How Not to Negotiate: the Central Park Jogger Case

You don't have to be an experienced negotiator to know that you do not tell a car salesman, "I am not leaving here until I have bought this car from you," and then expect to get the best price possible. Shortly after winning the NYC's mayoral race, Bill de Blasio announced his intention to settle the long-running Central Park Jogger civil case.

No matter your opinion of this case, or the underlying arrests that dominated city headlines and made "wilding" part of our urban lexicon, this statement was ill advised and counter-productive. De Blasio's statement was made in sharp contrast to the Law Department's deeply entrenched defense of the NYPD's conduct in a case that will cost millions to resolve, and undercut any pretense of resolve. It also aggravated the tension between the new administration and the City's legal and police departments. Not surprisingly, as was reported in the New York Times today, the case remains unsettled.

Negotiating is part skill, part art. Countless books have been published that offer to teach us how to negotiate our way to success and happiness. As litigators, we are in a constant state of negotiating. Every act (or lack) of communication sends direct and tacit messages, intended or otherwise. As someone who litigates against the same set of lawyers on a regular basis, I recognize that how I handle one case can extend to my adversary's understanding of what my posture on other cases might signify.

I applaud de Blasio for wanting to resolve the Jogger case. The highly publicized rape of the Central Park Jogger and subsequent arrest of the Central Park Five were traumatic, racially charged events that polarized the City. The exoneration of the young men who were charged and convicted, and the City's fierce and combative defense of the officers who arrested them, secured their confessions, and were in the front line of their prosecution, has needlessly kept the wounds fresh. The plaintiffs need to move on with their lives and the City has to close the book on this episode without it becoming needlessly more expensive. 

As an attorney, both sides have real exposure. The plaintiffs have to overcome significant legal burdens to establish that the defendants deliberately violated their constitutional rights (not merely that their charges were dismissed), including their confessions, and could conceivably have their case dismissed prior to trial or end in a defense verdict. The defendants are facing a huge plaintiffs' verdict if the jury finds that officers fabricated or withheld evidence, or otherwise railroaded the plaintiffs, and the legal fees alone from a trial loss will run into the millions.

Given the uncertainties of the case and the parties' exposure, a settlement makes sense, providing that both sides are willing to substantially compromise their positions. Not an easy task in a case where the parties are so heavily invested financially and emotionally. Indeed, I had always assumed that this case would never settle, particularly in view of the City's steadfast refusal to acknowledge any wrongdoing by their officers.

So is de Blasio wrong for blinking? Not at all. These sorts of stalemates require somebody to make the first move, and the Mayor's willingness to take a more pragmatic approach -- rhetoric aside -- is sensible. What makes no sense at all is to announce a commitment to reaching a deal before discussions concerning that deal have made progress. And in fact, de Blasio's stated position has made actually settling far more difficult.

According to the New York Times today, the plaintiffs presented the City with a formal demand in early March. This figure is most assuredly an opening figure subject to negotiation. But it is the typical first step in the negotiating process: the plaintiff makes a demand that is for what he considers to be a reasonable amount, but with the implicit understanding that the City will offer something less, triggering the back and forth that hopefully leads to a settlement. However, the City has still not responded.

The defendants are now in the impossible position of attempting to persuade the plaintiffs that they must substantially compromise their position, even though the defendants' leverage of pushing the case to trial was wiped out by the Mayor's public statement. Predictably, they are dragging their feet. It appears that City Hall is now seeking a way to backtrack without saying so, but there is no easy way out without a publicly restating the city's position, which de Blasio is unlikely to do.

The Times article notes that Jonathan Moore, one of the plaintiff's attorneys, is concerned that unnamed others are trying to dissuade de Blasio and his newly appointed Corporation Counsel, Zachary Carter, from opening the City's vault. These statements confirm both the plaintiffs' preference for a settlement and the City's attempts to retreat. Given both sides' commitment, a settlement is still likely. But de Blasio's public pronouncement was, unintentionally, harmful to the process. The lesson here is that one always must take into account likely perceptions and reactions on negotiations before speaking; particularly when you are talking into a microphone.