• THE ASK - name your price first and to make your first number aggressive but not outlandish
  • you need at least three numbers to negotiate with - high, medium and bottom line
  • start with your high number
  • consider linking your high number to performance contingencies, i.e., if I do X and Y as I've promised, then my total compensation for 2011 will be Q; these performance contingencies can also be tied to the company's performance in 2011.
  • don't give all your reasons for your raise at the same time; you need a good reason for each of your high, medium and bottom line numbers - each round of negotiation requires "a number and a reason"
  • when making concessions, consider trading items of high value to you and low value to your employer, i.e., it doesn't cost your employer anything to let you work from home one or two days a week but it may well save you significant monies over the course of the year in transportation and incidental costs (this is called "log rolling")
  • go to your medium number reluctantly and stress that you are making a concession and expect reciprocity
  • go to your bottom line number only when you've completely run out of options

• PRETEND YOU ARE NEGOTIATING FOR SOMEONE ELSE
  • we women have a particular challenge in negotiating for ourselves because asking for ourselves contravenes gender norms
  • the research shows that we negotiate as effectively as men when we're negotiating for another but not when doing so for ourselves - so make yourself your own client and go out there and get the best deal for her

What we do, my friend, is discovery.  

Discovery. 

Saying that discovery is part of litigation practice is like talking about the wet part of the ocean.

How do you know when you're finally finished with legal practice?  When do the heavens open up and angels descend with the news that you've finally done enough and may now go and do that which you truly love? 

It's usually a discovery moment.

For one of my former law partners, it came on the heels of a five page meet and confer letter.  Single spaced.  When my friend's secretary came into her office with the written response, the expression on her face ranged between shock and amusement. 

"You're not really going to send this, are you?"

"Yes, I am.  Let me sign it."

"No no no no no no no.  I can't let you do this."

"Yes you can.  Let me sign it."

"Pleeeezzzzzzzzzzzzzzzzzz."

"Sign."

Here's the response that struck fear into the heart of an overworked legal secretary: 

Whatever.

And yes.  She sent it.

For those of you who have not yet reached the promised land of Discovery Whatever, I've got very very very good news for you.

The Discovery Referee Speaks!  And she is a Goddess.  Goddess Kathy Gallo to be exact.

Yesterday's post reminds us what we ought to know intuitively during our first deposition - the Court Reporter is the Goddess of the Deposition (my own stories of first encounters with the Sphinx of the Transcript are here)

I know of only one discovery referee who rivals my affection and respect for Kathy -- the brilliant,  persistent and omnipresent Eli ("and your backup argument would be?") Chernow.  Eli swore my dad in as Superior Court Commissioner before I went to law school.  That alone gives him a warm place in my heart.  He also let my step-son (then my paralegal) ask his first deposition questions in an antitrust action that had become so over-heated we needed the wise calm of a discovery umpire to get us from, "could you spell your name for the Court Reporter" to "I have no further questions of this witness."  Only my step-son (now at Irell) and Eli ever did understand the complicated Rand statistical study that underlay the plaintiffs' conspiracy allegations.

The Court Reporter

As Kathy rightly notes - the Court Reporter is the Goddess of the Deposition and don't you go forgetting it.  The Court Reporter is your very own home court advantage or you greatest nemesis.   You think the Sphinx of the Conference Room doesn't talk to her friends, the Discovery Referee, or opposing counsel if you disrespect her?  You think she doesn't have the discretion to transcribe or not transcribe every "um," "uh," and "arrrrrrr, um, uhhhhhh" you mutter as you struggle with the guy who says "yes," "no," "I don't know," and, "I don't understand your question, could you please rephrase it" for hours, even days on end. You think she can't make marking your own documents as exhibits the hell that populated your young adult law school dreamscape?  You think the Court Reporter in incapable of taking revenge?  

Think again.

How Do I Get from My First Admonition to My Final Discovery Motion without Humiliation?

Until a couple of weeks ago, the answer to this question was - you don't.  The only way to learn how to mark an exhibit, how to speak to a court reporter, know whether she actually strikes anything from the record, respond to a foundational objection, how to mark an exhibit without shame, how to respond to the other side's instructions not to answer and how to lead your professional life without yourself becoming a screaming  A**hole, was to first make a complete and utter fool of yourself.  That's how we learn to become lawyers young men and women.

Now that the Goddess of Discovery has arrived on the shores of the blogosphere, however, you might, just might, avoid humiliation and become a lean, mean discovery machine by clicking on Kathy's RSS feeder and reading her posts every single day.

Got it?

Got it!

Now go get 'em champ!

I've written about happy and unhappy lawyers before - here and here but I've rarely framed the issue as succinctly or as well as Chere Estrin at the Organization of Legal Professionals.  In the sidebar to her article The Secrets to a Stress Free Career, Estrin says work does not give you stress. Feeling bad about work gives you stress. 

What does Estrin know? 

Quite a lot. 

"I used to be the most stressed-put person I knew," says Estrin.

I averaged 90 hour weeks in the legal field as an executive in a $5 billion corporation, traveled three weeks out of four, answered to some big shots who thought they owned the planet, and managed hundreds of people.  It wasn’t much different when I was a paralegal manager.  There were critical deadlines to meet, difficult attorneys to juggle, anxious clients to handle and something called a “minimum billable hours” requirement, now referred to as “suggested” hours in a more politically correct and less actionable environment.  I recently looked at a picture of myself during that era.  I was holding my new-born niece, Cristina, a joy to behold and I looked like I just escaped from a train wreck and stopped by to say howdy.

Sound familiar?  After debunking some stress myths (you should go right over there now to read them) Estrin suggests the following:  

• You can’t change things if you don’t acknowledge them.  Ok, so I’m quoting a TV psychologist.  But he hit it right on.  When it was first brought to my attention that I was stressed out, I was in total denial.  Because I was fearful of being accused of failing and I wanted to do a great job, I denied I was stressed-out.  To me, it was a sign that I couldn’t deal with the job.  What I really needed to change was my responses.  Acknowledge what is.  Without that acknowledgement, you cannot take action.

• Learn to really laugh.  How long has it been since you laughed out loud, long and hard?  I mean a good belly-laugh.  If you’re stressed-out, it’s probably been awhile.  Laughter releases endorphins, natural pain-killers.  It boosts immune function by raising levels of infection-fighting T-cells, disease-fighting proteins called Gamma-interferon and disease-destroying antibodies called B-cells.  In short, it’s great medicine.

• Make a friend at work. When you have someone you can confide in, someone with whom you feel secure, trust, can share the ups-and-downs of the workplace, you feel better.  The environment somehow doesn’t seem all that bad.

• Make a decision.  The only way to transform your life is to make a decision to change and honour that decision.Decide how you want to live your life and then set about with complete certainty to create it.  The most critical time in my career came when I decided that I wanted to create the environment that was right for me. I no longer wanted a fancy office in a Class A building in the middle of a prestigious district.  I wanted to own my own business, work from home and call my own shots.  I haven’t looked back.  I’m happier than a clam.     

• Love ‘em or leave ‘em.  Recently, a good friend mistakenly thought I was encouraging paralegals to abandon their jobs without demonstrating any loyalty to employers.  What I do emphasize to anyone who will listen is: you have to love what you’re doing.  You absolutely have to get up in the morning and be excited about the workday.  There is no better career booster than a job that you love, thrive in and remains fun and stimulating.  That’s what actually changed me around.  I created a situation where I am passionate about what I do; feel appreciated, challenged and excited just about every day. (There is no 100% avoidance in the war against stress.) With that attitude, it doesn’t matter if I work 30 or 90 hours a week.  I am thrilled by what I do and the time I spend doing it.

I personally followed nearly all of this advice, but it took me a long long time to do so.  I still work a gazillion hours a week, but I'm doing what I love.  And if your legal education and training qualifies you to do anything, it should qualify you to do what makes you happy.

Really.

by Susan Adams

 

The woman was interviewing for a lucrative position as director of a sales team. After having three great meetings full of lively conversation about how she'd handle the job, she was optimistic. But then came the fourth and final interview, with the company's executive vice president. Things were going swimmingly until the interviewee asked a question designed to lock in the offer: "Do you have any issues with my candidacy?"

 

"Frankly, yes," the executive replied. "You're good with people, but you don't have the analytic background we need. Not only would you need to steer the sales team, but you'd need to analyze information and data too." Shocked, the woman left the meeting realizing the offer she'd thought was in the bag was gone.

In a high-pressure job search, is it ever possible to turn a no into a yes?

Absolutely, says Robert Hellmann, a career coach at the Five O'Clock Club, a career counseling firm, who also teaches career development at New York University.  Hellmann was coaching that very woman, and he helped her turn the situation around.

After every job interview, Hellmann advises, you should write not a thank-you note but what he calls an "influence letter." In this case, that letter became his client's key to getting back into the running

The letter should always address the conversation you've had and your skills and experience. First, in the interview, you should ask what challenges the company is facing and what the new hire will need to do as soon as she starts work. In the influence letter, address those challenges concretely, ideally by describing similar challenges you've tackled at a previous job and how you handled them.

Continue reading here.

An early mentor told me:  anyone can win on the merits - it takes a great lawyer to win on procedure. 

That was the least of it.  Here are some other words of wisdom handed directly down to me from lawyers past:

you don't get paid to settle; you get paid to win

if the other side wants it, you don't; if you can't see how it will hurt you now, you haven't thought enough about it yet

we don't give extensions of time, period, ever; we make them regret the day they sued our clients (or defended theirs) 

come back with your sword or on it

make her cry (pre-deposition instruction about opposing counsel; I did; came back and said "don't ever ask me to do that again")

bury them in paper

bury it [the smoking gun document] in paper

object, object, object - the other side has to meet and confer anyway

I solicit more of this litigation oral tradition from my readers. 

Of course we "game" the system. Isn't that what our clients pay us to do?  To walk up to the line of wrong-doing; stop just short of it; and, make them regret the day . . . . Has it changed?  Here's what the State Bar of California would like litigators and their clients to do:  be civil.

RESOLUTION OF [_____________________________]
APPROVING AND ADOPTING CALIFORNIA ATTORNEY
GUIDELINES OF CIVILITY AND PROFESSIONALISM
RECITALS

A. As officers of the court with responsibilities to the administration of justice, attorneys have an obligation to be professional with clients, other parties and counsel, the courts and the public. This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.

B. Civility and professionalism have been affected by a number of factors, as a result of which there is a need for attorneys to recommit themselves to the principles of civility and professionalism.

C. On July 20, 2007, the Board of Governors of the State Bar of California adopted California Attorney Guidelines of Civility and Professionalism.

D. The Board of Directors of [________________] are of the unanimous opinion that the Guidelines will be of significant assistance in encouraging members of [________________] to continue to enhance their reputation and commitment to civility and professionalism.

RESOLUTION

The Board of Directors of [________________] hereby approves and endorses the California Attorney Guidelines of Civility and Professionalism and recommends that all members of [________________] commit to and agree to be guided by such
Guidelines.

Dated: _______________
[________________________]
By: _____________________
California

The full California State Bar "Civility Toolbox" here.

What does the 200-year present have to do with conflict resolution week?  It reminds us that new forms never really completely replace the old ones.  We continue to employ every technique we've ever used to suppress, avoid, deny, resolve, transform, or transcend conflict, including force (violent and non-violent such as injunctions subject of a Trial Warrior Blog post this week); thievery (the Trade Secrets Blog); shaming (which Scott Greenfield does to bloggers "looking for fights and dumb as dirt" and which Volokh suggests we do to health insurers); bullying (solutions to which appear at the Citizen Media Law Project); torture (still with us at the Crim Prof Blog); cheating (Make Yourself Better with Their Secrets at Concretely Ambiguous) ingratiation (at the Law School Expert); persuasive argumentation; appeal to third party authority; bargaining; communication; and, problem solving (The Tao of Advice at the Business of Creativity). 

Whichever dispute resolution mechanism you use, it should be much improved if you take up  juggling (as reported this week at Idealawg).

Transformative conflict resolution of the type covered by New York City police officer, Jeff Thompson at Enjoy Mediation, requires accountability (by lawyers, for instance, to the principle of justice at Law21); recognition (at JD Bliss); apology, amends, reconciliation (at Opinio Juris); power with (negotiation and cooperation at the Ohio Family Law Blog) instead of power over (at the Election Law Blog); and, interests rather than rights (at the Gay Couples Law Blog).

No brand of law-giver or enforcer has ever entirely left the scene.  Cops, negotiators, mediators (on the international scene at the Business Conflict Blog); conciliators, arbitrators, trial attorneys (marking tattoos as exhibits over at LawComix), corporate lawyers, legislators  (fomenting a Franken Amendment at the ADR Prof Blawg); judges (whether elected or appointed at Legally Unbound), and, juries (who might be biased at SCOTUS Blog). 

And of course the gadflies (wolf protection lawsuits anyone? at  Point of Law). 

Win, lose, settle, enjoin (at Charon QC) or simply give up (6 Ways We Gave Up Our Privacy at CSO Security and Risk).  We regulate crime and prescribe punishment (Polanski at Sentencing Law and Policy and The End of an Era at Defending People). 

We wage war (at Prawfs Blog) and seek peace (at the Delaware Employment Law Blog) as conflict inevitably erupts over Obama's (embarrassing) peace prize (at Balkinization).

And, lest we forget our primary purpose, we bend our efforts toward justice (which, according to BLT is not necessarily available to card-carrying members of the ACLU).

My own personal 200-year present spans the life of my maternal grandparents who were nine years old in 1909, and that of my step-children’s children, who (assuming they procreate on a reasonable schedule) should be ninety-five'ish in 2109. 

My grandfather, born in 1900, witnessed the birth of electricity, saw the first automobile roll off an assembly line ^[2] and stood awestruck in a cornfield as one of mankind’s first airplanes took flight. ^[3]  Although we've progressed from bi-planes to jets and rockets (some of which may someday be green) we still fly balloons of the type first launched in 1783 -- both Goodyear Blimps and the backyard variety, covered this week by Legal Blog Watch as Law and More

asked here whether the shiny, flying, silver Jiffy Pop-looking craft tethered in the backyard of Richard Heene was an "attractive nuisance" under the law.

Grandpa's first war was, well, the First and his second was the Second,^[4]  as if there'd never been any wars before the Great One. By the time I was born, mid-century, we'd fought the war to end all wars twice and knew we'd never survive a third. 

My imagined grandchildren, ^[6] born sometime between today and 2014, will not be strangers to any of my grandfather’s technologies. Despite the advent of compact fluorescent light bulbs, the early lives of my step-children's children will likely pass under the glow of the same incandescent lights that brightened granddad’s one-room school house. They will be transported to school in cars with internal combustion engines, learn the same alphabet from the same cardboard and paper books (as well as from the "e" variety) ^[7] and play many of the same games ^[8]  he did – hop scotch, jump rope and ring-around the rosy. 

Change will etch itself into the lives of my grandchildren as surely as it did my own, my parents' and my grandparents'.  Hybrids will give way to fully electric (and perhaps hemp-powered) ^[9] vehicles (effective or defective) and though electricity will continue to be  generated by hydroelectric dams, wind farms and nuclear power plants, some new and unimaginable source of power will surely push back the nights of my grand children's children. ^[10]

Law, politics, society and culture also exist in the 200-year present of conflict resolution.  ^[11] In my personal 200-year span, the law seems to have changed the most profoundly. Was it the law first and culture later?  Or do they weave our future together?

The first U.S. woman lawyer, Myra Bradwell, was admitted to practice a mere ten years before my grandmother was born. Mrs. Bradwell’s legal career was the subject of one of the sorriest U.S. Supreme Court decisions ever handed down, in which the Court opined,

The civil law as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender.  The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea for a woman adopting a distinct and independent career from that of her husband … for these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of any abridging any of the privileges and immunities of cities of the United States.

^[12]

Another nineteen years would pass after Bradwell began her practice before she (and my nineteen year old grandmother) were guaranteed the right to vote. ^[13] And another 30 years would pass after my women's movement -- the Second Wave -- before we'd have our own  business magazine -   ForbesWoman (my part in it here).  And let us not forget that despite the 20th Century's great civil rights achievements, when America catches a cold, black America gets pneumonia.  See e.g. Problems All Around for Blacks in Big Law at Being a Black Lawyer.

My grandparents', parents' and step-children's 20th Century was dominated by genocide ^[14] on a scale and a technological precision unimaginable to our earlier forebears.  Mid-century brought with it the threat of nuclear annihilation but also liberated millions of people enslaved by colonialism.  We cured polio in my own lifetime with both "dead" and "live" vaccines (neither of them counterfeit) - a singular moment in scientific history during which no one took ownership of the cure and no one tried to stop others from seeking another, a problem Patently O addressed this week in Reverse Payments.

Whether god or satan, heaven or hell, war or peace "won" the twentieth century, the world's greatest peace-making body was created during it -- the United Nations.  And here in the U.S., the “living room war,” Viet Nam, coupled with the largest generation of adolescents ever to grace American society, ended the forcible induction of young men into the military. ^[15]

With the recent discovery of our earliest ancestor, Ardi, our biological and social lives exist in a 4.4 million year now. Our physical bodies “evolve” in the womb along the same lines as did our species and, once born, we carry with us our earliest organs. ^[16] Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala.^[17] And the most pertinent biological agents to promote the collaborative resolution of conflict are our “mirror neurons” which

 provide a powerful biological foundation for the evolution of culture . . . absorb[ing] it directly, with each generation teaching the next by social sharing, imitation and observation.

 ^[18]

As “exquisitely social creatures,” our “survival depends on understanding the actions, intentions and emotions of others.” Id. That our misunderstandings and cognitive biases -- mentioned by Volokh on Paternalism and Michael Carbone on reactive devaluation at Mediation Strategies this week -- threaten our survival as a species is undeniable (cf. Lawyers Must Survive or Face Extinction at the Lawyerist). 

How we’ve manage to survive despite our tendency to misread one another’s actions, intentions and emotions, is often the subject of those who advise us how to choose and move juries -- here -- Anne Reed at Deliberations (explaining why "they" don't see things like "we" do here); and, the Jury Room (explaining why pain hurts more intensely when we believe it's been intentionally inflicted here). 

The Most Effective Conflict Resolution Technology is the Oldest

One of our true original gangsters, Al Capone, is reported to have said that “you can get much further with a kind word and a gun than you can with a kind word alone” and one of our greatest Presidents, Theodore Roosevelt said “speak softly and carry a big stick.”

Capone and Roosevelt didn't know it, but they were talking about the most effective (and most ancient) form of conflict resolution – tit for tat. In 1980, political Scientist Robert Axelrod asked game theory experts to submit computer programs designed to prevail in a game that provided the highest reward to cooperating pairs -- the famous Prisoner's Dilemma. (See also Max Kennerly's excellent post on Game Theory and Medical Malpractice Settlements at the Philadelphia Litigation and Trial Blog).

The winner of Axelrod's competition was a program named tit for tat.  Tit for tat was programmed to cooperate ^[19]  with its first encounter with any other programmed player.  It  rewarded cooperation with cooperation (just as networking will reward the savvy lawyer over at Chuck Newton's Ride the Third Wave) and punished non-cooperation with retaliation. Because Tit for Tat retaliated in the face of non-cooperation (just as a former employee did according to Hell Hath No Fury at Chicago Law Blogger) it was never repeatedly victimized. And because Tit for Tat “forgave” non-cooperators upon their return to cooperative game playing (as some believe Mr. Polanski should be forgiven over at the Marquette U. Law School Faculty Blog) it never got locked into mutually costly chains of mutual betrayal. ^[20]

As Robert Wright, author of The Moral Animal explained, had Tit for Tat been tossed into the game with 50 steadfast non-cooperators, there would have been a 49-way tie for first place. But none of the players' programs failed to cooperate in at least some circumstances, leaving Tit for Tat the clear victor.  According to Wright, humans, like the programs in Axelrod's competition, are evolutionarily “designed” to cooperate under at least some circumstances. The engine and benefit of cooperation is present in our neurochemistry.  When scientists observed the brain activity of volunteers playing the Prisoner’s Dilemma game, for instance, they found that the participants' “reward circuits” were activated and their impulsive "me first" circuits inhibited when they cooperated. Cooperation, retaliation, forgiveness and a return to cooperation. Tit for Tat. 

Laws and Lawyers

First and most importantly, I suppose, are the social media signs that you're "tweeting" like a lawyer over at the Social Media Law Student Blog.  Why first or important?  Know thyself.  Everything else follows that.

We don't "dis" lawyers here at the Negotiation Blog.  We simply remind ourselves that our primary purpose is the promotion of justice, with a stable societal order closely behind.  Most people don't understand, for instance, that Shakespeare's famous the first thing we do, let's kill all the lawyers was not an insult.  In King Henry IV, Act IV, Scene II, Shakespeare's sentiment was not his own, but that of a revolutionary who wished to destroy the social order.

The historic "present" of laws and lawyers is in the thousands, not simply the hundreds, of years. Hammurabi (make of his choice for the memorialization of his laws what you will) was the sixth king of Babylon, remembered for creating -- in his own name (and likeness?) - the first written and systematic legal code. 

These laws provided for a mix of physical punishment - 60 lashes with an ox hide whip - ‘measure for measure’ awards (still with us in the form of lethal injection as covered by The StandDown Texas Project) – eye for eye, bone fracture for bone fracture – and monetary compensation – 20 shekels for tooth injuries – (preserved by workplace injury awards such as those discussed at the Workers Compensation Blog) depended not only upon the type of injury, but the social classes involved in the loss, i.e., ‘measure for measure’ sanctions were specified for losses among the upper classes while monetary awards were required for losses caused to and by commoners (reminding us that disrespect still too often turns on social status or "outsider" classification as discussed at Balkinization this week).  ^[23] 

For the wrongful killing of another, for instance, the victim’s kin were paid according to the social status of the deceased party. Thus the ‘man price’ for killing a peasant was 200 shillings and that for a nobleman 1200 shillings. Payments were not, however, tailored to the loss, but fixed according to types of affront, a distinction we continue to make when we punish intentional torts more severely than negligent ones.  ^[24]>

Criminal law and civil, it all comes down to a process that is "due" (a topic covered in a blistering post about tea-partiers and other "protectors" of the Constitution at the Criminal Jurisdiction Law Blog) and a set of guidelines against which we can exercise some small degree of control over our own commercial and personal futures (like those subject of Delays Not "Party Time, Excellent" for Subcontractor at the Construction Contract Review).

Lawyers, litigators and trial lawyers are too often demonized by the ADR community as if you could get someone to sit down to negotiate without first pointing the gun of litigation at their heads; I salute you (and myself, for that matter!) for bringing us all to the bargaining table.  See Steve Mehta's recent post at Mediation Matters, Factors When Peace Makes Sense for a note that touches upon the symbiotic relationship between litigation and mediation, litigators and mediators.

I shouldn't cite single legal blogs twice, but I cannot resist this quote of Scott Greenfield's on another pundit's view of the future lawyers have in store for them, i.e., 

shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom.

Legal Rebels:  the Sky is Falling at Simple Justice.  Charon QC also weighs in on the ABA Legal Rebels project here.

Arbitration

Which came first? Public civil trials or private arbitrations? You’ll be surprised, I’ll wager, to hear that arbitration was one of the earliest forms of dispute resolution, practiced by the juris consults of the Roman Empire. Roman arbitration predates the adversarial system of common law by more than a thousand years. ^[25]

Ah, the glory of Rome! The juris consulti were (like too many mediators) amateurs who dabbled in dispute resolution, raising the question whether they (and we) should be certified or regulated as Diane Levin asks at The Mediation Channel this week.  The Roman hobbyists gave legal opinions (responsa) to all comers (a practice known as publice respondere). They also served the needs of Roman judges and governors would routinely consult with advisory panels of jurisconsults before rendering decisions. Thus, the Romans – god bless them! - were the first to have a class of people who spent their days thinking about legal problems (an activity some readers will recall Ralph Nader calling "mental gymnastics in an iron cage").

18th Century Dispute Resolution Technology:  The (Inevitably Polarizing) Adversarial System

It was Buckminster Fuller who famously opined that the "significant problems we face cannot be solved at the same level of thinking we were at when we created them."  If you keep this aphorism in mind for the remainder of this post, you'll likely have some extraordinarily innovative comments to make in the comment section below.

As the Law Guru wiki reminds us, we can trace the adversarial system to the "medieval mode of trial by combat, in which some litigants were allowed a champion to represent them."  We owe our present day adversarialism, however, to the common law's use of the jury - the power of argumentation replacing the power of the sword.

The Act abolishing the infamous Star Chamber in 1641 also granted every "freeman" the right to trial by "lawful judgment of his peers" or by the "law of the land" before the Crown could "take[] or imprison[]" him or "disseis[e] [him] of his freehold or liberties, or free customs."  Nor could he any longer be "outlawed or exciled or otherwise destroyed."  Nor could the King "pass upon him or condemn him." 

English colonies like our own adopted the jury trial system and we, of course, enshrined that system in the Fifth, Sixth, and Seventh Amendments.  Whether this 17th century dispute resolution technology can be fine-tuned to keep abreast of 21st century dispute creation technology (particularly in the quickly moving area of intellectual property) remains one of the pressing questions of legal and ADR policy and practice, particularly in a week in which a Superior Court verbally punished the lawyers before it for filing The Most Oppressive Motion Ever Presented (see the Laconic Law Blog).  The motion? 

Defendants['] . . . motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication.  Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded.  And the moving papers concluded with a request for judicial notice of 174 pages.  All told, defendants’ moving papers were 1056 pages.

Id. (and ouch!)  On a less Dickensian note (think Bleak House) take a look at the IP Maximizer's post on IP litigation not being smart source of revenue for inventors. 

Mediator, author and activist, Ken Cloke, suggests that interest-based resolutions to conflict must replace power and rights based resolutions if we expect to create a future in which justice prevails.  As Ken wrote in Conflict Revolution:

Approaching evil and injustice from an interest-based perspective means listening to the deeper truths that gave rise to them, extending compassion even to those who were responsible for evils or injustices, and seeking not merely to replace one evil or injustice with another, but to reduce their attractiveness by designing outcomes, processes, and relationships that encourage adversaries to work collaboratively to satisfy their interests.

Evil and injustice can therefore be considered byproducts of reliance on power or rights, and failures or refusals to learn and evolve.

All political systems generate chronic conflicts that reveal their internal weaknesses, external pressures, and demands for evolutionary change. Power- and rights-based systems are adversarial and unstable, and therefore avoid, deny, resist, and defend themselves against change. As a result, they suppress conflicts or treat them as purely interpersonal, leaving insiders less informed and able to adapt, and outsiders feeling they were treated unjustly and contemplating evil in response.

As pressures to change increase, these systems must either adapt, or turn reactionary and take a punitive, retaliatory attitude toward those seeking to promote change, delaying their own evolution. Only interest-based systems are fully able to seek out their weaknesses, proactively evolve, transform conflicts into sources of learning, and celebrate those who brought them to their attention.

These are the words I leave with the readers of Blawg Review #234 because they are the ones that informed my personal and professional transformation from a legal career based on rights and remedies to one based upon interests and consensus. 

Whatever my own personal 200-year present was, is and will be, it is pointed in the direction of peace with justice, with an enormous and probably unwarranted optimism best expressed by the man after whom my law school was named:  Martin Luther King, Jr.  - the arc of history is long, but it bends toward justice.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Next week's host, Counsel to Counsel, will devote its round-up of the week's best legal posts to the Great Recession.

As a mediator, however, I hear stories.  

Some of the stories I hear are told by disgruntled individuals who feel as if they were coerced by their own counsel into settling their litigation during a mediation.  Others have reported that they felt ganged up on by their attorney and the mediator.  Some have complained that they were unduly pressured to stay in the mediation process long after they were too tired or hungry to think clearly. 

These stories are troubling to any mediator who values the good reputation of the mediation process itself.  They should also disturb attorney mediation advocates.

Is it below the standard of care for an attorney to subtly (or not so subtly) pressure his or her client to settle litigation?  Under certain circumstances, I think it is.  Here's the bad news.  If a litigant is unhappy with the outcome of mediation, he or she is far more likely to bring a complaint (or lawsuit) against his or her own attorney.

In a 2006 article in the Ohio  Journal on Dispute Resolution TAKE IT OR LEAVE IT. LUMP IT OR GRIEVE IT: DESIGNING MEDIATOR COMPLAINT SYSTEMS THAT PROTECT MEDIATORS, UNHAPPY PARTIES, ATTORNEYS, COURTS, THE PROCESS, AND THE FIELD  Paula M. Young, Assistant Professor at the Appalachian School of Law cites Mel Rubin on "settle and sue" cases which Rubin suggests are on the rise among clients unhappy with the outcome of a mediation.  Rubin "also suggests that if a client is unhappy with the outcome of mediation, he or she is more likely to sue his or her attorney for malpractice. Id.

What might actionable attorney mediation malpractice look like?  Young cites the example of one woman who told the following story:

I refused to sign several times. My attorney then began yelling at me to “shut-up and sign the damn thing” I wasn't allowed to leave until it was signed . . . . The words, “NO I can't sign this,” fell on deaf ears. I was so unfamiliar with the process of it all and what it meant and what the outcome entailed.

Young has a systemic solution for problems like these:  procedural "justice" during the mediation itself and grievance procedures for dissatisfied litigants.  She writes:

To the extent the procedural justice research indicates that parties who perceive they have received procedural justice in mediation also perceive that the negotiated outcome in mediation is fair, we would expect that these parties are not likely to later sue their attorneys for malpractice. Even when the client has little trust in his or her attorney, a mediation process that enhances procedural justice allows the party to assess directly whether he or she feels exploited or mistreated in the process.

Even if the mediation process itself lacks procedural justice and the client accordingly remains dissatisfied and suspicious, a well-designed grievance system, emphasizing procedural justice from the client's perspective, may give the client the reassurances he or she needs. A client who suspects collusion between his or her lawyer and the neutral could seek the informed opinion of the regulatory body, without ever having to file a legal malpractice law suit.

Remember that we tend to stumble and fail when we're Hungry, Angry, Lonely (marginalized) or Tired (HALT) and so do our clients.  When I notice litigants flagging or attorneys losing their tempers, I suggest a walk around the block, a nutrition break (not eating more cookies) and, in extreme cases (someone becomes ill during the course of the session) reconvening at a later date.  Remember how powerful and all-knowing you appear to be to your clients and what a strange and frightening land the "justice system" is for those who are encountering it for the first time.  

There's no better defense to professional negligence actions that the quality of your relationship with your clients.  Keep channels of communication open.  Demand that your adversary and the mediator treat your client with respect.  At the first sign that a mediator is exercising undue influence on your client, say something, just as you would if opposing counsel were harassing your witness at a deposition.  Follow these dictates and you'll rarely if ever be worrying about calling your insurance carrier.
 

Your client may have been coerced into signing off on the agreement; may not have understood what she was signing; or her assent could have been induced by your opponent's material misrepresentations of fact.  Your client's insurance carrier may be guilty of actionable bad faith during the course of the mediation.  Too bad.  The mediation proceeding is given greater protection than given to penitents in a confessional.

But you can inadvertently expressly waive the protections of mediation confidentiality if you've carelessly crafted your own confidentiality agreement.

California's Second District Court of Appeal held in Thottam (.pdf of opinion here) that a party's confidentiality agreement did just that -- waived the protection -- permitting one party to introduce an otherwise inadmissible draft agreement into evidence for the purpose of enforcing an otherwise unenforceable mediated settlement agreement.

As the Court in Thottam held, Section 1123(c)'s requirement that all parties to a mediated settlement agreement "expressly agree in writing . . . to its disclosure," may be satisfied by terms contained in a writing other than the alleged settlement agreement itself, including a writing executed before a settlement agreement has purportedly been entered into.  Because the "draft agreement" at issue in Thottam did not contain 1123's "magic" enforcement language and because the term sheet drawn up during the mediation was not sufficiently certain to enforce in any event, one party to the subject probate proceeding objected to its introduction into evidence and to the admission of testimony concerning otherwise confidential statements made during the mediation.

Had there been no confidentiality agreement, the issue would have been controlled by Evidence Code sections 1115 et seq.; the "agreement" would have been excluded from evidence as non-compliant with section 1123; and, no evidence of statements made during the mediation would have been admitted into evidence. 

Here's the danger of drafting your own confidentiality agreements in an attempt to expand the scope of mediation confidentiality.  

According to the appellate court opinion, because the parties expanded the scope of confidentiality beyond that provided by the statute, the exception to the protection ("except as may be necessary to enforce any agreements from the Meeting") was broader than the enforcement exception contained in section 1123.  As one blogger cogently put it at the time, "the big print giveth and the small print taketh away."

I think it's safe to say that this result was pretty much completely unpredictable and that it was within the standard of care for counsel to expand the protections contained in section 1119  (for an example of the problems created by its relatively narrow confines, see mediator Debra Healy's comments and my response about the scope of mediation confidentiality in an earlier post in this series).

Post-Thottam, however, counsel must be extremely careful in drafting confidentiality agreements lest they inadvertently take away the protections the legislature created and the Supreme Court has so assiduously enforced.

In short, don't get fancy.  Just stick with the language of section 1119

I don't mean to suggest here that drafting an arbitration clause a Court refuses to enforce or to apply to a given claim constitutes malpractice.  The way the Courts are dealing with arbitration clauses these days, it's probably not outside the standard of care to fail to satisfy their passing fancies on scope and unconscionability.  

I do, however, WANT TO DISCOURAGE ALL LAWYERS FROM USING BOILER PLATE ARBITRATION CLAUSES which is why I'm alerting you to yesterday's opinion by the Fifth Circuit Court of Appeal refusing to apply Halliburton's employment arbitration provision to a sexual assault claim. 

Here's the clause. 

 You understand that the Dispute Resolution Program requires, as its last step, that any and all claims that you might have against Employer related to your employment . . . must be submitted to binding arbitration instead of to the court system.

Pretty broad, but not, according to Jones v. Halliburton, broad enough to include a sexual assault claim that occurred in worker housing.  With one Justice dissenting, the Court was careful to limit is opinion strictly to the facts of the case before it.  Here's the holding: 

The one consensus emerging from [our] analysis is that it is fact-specific, and concerns an issue about which courts disagree. When deciding whether a claim falls within the scope of an arbitration agreement, courts “focus on factual allegations in the complaint rather than the legal causes of action asserted”. Waste Mgmt., Inc. v. Residuos Industriales Multiquim, S.A. de C.V., 372 F.3d 339, 344 (5th Cir. 2004) .Here, the allegations are as follows: (1) Jones was sexually assaulted by several Halliburton/KBR employees in her bedroom, after-hours, (2) while she was offduty, (3) following a social gathering outside of her barracks, (4) which was some distance from where she worked, (5) at which social gathering several co-workers had been drinking (which, notably, at the time was only allowed in “non-work” spaces).

                                         *                     *                   *

Under these circumstances, the outer limits of the “related to” language of the arbitration provision have been tested, and breached. Halliburton/KBR essentially asks this court to read the arbitration provision so broadly as to encompass any claim related to Jones’ employer, or any incident that happened during her employment, but that is not the language of the contract. We do not hold that, as a matter of law, sexual-assault allegations can never “relate to” someone’s employment. For this action, however, Jones’ allegations do not “touch matters” related to her employment, let alone have a “significant relationship” to her employment contract.

N.B.  Review the case law; forecast the types of claims that might be made against your client.  Tell the client there's no way you can provide it with any absolute assurances that the arbitration clause will be enforceable in every given situation.  Say that in writing.  Do your best.  Maintain a great working relationship with your clients and you'll be fine.  Just fine.

Hat tip to Pop Tort for the head's up on this case!

C'mon!  ADR is all about avoiding litigation, not creating it, right?  The good news is that there hasn't yet been an ADR malpractice suit of note.  The bad news is, I see ADR negligence at least once a month and am holding my breath against the day lawsuits began a'poppin. 

To help you avoid ADR malpractice, here is just one of ten pitfalls to be covered in this series that can make you a malpractice magnet for disgruntled clients. 

1. write up a "term" sheet reflecting your mediated settlement agreement without including the "magic language" of Evidence Code section 1123
   1. absent this language, a party with buyer's remorse can resist the enforcement of a "term sheet" if he feels he was was coerced into signing it; entered into it based upon a misrepresentation of material fact made during the mediation; or, that it simply does not accurately reflect the terms the parties' orally agreed upon during the mediation
   2. use the magic language of Evidence Code section 1123 and your "term sheet" should be enforced and your client's bargaining partner precluded from introducing into evidence (pursuant to section 1119) any statement made by anyone during the course of the mediation, including allegedly coercive, misleading, or, fraudulent statements of fact allegedly inducing his consent.
   3. as Orange County mediator William J. Caplan points out in his lively 2005 article, The Quick Brown Lawyer Jumped Over the Mediation Traps, the "magic words" are “admissible,” “enforceable,” “binding,” and “subject to disclosure.”
   4. the cure (from Caplan again) is the following "belt and suspenders" clause:

The parties intend this Agreement to be admissible, binding and enforceable, and subject to disclosure within the meaning of those terms in California Evidence Code § 1123 (a), (b) and (c), and this Agreement is expressly not privileged from disclosure under California Evidence Code § 1119. In addition, if the formal Settlement and Mutual Release Agreement contemplated hereinabove is [e.g., not executed within ten (10) days of the date of this Agreement] this Agreement may be enforced by motion under California Civil Code § 664.6 and the court shall retain jurisdiction over this Agreement until performance in full of the settlement terms herein.

Below is an Orange County Superior Court form that satisfies the requirements of section 664.6 (providing an expedited enforcement mechanism for the settlement agreement) but which fails to recite all of the magic words including admissible, enforceable, and subject to disclosure.  So please don't trust any form other than your own!!  Even forms issued by the Courts. The fact that you are entitled to an expedited hearing under 664.6 to enforce your mediated settlement agreement does not mean that you will be permitted to enforce the agreement against your opponent's will.

SB-66 Stipulation For Settlement (CCP 664.6) - California

Of course the best way to avoid claims arising from buyer's remorse is to create a durable settlement that all parties will want to enforce.  That means avoiding agreements that your client enters into when he or she is hungry, angry, lonely (i.e., sidelined) or tired (HALT).  It also includes agreements that feel coerced by an overly aggressive mediator preying on the weaker of the two (or three or four) parties.  And yes, Virginia, there is always a more vulnerable party; all mediators recognize who that is; and, too many mediators make a beeline for that party's soft under-belly.

Another way to avoid challenges to the mediated settlement agreement include:

• bringing a fillable template settlement agreement (and these days, also a Stipulation for the Entry of Judgment in the event of default on a payment plan) that is a complete, final and binding agreement that contains the "magic language" of section 1123 that all parties execute before they leave the mediation session (no matter how tired everyone is and how much everybody wants to just go home and deal with the inevitable nit-picking over the relatively inconsequential terms of the agreement tomorrow). 
• not letting your fear that the "details" might blow up the "deal" you've spent so many hours negotiating.  You know how these deals go off the rails the following morning when your opponent begins to nit pick terms, often as a face-saving mechanism.  Let the mediator help you close the deal right there and now, assisting the parties in resolving the minor terms that can blow up in your face if left until tomorrow.

And speaking of tomorrow, I'll have Tip No. 2 for avoiding malpractice litigation arising from mediated settlement agreements.  Stay tuned!

For more posts on confidentiality in both California state and 9th Circuit district courts, click here.

(image by the great Charles Fincher at LawComix)

Thanks first to LexBlog for giving yesterday's post here a shout-out but more importantly, thanks to LexBlog for giving Arnie Herz' post at Legal Sanity Why lawyers should get emotional with clients coverage in the same daily compilation of LexBlog client posts, a tremendous resource I highly recommend you include on your news reader.

You'll see from my lengthy comment there that Arnie is singing my song about the law and emotion and in particular, the fact that we cannot make decisions without emotion something every trial lawyer, negotiator, mediator and sales person knows down to the knuckles of their spine.  Excerpt from Legal Sanity below.

Here are two facts:

• There’s a client service deficit in the law.

• Lawyers tend to regard emotions – their own and other people’s – as irrelevant to their work.

At first glance, these two facts seem unrelated. But they’re actually closely (even intimately) connected. 

Some time back, I posted on the interplay of emotions and client service in this new era of customer control. I linked to a ClickZ article citing a (then) new book by Dan Hill called Emotionomics: Winning Hearts and Minds. Launching from the premise that humans are primarily emotional decision-makers, the book discusses how emotions factor into our business opportunities in the marketplace and workplace. 

Picking up on this point from a slightly different angle, in a recent post, designer and marketing mentor Peleg Top says, Go ahead, get emotional. Top notes that, in marketing (and, I’d add, in providing) our services, “an effective way to generate action is to tell a compelling story, one that hits your customer’s emotions.” Suggesting that most service providers miss this mark, he observes . . .

For the remainder of Arnie's great post, click here.  And here's another great link on the same topic from Cutting Edge Law - the illicit relationship of lawyers and emotion.

More on the effective use of emotion in the negotiation of settlements soon.

This excellent talk by Webb has been viewed 202 times, while "Drunk Lawyer" below has been viewed by nearly 300,000 people.  It's not surprising that drunken trial lawyers are far more entertaining than some old guy talking about attorneys bringing potluck to negotiate the resolution of a lawsuit. 

The question is this:  Do you want to pay for the entertainment of conflict or resolve it and move on with your plans to create a profitable future for your company and its employees.

"Drunk Lawyer" is, after all, free on YouTube!

Thanks to Cutting Edge Law for gathering together the Stu Webb and other videos on the revolution in legal practice that's being fomented right around the corner -- just about the time the BigLaw model fails along with dinosaurs like General Motors.

You didn't hear it here first.  But you will hear it here often.

This is the fourth video of this painful encounter on YouTube but it's the one in which the attorney is asked to "blow" a breathalyzer for the Court.

I'll tell you more about it when I have a little more time.  Right now I want to make an offer to any young lawyer who is available to take the course twice a month on Saturdays at 10:00 a.m. PDT who can serve as my "teaching assistant."  I've been given one full-scholarship (for all of SPU's courses) to give away free and I'd like to give it to someone who can "attend" the Saturday morning Webinars twice a month and provide me with just a small amount of in-class assistance.

If you'd like to receive the SPU Scholarship and take the "live" interactive twice monthly Art of the Deposition Webinar, please contact me at vpynchon@settlenow.com.

Here's a description of the course from SPU's amazing website:

FIRST CLASS:  Saturday, April 11, 2009

CLASS TIMES:  Saturday 10:00 a.m. PDT

OFFICE HOURS:  Saturday 11:00 a.m. to 1:00 p.m. PDT

In this course you will learn how to conduct an effective direct examination for the purposes of information gathering and fact and theory testing. You will also learn how to cross-examine your witness and to use documents for the purpose of impeachment. You will learn to authenticate documents, establish the business records exception to the hearsay rule and effectively question witnesses about the documents. You will learn how to deal with obstreperous opposing counsel, to defend your client during a deposition, to make the right objections at the right time and to use your deposition transcripts in pre-trial motions and at trial.

• the total sum of the settlement;
• the period of time over which the settlement will be paid;
• the Stipulated Judgment in the event of default; and,
• the amount of the Stipulated Judgment (far more than the agreed upon settlement sum).

We could put these terms in a skeletal settlement agreement right now; include the "magic language" from Evidence Code section 1123 that will permit enforcement of the mediated agreement; and, let everyone get on the road, onto a plane and into bed.

Because these parties couldn't agree on what year it is, however, no one balks at my suggestion that we write up the entire deal -- settlement agreement with mutual general releases; the Stipulation for the Entry of Judgment; and, the proposed Stipulated Judgment itself.

The first problem is everyone's failure to bring a form Settlement Agreement and Mutual Release, let alone one that included enforceable terms for the entry of a Stipulated Judgment in event of default.   

ADVICE???  Carry these documents on a "flash" or "jump" drive whenever you're going to a settlement conference or mediation.  Heck, carry them with you to the first day of trial where you might be startled to learn that your adversary is prepared to settle the case right now!

Fortunately, I had access to my own files which contained detailed forms for everything we needed, forms I offered to counsel as guides. I did so only with the express understanding that I did not recommend my own forms as adequate, complete or enforceable.  

I'm just the mediator, not the legal representative of the deal in loco parentis.

It's a good thing we made the effort to fully document the deal because it threatened to fall apart over all of the following terms:

• the dismissal of ancillary proceedings
• forbearance from inducing future actions by non-parties
• liquidated damage clauses for the breach of certain critical deal points
• indemnification for future actions if induced by certain of the parties

Each of these items required separate negotiation and compromise and as to each I helped the parties calculate the degree of possible misbehavior by their adversaries and the protections that might "fit" the probable harm.  I do not believe the parties would have been able to resolve these terms (as well as others too confidential to mention) without third party assistance.  One was so difficult to predict both the series of possible events and potential remedies that we provided for arbitration of that term alone in the event of alleged default.

When we all finally left the building at one in the morning, we had fully completed paperwork, signed by all parties in hand. 

And yes, I was the only one present who could type.

Defense counsel wants to write up the "deal points" and make a quick getaway.  Before she does so, we have the following conversation.

"We'll need three years to pay it."

I fake calm.

"Your security?" I ask, my mind racing to the other room where an already unhappy set of plaintiffs are sitting.

"We don't have security.  I told you my clients are broke.  I also told you we'd need terms but you didn't want to talk about them."

This is true.  From hour one the defense insisted they'd need to pay over time and the Plaintiffs wanted to know what terms the defense was thinking of.  Throughout the day I'd told them both the same thing:  "let's see if we can agree on a number before we start talking terms."

I have reasons for this.  They are as follows:

• once people have agreed upon a number, it's far more difficult for them to walk away from a deal; the Plaintiffs have already begun to think about what the money will mean to them and the defense has begun to imagine life without the litigation;
• people are risk averse.  So long as there is no (or only minimal) money on the table, it's easy to refuse to engage in the often difficult process of readjusting their expectations and compromising their desires.  When there's enough money on the table to make both parties want to settle, walking away involves loss.  

This is often the trickiest part of the mediation.  The three-year time table and absence of security is, I know, enough to blow up this deal.  I'm going to take heat from the Plaintiffs' side, for resisting their efforts to learn the Defendants' terms before they spent an entire day agreeing upon the price.  I don't, however, regret my decision.  If these terms cause the negotiation to break down now, they certainly would have done so in hour one.

How I help the parties negotiate what is poised to become a rancorous impasse in the next post.

"Let's just write up the deal points," says Lawyer No. 1, yawning.  "We can write up the full agreement over the long weekend."

Lawyer No. 2 turns to me and says "Judicate West has a form, right?  Let's use that."

Before we go further, let me give you the complete, verbatim language of the online skeletal Judicate West form.

Date:_________________

Stipulation for Settlement


    VS.                           

IT IS HEREBY STIPULATED by and between the parties through the respective counsel or representative of each that the above-referenced case has been settled according to the terms memorialized herein below.  This document is binding on the parties and is admissible in court pursuant to Evidence code section 1123 and enforceable by motion of any party hereto pursuant to CCP section 664.6.                                                                                   

In order to facilitate the above specified terms of settlement, the parties further agree that on or before the          day of          they will execute or change the following:

• Settlement / Release Agreement   Prepared by _____plaintiff_____defendant

• Request for Dismissal     Prepared by _____plaintiff_____defendant

Other____________________________________________________________

All relevant parties must sign below.  Copies are acceptable in lieu of originals.

I know.  You didn't expect the case to settle.  At least that's what I've been hearing you all tell me since hour one of the mediation.  But now we're in hour nine and the basic deal points have been reached.  It's January 15.  Trial is in 30 days.  You have all the parties present and the mediator who has by now sussed out the BS; developed a good working relationship with all sides of the dispute; knows how hard the parties worked to get here; and, is unlikely to let the "devil" in the details sink the settlement ship.

What do you do?

My own answers in next post.

Today Ken Adams addresses a "rule" that one Court has dubbed "Forthright Negotiator" and the rest of us have always understood to be . . . well . . . the law, i.e., that one's subjective intent can be used to interpret an ambiguous contract term so long as that intent has been objectively manifested.

This gives Ken Adams an opportunity to address the question whether it's ever beneficial to purposely include ambiguity in your contracts -- a question I'd answer after nearly a quarter century of contract litigation practice with this -- sure, if you'd like to put my husband's and my grandchildren through prep school and college.  Otherwise, not so much.

But don't take it from me.  Go see what the master of contract drafting says.

NOW!