforementioned trio, I have no idea what Peale was a doctor of, but being a doctor of something was good enough 50 years ago for people to listen to what he had to say when it came to what we now know as pop psychology.

It was Peale who wrote the best seller "The Power of Positive Thinking." He promoted just that – thinking good thoughts as your life’s philosophy (except when criticizing political candidates he didn’t like; that’s still okay).

"Positive thinking" was touted as a way of seeing the glass of life as half-full, not half-empty, and as a synonym for optimism: "an inclination to put the most favorable construction upon actions and events or to anticipate the best possible outcome."

Nice philosophy, eh? So how does positive thinking translate to your Weltanschauung about the legal system? After all, it’s your chosen profession. As attorneys, aren’t you tired of persons bad mouthing the law? Weary of those who say the system doesn’t work? Fed up with those who argue that the little man can’t get a break when it comes to the law?

Then why do you tolerate court-mandated settlement conferences?

We are all familiar with ADR, a perceived option to proceeding to trial. (Guns or knives would probably qualify equally as "alternative dispute resolution," according to that reasoning). The "settlement conference" is a cottage industry that gained momentum in the 1980s as an alternative to settling cases on the courthouse steps like we used to do.

I vote for a return to the steps.

So firmly entrenched is ADR that you are actually denied access to trial if you don’t use it, thereby confusing those among you who thought the legal system was there for those who couldn’t get things resolved in the first place.

But the concept of ADR is not my concern here; it’s the as-applied anti-Peale practice of the power of negative thinking.

There is only one "positive" associated with most settlement conferences: you can be positive that your client will be told that the system doesn’t work, that he is going to get jobbed as a result and that he’d better take whatever he can get to avoid becoming further entangled.

Oh, no, you say; clients benefit from the dispassionate view of a third party. Hmmm, so that’s what our clients hear when they’re told that juries are unpredictable; anything can happen at trial; your case might get continued; judges don’t like "this kind of case"; if you lose, you might owe the other side their costs; even if you win, the other side can appeal, and that takes years — and that’s just during the first half hour.

I’m still waiting for "I’ve worked this case up, here’s what I think your case is worth, and if we can’t get that much today, go ahead and try it and see what a jury says."

There are five entities in a typical settlement conference, and the game consists of finding "The Weakest Link" (who is the unsuspecting plaintiff in most cases). So, what are the four experienced participants saying to the weakest link, and what are they really thinking?

Insurance defense attorney: "If you don’t take that final offer, we’ll see you in court." (Translation: "Please take it; I can’t tell the adjuster what this case is actually worth or I’ll lose the company as a client.")

Insurance company representative: "That’s my top dollar." (Translation: "This rummy will take anything rather than risk going to court, and selling this case under my authority might help me make supervisor.")

Plaintiff’s attorney: "I believe in your case, but we might lose this at trial." (Translation: "If you don’t take the offer, I might not get paid. And I’ve got plane tickets out of state the week of trial.")

ADR person: "I’ve seen a lot of juries reject cases like yours." (Translation: "Wish I’d read this file before I came in here so I could be more specific.")

I talked to attorney Dave Larson about this the other day, and he claims that he goes to settlement conferences and asks first what the defense will pay, rather than make an opening demand. What? We all know the rules; you have to make a demand first, don’t you? Isn’t there a game here to be played before we decide if settlement is a possibility? Who’s going to intimidate the client if the offer is up front (and maybe even close to what he’ll take)?

Dave’s misguided attitude could only be the residue of something seldom seen in our business: original thinking.

Look, we all understand the ADR paradigm. Browbeat the inexperienced litigant; insulate the attorneys on both sides from criticism for settling the case; avoid an embarrassing result at trial for one side or the other; get the case off the docket and, above all, keep ’em coming back for more ADR the next time.

I’d refuse to participate next time myself, but they don’t have free donuts and coffee on the courthouse steps.

Reprinted with permission from "The Pikes Peak Lawyer."

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