Negotiation by Design: Why Writing Beats Talking

In the modern litigation environment, negotiation is no longer a soft skill. It is the dominant process by which 99% of litigated claims resolve. This reinforces the importance of mechanics—the actual “how” of the negotiation process.

How often do we hear comments lamenting claim professionals’ and defense counsel’s reliance on email, often with the sentiment that “we just need to pick up the phone” to get cases settled? This is only part of the story.

In reality, plaintiffs’ attorneys have moved aggressively into a new domain: an environment where negotiation mechanics are written, (purportedly) evidence-based and highly effective. Just ask any claim executive whether they are paying more or less in indemnity costs.

Defense teams must respond to this shift. Why? Because written, evidence-based advocacy is scientifically, empirically and pragmatically a stronger form of negotiation that yields better results for the party using it.

Why Is Evidence-Based Advocacy Exploding?

A great facilitator of this change is the proliferation of plaintiff-adopted AI tools. Generative AI easily creates fact-driven, emotionally resonant advocacy that better controls the narrative, framing and anchoring essential to good negotiation.

The effect: the plaintiff’s bar is scaling persuasion. One attorney used to draft one letter at a time. Now, AI platforms allow that same attorney to create dozens of demand packages a week, each tailored, documented and psychologically calibrated. Even mediocre attorneys, when armed with these tools, become better negotiators.

This volume and type of written negotiation changes the tempo of litigation. It pressures claims organizations. It narrows the perceived value range. It better anchors, frames and drives the narrative in a case.

Let’s be blunt: these tools work. Investors see it. That’s why EvenUp Law has raised almost $400 million in capital, claims thousands of law firm users and has a valuation in excess of $2 billion. And that is just one of many emerging tools in the market segment.

Why Written Advocacy Is More Powerful

Studies show that written communication in negotiation drives powerful benefits. Here are five of them:

1. Framing. It frames the story as I want it to be framed. I can frame the facts, injuries and damages exactly as I intend them to be seen as a benchmark for negotiations.
2. Narrative. I control the narrative arc. I can guide your thinking about everything important to me, backed by “evidence.” I can’t possibly do this on a phone call.
3. Travel Ready. Litigation negotiation is a distributed process. Written communication “travels” well. Verbal discussions do not. And critically, on the defense side, the written record can be shared with co-counsel, mediators and even the claimant themselves. That reach matters.
4. Leverage. A well-prepared and persuasive communication (both demand and offer packages) signals that I’m confident in my case, organized and trial-ready. This level of organization brings immense benefit as the case develops. Even though the case has a 1% chance of going to trial, the perception of readiness changes opposing parties’ settlement posture.
5. Anchoring. If I write first and you don’t respond in kind, I’ve anchored the case value. Unless your response is written and persuasive, it’s easy for me to position your response as unreasonable and unsupported. This benefits me as a negotiator.

Why Evidence-Based Advocacy Is More Powerful

Just as written communication is more powerful than verbal in the negotiation context, using evidence to support negotiation points is more effective than not. This seems obvious but is worth emphasizing.

Unsubstantiated assertions carry little weight in high-stakes negotiation. Saying, “We don’t believe your client will perform well in front of a jury,” means little unless that statement is tethered to something concrete. Humans can dismiss opinions easily but feel compelled to analyze asserted facts.

Linking an assertion to evidence shifts the cognitive load. Now the plaintiff must disprove our data-backed position rather than merely dismissing a subjective opinion. This is how expectations are shaped and settlements are influenced.

AI is supercharging this tactic on the plaintiff side. Systems like EvenUp analyze injury severity, medical costs, venue characteristics and prior outcomes to generate highly persuasive narratives that come preloaded with supporting data. This “evidence” builds belief in plaintiffs’ numbers. Defense teams must do the same.

Too often defense teams default to reactive or “safe” communication styles. Offers are delivered orally or with little documentation. If a letter or email is sent at all, it may consist of boilerplate language and a single numeric figure. This disparity in both format and substance leads to a disparity in influence.

So, What’s Holding the Defense Back?

There are two pressures that make it difficult for defense teams to respond to plaintiff’s increasing use of evidence-based, written demands. The first is simply cost. It is more time-consuming to link evidence to individual negotiation points. Claim professionals are too busy. It can be expensive to pay defense counsel for this service in the traditional hourly fee model.

AI will address this pressure for the defense, just as it has for the plaintiffs’ bar. Defense teams currently face a technology adoption challenge, but the cost of AI tools will diminish over time.

The more insidious challenge for defense teams is practiced-based. Many of us were trained to “hold back” key information points. We rarely reveal our strengths. We don’t want to show opposing parties “too much” because we may need these arguments at trial. But how many times do we really use our best arguments at trial, in an environment where 1% of cases see a jury?

Plaintiffs’ attorneys take the opposite approach. They typically include every possible detail in their demand packages, relevant or not. Yet even after they have seemingly “played their hand,” the best plaintiffs’ attorneys can still come up with creative “new” arguments for a jury if necessary.

Pragmatically, the “save it for later” mentality creates two major risks for the defense.

• It invites inflated demands because the plaintiff faces no cognitive friction: no data, no counter-narrative, no downward pressure.
• It erodes internal confidence because claims professionals lack documented support for the defense position we advance.

Conversely, when a defense team leads with a persuasive package, one that supports our offer with evidence, we go further than simply rebutting plaintiff’s position to reframe the case. We signal: “We know this case. We’ve done the work. Here’s what we’re prepared to do and why.”

And that “why” is where the power lies in negotiation.

Asserting Power

The plaintiffs’ bar is not waiting for us to catch up. They are investing, automating and scaling.

We should pick up the phone to call opposing counsel. Let’s establish trust, rapport, credibility and relationship. These are critical in negotiations.

Then follow the phone call with a persuasive, evidence-based communication. We must recognize that the written word is our most powerful negotiation tool. When we employ this tool with evidence and clarity, we can move numbers, close files and restore balance to the settlement process.

The defense industry’s only hope to “keep up” with the plaintiffs’ bar in this regard lies in our adoption of AI tools. AI will scale the power of our evidenced-based written word to meet the demand of today’s litigation landscape. The claims industry needs it. The insureds deserve it.

Let’s start writing like it matters.

Smith is the founder and president of Suite 200 Solutions. The firm provides advisory services and market intelligence to claim executives, defense attorneys, technology providers and private equity. The series of articles, “Negotiation Reclaimed,” presented by Carrier Management in partnership with Suite 200 Solutions, was conceived by Smith, who planned the content and worked closely with the authors as guest editor.

Lynch is the national managing partner at national insurance defense trial law firm, Tyson & Mendes, LLP. She leads the firm’s strategic vision and execution across all offices, focusing on optimizing the firm’s performance and addressing challenges in the evolving insurance defense industry. She is also a co-founder and consultant for insurance defense consulting firm, Apex Defense Consulting and a co-author of “Nuclear Verdicts: The Apex – Break the Pattern,” alongside Robert F. Tyson Jr.