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A big interest of mine is art theft and art forgery. Experts estimate that at least 20-50% of the art in the world’s major art museums and on the commercial art market is fake. How could this be?

The Value of Evidence
Three types of evidence support or debunk the authenticity of art:
-Forensics: scientific testing to prove the age of an object or if a work was created using materials which did not yet exist at the time the work was supposedly created
-Provenance: the provable history of ownership of an object
-Connoisseurship: expert analysis of the style of a work, looking at details like brushstroke.

It is this last category which is the stickiest and the most instructive. Experts can render opposing opinions.

That’s My Story and I’m Sticking To It
When an art collector falls in love with a work, they may be willing to ignore or rationalize evidence that conflicts with their idea of the work’s creator. They will insist on the work’s authenticity. One collector paid seventeen million dollars for a work supposedly created by Jackson Pollock. One problem: the last name in the artist’s signature was misspelled.

 

At the other extreme, some experts refuse to modify their opinion to accept a work’s authenticity in the face of overwhelming evidence. The BBC investigative television show Fake or Fortune confirmed the provenance and forensics of a painting supposedly created by Claude Monet. That’s the picture above. Eminent art experts examined the painting and the evidence and concluded that, yes, Monet was the artist.

The Paris-based Wildenstein Institute was the definitive worldwide authority on what works belong in Monet’s oeuvre. However, the Wildenstein refused to recognize the work as genuine on the ground that they believed the style of this painting did not match Monet’s other works. The British owner of the painting sued to force Wildenstein to include the work in its catalogue raisonné of Monet’s works, but the French court declined to intervene. After several unrelated scandals, the Wildenstein Institute is no longer operating.

Confirmation Bias

A well-known obstacle to meaningful negotiation is confirmation bias, the willingness to only accept information which reinforces a person’s already held beliefs. Whether the issue is liability, damages, or the authenticity of an artwork, the refusal to consider all of the evidence and adjust one’s position to account for it gets in the way of an accurate assessment of the circumstances.

More than 95% of all cases settle. Sometimes cases don’t settle at mediation, but shortly thereafter as participants spend more time thinking about their litigation prospects. Unfortunately, there is a number of cases which do not settle until just before trial, at the courthouse steps both figuratively and sometimes literally. You will get the best result when you view negotiation as a continuous process.

 

Before Litigation
Some litigation professionals don’t like to “show their hand.”  This can be a mistake.

For claimants, it’s wise to provide adequate support in your initial demand letter. Claimants who make a demand without adequate backup guarantee themselves a lengthy and expensive litigation. If your opponent sees you as making a mere nuisance claim, they are unlikely to spend enough time working up their case to foster early settlement. If you must file promptly because of an imminent deadline, let the defense know you are still open to early negotiation.

On the other hand, knee-jerk defense pleadings and motions may unnecessarily waste money by ignoring settlement opportunities.

During Litigation
Just because your jurisdiction has a timetable for mediation and settlement conferences doesn’t mean you can’t negotiate settlement at other stages.

Negotiations are often fruitful while dispositive motions are pending. Don’t just file away discovery responses for review at a later date. Spend time analyzing how they affect case evaluation now. Many cases settle at the conclusion of a deposition. When I was an active litigator, I started trials of some cases which ended up settling before conclusion.

Immediately after trial, but before the time for post-trial motions and appeals has lapsed, is an excellent time to settle; both sides have solid feedback at this point of how the case plays out. Many appellate courts have mediation programs to allow even the most intransigent parties to come to agreement at this stage.

If the parties agree, you can convene a mediation in any phase of the claim. It just takes a phone call or an email to get some available time slots with your favorite mediator.

You’re in a Community
Practitioners within a practice area run into each other again and again. Your life will be much easier if you can get along with your opposite number. If you act like a jerk, you can’t expect any favors when you are the one in need.

Keeping in mind that your case is likely to eventually settle, congenially let your opponent know that you are always willing to discuss settlement at any stage of this claim– or the next one. Seen in that light, the negotiation process never ends.