Negotiation Law Blog

I always wanted to have my own literary journal and, thanks to the internet, I have one --  the r.kv.r.y. quarterly literary journal -- where this poem -- Space Time is Curved -- resides.  For wikipedia's entry on Spacetime, click here.

Most of the poets and writers I publish are strangers to me.  They find the journal primarily through Poets & Writers Magazine, which has an inexpensive classified ad section.  Or they know other people who already published in r.kv.r.y.  Having the journal allows me to publish the work of my friends, all of whom are better poets than I.  Joe Mockus and Richard Wirick, for instance, whose work I've recently mentioned and who only happen to both be attorneys.  

The best thing about writing poetry, for an amateur like me, is that it slows the world down.  It makes me look more carefully.  It sends me to the bookstore to purchase Audubon Guides to the trees, flowers and birds I've never learned by name.  Curlew, whimbrel, nuthatch, and, yes, even booby, brown and blue-footed (sula leucogaster and nebouxii)  for those times when your poem needs a little whimsey.   Sycamore, hawthorne and laurelcherry trees.  Valerian, elder, thistle and honeysuckle.  It recalls the time when people had the time to notice and name the world around them.

As Shakespeare famously wrote:  a poet gives to airy nothings a local habitation and a name.

The second best thing about writing poetry in mid-life is reading it again.  Kinnell and Creeley.  Berrigan, Bishop and Bukowski.  Wright and Collins and Neruda.  Dickinson, cummings, Levertov and Auden.  Merwin, Sexton and Graham.  You could live your entire life inside the poems of just this handful of great  20th Century poets.  

r.kv.r.y. has a "favorite poets" page and we invite you to send us yours.  

This is a lazy Saturday post, waiting for my husband to arrive home from New York City.  And before the cleaning and shopping for Monday's Seder begins.  

I hope you're having a pleasant weekend too.

(video by JWTNY whose other work can be seen here).

The business of lawyers is words.  Their precise meaning. How they function, alone and together. Sometimes a comma makes all the difference between winning and losing a case. Once, for a few tens of millions of dollars, one of my partners asked the Court of Appeal to rule that the word "sudden" meant "quick," not "gradual."  (case mentioned here)

No kidding.

And everyone was worried about the outcome.

So the law is a poet's profession.  Or, poets gravitate toward the law because, unlike poets, lawyers get paid to write.

The poets among us are so common that we have our own web site -- Strangers to Us All:  Contemporary Lawyer Poets -- constructed by Law Professor James R. Elkins at West Virginia University. 

Some of my friends are listed there -- Rick Wirick -- an insurance coverage attorney with the firm of Fainsbert Mase & Snyder LLP in Los Angeles.  Rick's book of prose poetry -- 100 Siberian Postcards -- will have American debut at Book Soup in West Hollywood in late April of this year (you can listen to Rick read some of these here).     

My old college friend Joe Mockus is also on Professor Elkins web site.  Joe is a criminal defense attorney in Oakland (Garcia, Schnayerson & Mockus) whose firm once represented Jello Biafra of the Dead Kennedys in a Free Speech case (listen to Biafra chat with prosecutor Guardino on an episode of This American Life here).  Joe's one of the best poets I know.  But he doesn't send his work out and I have to beg him for it so I can publish him in the literary journal I edit, the r.kv.r.y. quarterly.  You can find Joe's poems here and here. 

I am more indebted to poetry than I could ever tell you unless we were chatting over a latte and I was talking too much.

Enjoy the Billy Collins.  The poetry alone is wonderful -- touching.  The videos are amazing.  Thank you YouTube for putting the means of distribution into the hands of the artists. 

I cannot resist also giving you The Best Cigarette Poem Video.  Hypnotic. 

Anyone representing contractors, developers, sub-contractors or insurance carriers in construction defect or coverage actions should read the most recent California case law on the duty to pay defense costs for complex construction defect cases.  

By "complex," I mean those cases where the HOA sues the developer who sues the general who sues the sub's, all of whom seek coverage from their carriers.  As any player in these 15-ring circuses knows, defense costs are often paid by an additional insured endorsement contained in the policies of one or two of the sub-contractors.    

That's what happened here.  The Court does a great job of clearly explaining the difference between equitable contribution and subrogation where the policies at issue provide potential coverage for some but not all of the causes of action.  The additional twist here involves excess carriers.

I'm not going to brief this case here (relying on my insurance blogging colleagues to do so).  I do want to alert attorneys for the HOAs, developers, contractors, and insurance carriers for whom I mediate construction defect and coverage cases to this important contribution to the most pressing question at any construction defect settlement conference  -- "whose got the money to settle this thing?" 

The case is Transcontinental Insurance Company v. Insurance Company of the State of Pennsylvania, filed on February 28, 2007 and published on March 27, 2007 by the Fourth District, Div. Three.

It's Friday.  Time to chill out a little and take ourselves just ever so slightly less seriously.

Here, for your viewing enjoyment, a parody of Employment Conflict Resolution from the hilarious televsion series "The Office." 

Sadly, the video is no longer available on YouTube. 

See Death and Taxes Blog for the written transcript here.

(right:  practice, practice, practice)

Take a look at Steven Archer's article on the Dangers of the Usual Stipulation for the reasons why the "usual" proposed stipulation is filled with traps for the unwary. 

Mr. Archer thoughtfully provides what he believes is a bullet-proof stip, which I'm providing below (with my contribution limited to reducing his stipulation to bullet points).

Mr. Archer is a partner with the highly esteemed national law firm of Robins, Kaplan, Miller and Ciresi.   

Thanks to the always helpful Illinois Trial Practice Blog for introducing us to this helpful article in its own post -- Beware the Usual Stipulations. 

That said, here are the matters Mr. Archer recommends be included in all stipulations entered into at the close of every deposition.

I propose that we agree to

• relieve the reporter of his/her statutory duty to maintain custody of the original transcript.
• after it has been transcribed, the reporter shall send the original transcript [by UPS, FedEx, DHL, or the equivalent] to the witness at [witness’s office or residence address].
• the witness shall have 30 days within which to read and review the transcript, make any changes that he/she deems appropriate and list any such changes on the errata page provided by the reporter.
• upon completion of the review and listing the changes, if any, the witness shall then sign the transcript under penalty of perjury where indicated at the end of the transcript.
• the reporter shall provide a preposted and preaddressed envelope so that the witness may then send the reviewed, corrected, and executed original transcript and errata page to [counsel].
• [counsel] will maintain custody of the original executed transcript and will agree to produce it and lodge it with the court at the time of trial or for any motion for which it may be required upon reasonable request.
• [counsel] will also advise all other counsel in writing of any changes, corrections, additions, or deletions made by the witness at the time of the review of the transcript and will provide all counsel with a copy of the errata and signature pages within 10 days of counsel’s receipt of the original executed transcript from the witness.
• should the original executed transcript not be reviewed, corrected (if necessary), or signed by the witness within that time frame, or should the original executed transcript later become lost or otherwise unavailable, the parties agree that a certified copy may be used for all purposes, as if it were a duly executed and corrected original transcript.
  

As Archer notes, don't try to memorize this.  Just copy it and stick it in your briefcase.  We're all tired at the end of a long deposition day and it's no time to strut your stuff by proving to opposing counsel that you've memorized the $#^%& thing. 

Better yet, for each case agree upon the deposition stipulation ahead of time and ask the court reporter to attach the fully executed copy to the transcript.  This is particularly helpful in big cases where many associates and partners are taking depositions on the same case.

Further commentary on walking (or riding) a mile in someone else's shoes.

The following YouTube clip -- a British public service announcement -- turns the world upside down to help "the rest of us" have a glimpse of what the experience of being disabled might feel like.

Its well worth the couple of minutes it takes to view it. 

(pictured:  garden diety of children)

Arbitration award is unenforceable against party who was a minor entitled to disaffirm the underlying agreement.  His minority status coupled with the absence of the appointment of a guardian ad litem entitled him to disaffirm the award and judgment even after statutory deadline for moving to vacate the award had passed.

Disaffirmance by the minor did not, however, affect the enforceability of the underlying agreement or of arbitration award against the parent who agreed to be personally liable for the minor’s obligations under the contract.
Berg v. Traylor - filed March 19, 2007, Second District, Div. Two, 2007 SOS 1269

Network (above) skewers network televsion as it existed in 1976 and, more importantly, predicted a future media dystopia as close to hand as your remote control.     

In this scene, the President of the fictional UBS Network attempts to "convert" the network's insane news anchor to the theology of the global marketplace.  It's one of the most prescient and hilarious commentaries on money, power and global politics ever written.

Norman Lear has said of Network:  This is not a satire; it's a documentary.  

Rent it, buy it, watch it. 

You will find in Network the first imaginings of reality television in a country that was then celebrating the 200th Anniversary of the American Revolution and which had, only the year before, painfully extracted the last of its troops from Viet Nam.  Saturday Night Live was breaking network taboos in its first year on the air ('75-'76) and the Twin Towers had been standing sentinel over the foot of Manhattan for only three years.  

The following year -- 1977 -- I'd watch in amazement from the sidewalk near the New York Supreme Court in Foley Square as a mountain-climber from Queens,  George Willig, climbed the South Tower (2 WTC).   But I digress.

When Network was first released, I was working in the typing pool (IBM Selectric:  5 carbon copies) of a midtown law firm, studying for the LSAT and learning what it was like to be truly poor (rats in the lobby, cockroaches in the kitchen and la Migra pounding on our apartment door at 3 a.m. as  we listened to neighbors escaping through the building's otherwise unsued dumb-waiter system).  

When my husband and I had arrived in New York City the year before, it had been teetering on the edge of bankruptcy and its pleas for help from the federal government had been famously rebuffed, prompting the notorious New York Daily News headline: "Ford to City: Drop Dead."  

New York City thirty years ago.  New Orleans today.  Plus ça change, plus c'est la même chose.

Paddy Chayefsky's prophetic vision grows more eerily accurate with each passing year.  In 2006, this script was voted one of the top ten movie scripts of all-time by the Writer's Guild of America.

This posting has nothing whatsoever to do with mediation, negotiation, lawsuits, business or legal practice except that it is about power, the wielding of power and the illusion of power.

It's a Sunday digression.  

Diane Pfadenhauer of Strategic HR Lawyer recently asked the question

Can the Employer be Liable for Discrimination if the Person Who Terminated the Employee Harbored no Discriminatory Motive?

The answer?  Only the US Supreme Court will know.  Excerpt from Ms. Pfadenhauer's excellent employment blog below:

One of the more interesting cases that the US Supreme Court will hear this year (BCI Coca-Cola Bottling Co v. Equal Employment Opportunity Commission) surrounds a human resources manager who terminated an employee based almost exclusively on information from the employee's supervisor. According the the EEOC, the supervisor allegedly had a history of treating black employees more adversely when compared to others and had a history of making racially disparaging remarks in the workplace. The human resources manager, who harbored no discriminatory motive, relied on the word of the supervisor when terminating the employee. In addition, the HR manager did not know that the employee was black.

Amy Lieberman, executive director of Insight Employment Mediation in Scottsdale, Arizona, recently published an intriguing article in the AAA Dispute Resolution Journal, The "A" List of Emotions in Mediation from Anxiety to Agreement. 

For my commercial litigator and business clients, I know, I know, it's "only about money" and you "don't take it personally." 

If you'll recall, however, there was that time you felt like lunging across the conference table at a recalcitrant witness or slammed your briefcase shut before storming out of a mediation in response to an "insulting" offer.  

Well, "A"nger isn't the only mediation emotion according to Ms. Lieberman.  You can pretty much define the entire settlement conference by concentrating on the letter "A."

For the truly emotionally well-balanced, you still might find your client or opposing counsel lurking here among the "A" emotional trees as described and amplified by Employment Mediator Amy Lieberman. 

Anxiety is called the "most common emotion experienced by parties waiting for a mediation to begin.  They know," Ms. Lieberman writes,

their own views of the conflict and strongly believe in the rightness of their positions. They each believe the other is being unreasonable and fear that the conflict will escalate, so that the goal of resolving the dispute in mediation will not be achieved. 

Anger follows anxiety like night follows day.  My friend the psychoanalyst says that anger consolidates our sense of ourselves when fear or anger threaten to overwhelm us.  Ms. Lieberman cautions that although "we may know intellectually that displaying anger is unlikely to help us achieve a resolution . . . we may be unable to prevent an angry outburst or other negative expression that could derail the mediation."

My own advice is to express your disgust to the mediator, who can reframe frustration into action, irritation into problem-solving and "A"nger into "A"greement (see below).

Ah, Adrenaline.  Someone once told me that trial attorneys are "stress-adrenaline" addicts.  I guess I'll have to raise my hand on that one.  If winning didn't give me a rush, the loses would be too costly to bear.  When you're a mediation advocate, however, its best to channel your adrenaline to the issues, not the people.  As Ury and Fisher, the famous "Getting to Yes" authors routinely counsel, "be hard on the problem and soft on the people."  

Awareness makes the "A" list.  Although the parties know one another's positions all too well before the mediation commences, counsels Ms. Lieberman, they often do not know "what led to those positions or the underlying interests or needs of the other side.  This is especially true," she writes,

where there is a breakdown in communications between the [parties and often also the] lawyers involved. .  .  Even when there is communication, the parties are often unable or unwilling to really listen to what the other has to say. .  .  It is typically th[e] new awareness that leads to the "magic" of mediation. The magic is the willingness of parties, based on new information, to view the conflict in a different light. It is this willingness that opens the door to resolution.

Acknowledgment is the beginning of Mediation Magic or "A"greement "A"lchemy.  Invariably, the first opportunity the parties have had to acknowledge their understanding of the other side's "position" occurs during the mediation.  Acknowledgement, writes Ms. Lieberman, often causes one's opponent to "shift closer towards an amicable resolution. Even a slight shift can start the ball rolling." 

That's my experience as well.

A is for Active Participation, the sine qua non of a successful mediation.  Sometimes hours pass while each "side" waits for the other to step up to the zone of potential agreement, the point of probable impasse, the moment everyone fears -- the time when everyone "a"cknowledges the case will never settle because the "other guy" is being unreasonable.  

Amy says "progress fosters progress" and I agree. 

To generate movement, I'll often call upon the more daring of the two parties to be the first to step up to the plate of impasse, i.e., to imake an offer that represents a "stretch," thereby encouraging the other side to do the same. 

It benefits no one to bargain in the nano- and strato- spheres when everyone knows that settlement won't be possible until the parties see the whites of each other's eyes. 

There are two A's in Acquiescence and Agreement.

Here Ms. Lieberman and I part semantic company.  I have to say that "acquiesce" should not be in any litigator's vocabulary.  Agreement yes.  Acquiescence, no.  I do agree with Amy that finding an agreement the parties "can live with" is a realistic goal. 

In my mind, that represents a sound business decision based upon a reasoned cost-benefit analysis.  Although this may be merely a matter of word choice, I'll wager that if you use the word "acquiescence" with your litigation colleagues, the first "A" words that come to their minds will be Anger and Adrenaline. 

As Amy finally reminds us, all the hard work of mediation goes for naught if we don't prepare Agreements the parties can enforce.  For my articles on the enforceability of mediated settlement agreement term sheets and memoranda of understanding, click here, here, here and here.

Thanks for the tips, Amy!

(cartoon from AdamZyglis.com)

Want to know what the jury might think of your case?  Here, courtesy of Blawg Review # 99 and several other linked connections, is the day-by-day journal of Juror #9 in the Scooter Libby Trial.

Here's a taste of the daily journal, beginning with the first day of deliberations.

"This is a case about memory, about recollections and about words." We've heard from the fighting Irishman and weeping Wells, a gaggle of Pulitzer Prize winners, and some of the best and brightest from the CIA, State Department, FBI and office of the Vice President. The Honorable Reggie Walton has just provided us final instructions.

Deliberations in the case of the United States vs. I. Lewis "Scooter" Libby in District Court for the District of Columbia are ready to commence, when one of the jurors offers an unsolicited statement regarding the solemn task before us.

"I think they're lying. Every one of them."

Better than all the Grisham you've ever read, yes?  Thanks to all the intervening links:  Blawg Review,  Begging to Differ (author of Review No. 99) Real Lawyers Have Blogs and The Huffington Post.

The Settle It Now Negotiation Law Blog welcomes Proskauer Rose's Privacy Practice Group Blog to the blogosphere.

I know one member of this dynamic practice group -- Tanya Forsheit -- who is a model of savvy associate business development as well as a tireless worker for the community of women lawyers through her membership on the Board of Governors of the Women Lawyer's Association of Los Angeles. 

It was not that long ago that Tanya posted her first article on the Los Angeles County Bar Association Blog site.  I'm pleased to see that her entire group is now bringing its expertise, knowledge, wisdom and know-how not only to its clients, but  to anyone else whose vital commercial interests include the growing area of Privacy Law.

Because I can't describe Proskauer's blog any better than it does, I give you the Privacy Law Group's first welcome message with a link below:  

Welcome to the Proskauer Privacy Law Blog. Proskauer’s Privacy and Data Security Practice Group is tremendously pleased to bring you what we hope will become a trusted source for summary and analysis of breaking legal developments in the evolving field of privacy and data security law. This blog is designed in part to complement our recent privacy treatise published by PLI entitled Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.

Today we bring you posts regarding (1) the introduction of federal legislation that would give the Attorney General very broad authority to enact rules requiring Internet Service Providers to retain records so law enforcement can access customers’ online activities; (2) adoption by the EU Data Protection Working Party of a new model application form for Binding Corporate Rules; and (3) some of the many new proposed bills in the 110th Congress regarding data security breach notification that would preempt the more than 35 currently existing state laws.

In addition, you can find posts that I previously contributed to the California Privacy Law blog hosted by the Los Angeles County Bar Association.

Of course, we are interested in your feedback, and welcome your suggestions and comments. We look forward to hearing from you.

For the posts referenced in Proskauer's welcome message, click here.

This January Seth Godin's [Marketing] Blog made a succint distinction between marketing strategy and tactics that is as applicable to negotiation as it is to business development.  "The right strategy makes any tactic work better," said Godin.

The right strategy puts less pressure on executing your tactics perfectly.

Here's the obligatory January skiing analogy: Carving your turns better is a tactic. Choosing the right ski area in the first place is a strategy. Everyone skis better in Utah, it turns out.

If you are tired of hammering your head against the wall, if it feels like you never are good enough, or that you're working way too hard, it doesn't mean you're a loser. It means you've got the wrong strategy.

It takes real guts to abandon a strategy, especially if you've gotten super good at the tactics. That's precisely the reason that switching strategies is often such a good idea. Because your competition is afraid to.

Thanks Seth!  Great advice!

Hat tip to Elliott Wilcox' Winning Trial Advocacy Techniques for hipping us to Abraham Lincoln's Advice to Young Lawyers, including the best advice for success in any field -- "always bear in mind that your own resolution to succeed, is more important than any other one thing."

The most common complaint I hear from young attorneys at all levels is the lack of mentoring available to them.  Since the internet is their domain, I ask those attorneys over thirty-five to pick up this "Advice to Young Lawyers" meme tag and run with it.  

In particular, I ask the following attorney-bloggers to share their best advice with our young readers --Arnie Herz of Legal Sanity, Evan Shaeffer of the Legal Underground, George M. Wallace of Fool in the Forest, Wilson Sonsini's Cathy Kirkman of the Silicon Valley Media Law Blog, and, Diana Skaggs of the Divorce Law Journal.

Thanks folks!  Please pass the baton along to your favorite, most wise, attorney bloggers.

The New York Times Sunday Magazine cover story this coming week -- The Brain on the Stand -- covers a lot of territory on the use (and potential abuse) of neuroscience in the legal system.     

While the scientists debate whether  knowledge gleaned from sophisticated brain imagery demonstrates that our brain activity  controls our  behavior or simply reflects it, those of us concerned with decision making have much to learn from it.         

Because my work is pretty much exclusively devoted to finding mutually beneficial resolutions to hotly contested litigation, neuroscience insights into how and why we make decisions -- and how we might make them better -- have been invaluable in my practice.    

In this article, author Jeffrey Rosen describes the results of one neuroscientific experiment suggesting that dampening our emotional reactions to the regretably common "insulting first offer" might keep us in the negotiation process long enough to let our more rational responses prevail.     

He explains:

'A remarkable technique called transcranial magnetic stimulation, for example, has been used to stimulate or inhibit specific regions of the brain. It can temporarily alter how we think and feel.

Using T.M.S., Ernst Fehr and Daria Knoch of the University of Zurich temporarily disrupted each side of the dorsolateral prefrontal cortex in test subjects. They asked their subjects to participate in an experiment that economists call the ultimatum game.

One person is given $20 and told to divide it with a partner. If the partner rejects the proposed amount as too low, neither person gets any money.

Subjects whose prefrontal cortexes were functioning properly tended to reject offers of $4 or less: they would rather get no money than accept an offer that struck them as insulting and unfair.

[remember -- even monkeys would rather earn no "salary" than let their "CEO" monkey make five times as much as they do -- so this is animal behavior]

But subjects whose right prefrontal cortexes were suppressed by T.M.S. tended to accept the $4 offer. Although the offer still struck them as insulting, they were able to suppress their indignation and to pursue the selfishly rational conclusion that a low offer is better than nothing.

I do not cite this research to suggest that we should be satisfied with "insulting and unfair" proposals.  I cite it only for the thoughtful consideration of litigants and business people everywhere. 

It is perfectly 'rational" to respond to an insulting offer by rejecting it.  Being alert to our tendency to allow emotions to reign in response might give us the breathing room we need to calm our clients and continue to pursue a settlement negotiations that could well lead to resolutions that are neither insulting nor unfair.

The article is invaluable reading for anyone wanting to answer the question -- what in the world could the other side be thinking?  A question that can only be answered when the parties sit down together with a commitment to seeing the negotiation through.  

And if you're not already on speaking terms with your amygdala, click here for a fuller (lay) explanation of its effect on decision making.

Nothing throws more fear into the heart of a young litigator than using documents at a deposition.

Here's the good news.  It's easy if you know the rules and follow the steps.

Here are the steps.

1. Mark them
2. Authenticate them
3. Lay the foundation for the business records exception to the hearsay rule
4. Lay the foundation for any available hearsay exception for hearsay statements contained in the business record itself;
5. Question the witness about the documents
   • to refresh his/her recollection
   • to impeach his/her testimony
   • to obtain an explanation of the meaning of language contained in them
   • to forward your case and tell your client's story

Feel free to bring "cheat sheets" with you to the deposition, remembering that you can rarely save your face and your ass at the same time.

MARK IT

• Scratch an exhibit number on the document (or post-it) if it hasn't previously been marked
• Hand copies to opposing counsel and to the court reporter
• Say, "the Court Reporter will mark as Exhibit Q, correspondence from X to Y dated June 16, 2003, carrying Bates Stamp number 325490."
• Pause as the reporter affixes an exhibit number to the document and hands it to the witness
• Say to the witness, "do you now have exhibit Q before you?"

AUTHENTICATE IT

Q.     "Please identify Exhibit Q for the record."

A.     "It's a letter I wrote to Mr. Jones."

Q.     "Is that your signature at the bottom of the second page?"

A.     "Yes it is."

Q.     Is this a true and correct copy of the letter you wrote to Mr. Jones on such and such a date?

A.     Yes, it is.

OR

A.     "It's a letter I received from Mr. Green."

Q.     "Is that Mr. Green's signature on page three of Ex. Q?"

A.     "Yes."

Q.     "How are you able to recognize it?"

A.     "Because I . . . corresponded with him regularly or I've seen him sign his name on several occasions and I recognize this to be his signature."

Q.     "Is this a true and correct copy of a letter from Mr. Green that you received on or about such and such a date?"

A.     "Yes it is."

ESTABLISH THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE

Q.     You were employed by ABC Company in 2002?  

A.     Yes I was.

Q.     The Court reporter has marked and placed before you Exhibit Y, carrying Bates Stamp range 20056-98.   Can you identify Ex. Y for the record.

A.     Yes.  It appears to be a copy of ABC Company's ledger book.  

Q.     What is the function of the ledger book?

A.     We use it to record all of our sales and payments.

Q.     Are the entries in Ex. Y made at or near the time of the recorded sales and payments.

A.     Yes

Q.   Are the entries made as part of the regular business of ABC Co?

A.     Yes.

Q.     Is Ex. Y, the ledger book, kept in the ordinary course of ABC's business?

A.     Yes.

Q.     How is it that you're familiar with the ledger book?

A.     "It's prepared . . . . by me (or under my supervision)" or "as part of my job duties, I review the ledger on a monthly basis" or "I've occasionally seen the ledger and am aware that it is maintained by Mr. Brown, who works in the accounting department" or any other way in which the witness is familiar with the document.

You've now accomplished that which, I'm afraid to say, 90% of the attorneys taking depositions fail to accomplish every day.  If you don't get any other useful testimony from this witness, you will have created a record that will permit you to use these documents as evidence in summary judgment motions and at trial.  

We will cover in a subsequent post the following two steps -- laying the foundation for hearsay exceptions to hearsay statements contained in business records and using the document itself to forward your case. 

Business Mediation Guru Robert A. Steinberg took on the vexing question most often posed to mediators in a dynamite Daily Journal article just last month -- How and When to Broach Settlement. 

If you're not on Bob's mailing list, you should be.  Here's a taste of the DJ Article that will pump you up.  Follow Bob's sound advice and you'll approach settlement without ever again worrying that the beach bully might kick sand in your face.

For all its rational veneer, negotiation is at base animal behavior. We fear to raise settlement because we think that “blinking first” is an admission of weakness and will cost us some measure of settlement value.

Parties often talk settlement at the beginning of the case, before they have spent much money, or after the completion of discovery, when they have developed the information they feel they need for trial. But you should consider raising settlement at other times: before a risk-magnifying event (such as a major motion or a heavy financial commitment) or whenever the settlement value of your case is most favorable.

For the remainder of Bob's article, click here.

Even if attorney-mediator Laurel Kaufer were not in my small and cherished group of "Fabulous Women Neutrals," I would still be publicly applauding the launch of the Mississippi Mediation Project, selflessly sheparded from concept to realization by Ms. Kaufer's enormous creative and dedicated efforts.

Not to re-invent the wheel, we crib here from reporter Amber Craig's article posted on gulflive.com Project Donates Largest Collection of Mediation Books in State to Ina Thompason Library. 

 

The Mississippi Mediation Project concluded the final day of its conflict resolution session Wednesday by dedicating a section of mediation books to the Ina Thompson Public Library in Moss Point.

The three-day conference organized by the non-profit organization brought top mediation experts from across the nation to Pelican Landing, where 30 people from Jackson, Harrison and Hancock counties learned problem-solving skills.

Laurel Kaufer, the project's founder, called the Essential Problem Solving Skills workshop a success.

"It was beyond my expectations," Kaufer said.

Kaufer, who traveled to Moss Point from her home in Los Angeles, said this particular group was exceptional, because there was no attrition in the attendance. The number of people actually grew after the first day, Kaufer said.

"After the first day, people called their co-workers and bosses and said, You have to come to this,'" Kaufer said.

Continue Reading

Remember the adage, what can go wrong, will go wrong?

We know we don't need to remind our readers of the perils of trial.  And though we never advise our clients to make a bad business deal to extricate themselves from a lawsuit, we continue to recommend that they seek business solutions to business problems before throwing their fate to the winds of trials.

This morning we're commending to our readers' attention Canon's recent devastating trial loss, courtesy of Reuters.

When Canon was sued by a small, money-losing U.S. technology firm two years ago, the dispute was over a patent license that had cost the Japanese electronics giant a one-time payment of $5.6 million.

But now that the lawsuit has caused Canon to lose the license, a fresh agreement with Texas-based Nano-Proprietary could be worth millions of dollars more, lawyers said.

Last week, a U.S. court ruled against Canon, saying the company breached its deal with Nano-Proprietary by trying to share the flat display technology with Toshiba.

The court's decision (PDF) is a major setback and perhaps an embarrassment for Tokyo-based Canon, the third-biggest patent owner in the United States.

"It seems strange Canon managed to go all the way to trial and lose," said Peter Godwin, a Tokyo-based partner at law firm Herbert Smith. "Assuming they were advised they were at risk, you'd expect a company of the size of Canon to have reached a settlement before that."

For the remainder of the story, click here.

For our commentary, read the following post.

Jack Welch shares a golf-cart with former President Bill Clinton 

We've mentioned the benefits of small talk for settling lawsuits before. 

In a recent post entitled What Am I Supposed to Know About  (thanks to mediator blah blah for directing our attention there) professional firm management guru David Maister, praises the marketing value of small talk.  In this post, he suggests that we might  want to be conversant with the following topics to hold up our end of a conversation at a dinner party or on the golf links with potential clients. 

• Local politics
• National Politics
• International affairs not directly involving your own country
• The latest tech gadgets
• The latest fiction best-sellers
• The latest non-fiction best-sellers
• What’s hot on television
• The latest art exhibition to open in your town
• The popular music charts
• Yo-yo Ma’s latest album
• What’s good on Broadway this season
• The latest movies
• Local sports teams
• Sports events not involving local teams
• Latest theories of child-rearing

I'm tired already.  It's hard enough to keep up with what actually interests me let alone with what doesn't interest me in the least.  

Does that mean that my more eclectically knowledgeable mediator peers will be better able to settle lawsuits and develop business?  I don't think so.  Why?   Because they're really just not that into you. 

So here's the super-secret intergalactic decoder-ring mystery of small talk revealed.  Ready?  

 ASK QUESTIONS.

You don't need to know anything about sports, local politics, literature, brain surgery, travel in Cambodia, statistical analysis, Islam, the movies, Anna Nicole Smith or the British monarchy.

In fact, the LESS you know, the better.

WHY?

Because the less you know, the more interest you'll take in your fellows.  Show an interest in what your clients, potential clients and negotiating partners are interested in and you will make friends for life.

Eventually, these people will get around to asking what it is that you do, thinking it must be something pretty wonderful because you're one of the few people who appear to be smart and forward-looking enough to be so deeply interested in how fascinating they are. 

I tell students to whom I teach the art of taking pre-trial testimony, that this is the same principle as the one you use to pick up men in bars -- a talent I have not used in at least 20 years, having turned this dark art into a power for the good.

As we've previously noted, small talk settles lawsuits and greases the wheels of commerce.

The lawyer who gets credit for that new case from the Fortune 50 company is not alas, the lawyer doing the actual work.  It's the lawyer with the monthly golf date with general counsel or the CEO. And what that lawyer talks about on the links is not what she knows about the principle products of Paraguay or any other topic of general or specific interest.  What she talks about is whatever is of current interest in the GC or the CEO.

And the only way to know that, is to take a genuine interest in others and ask a lot of questions.