Negotiation Law Blog

See internet attorney Eric J. Sinrod's exhaustive legal analysis of the "rights, obligations and remedies" highlighted by the recent New England Patriot Video Spying Scandal here.

As Eric notes, I, at least have been "living on a desert island" since I was blissfully unaware of "the recent controversy involving the New England Patriots after a team official was caught videotaping opposing team defensive signals." 

Though Mr. Thrifty and I both routinely toss out the sports page, what interests us is the strictly legal question addressed by Eric, i.e., whether the fine levied on the Patriots is "just" or "correct" as a matter of law.  (leave it to the Wall Street Journal Law Blog to nail the most important question -- whether the fine is tax deductible, but I digress).  

The penalties?

The National Football League fined Coach Bill Belichick $500,000 while the Patriots were ordered to pay $250,000. The league also ruled that the Patriots must forfeit a first-round draft choice next year if the team reaches the playoffs (which is highly likely) or second- and third-round selections if it fails to make the playoffs.

This is where attorneys and the rest of the thinking world part company.  Ask any fifth-grader whether "peeking" at your opponent's game hand is cheating or not.  

So What Does the Law Have to Do with Justice or "Fairness?"  Not, unfortunately enough.  This is also where many attorneys lose touch with their clients, particularly their commercial clients who are operating largely based upon social rules and conventions rather than upon legalisms.

I have alot more to say about this, but not enough time to say it.  I'm therefore leaving you a couple of links about thedifferences between law and justice and the reasons why we all too often talk past one another, particularly when attorneys and their clients lose touch.  See Why -- an Anatomy of Explanations here.  

More later.

(photo by Angie Schwendemann's daughter Christina)

We were just talking yesterday about deception in negotiations. 

But how about deception by the mediator? 

Take this 2000 mediate.com article by JAMS neutral and former U.S. Magistrate John W. Cooley, Defining the Ethical Limits of Acceptable Deception in Mediation for a spin.

This article proceeds from the premise that consensual deception is the essence of caucused mediation.

This statement should not come as a shock to the reader when it is considered in the context of the nature and purpose of caucusing. Actually, it is quite rare that caucused mediation, a type of informational game, occurs without the use of deception by the parties, by their lawyers, and/or by the mediator in some form. This is so for several reasons.

First, a basic groundrule of the information system operating in any mediated case in which there is caucusing is that confidential information conveyed to the mediator by any party cannot be disclosed by the mediator to anyone (with narrowly limited exceptions).

This means that:

1. each party in mediation rarely, if ever, knows whether another party has disclosed confidential information to the mediator; and 
2. if confidential information has been disclosed, the nondisclosing party never knows the specific content of that confidential information and whether and/or to what extent that confidential information has colored or otherwise affected communications coming to the nondisclosing party from the mediator.

In this respect, each party in a mediation is an actual or potential victim of constant deception regarding confidential information -- granted, agreed deception -- but nonetheless deception. This is the central paradox of the caucused mediation process. The parties, and indeed even the mediator, agree to be deceived as a condition of participating in it in order to find a solution that the parties will find "valid" for their purposes.

click here for the remainder of this fascinating article.

(left, writer, producer, actor, director, memoirist Tina Alexis Allen)

What does this terrific short film -- God Out the Window -- have to do with negotiation?

Nothing whatsoever.  Even negotiators need to play once in awhile.

Here's the synopsis from the filmmaker's blog maintained by writer, actor, director (and one of my writers' group and r.kv.r.y. journal contributors) Tina Alexis Allen.

Monica, a gentle and innocent soul, is worried about her Dad, "Paolo," a tortured artist. After years of seeing his value as an artist decline, Paolo is desperate for his acerbic art dealer, Channing (TERI GARR), to give him one last shot. If he can only keep sweet, albeit slow, Monica, from interrupting their meeting with her abundance of baked goods. However, it's Monica's ability to see beauty in everything, that makes this day unlike any other day. 

The negotiator's equivalent of "don't make a federal case out of it" is "what do you think you're doing, brokering a negotiated peace in the Middle East?"

Well (thanks -- again! -- to Geoff Sharp) we bring you negotiation tips from a guy who has brokered Middle East peace treaties -- Dennis Ross (Diplomacy: Talking Sense)  former Middle East envoy and chief peace negotiator for both the Clinton and Bush senior administrations.

(Ross' new book:  Statecraft and How to Restore America's Standing in the World, right)

Here, Ross gives us a twelve step list for effective negotiations (please go to the article itself for the detail; it's well worth the read):

1. Know what you want, know what you can live with.
2. Know everything there is to know about the decision maker(s) on the other side. 
3. Build a relationship of trust with the key decision maker. 
4. Keep in mind the other side's need for an explanation.
5. To gain the hardest concessions, prove you understand what is important to the other side. 
6. Tough Love is also required. 
7. Employ the good-cop, bad-cop approach carefully. 
8. Understand the value and limitations of deadlines. 
9. Take only calculated risks. 
10. Never lie, never bluff 
11. Don't paper over differences. 
12. Summarize agreements at the end of every meeting.

Left, international commercial arbitrator, Eric Van Ginkel.

Right, AAA patent / commercial arbitrator, Les Weinstein.

The Los Angeles Legal Pad has been talking to our friend Michael Powell over at the AAA about the sixteen percent increase in the arbitrations in the greater Los Angeles area last year.

When asked "why the jump," Powell explained:  

The only thing we can put our fingers on is the increase in mediation.  We think all the attention put on ADR in California has made a difference in companies that are drafting contracts and including arbitration clauses.

The increase, Powell was reported as saying, was especially prevalent in the entertainment and health care industries.  

(image, right, from the Plaintiffs' Counsel's 9/ll Families United to Bankrupt Terrorism web page) 

We were just talking yesterday about our courts' obligation to provide that which the entire civil justice system hasn't been providing for [almost] my entire legal career:  a swift adversarial process to resolve disputes and make public the way in which we, as a society, adjust the civil rights and duties of our citizens.

The justice system's inability to deliver on that essential obligation is once again highlighted by the upcoming 9/11 victim trials discussed in today's New York Times article, "Settlements Do Not Deter 9/11 Plaintiffs Seeking Trial."  As the Times reports, relatives of some victims who were killed in the planes hijacked on 9/11 say

they would continue fighting in court to address their questions about how Islamic terrorists bypassed airport security, commandeered four jets and killed thousands of people.

It's Not Just About Money

This is consistent with my experience as a mediator.  It becomes too easy for all of us to believe that those who seek recompense for civil harms are "just in it for the money."  (See the link to my post on incommensurability here and the subjective experience of money here).

When settling cases like this, impasse often occurs when the monetary terms are sufficient but no one has yet explained, for instance, why their mother died in the nursing home for no apparent reason.  People want answers. 

One of th[e] relatives, Mike Low, whose 28-year-old daughter, Sara, was a flight attendant on American Airlines Flight 11, the first plane to strike the World Trade Center . . . 

“The frustrating thing is not having a trial date,” he said yesterday. “The wheels of justice turn excruciatingly slow. It doesn’t change my mind any. My desire and goal is to try to find some answers. I want to know why Abdulaziz Alomari and Mohamed Atta were allowed to walk on planes in Portland, Me., with prohibited weapons. I want somebody to tell me why that happened.”

And Then There's that Thing Called "Apology"

Recently, I received a call from a fellow mediator in the midst of a settlement conference asking whether he could guarantee that if the defendant apologized during the mediation, his apology could not, under any circumstances, ever be used against him in a criminal trial. 

I'd written several articles on mediation confidentiality so he was just getting a second opinion before going out on a limb.

"Guarantee?"  I asked.

"Guarantee," he replied.  "The plaintiff is satisfied with the monetary terms of the settlement but insists she'll go to trial unless he apologizes."

"I certainly wouldn't guarantee it," I replied, "but would you like me to help you brainstorm some work-arounds?"

This mediator, one of the great ones at my ADR firm Judicate West, didn't need the brainstorming help.  He did what we mediators often do.  He "channelled" the apology from the defendant to the plaintiff in the defendant's absence.  And it worked.

When Apology Isn't Enough:  Public Accountability

There are times when a private apology isn't enough.  Sometimes people need to see civil wrongdoers made publicly accountable in a court of law.  The Times article again.

Several of the families have said in interviews that their motives were not just economic. They have said that they wanted accountability from those they considered responsible for the attacks — including the two airlines; the airport security companies; Boeing, which manufactured the aircraft; and the Port Authority of New York and New Jersey, which owned the World Trade Center.

Carl Tobias, a law professor at the University of Richmond, said . . . [he thinks]  the dynamics here may be different from what I would call more garden variety kind of tort litigation,” he said. “It doesn’t seem this is entirely driven by money, though it may be for some people. People want to tell their stories and want to find out as much as they can in court.”

There Are No "Garden Variety" Kinds of Tort Litigation

Professor Tobias' opinion is right, as far as it goes, but it is not, unfortunately, "right on the money."

Every mediator who helps people settle injury cases (or commercial cases for that matter) knows that there is no garden variety case.  Not to the parties.  No dispute is is ever "entirely driven by money," except, perhaps, ones brought by a sociopaths or vexatious litigants or driven by  unscrupulous lawyers who, as someone once said, "ride their clients like mules for the money."  And even then something other than money, some pathology,  is driving those people's mad obsession with things monetary.

Counsel for the Plaintiffs, [Donald] Migliori, summed up by saying that:

he expected that some families, especially those who had relatives who died in the planes that struck the twin towers, would insist on a trial.

The terms of the settlements were sealed. But Mr. Migliori said the families felt vindicated. He said they “had reached a point where they were satisfied that the mix of their motivations — from compensation to accountability, to answers — was satisfied.”

The first trial, brought by the relatives of Dr. Paul Ambrose, a passenger on American Flight 77, which crashed into the Pentagon is scheduled to go to trial at the beginning of November.

(right, Plaintiffs' attorney Don Migliori)

I'm going to make a modest proposal in response to the "eve of trial" settlement of fourteen 9/11 lawsuits in the wake of a critical ruling from the United States District Court. 

That ruling? 

 A "cockpit recording that captured the sounds of passengers trying to retake control of United Airlines Flight 93 before it crashed into a field in Pennsylvania," would be permitted to go to the jury.  See today's NYT article More 9/11 Lawsuits are Settled.

It's no surprise to hear Donald Migliori, a lawyer for the plaintiffs, say that

Judge Alvin K. Hellerstein’s ruling on the recording last week had moved settlement talks forward. He said it became clear that jurors would hear evidence that passengers were aware the plane had been hijacked and had reacted heroically.

Here's the proposal. 

The courts should be deciding these issues early in the case.  How much discovery had to be done (???any???) and how many motions filed before this Court was willing to go out on a limb and say, "gee, evidence that passengers on the doomed flights knew their plane was being hijacked is relevant (or not!) or too inflammatory (or not!) to the just resolution of the claims brought by families of the passengers?"  

Here in California, we have established a Complex Court system in which wide latitude has been given to the Judges to raise just these kinds of issues early in the litigation unconstrained by procedural rules that might prevent sound case management. 

As California Appellate Court Justice Ruvolo recently emphasized  

The judiciary needs to engage now in a vigorous debate to determine whether the current approach to civil justice is efficacious . . . We must . . . consider possible reforms needed to ensure prompt, and fair, trial dates, and cost-efficient pretrial and trial procedures for cases where ADR has been unsuccessful or is inappropriate."

My own clients have, most unfortunately, been victims of a Judge's inability to effectively manage his/her caseload and unwillingness to make any ruling before its time, which, for some jurists, means when they absolutely have to in motions in limine filed immediately before trial or in evidentiary rulings during trial.

Only some of these in limine and evidentiary rulings require the context of the actual trial to make sense and permit a reasoned ruling.  The cockpit tape, however, seems a good example of a decision that, if made early in the litigation, could have led to the swift resolution of these cases rather than a last minute settlement before trial a full six years after the event giving rise to suit.

To those judges engaging in the often daunting and time-consuming activity of actively managing their case loads with too few resources to do so, we praise you.  Those who are not know who they are.  

WARNING WAR STORY AHEAD

Once, long ago, when our client was the defendant in two identical lawsuits in two federal courts in different states, we filed motions in both courts to consolidate them in our local court.  Frankly, we wouldn't have minded that greatly had they been consolidated in the foreign venue, as long as we could move forward with the litigation.  

We were not happy, however, to wait two years for a ruling.

Because you never want to ruffle a court's feathers when your motion is pending, we spent a fair amount of time and mental energy deciding what might be the best course to pry a ruling out of the court.  Finally, my colleague suggested we file a "Motion to Rule."  Because the motion did not, we believed, exist, my colleague called it THE THING.  

We filed it, deferentially, in both courts and still didn't get a ruling.  Eventually, the case settled.  Today, we might have asked our opponents to mediate or even arbitrate so that we could at least have the opportunity to a business dispute that was costly to both parties.

So, my modest proposal.  Case management.  Early rulings on motions that, if resolved, could assist the parties to do early that which they are now likely only to do late -- negotiate a resolution.

O.K., I never listen to Talk Radio because it's all about conflict and I get enough conflict in my day job.

Here's a relief, some talk radio exists to FIX YOUR CONFLICTS.

Upcoming Doug Noll and Robert Creo, both masters in the field, talk about making felicitous that which is already necessary -- dealing with conflict.  

CHECK IT OUT HERE 

. . . we link you to NPR's audio commentary, A Pilot's View of the September 11 Attacks and, thanks to Blawg Review, this stunning interactive photograph of the Tribute in Light.

Right, the famous New Yorker cover of September 24, 2001.  Clicking on the cover will link you to Anthony Lane's article of that same date, This is Not a Movie, 

When we are speechless, as I am about this event and the world events that followed, I turn to poetry. 

Here is Dylan Thomas.

AND DEATH SHALL HAVE NO DOMINION

And death shall have no dominion.
Dead men naked they shall be one
With the man in the wind and the west moon;
When their bones are picked clean and the clean bones gone,
They shall have stars at elbow and foot;
Though they go mad they shall be sane,
Though they sink through the sea they shall rise again;
Though lovers be lost love shall not;
And death shall have no dominion.

And death shall have no dominion.
Under the windings of the sea
They lying long shall not die windily;
Twisting on racks when sinews give way,
Strapped to a wheel, yet they shall not break;
Faith in their hands shall snap in two,
And the unicorn evils run them through;
Split all ends up they shan't crack;
And death shall have no dominion.

And death shall have no dominion.
No more may gulls cry at their ears
Or waves break loud on the seashores;
Where blew a flower may a flower no more
Lift its head to the blows of the rain;
Though they be mad and dead as nails,
Heads of the characters hammer through daisies;
Break in the sun till the sun breaks down,
And death shall have no dominion.


From Dylan Thomas: The Poems, published by J.M. Dent & Sons Ltd., London, 1971
Copyright © 1937, 1945, 1955, 1956, 1962, 1965, 1966, 1967, 1971, 1977 The Trustees for the Copyrights of Dylan Thomas.

How deeply do you renosonate with the feelings described by New York Times writer Bob Morris in yesterday's "Age of Dissonance" column, How to Avoid, Well, You. 

THE invitation was too good to refuse — an August weekend at the august home of a friend on a little New England island.

Yet, from the moment I pulled up to the ferry dock, there was dread in my soul. Two years ago, I had offended an entire family of friends likely to be there. Would one of them be on the boat, where avoidance is impossible?

Checking a reservations list, I was relieved to find myself in the clear. But later, getting an ice cream on the island’s small village green felt like being in highly exclusive enemy terrain, and I walked with head down and turned in fear from each passing station wagon.

In the church thrift store where space is tight (and the clothes irresistible) I hid behind racks with my heart pounding as each shopper entered. 

Why, he asks, are we afraid of the meeting (or confrontation) with the guy whose call we didn't return or manuscript we didn't read?  Whose invitation we didn't accept, whose feelings we offended, or who stole our client?

HELP FOR THE CONFLICT AVOIDANT

It was my friend and colleague Ken Cloke who taught me there were five means of dealing with conflict (suppression, avoidance, resolution, transformation and transcendence) and University of Missouri Law Professor and friend Richard Reuben who taught me that there is no such thing as "bad" conflict. 

It was through my communnity mediation experience, however, that I finally learned it was better to address than to avoid conflict.  I have also learned that people will, given the right conditions, spontaneously reconcile.  Those conditions?  Having hope that reconciliation can be achieved without fear of sustaining psychological or physical harm, opening and maintaining channels of communication, and the assistance of a third party who is willing to patiently and lovingly sit with those in conflict like a parent with children recovering from a fever or bad dreams.   

Listen, I have seen an elderly mother reconciled to a child who sued her and then served her with an eviction notice after two years of estrangement.  I have seen (in a documentary film on restorative justice) a woman whose brother raped her at knife point, collapse sobbing into his embrace at a prison where he'd already been incarcerated for this crime for years.  I have seen a man who refused to speak to his gay neighbors for five years stand up at the end of a community mediation and say, "may I hug the two of you?" 

These events are not the rare occasion or the exception to the rule.  Nor are they the result of anyone's brilliant mediation or conflict resolution skills.

They are the norm, the product of the process rather than the result of the technique. 

A mediator can probably prevent these spontaneous acts of reconciliation, but s/he does not create them.  At best, s/he presides over them, serves as their sponsor or appreciative audience, and counts herself privileged to have participated in them from the sidelines.

WHY WE AVOID CONFLICT

Mr. Morris asks us what it is that drives us to cower behind clothing racks to avoid seeing someone whose telephone call we "forgot" to return.  What indeed, when when we live among people who have reconciled with brothers who raped them or assailants who killed members of their family?

The answer to the question is shame, the most powerful constellation of emotions we are capable of experiencing. The lengths to which we will go to avoid these feelings was hilariously depicted just last night on Curb Your Enthusiasm, an episode you're just going to have to see. 

Your punishment for not getting your shame-education from pop television references is to read an excerpt from an academic article (written by someone very close to me) on the origins of shame and its role in restorative justice.

The word shame is derived from the Indo-European skem which means "to hide." Shame makes us want to hide - from ourselves, our God and our peers - making shame an existentially isolating state of mind. Feeling shame makes a person "dejection-based, passive, or helpless," causing the "ashamed person [to focus] more on devaluing or condemning his entire self" than upon his behavior. He sees himself "as fundamentally flawed, feels self-conscious about the visibility of his actions, fears scorn, and thus avoids or hides from others." 

The shamed individual wants "to undo aspects of the self" whereas the guilt-ridden one wishes to undo aspects of his behavior. It is therefore not surprising that guilt tends to motivate restitution, confession, and apology, whereas shame tends to result in avoidance or anger.

The psycho-biology of the constellation of emotions we call "shame" is innate.  It produces a sudden loss of muscle tone in the neck and upper body; increases skin temperature on the face, frequently resulting in a blush and causes a brief period of incoordination and apparent disorganization. No matter what behavior is in progress when shame affect is triggered, it will be made momentarily impossible. Shame interrupts, halts, takes over, inconveniences, trips up, makes incompetent anything that had previously been interesting or enjoyable. 

A state of cognitive shame follows this initial cluster of feelings. After the painful jolt of shame, we begin to search our "life scripts" for some way to integrate the shameful experience with our prior experiences, to make sense of the pain and disorientation caused by the sudden upset of a positive emotional state. 

There you have it.  Though it may seem more outrageous than comic for wildly successful adults to feign compliance with a social obligation by showing up a day late for a party pretending to have gotten the date wrong (the Larry David episode) it is no more or less absurd than the ordinary daily ways we all have of avoiding someone who might make us feel ashamed.

Tomorrow we will discuss ways to positively engage yourself with those who you may have inadvertenly offended.

(illustration, left, links to Ms. Modan's web site)

It's worth subscribing to New York Times Select just to be reminded that Rutan Modan is out there doing this great genre-breaking illustrated blog that, being about family, is always about conflict resolution.

Today, in Queen of the Scottish Fairies, Modan grapples with the politics of gender-identity, principles of self-expression, and the way in which we attempt to control the behavior of those we most love in an effort to protect our own self-image.    

It's a story as old as time with a solution that is as good as can be imagined in a fallible world full of fallible people, reflecting e.e. cummings' shrewd observation that 

[t]o be nobody-but-yourself---in a world which is doing its best, night and day, to make you everybody else--- means to fight hardest battle which any human being can fight; and never stop fighting." 

e.e. cummings 

How many trial attorneys talk publicly about adverse jury verdicts.  Not many.  

Of course, in my field -- commercial litigation - not many of us can call ourselves trial attorneys with a straight face.  We're litigators, which means we want and try to win before trial and reconsider our settlement posture if the light at the end of the tunnel is the train of trial.    

We'd like to be Perry Mason (or, depending upon your generation, Denny Crane or the deliciously evil class action attorney Patty Hughes played by Glenn Close in Damages). 

But we're not.  We take depositions, scan and code hundreds of thousands to millions of documents, fight the discovery wars, make motions on the pleadings and pin our hopes on the silver bullet summary judgment motion.

So here's a short lesson and some good advice -- Jury Trials, An Art or a Game of Chance - from the men and women who actually try cases at the Florida law firm of Levin Popantanio Thomas Mitchell Echsner & Proctor.  

Read the entire article, but here are the bare bones that form the basis of today's good settlement advice.  In this first injury trial, the paralyzed plaintiff won

an $8 million . . . verdict, [which] was reversed on appeal . . . 

The [second trial resulted in] a defense verdict [which was also] reversed on appeal . . . 

The [last] trial resulted in a $31 million plaintiff’s verdict.

Who tried this case three times?  Trial attorneys who have, since the firm's founding in 1955, won

more than seventy-five jury verdicts in the amount of $1 million or more, including twelve jury verdicts in excess of $10 million, and two in excess of $450 million. Additionally, the law firm’s total settlements have exceeded one billion dollars. 

With this and all their other substantial trial experience under their belts, these trial attorneys conclude: 

[A] trial attorney should always inform his/her client that a prediction on the outcome of a jury trial is simply an educated guess, and that the client needs to be prepared for widely divergent results. There is always an element of jury uncertainty. Any time a client agrees to have his/her case tried before a jury, the client needs to understand that in some ways it is simply a game of chance.

Id. (emphasis added).  Couldn't say it better myself (and yes, I did try cases to juries when I was a plaintiffs' injury lawyer in the early '80s, as well as some, but far fewer commercial trials scattered throughout the remainder of my legal career). 

Thanks for candor guys.  Much appreciated.

(right:  key players with a model of Freedom Tower)

Settle in for a long and satisfying read in this stellar article that chronicles six years of litigation, mediation, negotiation and valuation in the World Trade Center case.  Here's just the first paragraph and a link to the full article.

Silverstein's Army by Ben Hallman of The American Lawyer

Wachtell dedicated more lawyers to helping Larry Silverstein rebuild at Ground Zero than to any other project in its history.

Rebuilding was the developer's dream-and his right, according to his lawyers from Wachtell, Lipton, Rosen & Katz. But after the towers fell, New York city and state authorities seemed to have done everything possible to elbow him out of the way, even as Silverstein ponied up $100 million a year to rent a hole in the ground. Now, at almost midnight, he was huddled in a conference room in the Park Avenue offices of the Port Authority of New York and New Jersey, the quasi-governmental agency that had leased the Twin Towers to Silverstein in July 2001. Executives from his development company and his financial backers were there with him, as were Wachtell partners Martin Lipton and Robin Panovka. Silverstein ordered two cups of coffee. He was ready to stay up all night. "Let's get this thing done," he told the group.

to read the rest of the story, click here.

Because it's the beginning of the new "school" year and the beginning of many first year attorneys' first law jobs, I'm providing as much advice as possible to help ease former law students into their new professional careers.

EMPATHIC ASIDE:  If you're feeling like EVERYTHING is taking you WAY too long, I share with you the fact that my own first two weeks of practice were consumed by 10-hour days drafting a simple motion to amend a complaint on the eve of trial -- a motion that, two years later, I could draft in my sleep. 

Fear not.  We've all been first year's and we all understand.  If your superior doesn't, you might wish to remind him that though you're one of the hardest working new associates in rock 'n roll, you are doing for the first time tasks he's been doing for a lifetime.  

THE GOOD ADVICE 

Today I bring you good advice on writing summary judgment motions from a series of posts on that topic by a defense employment litigator, George Lenard, with the St. Louis, Missouri firm of Harris, Dowell, Fisher and Harris.   The blog entry is from George's Employment Blawg and it covers the practicalities of strategically planning for, preparing, and drafting summary judgment motions.

The only thoughts I have to add to George's are deposition-related since I teach deposition skills to young lawyers once or twice a year and hence am always thinking about their questions and challenges.  

The winning summary judgment motion is the foremost reason that you need to make a clear factual record containing party admissions in the depositions that you take.

• too many attorneys of all levels of experience treat the deposition as purely a discovery device, thereby losing the true benefit of this "discovery" procedure, i.e., it is often your sole opportunity to obtain the admissions necessary to prevail before trial.
• how do you get a clear admission?  PLANNING, PLANNING, PLANNING
  • you need to know what you need the witness to say to prevail in the summary judgment motion before you take the deposition
  • you must therefore have done the necessary prep work on the summary judgment motion before taking the deposition
  • once you know what you need the witness to say, you must "set him up" to say it. 
  • how do you do that?
  • learn how to use documents skillfully to elicit admissions -- this requires not only ease with authenticating and establishing the business records exception to the hearsay rule for those documents but also . . . .
  • the ability to ask leading cross-examination questions (one question, one fact) about those documents
    • i.e., this is the employment agreement you signed, correct?  that's  your signature at the bottom, is it not?  your signature indicates that you read and understood the terms of this employment agreement  at the time you signed it, correct? (directing the witness' attention to the relevant clause).  You were telling the truth when you signed your name there, correct?  You had in fact read and understood the agreements terms, isn't that so?  Turning to paragraph 6, yes, please do take all the time you need to read it.  Have you read all of paragraph 6?  O.K.  You read and understood this paragraph when you signed the agreement, isn't that right?  And this paragraph provides that, quote, employee agrees that his employment can be terminated for any or no reason at any time unquote.  That's one of the terms you agreed to correct?
  • then, of course, you'll have to move on to the "meat" of the case, which generally requires you to counter the assertion that the "at will" provisions of the employment agreement are irrelevant because the employee was fired for whistle blowing, or left her company's employ because of a hostile environment or in respone to sexual harassment. 
  • this, of course, is trickier and more difficult but you must plan a line of cross-examination with the goal of eliciting the admissions you need to prevail on a summary judgment motion in an extremely fact intensive area of the law.

Once again, I remind my readers that favorable negotiated settlements often depend far more upon the credible threat you present to your opponent than any of your own negotiating skills or those of your mediator.  There are many techniques for successfully bargaining from a position of weakness.  We will be writing about those techniques over the next few weeks. But we'd really rather see you bargaining from a position of strength, which is why we're providing these first-year  tutorials on building the best factual and legal case at the earliest possible opportunity to speed your client to its probable sole litigation destination -- settlement.

C'MON, BE A REAL LAWYER:  USE THE WITNESS' DOCUMENTS AGAINST HIM IN DEPOSITION

And here's more on using a witness' documents against him.  This is cross-examination at its finest -- the witness either admits the damning "spin" in the "testimony" being given by the cross-examiner or he looks evasive at best, like a liar at worst.  This cross-examination from one of the Vioxx trials is from the Illinois Trial Practice Blog care of this week's Blawg Review (the Labor Day Special Historical Edition). 

SPEAKING OF THE VIOXX TRIALS .... my good friend and colleague Judge Victoria Chaney of the Los Angeles Complex Court who presided over the first Los Angeles Vioxx trial will be speaking with me, Judge Alexander Williams, III (full time Superior Court settlement Judge), arbitrator and mediator Jay McCauley (formerly of Paul, Hastings), the Hon. John Leo Wanger, Ret. (former U.S. Magistrate and fomer partner at Irell & Manella) and registered patent attorney and arbitrator-mediator, Les Weinstein of Sheldon Mack and the AAA here in Los Angeles on November 13 -- Settlement Techniques that Give You the Winning Edge.