When Art Buchwald sued Paramount Pictures in 1998 over the Eddie Murphy film Coming to America, the widely reported outcome was often framed as a victory for the late, beloved humorist. In reality, however, Buchwald lost—and so did Paramount. Both sides paid heavily for choosing litigation over negotiation. The case remains a stark reminder of how quickly disputes can escalate and how costly bypassing negotiation can be for everyone involved.
Buchwald and his partner, Alain Bernheim, sued for nearly $6.2 million, alleging that Coming to America was based on their screenplay treatment King for a Day. Buchwald ultimately was awarded $150,000, but after three years of litigation, he was already $200,000 out of pocket. Paramount, meanwhile, spent nearly $3 million defending the case. There were no winners here—unless you count the lawyers.
In a litigation dispute like this, it’s common to hear that lawyers can sometimes do more harm than good. Yet when large sums of money—and reputations—are at stake, how can you possibly proceed without lawyers?
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At the Harvard Program on Negotiation, we’d argue that’s the wrong question. A more productive one is this: How can you get the most out of your lawyer(s)?
In Beyond Winning: Negotiating to Create Value in Deals and Disputes (Belknap Press of Harvard University, 2000), Professor Robert Mnookin and his co-authors Scott Peppett and Andrew Tulumello argue that lawyers and clients frequently miss opportunities to turn disputes into deals. They identify several recurring patterns.
Why Litigation So Often Goes Wrong
1. Cases are tried that should be settled. Some disputes—like Buchwald’s—reach trial even when settlement would clearly be cheaper and more effective. Early posturing (“Your case has no merit!”) makes it difficult to shift gears later without appearing weak or losing face.
2. Settlement comes too late. When cases do settle, it is often after legal costs have spiraled past the point of no return. A common tactic is a war of attrition during pretrial discovery, with each side hoping the other will run out of money or patience. That approach may make sense in pure win-lose situations—but not when both sides face meaningful risk.
3. Money crowds out other interests. A narrow focus on dollars can blind parties to value-creating deals. In a sexual harassment case, for example, the plaintiff may demand financial damages, but what she truly wants could be an apology, accountability, or workplace reform—outcomes litigation may not deliver.
A Better Way to Handle Disputes
If you find yourself facing a situation like Buchwald’s, consider a different approach—one that uses lawyers strategically rather than reflexively.
- Examine dispute resolution options early. Before heading to court, ask your lawyers to demonstrate why litigation would be better than mediation or negotiation.
- Look for ways to turn disputes into deals. Don’t focus solely on money. Identify all of your interests—including reputational, relational, and emotional concerns.
- Use analytical tools to assess risk. Decision trees and dependency diagrams can clarify whether litigation makes sense. If there’s a 90% chance a judge will admit crucial evidence, suing may be wise. If the odds are closer to 45%, negotiation may be the better option.
- Be candid with your lawyers. As the saying goes, “To a hammer, every problem looks like a nail.” Lawyers litigate—but not all disputes are purely legal. If family members are business partners, or if trust and emotion are central issues, make sure your lawyer understands the full picture.
- Align incentives. Don’t hesitate to tie compensation to outcomes. You might say, “Resolve this dispute within 120 days and I’ll increase your rate—but drag it out past a year and we’re done.”
- Use different lawyers for different phases. When the war ends, the soldiers go home and the diplomats take the field. After litigation positions are established, consider bringing in a lawyer who specializes in settlements.
- Negotiate information exchange. Lawyers often acknowledge that roughly 10% of discovery yields 90% of the useful information. Rather than paying for exhaustive discovery, negotiate targeted information trades.
Sometimes litigation is unavoidable—to signal toughness, protect a principle, or create leverage. But far more often, negotiation produces better, faster, and less costly outcomes.
Negotiation is not a talent you are born with.
It’s a skill that you can learn.
Is there a time you have avoided litigation by using a mediator? Share you experience in the comments.
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Claim your FREE copy: Business Negotiation Strategies: How to Negotiate Better Business Deals
Discover step-by-step techniques for avoiding common business negotiation pitfalls when you download a copy of the FREE special report, Business Negotiation Strategies: How to Negotiate Better Business Deals, from the Program on Negotiation at Harvard Law School.
Paramount is now in another Buchwald type lawsuit with another writer on a very great movie which they have failed to release the film for reasons unknown. They have failed to pay anyone involved in the writing, directing, acting or production of this western biographical film. It has been 3 years since completion and Paramount is just now trying to pull a “Buchwald” again Although even now the Judge has ordered them to pay immediately, they clearly are again rebelling and in contempt. Paramount needs to be slapped hard to get this corporate bullying to stop..
I’m not sure the Buchwald case is the best example you could use of the wastefulness of litigation. I doubt that a negotiated resolution would have produced a better outcome for Buchwald, because Buchwald was not really interested in money. He already had plenty of money. What he was really seeking in the lawsuit was recognition and vindication. He was trying to make a point. I think he also craved publicity, which he got plenty of from the lawsuit. Likewise, his lawyers did not make any money from the case, but they also gained a lot of publicity for Pierce O’Donnell’s fledgling entertainment practice. On the other side, Paramount was not as concerned with this particular claim as they were with the much larger issue of the fairness of the net profits definitions in their contracts. That issue was worth spending millions to litigate, quite apart from Buchwald. You could argue that Paramount might have been better off paying off Buchwald rather than continuing to litigate over the validity of its net profits formulas, but it is not clear that Buchwald was ever interested in settling, given his goals, and Paramount also felt it needed to resolve this issue in a very public way, given the hundreds of similar contracts it has entered into with talent.