Floccinaucinihilipilification

[flok-suh-naw-suh-nahy-hil-uh-pil-uh-fi-key-shuh n]

I must be uneducated. All these years, through hundreds and hundreds of mediations where I listened to lawyers and their clients belittle the opposing party’s facts, legal analysis, credibility and evidence, I never knew that there’s actually a word that describes that exact process: “floccinaucinihilipilification.” Defined as: the act or habit of estimating something as worthless. Also apparently the longest or possibly second-longest non-technical word in the English language. In my defense, I only learned the existence of this word while through internet self-improvement, or, more accurately, wasting a few minutes clicking through a list of “the hardest English words to pronounce.”

Regardless, I felt vindicated to learn that not only does the process exist — there’s a name for it. And it has an important impact upon the process of settling cases at mediation.

This habit of estimating something as worthless is, I believe, deeply ingrained in all of us. It may even be part of our Jungian collective unconsciousness. Evidence of this comes from watching children make deals. A child, without any negotiating experience, or certainly any training in the negotiating process seems to know the value of this denigration technique instinctively. Consider this scenario — two 8-year-olds are discussing a possible trade of marbles. An offer is made to trade a certain number of clearies for a shooter. The offeree replies by saying: “Are you crazy — I’m not going to trade my best shooter for your collection of clearies — they’re junk.” (For those of you who had deprived childhoods and did not grow up playing marbles, a shooter is a special marble used to knock other marbles out of the ring — a “clearie” is a clear glass marble, usually lacking the more common and less desirable colored ribbon-like material inside.)

What’s interesting about this approach is its visceral and un-analytical nature. The child with the valuable shooter did not say to his trading partner: “My good man, I have carefully considered the merits of your suggestion and I would observe that at the local marble emporium, clearies are readily available, while shooters are extremely difficult to find. In addition, an economic analysis, based on the selling price of each demonstrates that the value of clearies relative to the value of shooters is disproportionate — clearies sell for considerably less than shooters, meaning that it would be unwise for me to trade on the terms you have suggested.” Rather, our savvy, instinctual, negotiator simply said: “Your clearies are junk.”

In our example of the two children trading marbles, the savvy negotiator may have been remarkably accurate in his characterization of the proposed clearies as junk, and not worthy of further discussion. Clearies are certainly and obviously less valuable than a good shooter (as an observation, I think it’s true that later in life, the obsession with shooters transforms to an equally obsessive and subjective focus on putters for those who golf).

Why is all this important and what does it have to do with settling cases in mediation? Here’s why: There’s a tendency to apply this instinctive negotiating tactic in mediation, but it usually produces bad results. Litigated cases are not like clearies and shooters — they are complex and they require a rigorous analysis. Not performing that analysis, and concluding instead that the complex case is “junk” does not promote settlement, and worse, it can lead to serious consequences both at mediation and later at trial. A case that is denigrated as junk but in reality is valuable can result in a disaster for the client.

A recent mediation (with the facts changed more than a little to protect the confidentiality of the mediation process) provides an excellent illustration of this fact. Brenda is the buyer of a single-family home. Prior to her purchase, Brenda is provided with a number of reports which tell her that various portions of the home, over the years, have been built without permits and that some, but not all, of these unpermitted areas of construction have been legalized. Sam is the seller. Sam built an unpermitted room addition but cleverly disguised it so that it blended perfectly into the rest of the house. Sam does not disclose the unpermitted room addition. After Brenda buys the house, she decides to build a deck and she has a survey done. The survey shows that a portion of Brenda’s new dream home is on the neighbor’s property (of course, it’s the unpermitted room addition built by Sam). The neighbor demands that it be torn down, seriously affecting the value of Brenda’s new home. Brenda sues Sam and the real estate broker, the agent of which represented both Sam the seller and Brenda the buyer.

The mediation briefs from both Sam and the real estate brokerage (and the overall attitude of the defense counsel) were textbook examples of floccinaucinihilipilification. The briefs characterized Brenda’s case as “garbage,” pointing out that Brenda was given multiple disclosures about unpermitted issues, suggesting that Brenda should and would have discovered the problem had she been diligent in her investigation of the property. Both briefs described the case as a “non-liability” situation and promised that no money would be offered. Having “instinctively” concluded that the plaintiff’s case was junk, neither counsel reached out to Brenda’s lawyer before the mediation to inquire further about the basis for Brenda’s claims. As a result, at the start of the mediation, the carrier for the broker thought that this was a nuisance value case and Sam thought he had no liability.

At mediation, however, the facts told a very different story. After moving in, Brenda found a small file of invoices that Sam inadvertently left in the home. One of the invoices was from a fence company. Brenda’s lawyer called the fence company and learned that Sam had paid the company to move the existing boundary line fence so that the fence enclosed the unpermitted room addition. The owner of the fence company told Brenda’s lawyer that Sam told him that he had to “clean up” the area around the newly relocated fence because he didn’t want the neighbor to know that the fence had been moved. To make matters more interesting, it turned out that the agent had a listing on the house next door during Sam’s construction and she saw the addition being built and the fence being moved. Most importantly, neither Sam’s lawyer nor the lawyer for the real estate broker were aware of any of these facts before the mediation.

What happened? First, no settlement was reached at the mediation because both the carrier for the broker and Sam had to completely re-evaluate their positions. Second, the broker and Sam lost credibility with Brenda and her lawyer. Third, Sam and the broker lost negotiating strength because they had no credible response to the claims being made by Brenda and her counsel. Fourth, the carrier’s relationship with the broker’s lawyer was damaged because the carrier concluded that the lawyer had not properly evaluated the case.

This is hardly an isolated example of this interesting phenomenon. In fact, the characterization of a claim or defense as worthless happens repeatedly. Perhaps it is a function of some “lizard brain” approach to negotiation, perhaps it is the result of a belief that such characterizations demonstrate a certain “toughness” in the negotiating process, or perhaps it’s the result of confirmation bias (the tendency to focus only on facts and arguments that support a position that a person already has and to resist analyzing contrary facts and arguments, leading to inaccurate conclusions about events).

The cause may be uncertain but the effect is not. The effect of habitually estimating cases as worthless is destructive to the settlement process and potentially exposes the client to danger. What if, in our example above, the defense lawyers had not probed their clients’ stories because they thought the case was junk, and the clients went on record only to have their credibility completed destroyed? The effect upon both the mediation process and the trial would be profound.

The moral of the story is that lawyers need to be aware of the impact of floccinaucinihilipilification on their decision-making process. And they need to avoid it. That much seems clear. What remains, unfortunately, not so clear, is how to pronounce this word — I tried several times using the phonetic approach suggested by the internet site but have to admit that each time I failed miserably.