Negotiation Law Blog

Today we bring you practice development tips from Larry and Robert Kohn of Kohn Communications.  I re-print here verbatim the Kohn's Ten Counter-Intutitive Tips for Working a Room, all of which have worked for me. 

(cartoon from the Gaping Void -- the cartoon's sentiment is ironic, not true; it is, however, what many of us fear -- if we follow our dreams, they will bankrupt us -- not true not true!)

Don’t try to be charming. Effectively working a room does not require that you tell funny jokes or impress your targets with your charisma. The smart strategy for working a room is to think of it as research – a task with which lawyers and mediators already feel comfortable. Your job is to meet people and ask questions. Be interested in the people you meet. The focus should be on learning about the people you meet and the organizations they support - not strutting your stuff.

Go to poorly attended programs.  Realistically, you can only have quality conversations with a handful of people. Large crowds offer a false promise of increased introductions. A large crowd can feel overwhelming and make you more shy. A sparse attendance can be more relaxed and facilitates your meeting the people who have come.

Pick programs that don’t interest you. Programs that interest you may not be the programs that interest your targets. As you consider opportunities for working a room, pick programs that will be interesting to the people you want to meet. 

Avoid your friends. One of the biggest mistakes people make when working a room is they go with their friends and inevitably stay with them throughout the evening. Your goal is to meet new people. So, don’t invite your friends to join you or, if you do, make a pact not to stay together when you arrive.

Don’t be fashionable. People think it’s fashionable to arrive late. The problem is it’s very difficult to break into established cliques already engaged in conversation. If you arrive early, you will easily be able to visit with others in the room. In fact, it is almost impossible not to.

Pick the longest drink line. Usually, you want to get a drink as soon as possible. However, when you’re working a room, a long drink line gives you the ability to talk with the person in front of you and in back of you. The longer the line, the more time you have to get acquainted.

Don’t tell people what you do. Conventional sales wisdom is to come up with some catchy description of your service. The problem is that a catchy comment may position you incorrectly for that target. The better technique is to spend your time finding out what other people do. There will be plenty of time to talk about who you are after you qualify the person you’re talking to. The more you learn about the people you meet, the more effective you will be at customizing your explanation of your services.

Don’t give out your card.  Handing out your card does not give you control of the follow-up. Your  goal is to always get their card. That way, you are in a better position to stay in touch and build a relationship over time. By not giving out you card, you also avoid being bothered by people who you don’t want to hear from in the future.

Get the cards of non-prospects. If you find yourself talking with someone who is not a good prospect, the best way to end the conversation is to ask for their card. When you do, you can comfortably excuse yourself and move on to more fertile opportunities.

Don’t be a leader. Most people like to lead the charge to exit an event to avoid the exiting crowd. But, by lingering, you’ll have more opportunities to meet those who have remained. Often they are the officers of an organization or the people in charge of the event and they may be some of your best contacts.

By following these counter-intuitive techniques, you can expect to build your practice with comfort and ease. You won’t feel pressured to be charismatic.You won’t feel pressured to sell your services on the spot. You’ll meet more people, and you’ll learn more about them. The information you obtain will make it easier to connect, easier to follow up and easier to close.

Lawrence M. Kohn and Robert N. Kohn are principals of Kohn Communications, a marketing and management consulting firm specializing in professional service firms.

The world can never be assumed to exist.  It comes into being only in the act of moving towards it.  Ese est percipii.  Nothing can be taken for granted:  we do not find  ourselves in the midst of an already established world, we do not, as if by preordained birthright, automatically take possession of our surroundings.  Each moment,each thing, must be earned, wrested away from the confusion of inert matter, by a steadiness of gaze, a purity of perception so intense that the effort, in itself, takes on the value of a religious act.  The slate has  been wiped clean. It is up to the poet to write his own book. Paul Auster, The Decisive Moment from The Art of Hunger

I quote poet, novelist, critic and screenwriter, Paul Auster, because there is magic in this excerpt from his essay on the poetry of Charles Reznikoff.  

"The world . . . comes into being only in the act of moving towards it."  For whatever reason I had at the time, when I was a senior in High School, I wrote these words on my PeeGee folder -- "whatever you can do or dream you can, begin it; boldness has genuis, power and magic in it."  (Goethe)

Everything else is detail; putting one foot after the other; accomplishing one small task a day. 

That said, I begin with the educational resources that form the heart and soul of my practice and my business.  

EDUCATIONAL RESOURCES

I enrolled in the Straus Institute for Dispute Resolution in May of 2004, with the goal of earning my LL.M in a year's time.  The pro's and con's:

1. it is true, as I was warned by Institute co-director, Peter Robinson, that the mere possession of the LL.M degree would not aid my career.  
2. what I did gain from my LL.M studies was:
   1. access to the best mediators in the country.
   2. a first class liberal arts education in conflict resolution, including cross-cultural studies; religion and conflict; the social psychology of conflict; arbitration practice; settlement and negotiation theory and practice; international diplomatic theory and practice; introduction to fields entirely new to me such as restorative justice (the mediation of crimes, including mass crimes such as genocide in Rwanda and the wounds of aparthied in South Africa through Truth and Reconciliation Commissions); the ideological foundations of ADR practice; and, communication skills, in addition to the standard mediation training.
   3. the opportunity to create externships in my target market, gaining access to people and places I would never have been able to obtain on my own.
   4. the opportunity to collaborate with some of the best ADR practicioners and academics in the country -- opening doors to collaborative seminars and co-authored articles with some of the most prominent mediators and conflict resolution scholars and educators in the world.

Continue Reading

First, a huge round of Settle It Now applause for my fellow ADR Bloggers -- Diane Levin of the Online Guide to Mediation, Tammy Lenski of Mediator Tech, Dina Lynch of Mediation Mensch and the ADR Practice Builder, Kristina Haymes of Mediation Marketing Tips, and Geoff Sharp of Mediator blah blah.

These people are my mediation posse even though I've not met any one of them.  They keep my spirits up when they start to flag, share their abundant resources, wisdom and strength with me, and hip me to new ways to market my practice, new case law, new mediation techniques, and new ways to express my mediation practice in the world.  I genuinely don't know what I'd be doing without them.

If you blog, they will come.  I don't have sufficient thank you's in my gratitude bag for these wonderful ADR professionals.  Visit their sites often.  If you take the blogging plunge, they will arrive at your front door like the townspeople of some mythical Elysian American 1950's farm community, with flowers, tips on dealing with the local merchants, casseroles and favorite recipes.  Life doesn't get any better than that.

Part III of Building Your Mediation Practice next.

In the Fall of 2006, Loeb & Loeb attorney Peter S. Selvin, a member of the Board of Governors of the Los Angeles chapter of the Association for Business Trial Lawyers ("ABTL") wrote a thorough and timely article on the availability of insurance coverage to settle business tort litigation, a short excerpt of which we publish here with a link to the full article.    


Lawsuits involving business or commercial disputes often trigger the coverage provisions of standard form Commercial General Liability ("CGL") policies.

In lawsuits involving claims of infringement, misappropriation or the violation of the right of privacy, the key portion of a CGL policy is the "personal injury" or "advertising injury" coverage found in Coverage B of the current CGL policy form [Insurance Services Office Commercial General Liability Insurance Policy Form, Section I Coverage B (2001)]. That language provides as follows:

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "personal and advertising injury" to which this insurance applies. We will have the right and duty to defend any "suit" seeking those damages…

b. This insurance applies to "personal and advertising injury" caused by an offense arising out of your business but only if the offense was committed in the "coverage territory" during the policy period.

This article explores the scope of, and recent developments concerning, this aspect of CGL coverage. Practitioners should note that coverage for business torts may also be provided under Coverage A of CGL policies. See, e.g., Ericsson, Inc. v. St. Paul Fire & Marine Ins. Co., 423 F. Supp. 2d 587 (N.D. Tex. 2006) (class action claims against cell phone manufacturer for injuries caused by radio frequency radiation fall within Coverage A for "bodily injury"); Prime TV, LLC v. Travelers Ins. Co., 223 F. Supp. 2d 744 (M.D. N.C. 2002) (insurer required to defend insured in class action suit because sending unsolicited faxes constituted "property damage").

Click here for remainder of article

Thanks to the Wall Street Journal Law Blog for turning us on to the New York Times article When Lawyers and Juries Mete Out Punishment.

First, as a follow-up to our "Few Good Men" post yesterday (see screenplay here) we quote the quotable Mr. Sorkin again as an introduciton to the cross-examination question that launched a $246 million punitive damage award:

KAFFEE
What possible good could come from putting Jessep on the stand?

JO
He told Kendrick to order the Code Red.

KAFFEE
He did?! Why didn't you say so!? That's qreat! And of course you have proof of that.

JO
I--

KAFFEE
Ah, I keep forgetting: You were sick the day they taught law at law school.

JO
You put him on the stand and you get it from him!

KAFFEE
Yes. No problem. We get it from him.
(to SAM)
Colonel, isn't it true that you ordered the Code Red on Santiago?

SAM
Look, we're all a little--

KAFFEE
I'm sorry, your time's run out. What do we have for the losers, Judge? Well, for our defendants it's a lifetime at exotic Fort Levenworth. And for defense counsel Kaffee? That's right--It's-- A Court- Martial. Yes, Johnny, after falsely accusing a marine officer of conspiracy, Lt. Kaffee will have a long and prosperous career teaching typewriter maintenance at the Rocco Columbo School for Women. Thank you for playing "Should We or Should-We-Not Follow the Advice of the Galacticly Stupid". 

It's hard being a trial lawyer.  Very hard.  So I'm not going to accuse the attorney who asked the question at the heart of the New York Times piece of being "galacticly stupid."  Nor, however, am I going to charge the jury with being "inflamed by passion and prejudice."  Maybe just inflamed by passion.  Which is what we ask from juries, isn't it?  That they get angry at injustice.  With all due deliberation and based on the evidence.  That they take a cold hard look at certain business practices, draw the conclusion that those practices caused the party before them to suffer unbearable injuries and then award as punitive damages an amount to "deter" that business practice.  

And if the jury makes a mistake?  Well, fortunately, we're only just beginning to ask that question about the more important decisions juries make every day -- whether to sentence men and women to lengthy prison sentences, or even to death, for causing injuries as severe as those suffered when products go bad.      

With that, I give you the New York Times on the final question to the husband of the woman paralyzed when her Ford Explorer rolled over.
 

The witness was Barry Wilson, whose wife, Benetta, was paralyzed when her Ford Explorer rolled over. Mr. Wilson had cut back on his work hours to care for her. He showered her and catheterized her, and he woke several times each night to move her, to avoid bedsores.

Mr. Sonnett saw an opening, and he ended his examination with a flourish.

“The silver lining,” he said to Mr. Wilson, “to the extent that there could be one, it has brought you and Benetta and the family closer together?”

Mr. Wilson did not see the upside. “I don’t think it’s a benefit or a plus in any way,” he said.

It was the silver-lining question, an appeals court later ruled, that “may well have inflamed the passions of the jury.” In their lawsuit, the couple said Ford had made the Explorer dangerously prone to rolling over and then outfitted it with a weak roof. The jury agreed, hitting Ford twice. First, it awarded $123 million to compensate the Wilsons. Benetta Buell-Wilson had been an athletic graduate student, and now she lives in constant and increasing pain.

For the recent Supreme Court decision striking down the $79+ million punitive award against Philip Morris, see the Southern California Law Blog report here. 

For a little history on cigarette advertising, we give you Philip Morris ads on the original I Love Lucy television series.

As we noted yesterday, counsel know all too well that their clients arrive at mediation with "an unwarranted faith in the righteousness of [their] position" and that their obligation is to "bring rationality, objectivity and experience to bear on the matter."

Easier said than done, right? 

To help your mediator help you, I offer the following 5 & 5 on the why's of client hopes and the how's of diminished expectations.  

Five Reasons Why Your Clients Have Unwarranted Faith in the Righteousness of their Cause

1. when she first told you her version of the facts, she left a few things out -- like how her  partner caught her cooking the books before he "breached" the partnership agreement by refusing to let her back on the business premises.     
2. you're a zealous advocate -- not only are you paid to be -- your ethical responsibilities require it.  Despite all of your efforts to describe the perils of litigation, your client only really paid attention during the parts where you told her how great her case was. 
3. your client hasn't spoken with his business partner, supplier, importer, competitor, licensee, etc. since the dispute arose two or three years ago.  There's been no opportunity for the parties to reality test their positions with the only other party who actually knows what happened. The social psychologists called this state one of  "autistic hostility."  
4. as much as you try to anticipate the opposition's arguments, your job is to win.  It's impossible not to spend the bulk of your time justifying your client's actions and excusing his errors.
5. to work as hard as you do on your client's behalf, you must believe in the merits of her case.

Five Ways Your Mediator Can Help You "Depress" Your Clients' Unreasonable Expectations

1. let the mediator know you need some help with your client.  Call him ahead of time if he doesn't call you to discuss the nuances of the mediation session itself.  You can be candid without giving away the store. 
2. let the mediator be the "fall guy," taking the "hit" for delivering this bad news -- while you, one of the best attorneys in town, were busily developing a great case, the other side's attorney was doing precisely the same thing.
3. allow the mediator to develop as strong a personal relationship with your client as possible and permit her to ask probing questions that will gently reveal the problems with your case that have developed over the course of time. 
4. be willing to break away from your client for separate session cacucuses with the mediator to discuss how things are going in the attorney-client dynamic so that course-change is possible.
5. let the mediator know that your client is going to need more time to digest bad news -- if your mediator doesn't offer, ask him to arrange for the offer/demand to remain on the table for a  pre-determined amount of time and ask him to follow up with both parties during that period of time.

Remember:  there's no such thing as impasse, only a recess in the settlement discussions.  

Way back in 1997, John Blumberg of the Blumberg Law Offices in Long Beach California asked in a Daily Journal article whether lawyers had a duty to give ADR advice.

Alternative dispute resolution, wrote Blumberg, 

has reached such a level of acceptance and availability that failure of an attorney to consider its possibilities or to inform the client of its existence may amount to legal malpractice. This is not to say that every case must be settled. It is to say, however, that an attorney's duty to a client includes "the obligation to attempt to effectuate a reasonable settlement of the . . . action where the general standards of professional care [require] that the most reasonable manner of disposing of the action was by settlement." Lysick v. Walcom (1968) 258 Cal.App.2d 136. 

Even a client's opposition to settlement, wrote Blumberg,

 does not excuse an attorney's duty to consider and advise the client about settlement. After all, the lawyer's superior skill and knowledge is what the client is paying for. Lucas v. Hamm (1961) 56 Cal.2d 583, 591.

It is not uncommon, noted Blumberg

for the client to have an unwarranted faith in the righteousness of his or her position. The lawyer's obligation is to bring rationality, objectivity and experience to bear on the matter. 

The most compelling point in this still timely and cogent advice on ADR is the one about the client's "unwarranted faith in the righteousness of his or her position."

Often, attorneys bring their clients to mediators to help them restore the "rationality, objectivity and experience" the client needs to hear without damaging the attorney-client relationship.  Many mediators have written about this process before me.  Tomorrow, I'll give you the ten greatest barriers to getting your client back into a realistic risk-management state of mind and the ten ways you can seek the mediators help in achieving that goal while continuing to maximize the settlment value of your case.

 

Cruising Evan Schaeffer's Trial Blog, I found this excellent advice, reprinted here verbatim.

Does It Matter Whether the Mediator Came from the Defense or Plaintiff Side of the Bar?

In selecting a mediator, I don’t pay too much attention to whether the mediator was (or is) a plaintiffs’ lawyer, a defense lawyer, or a judge. Instead, I focus on the mediator’s results: does he or she have the reputation as someone who can get cases settled?

Using this criterion, I also don’t care if I end up using a mediator who was first suggested by my opponent. It’s one of the beauties of mediation: Unlike an arbitrator, the mediator cannot bind you or your client. Therefore, you don’t have to worry that he or she might harbor a secret bias that will sink your case. If it turns out that the mediator is favoring the other side, you can say no during the mediation and walk away.

Bottom line: Don’t obsess over the mediator’s past work history. Ask other lawyers how effective the mediator was at getting the parties to agree, and leave it at that.

Why Colin Powell?  Because he's the man who said the most important knowledge you could have in conducting international negotiations is to be aware of the "other guy's decision cycle."

Reading trial lawyer blogs helps a mediator do that.

I practiced law for 25 years before becoming a mediator.  For a dozen of those years, I taught deposition skills for the National Institute of Trial Advocacy.

To save the young people around me from receiving any more unwanted advice from their elders, I decided to start "data dumping" my quarter century of litigation experience in this blog from time to time.  

You'll (perhaps) be pleased to hear that today I'm not even giving my own advice but passing along that of Illinois trial lawyer Evan Schaeffer -- be prepared or the dangers of "winging" it at depositions.  

It's not so much an exhortation to work harder, but smarter that makes me refer you to Shaeffer today.  Take a look at the good questions he suggests every attorney ask herself before the deponent is sworn in and then think about Shaeffer's limitations -- in Illinois, you apparently have only three hours to take anyone's deposition.  

And we can all recall those times when someone green spent that three hours on the deponent's background ("and after that were you promoted to Eagle Scout?") 

If you live in Los Angeles and are looking for a specialized ADR panel to serve the needs of your lesbian, gay, bisexual or transgender (LGBT) clients, you couldn't do any better than to contact Santa Monica's Stonewall ADR -- the first alternative mediation, arbitration, dispute resolution firm geared, specifically, towards the LGBT community.

(pictured:  Harvey Milk, photo from the Harvey Milk LGBT Democratic Club in San Francisco -- if you click on his photo, you'll find the showtimes for the Academy Award winning documentary on Milk's life and work on LOGO.  Milk's life was tragically cut short when he was assassinated, along with S.F. Mayor George Moscone in 1978 -- anticipating the possibility of assassination, Milk recorded his last words to be played only in the event of assassination; the video of a candlelight vigil accompanied by Milk's last words can be found below)

Stonewall has this to say about its services:

Our firm recognizes the need for a platform where LGBT issues can be addressed, and where alternative lifestyles can be treated equally and with the respect they deserve. Stonewall ADR deals with such important topics as:

Child custody
Divorce matters
Hospital rights
Property disputes
Deeds and wills
Employment discrimination
Victim/offender hate crime reconciliation and any other issue that pertains to the lives of the queer community, in which conflict resolution is needed.

Stonewall has a highly trained panelists who are lesbian, gay, bisexual, or transgender, or are empathetic to the issues faced by members of the LGBT community. Our panel of dispute resolution experts not only posses stellar training and experience in conflict management, but the panelists have also attended specific courses relevant to issues faced by LGBT people.

If you're interested, follow the link above for more information.

The Social Web - A World of Possibilities from the public relations/public affairs firm Tunnheim Partners provides the statistics for all the jabbering we do here about matriculating your law or ADR practice into the Web 2.0 University.  Excerpts below:

In a year when YouTube won Time magazine’s invention of the year and corporate CEOs were quick to create their own avatar – a virtual personalized identity – 2006 proved that “new media” now includes much more than blogs. The always-changing media landscape has forced public relations professionals to constantly re-examine the term “new media” and continuously find its hidden opportunities.

Gone are the days where a company could merely post information on a static corporate Web page and expect customers to find it. A survey by Ketchum and the University of Southern California’s Annenberg Strategic Public Relations Center found that nearly half of all industry professionals use their corporate Web site to post important company news and announcements, but only 6.8 percent of all customers will go to the Web site to find it. Today’s more socially minded Web user will look to more interactive online locations to influence their beliefs about a company, product or concept – including the virtual world.

Read the rest of the article and check out more Tunnheim advice here.

And if you don't know what Web 2.0 is, check out the O'Reilly Explanation which includes the following comparisons between Web's 1 and 2.

And no, we here at the Negotiation Law Blog don't know what half of these things mean.  The point is only that we're learning and we invite everyone else along for the ride.

This comment on my last post about Google's Moon Shot (from Search, Marketing and Musings) is more interesting than the post itself, so I include it in full here.  The lessons here are so numerous and the paradigm shift so profound, that every commercial litigator, transactional lawyer and business person should be closely attending to the way Google is re-writing not only the internet, but intellectual property and the practical application of the law (and litigation) as tools to achieve commercial ends.  

Have I quoted google on litigation before?  I will again.  Litigation is simply a business negotiation being conducted in the courts. 

Alan Rimm-Kaufman - February 12, 2007 08:39 AM Thanks for the link! Whereas much of Google's dominance is based on habit (eg one could envision an upstart capturing hearts and keyboards away from G by better technology or marketing, similar to what G did to Y and AV over the last 8 years), some parts of Google's power rests on more permanent legal & technical structures -- fiber & bandwidth contracts, patents, IP settlements, etc. That's why I think the G books possible settlement described in the New Yorker piece could be really important -- we might look back on this in a few years and note the settlement (if and when it occurs) was a real fundamental lock-in 'brick' in the Google foundation... Cheers!

Anyone who uses the word "cerebrate" twice in a single post makes me think he's doin' an awful lot of thinking.  And, it turns out that the thinking is pretty darn good. 

Looking for some sound advice on when and how to approach settlement?  Take a look at the Virginia Injury Lawyer Blog here.

Web 2.0 and The Machine in a nutshell by ZDNet's Dan Farber -- Worth watching: Michael Wesch, an assistant professor of cultural anthropology at Kansas State University, has posted a captivating and incisive 4-minute and 31-second video explaining the basic premise of Web 2.0, concluding that Web 2.0 is primarily about linking people. But it is the journey of this video that is the reward. 

Blog etiquette requires that I link to this video rather than simply lift it & post it here but I can't figure out a way to link to any given article on Denise's blog -- only to the blog itself.  So I'm lifting it here with apologies to Denise at Bag and Baggage. 

From What About Clients? Blog

If you want to see both exemplary blawging and a great ad for blogging all around, see Diane Levin's "Mediation Channel" Blawg Review #94, collecting last week's best posts. A Boston lawyer and mediator, Diane Levin publishes Online Guide to Mediation. Diane's been a model for me and many others who blog/blawg and, like WAC?, she seeks to reach bloggers, lawyers and business people outside of the often-insular U.S. She's thoughtful, skillful, outspoken and (gulp) fun.

Diane gives new meaning to the words collaboration, reciprocity, generosity, wisdom, wit and top 'o the bell curve smarts.  It's rare to find all these qualities in a single human being.  And did I say she's tireless?

Check it out!!

Sometimes we mediators get caught in a conversation with ourselves and, in the process, get farther and farther away from what the attorneys who seek our assistance need from us.

Diane Levin has a series of articles on this topic, Bridging the Divide Between Lawyers and Mediators, which is a must read for all of us.  

I'm linking to her series here, as well as to some of the trial attorney and other blogs that think deeply and well about the mediation process and have much to teach us mediators.

Time prevents the full list this morning but I'll supplement this post this afternoon.

What triggered this thinking was Tampa Bay personal injury attorney Bob Carroll's excellent blog at injuryboard.com, The Litigation Process.

Diana Skaggs' Louisville Divorce Law Journal pays more attention to alternate dispute resolution than any practicing attorney blog I'm aware of.  Her insights are spot-on, her knowledge broad and her wisdom, well, wise.  Check it out!

Do not pass go!  Click the link here to the truly brilliant, multi-authored  Trial Lawyer Resource Center Trial Tips from Trial Lawyers Blog.  The blog's self-description is a vast understatement -- something we don't generally expect from trial lawyers:

Trial Tips from Trial Lawyers You've found the blog where a number of the USA's top trial attorneys join together with litigation experts to lend their expertise on topics that matter in your trial practice. Gain insight in case selection, work up, trial strategy, evidence, and post settlement issues. Contributors will reqularly share their real life experiences and knowledge to help you represent injured consumers.  

And it's not just the settlement/mediation tips that will grab your attention.  Trial lawyers put the passion, wit, loss, longing, love and fury back into the dry legalisms of their clients' claims.  Because that's what we mediators do as well, you'll find cruising the Trial Lawyer Resource Center an endless source of inspiration.