And your point is?

Now call me mischevious, call me a bit of an arsehole, but when I’m doing a spot of advocacy slash at court negotiation, like today, I am amused by opposing Counsel’s approach to certain situations. In fact so amused I will actually encourage them. I find it useful.

Today, for instance, the other side had made a hopeless, legally doomed application (I love Tomlin Orders) and their situation turned out to be even worse once we reached Court. Counsel for the other side did his best, but had no choice but to agree dismissal of the application, with costs to us, prior to heading into court. He had proposed an adjournment. I had very politely pointed out that my instructions were to seek a dismissal and that that was what I would do.

But then after the hearing he earned his fee, in effort, at least. He threw in everything, including kitchen sink, plug and U -bend in an effort to convince me that we should agree to his client’s proposals. He even, shall we say, overstepped the mark, with insinuations about a) my client and b) any future dealings between his clients and us. I was scrupulously polite, and, in a without prejudice context,  quite clear that we were quite open to negotiation. This produced a further series of assertions, accusations and insinuations, which I politely rebutted from the file, or just let lie.

The point was, his client was badly screwed and had no recourse save for an expensive and risky one. He knew it, I knew it, but he either didn’t know that I did (I was down as still a trainee, after all), or he was doing his job in a remarkably desperate way. I listened, politely. I said I was sure a resolution could be found. Finally I asked about his instruction on damages – none to be offered – and then, in a calm way, pointed out that we were not going to reach a resolution now and that matters would have to wait on further discussion or actions. As evidently his sole aim was to get an agreement with no damages involved, that rather put an end to things.

While I was reasonableness itself, even mildly confiding in chit chat about people we both knew, his client’s position was very weak and his repeated assault merely confirmed it. Counsel was apparently daft enough to take an aimiable ‘trainee’ as someone he could steamroller. The result was that he and his client came away with the knowledge that we were prepared to negotiate on our intial offer on damages, which was always our position. But he left with no figures. I came away with the knowledge that his client’s position is even weaker than we thought it was and that they are extremely vulnerable to enforcement action. And of course, we won on the application, with costs.

My point being? I feel slightly sorry for the position he had been put in, but I do love getting one over on these highly trained advocates. Still, if they are so daft as to make assumptions about their opposition, they deserve it. If they haven’t learned that a posture of affable openness – if it doesn’t actually involve giving away or any commitment at all – is also a negotiating tactic, then they need to, very quickly.

Now we go in for the kill, so to speak.