Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 


In his speech to the UN General Assembly last Tuesday, President Trump issued a pretty blunt threat. If the United States is forced to, he said, “We will have no choice but to totally destroy North Korea.” It was not out of step with his previous rhetoric on the subject, including his comment a couple of weeks earlier that the rogue regime would be met with “fire and fury,” but it was jarring to many based simply on the context. From the lectern of the organization created to “save succeeding generations from the scourge of war,” the commander of the world’s largest military just threatened to kill 25 million people. Some see this, of course, as characteristic of Mr. Trump’s typical approach. As observers of Trump’s style have noted, on matters large and small, he likes to sell himself as a no-nonsense tough guy, and to constantly reinforce the message that if you come after him, he is going to come after you.  

The question is whether it is a strategy or just a habit. The tough-guy hardball talk is beloved by his base, and there is good reason to believe that this was the primary target even for a speech delivered to the world’s leaders. But even if the message helps to bolster Trump’s approval ratings among his supporters, internationally it is easy to see the threat magnifying and not alleviating the nuclear weapons crisis on the Korean peninsula. Now, for example, in the face of a highly-visible threat to destroy the country, some will see North Korea of having more reasons to keep and to develop its nuclear arsenal. Outside the world of international relations, litigation is another arena where tough talk is frequent, and frequently counterproductive. Particularly at the dispute-resolution phase of litigation where common interests can provide a genuine foundation for a mutually beneficial settlement, it is easy to see how hardening one’s rhetorical stances can do real damage. In this post, I’ll share some thoughts on why some attorneys will persist with the tough talk anyway, and why that’s likely to backfire in many cases.  

Why the Tough Talk? 

Research in political communication has shown that tough talk like Trump’s at the United Nations tends to be more characteristic of politicians who are taking positions that are inconsistent with the majority’s views (Petlyuchenko & Artiukhova, 2015), and also more common within right-wing political discourse (Wodak, 2015), potentially because it appeals to authoritarian personalities who are more often aligned with conservatives. 

But in legal disputes, why do some attorneys continue to rely on hardball bluster even at the point when disputes should be winding down to an exploration of common interests and rational resolution? In some cases, it may be showboating for the client. As many a billboard will attest, among some clients, the goal in hiring an attorney seems to be to find the biggest jerk possible, and attorneys might be just trying to live up to that expectation. 

In other cases, attorneys might be trying to ‘Reptile‘ the other side by creating some fear in order to encourage them to reduce their expectations. Some might also believe in the old ‘good cop/bad cop’ dynamic of negotiations, relying on the contrast effect to make the reasonable suggestions seem even more reasonable. Or, more simply, some litigators might be engaging in the tough talk simply because they’re emotionally invested in a case and it feels good at the moment to let off some steam. 

Whatever the reason, the most important question is whether it works in resolving disputes. 

Why it Backfires

And there is reason to believe that, in many cases at least, it doesn’t. Disputes resolve when there is recognition and identification of mutual interest, and tough talk backfires precisely because it lessens the likelihood of the kinds of honest communication that would uncover the mutual interests. Mediator Joe Markowitz wrote about this problem in a couple of blog articles earlier this year. “The question then is whether negotiations should be handled in an adversarial way, even when you have two people with similar views trying to deal with a common problem,” He writes, “Some litigators tend to handle every case in an aggressive way, simply because that is what they have been trained to do. Or as the saying goes, if the only tool you have is a hammer, every problem starts to look like a nail.” 

But overuse of the hammer can wear down the prospects for a successful negotiation. A recent post in Harvard’s Negotiation Program’s Daily Blog agrees: “Overly competitive expectations could cause the other party to avoid negotiating with you in the future.” One party’s aggressiveness reduces honesty from the other party, “Negotiators may also be less willing to provide information about their true interests when faced with a seemingly competitive opponent.” It can also simply invite “mirroring” communication, as hardball from one party just results in hardball from the other. Before you know it, you are back to simply “playing chicken” on the impending prospects for trial. Better to drop the pretense, communicate honestly, and look for resolution. 


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