“See you in court!” Negotiators often think that threatening litigation can help them win concessions from the other side, and sometimes they are right. But what is it really like to litigate? Many years ago I designed a simple card game to help students experience the process. A version of that game, “Sue or Settle,” has since been published by Harvard’s Program on Negotiation and is used regularly at Harvard Law School and at other schools around the world. It’s very simple- anyone age 14 or older can easily play it. The practical lessons it teaches- which I’ll reveal here- can help you make much better decisions when you are considering litigation. These lessons become very real and compelling as you play, so I’ll also tell you how the game is played, and how you can get a copy if you’d like to play it. ^^
How The Game Works Four players- two clients and two lawyers- are about to begin a lawsuit with $1 million at stake. The players determine the outcome of the lawsuit by playing a very simple card game. Only a lawyer can see the cards; the client must rely on his lawyer’s advice. A client must pay his lawyer before each card is revealed. At each of these ‘stages of the litigation,’ the client must decide whether to continue with the litigation or to attempt to settle. After a suit is done, players change roles. The player who winds up with the most money after four lawsuits wins the entire game. A typical four-round game takes about 20 minutes.
Lessons A Running Strategic Decision. For most business students and law students, Sue or Settle is something of a revelation. Clauswitz famously said that “war is merely the continuation of politics by other means,” and Sue or Settle reveals that litigation is a continuation of negotiation, forcing clients to continually weigh the strength of their alternatives to agreement and decide whether to continue the suit or negotiate a settlement. Because it’s simple and quick, it captures much of the intense pressure and excitement of this ongoing decision.
Working With(?) a Lawyer. Because clients never get to see their hands, they get their first glimpse of what it’s like to have to rely on the professional judgment of a paid professional who profits the longer the suit goes on. This aspect dramatizes the partial loss of control clients experience in litigation. This loss can be very surprising, since most people think they are gaining control by suing. The reliance on a lawyer also dramatizes the presence of a serious potential conflict of interest: how much can you rely on the judgment of your lawyer when he gains the longer you sue? In truth most lawyers- here and in real life- play the game with their client’s best interests at heart. But the lingering uncertainty raises important implications: if you don’t know and trust your lawyer, and if your lawyer doesn’t understand your needs, you may be putting yourself in a very bad situation.
Psychological Traps. Sue or Settle can also dramatize a psychological phenomenon known as Escalation Psychology, in which you say to yourself, “I’m in so far, I have to keep going. If I quit now I get nothing for all I’ve spent, but if I hang in there I may be able to win something.” Escalation Psychology can become a serious trap, driving decision makers to spend far more than they otherwise would. (Some estimates suggest that 20% of the time clients spend more on lawyers than the amount at stake in the lawsuit.) The game can also dramatize other decision traps, including something called, Loss Aversion. This is where you take a much bigger risk than you should in order to avoid losing money. Loss Aversion may help explain why most cases settle on the court house steps, when the fear of imminent loss in court finally outweighs the fear of settling.
Variations and Other Lessons. You can also use the game to simulate different rules you encounter in real life litigation. How is the game different if the loser pays the winner’s legal bills- the so called “English Rule” favored by British courts? What if you don’t allow appeals? What if you hire a lawyer on contingency? What if you agree in advance that you pay extra if you reject a settlement and then lose? Different rules in different jurisdictions change the risks and the decisions a litigant faces.
How To Get A Copy of the Official Game. The official version gives the full rules of the game (including the rules of the simple card game it buids on), and includes some additional features. You can buy it on-line at Harvard’s Program on Negotiation Clearinghouse Website by going to this URL: http://www.pon.org/catalog/product_info.php?products_id=274.