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.
Executive Summary
"How many times do we really use our best arguments at trial, in an environment where 1% of cases see a jury?"
That's a central question that Taylor Smith, founder and president of Suite 200 Solutions, and Cayce Lynch, national managing partner for Tyson & Mendes, ask as they flag a key obstacle holding defense teams and insurance claims professionals back from delivering written, evidenced-based demands to settle litigation.
Written, evidence-based advocacy is scientifically, empirically and pragmatically a stronger form of negotiation that yields better results for the party using it, they explain.
This article is the fourth installment of a multipart educational series, "Negotiation Reclaimed," conceived by Guest Editor Taylor Smith. Smith introduced the idea in his 2025 CM article, Taking Back Negotiation: Why Claim Professionals Must Lead the Next Chapter
Read Part 1: Negotiation Is the Job: Reframing Defense Work in an AI-Enhanced Era
Read Part 2: The Power of the First Offer: Anchoring, Evidence and the Battle for Perception
Read Part 3: Rebuilding Negotiation Talent: Why This Skill Is Missing and How to Fix It
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:
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. 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. 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. 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. 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.