What can you use them to accomplish to further your own career?
If you're not using them, why not?
Last night at the cocktail party after my presentation (slideshow below) dozens of women approached me to tell me what their "super powers" were.
Ability to assign work.
Influence over firm power brokers.
Willingness to study for and take foreign bar exams (a recurring nightmare in my book, but hey! "how is the firm recompensing you to study for and take it?")
Ability to promote younger lawyers.
Ability to form relationships with the firm's clients.
Ability to: take a great deposition, write jury instructions, try a case.
A large social-professional network that can be tapped for favors and referrals.
And on and on and on.
If you have not made a list of your "super powers" please do so now. Ask yourself how they can benefit your career. Then ask yourself whether you're using them effectively to do so and if not, why not.
Those three words are all you need to know about sponsorship and networking. You put your skin into someone else’s game. You do not use these words lightly. Your reputation rests on the quality of your referrals. And yet, we women are such rabid community builders that we can have a devoted network of business women who are also our friends even if we’ve never met in the flesh.
National Girlfriends’ Networking Day
The New Agenda has thrown down the rope of its tree house and is waiting for you to pass under the branches and grab it.
Those women who supposedly don’t refer business to one another – Proskauer,Arnold & Porter, Ms. J.D., She Negotiates and the Women Lawyers Association of Los Angeles - are all sponsoring this year’s west coast NGN Day. There will be women there you need to know to advance your career. Women whose names you’ll want to include on your referral lists and who will want to include yours in theirs. That’s how women’s business thrives.
National Girlfriends Networking Day is a nationwide celebration of making connections. Events take place around the country on June 4th [live streaming] three amazing women; Lesley Jane Seyour the editor of MORE magazine, Taj Williams-Franklin a WNBA coach, player and community activist and Soledad O'Brien Emmy award winning journalist. [They] will be taking questions through social media from nationwide participants.
Join me, Lisa Gates and Katie Donovan, along with co-host Jana Hlistova and Gloria Feldt for Take The Lead's monthly Smart Women Take The Lead webcast. Register here now. The live webcast will be Tuesday May 14th at 7pm BST, 2pm EDT. You can send questions via twitter using the hashtag #swttl – we’d love to hear from you! And if you miss the live program, you can always click the same link and see it on YouTube.
1. This whole generational “work for free’ thing is not the way things have always been – its a dysfunctional feature of Great Recession where everyone was pinching pennies and a class of unemployed young people were available to be exploited.
2. We often “hired” free interns simply because you were being hawked by your universities and graduate and professional schools. We’re sorry. We weren’t thinking clearly. When we were young, we could live off of $200/month and still pay our enormous tuitions somewhere between $600 and $3,000/year. We interned. Why not you? Because we didn’t graduate burdened by tens of thousands of dollars in student debt. Our debt was manageable. Forgive us. We weren’t thinking clearly.
3. Anyone in business – including non-profits – must generate enough money to operate. They must pay their gas and electric bills for the power they receive. You should not give your power away free just because some organizations don’t believe they can afford it.
4. There’s a one percent difference in obtaining paid employment for young people who work for free and those who do not. In other words, if you’re working for free, you only have a one percent advantage over your presumed competitors in a lazy job market.
5. Many employers don’t give internships any credence at all when reviewing your resumes. They figure, “she worked for free; this ‘job’ doesn’t tell me whether she was good enough to be hired.”
6. If you get a paid job doing clerical work in your field, you can promote yourself there while you’re being paid and rise up through the ranks (it’s a low bar to move from a clerical position where some people are working at full capacity to a more professional position)
7. You are depriving yourself of future benefits when you’re not paying payroll taxes – social security, for instance, the pay-out from which is based on your lifetime earnings.
8. If you’re working for free, you’re likely displacing clerical workers who make a living doing clerical work and cannot find jobs because – among other things – recent grads are doing their work for free.
9. No matter how little people have told you you should think of yourselves, you are a store of enormous value. If you weren’t, why did you go into debt to ready yourself for the job market . . . tens to hundreds of thousands of dollars in debt. In a market economy, value is exchanged for value. It’s the way the economy works.
10. I am stealing from you if I use the value you possess to make my business more efficient and my work more effective. STEALING!!
3. The law (and your lawyer) only care about relevant facts - the most important part of your dispute may well not even be addressed, let alone resolved, by a jury verdict in your favor.
4. As your trial date nears, everyone - the judge, your lawyer, their lawyer, your spouse, your friends, and random acquaintances will urge you to negotiate a resolution with a neutral third party (a mediator).
5. Your attorney settles 90% of every case s/he litigates. S/he rarely goes to trial anymore. Ask her about the last verdict she won and then the one before that. If you have a skill (piano, golf, cooking a souffle) ask yourself how well you'd perform if you haven't used that skill recently or often.
6. Litigation is an extremely expensive board game, much of which is simply the cat and mouse exercise of discovery. Here's how it's played. I ask for documents. You object. I write you a letter demanding compliance. You write back refusing to comply and reminding me I have to "meet and confer" with you before we ask the discovery referee to intervene. We meet. We accomplish nothing. I make a motion (write a "brief") to compel you to turn over documents. You write an opposition. I write a reply. We pay the discovery referee to read our papers and listen to our oral argument. The discovery referee splits the baby in half or fourths or tenths. One of us asks the Judge not to sign off on the discovery referee's decision. More papers, more writing, more time, more of your money. The Judge, not a lion of courage, splits the baby again and refuses to award either party the costs of forcing compliance. Two months later (at least six have now elapsed) you get a stack of documents and a privilege log listing the documents that aren't being provided. I write you a letter demanding that you turn over documents on the privilege log. Rinse. Repeat.
7. As if the disrespect of the original dispute were not enough, I now get to sit you down in a conference room with a court reporter and spend a day or two asking you questions you don't want to answer. Often, the questions are asked in a disrespectful manner. When you complain to your attorney, he says "that's just the way the game is played." Focus on the word game. Are you having fun yet?
8. You get a bill for legal services rendered every month but you're no closer to resolution after receiving and paying 12 of these than you were on day one.
9. You're a business person. You negotiate business deals every day. Your lawyer does not.
10. You have given away any power you might once have possessed to resolve this dispute to a lawyer who does not understand your business, your life or the facts that drove you to seek legal advice in the first place.
Had enough? There are people out there - mediators - who are specially trained in helping you first communicate with your attorney and then helping you negotiate the resolution of your dispute with the "other side." Choose carefully. There are as many bad mediators there as there are litigators. My best advice? Negotiate the resolution of the dispute yourself even if it requires you to swallow your pride and to be the first one to say, "let's sit down and figure out how best to serve your interests and mine at the same time."
UNCOUPLE YOUR PRESENT VALUE FROM WHAT YOU MADE LAST YEAR
your present compensation serves as a powerful anchor of your value to your employer's advantage
the following suggestions are a way of re-anchoring that value so that your starting point is greater than what you made this year
recalibrate your value according to what you are worth in your employer's hands, i.e., what does your employer save or make based upon the work you do (this may require research on your part)
use that value in setting your desired compensation (also include the cost to your employer of replacing irreplaceable you)
ASK DIAGNOSTIC QUESTIONS
begin asking your employer and superiors diagnostic questions (questions designed to learn what your employer needs, desires and prefers and what your employer is most concerned about in regard to the continued profitability of his/her business)
"how's business" is a great open ended diagnostic question that does not assume the answer
more specific questions include "what does the company need to accomplish in the first quarter of 2011 to meet its financial goals?"; "what are the company's first quarter financial goals?" "what do you see as the primary obstacles to achieving those goals?" "what do you see as the primary drivers of success in reaching those goals" etc. etc.
don't ask these questions impromptu; write them down as a way of brainstorming the most powerful questions and those that would be easiest to ask
A criminal defense lawyer I know used to ask me "just exactly what is it that you 'litigators' do everyday anyway?'"
What we do, my friend, is 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."
Here's the response that struck fear into the heart of an overworked legal secretary:
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.
"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:
The following article is a must-read for these economically challenging times. Excerpt below and link to entire article at end of excerpt. This also works for consultants, attorneys, trainers, mediators, and anyone else who is marketing their services to clients.
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.
I was at a meeting of settlement officers for the U.S. District Court (Central District of California) last week when someone complained of a proposed rule change that attorneys would "game the system." I said (snarkily) "is there any other way?"
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
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.
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
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 imagined grandchildren,  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)  and play many of the same games 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) 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. 
Law, politics, society and culture also exist in the 200-year present of conflict resolution. 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.
My grandparents', parents' and step-children's 20th Century was dominated by genocide 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. 
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.  Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala. 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.
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.”
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.
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 lawyerswas 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.
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. >
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.
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. 
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").
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.
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.
 Earlier scientific theory posited that each human embryo (see Embryo Mix-Up at the Proud Parenting Blog) passes through a progression of abbreviated stages that resemble the main evolutionary stages of its ancestors, i.e., that the fertilized egg starts as a single cell (just like our first living evolutionary ancestor); as the egg repeatedly divides it develops into an embryo with a segmented arrangement (the “worm” stage); these segments develop into vertebrae, muscles and something that sort of looks like gills (the “fish” stage); limb buds develop with paddle-like hands and feet, and there appears to be a “tail” (the “amphibian” stage); and, by the eighth week of development, most organs are nearly complete, the limbs develop fingers and toes, and the “tail” disappears (the human stage). It turns out that this one-to-one correlation was too simplistic, but it remains safe to say that our biological development still passes through several stages that “recapitulate” the evolution of our species.
 The amygdala is a region of the brain that permits the formation and storage of memories associated with emotional events. It permits us to “read” the emotional responses of our fellows and is thought to facilitated our ability to form relationships and live and work in groups. It is also the source of our “fight or flight” response to danger.
Studies show that some mirror neurons fire when a person reaches for a glass or watches someone else reach for a glass; others fire when the person puts the glass down and still others fire when the person reaches for a toothbrush and so on. They respond when someone kicks a ball, sees a ball being kicked, hears a ball being kicked and says or hears the word "kick."
“When you see me perform an action - such as picking up a baseball - you automatically simulate the action in your own brain,” said Dr. Marco Iacoboni, a neuroscientist at the University of California, Los Angeles, who studies mirror neurons. ”Circuits in your brain, which we do not yet entirely understand, inhibit you from moving while you simulate,” he said. ”But you understand my action because you have in your brain a template for that action based on your own movements. “
 Looking toward the future, the Neuroethics and the Law Blog predicts that in the “experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity” here.
The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury.
(Iatrogenic, by the way, is a fancy term for “we have know idea whatsoever what the source of this ailment is). Chris is looking for comments so run on over there if you’ve been thinking about medical malpractice litigation during the marathon American health care debates.
Because the vast majority of my litigation and mediation clients were and are corporate entities or highly successful entrepreneurs, executives or managers, I was and am rarely in a position to coerce a client into doing something it didn't want to do.
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 ResolutionTAKE IT OR LEAVE IT. LUMP IT OR GRIEVE IT: DESIGNING MEDIATOR COMPLAINT SYSTEMS THAT PROTECT MEDIATORS, UNHAPPY PARTIES, ATTORNEYS, COURTS, THE PROCESS, AND THE FIELDPaula 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.
As every mediation advocate must know by now, the California Supreme Court has locked down mediation confidences from attack at every turn. There can be no implied waiver of Evidence Code section 1119's protections and you cannot be estopped to assert it (Simmons v. Ghaderi) (.pdf of the opinion here).
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'scomments 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
Before I begin to get hate mail from attorneys about this series, let me say that it is meant to sound the alarm, raise red flags, and make attorneys overly cautious so that our clients wouldn't even ever think of suing us for malpractice.
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.
That's not a summons and complaint for malpractice, is it? Because of something you didn't know about ADR advocacy?
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.
write up a "term" sheet reflecting your mediated settlement agreement without including the "magic language" of Evidence Code section 1123
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
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.
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.
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.
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 . . .
Discouraged by the adversarial process? Looking for lawyers who will handle your commercial dispute without going to "war" with all the expense and collateral damage that involves?
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 firstname.lastname@example.org.
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.
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.
As you'll recall, we're in hour nine of the mediation. The parties have finally agreed to settle the antitrust litigation the Court ordered them to mediate ("we won't settle; we'll only be here for an hour").
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.
It's 8 p.m. and you've just spent nine straight hours negotiating the settlement of complex commercial litigation with multiple parties that was filed before George Bush first took office. The case has been up on appeal twice and is now scheudled for trial in February. All defendants but the final three standing have settled. Three of the principals have flown in from out of state and two of the attorneys have driven a few hundred miles to Los Angeles from their home towns.
"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."
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
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.
Anyone who's been living in outer Mongolia for the past couple of years should head on over to Adams Drafting straight away. Why? Because once you negotiate the best deal you can, you have to write it up on the best terms you can. Hence the need -- yes need -- for Adams' Drafting.
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.
FORUM (FORUM & FOCUS) • Jan. 08, 2009 Every Case Is a Winding Road
By Victoria Pynchon
I have a confession to make. I am about to become embroiled in litigation. Though I preach the religion of negotiated resolution, I've nevertheless hired litigation counsel to assert my rights and pursue my remedies.
This is one of those moments when the rubber of our ideology meets the road of personal circumstance, the moment we are called upon to decide to walk our talk or take the more familiar road.
For more than 30 years - first as paralegal, then as a law student and finally as a commercial litigator - I'd been swimming in the waters of legal rights and remedies. The adversarial ocean had become so familiar a habitat that it rarely occurred to me that I was under the surface. One day toward the end of my first year of mediation practice, a much more experienced friend hooked me by the cheek and threw me on the deck of his ship, where I was gasping for air.
He'd asked me to co-mediate a will contest without the benefit on my clergy - lawyers with experience in the field. The "fish out of water" conversation that ensued went something like this:
Joe Mediator: "The family doesn't want to hire a lawyer. They just want to mediate."
Vickie: "But I know absolutely nothing about wills, trusts and estates. The parties need to talk to a lawyer first to learn their rights and remedies."
Joe: "You still don't get it, do you?"
Vickie: "Get what?"
Joe: "It's not about rights and remedies. It's about interests."
Vickie: "But how can they evaluate their interests without knowing their rights and remedies?"
Joe: "Because they're not interested in what the law says - they want to do what they believe is right for them as a family under the circumstances."
These people wanted to resolve a legal dispute without knowing their legal rights? Were they nuts? I understood "interests" - they were all the rage in ADR circles - the desires, fears and needs of the parties that drove them to take legal positions. Sometimes those interests were non-economic - the need for revenge, the desire to be personally accountable, the fear of failure, the hope for forgiveness and reconciliation. Others, though economic, could not be remedied by way of damages - better access to foreign markets, for instance, or wider distribution chains; the acquisition of better manufacturing processes; or, the retention of executives with "pull" in Washington. But all of those matters were secondary to legal rights and remedies, weren't they? You had to know what your rights were.
The lowest level, most critical, most easily learned (you can even use a cheat sheet!) and most shockingly ignored skill is authenticating documents and bringing them within the available exceptions to the hearsay rule.
As we wade ever deeper into the waters of electronic discovery, E-Commerce Law provides us with the Internet Evidence Series below.
Nothing irritates a court more than doing unnecessary work because counsel fails to comply with the local rules. Here in Huschke v. Slater, the Court was sufficiently put out to order that the attorney "personally" pay the sanctions ("don't even think about asking your client to pay, buster!") and to order the opinion published for all the world to see.
Like that pesky appeal where the Court called my client a "school yard bully" for failing to stipulate to the genuine nature of the insurance policies at issue (and no I am not providing a link to that one). Ordered it published too. Grrrrrrrr.
I'm filing this one under "Advice to Young Lawyers" in the hope that they do not have to learn how to ignite the appellate court's wrath the hard way.
Planning on partying like its 1999 to boast morale in your law firm? Check out tips offered by Morrison & Foester in Holiday Parties: Morale Boost but Employer Beware back in December of 1999, advice that is as timely today as it was then. And remember, there's no conflict management strategy better than conflict prevention. Here then are MoFo's excellent tips, which is just a small excerpt of the good advice to be found on the link above.
What Can Employers Do?
Short of assuming the role of "Grinch" and canceling the holiday party, what can employers do to protect themselves from liability for sexual harassing conduct during holiday parties?
First, employers should make sure that they have a comprehensive, written sexual harassment policy in place, including sexual harassment training in the workplace. Employers might also re-circulate the sexual harassment policy prior to the holiday party, or send a memo to employees reminding employees to act responsibly at the party and expressing a zero tolerance for harassing behavior.
Second, if the budget permits, employers could invite employees to bring their spouse, significant other, or guest. Although such an invitation will not rule out incidents of sexual harassment, it may reduce the likelihood of such incidents occurring, as employees may tend to act more responsibly and in a less flirtatious manner towards each other if they bring a spouse or special friend to the party.
Third, employers should monitor closely any employees who have a history of harassing behavior, or who have been involved in complaints of sexual harassment. If such an employee is observed engaging in any inappropriate behavior, he or she should be asked to leave the party immediately, and the employer should apply appropriate discipline upon the employee's return to work.
Finally, employers receiving any complaints regarding inappropriate behavior at the holiday party should treat such complaints seriously and should take prompt, effective steps to address the complaints. This includes interviewing the alleged harasser and harassee, talking to potential witnesses, and administering appropriate discipline if inappropriate behavior is found to have occurred. By taking prompt, remedial action to address complaints of harassment, employers can reduce and in some cases altogether eliminate liability for sexual harassment.
Thanksgiving Day begins a season that reminds many of us that our earliest negotiation experiences were those with our family.
When I was a child, these were the issues on the Thanksgiving bargaining table
Who gets to snap the wishbone (does anyone do this anymore?)
Who gets to sit next to gramma
Who sets the table and who does the dishes
Whether my sister and I have to eat what we don't like (me cranberry sauce; she vegetables of any kind) to "earn" a piece of pumpkin (my sister) or pecan (me) pie
Later, in adolescence, the issues changed
must I follow the parental injunction not to talk about civil rights, pre-marital sex, world poverty, and, the Viet Nam War ALL DAY long
do I have to change out of my blue jeans, workshirt and desert boots for dinner
may I have two Thanksgivings - one with my father & one with my mom & step-dad
MUST I be nice to my sister's new husband
and, of course, who sets the table and who does the dishes (some things never change)
Still later, when my sister and I had married and moved out of town
whose table would we gather around for the holidays: mom's, mine or my sisters
how to accommodate the newly vegetarian in the family
could I skip Thanksgiving in San Diego in exchange for Christmas there (without my mother bursting into tears)
and, of course, who sets the table and who does the dishes
Thanksgiving is my own favorite holiday because there are no gift-giving obligations; everyone (more or less) celebrates the same holiday regardless of religion or national origin; there is no limit on the amount of cream and butter that can be consumed at a single sitting; and, everyone is expected to express gratitude rather than complaint.
Not everyone, however, is lucky enough to have family or even friends with whom to gather for Thanksgiving. I have had these times in my own life, when Thanksgiving is a particularly forlorn and isolating day. It's never mattered to me whether I was economically secure or poverty stricken on Thanksgiving. What mattered were those Thanksgivings when I had no family with whom to gather and no friends with whom to share a holiday meal. For those whose lack of family arises from outright rejection (many young gays in West Hollywood or throw-away kids on the streets of Hollywood) there are few days of the year that are more wrenching.
For the lonely and the forlorn this Thanksgiving, I'm posting the following resources and adding this: not just the good, but the bad is fleeting as well.
Around here, public officials and celebrities pretty much have the T-day soup kitchen duties cornered. Don't despair if all of the opportunities to serve dinner on T-day are taken; there is much else you can do to be of service to those less fortunate than you.
If you're in recovery in the Los Angeles area, I have good news for you. Many of the daily 3,000 local meeting groups have 24-hour meetings over the Thanksgiving weekend and many serve Thanksgiving dinner. Check the local directory (here) for a meeting near you (the national meeting finder is here).
Those who are already trained to answer telephones at the L.A. Central Office might give Harvey a call and volunteer to serve as the saving voice on the other end of the telephone during hard to cover hours such as the midnight to dawn shift. The most recent issue of Hello Central (here) notes that the
Los Angeles Central Office continues to be in need of volunteer telephone workers. The only requirement is a minimum of one year sobriety. We need people who will show up when they say they will. Contact Central Office: (323) 936-4343, and ask for Harvey or Langston.
My husband returned from our local farmers market the other day with the story of a woman in line who was making an entire Thanksgiving dinner just for herself and seemed cheerful about it. Now there's a woman who's made peace with her life. For those who might find the solo T-day dinner a tiny bit depressing, you could cook up dishes for others. Here are some organizations to which you could be of service in that way.
Leave it to a legal marketing blog -- Lawyer Casting - to choose Evolution Day for its first entry into the BlawgReviewOSphere. As blogger Joshua Fruchter explains in Blawg Review #187, because the anniversary of Charles Darwin's publication of The Origin of Species on November 24, 1859 is inextricably intertwined with the idea that only the fittest survive, Evolution Day should be celebrated with advice for survival. And so it is.
For those of us who toil the legal fields, Fruchter suggests a range of survival options including
*/ Pepper Hamilton is podcasting?????? A short but vivid season of my legal career was served as a Pepper associate back in the late '80s (Alum Network here) when this grand old Philadelphia law firm turned 100 at which time it was still using quill pens - at least in the Philly office. In the Los Angeles office, we associates routinely gathered in the library (yes! with books) and were required to share the one Lexis/Nexis research station which we were forbidden to use except in the most dire circumstances and with pre-approval.
I have recently been asked by several lawyers to write a few posts on mediation and negotiation terminology not only because some attorneys are unfamiliar with these terms, but also because different mediators and negotiators use them to mean different things.
Mediators, lawyers and negotiators who read this post are invited to add, correct, object, or suggest further refinements and to add their thoughts on further strategic and tactical uses and perils of the impasse-busters we discuss today - the bracketed offer and the mediator's proposal.
And because my readers may find this post as dry as bones, I once again offer the X-rated "Negotiation Table" as pretty #%$@ true and funny (think Ari Gold).
Bracketed Offer: Party A makes an offer to bargain in the zone he wishes to see the negotiation move to. This is often used when neither party wishes to step up to the line of probable impasse and it can also be used to re-anchor the bargaining zone. Quite simply, Party A offers to bargain in the range of, say, $2 million and $3 million. He offers to put $2 million on the table if party B is willing to put $3 million on the table, i.e., "I'll offer to pay you $2 million if you'll offer to accept $3 million to dismiss your suit."
If party B does not accept the bracket, party A will not be "stuck" with having actually placed $2 million on the table when the next exchange of offers and counter-offers begins.
Responding to a Bracketed Offer: Party B can: 1. respond with a counter-bracket, i.e., I'll make an offer to accept $3.5 million in settlement if you'll put $2.5 million on the table; or, 2. refuse the bracket and ask for an unbracketed counter.
The basics: the mediator chooses a number for the parties, making an "offer" to settle for, say $2.3 million which the parties are free to accept or reject. It is a double-blind "offer." If either party rejects the "offer" neither party knows whether the other accepted or rejected. Acceptances are communicated only if both parties accept, in which case they have a deal.
The circumstances: The parties should seek a mediator's proposal only when they have reached a hard impasse. A hard impasse exists when both parties have actually put their true bottom line on the table or their next to the bottom line and they see no hope of it closing the deal.
The purpose: Both parties believe they could convince their principal to accept a deal that is more than they wanted to pay or less than they wanted to accept, but they cannot convince their principals to put $X on the table or accept $Y. They hope to use the authority of the mediator to sell the deal to their principals. If they are the principals, they are willing to settle for a number lower or greater than planned but not willing to close the bargaining session having made such a concession, which would have the effect of setting the floor or establishing the ceiling of all future bargaining sessions.
The Mediator's number: I do not know whether there is a general practice among mediators about how they choose the number proffered. When parties ask me to make a mediator's proposal (I rarely recommend one in the first instance) I explain my practice as follows: When I make a proposal I am not acting as a non-binding arbitrator or early neutral evaluator. In other words, my proposal is not a reflection of the value of the case. The number I propose will be a number that I believe the Plaintiff is likely to accept and the Defendant is likely to pay.
In rare instances, the parties wish to continue bargaining in the event a mediator's proposal is not accepted by both parties. I have permitted this in a few circumstances after explaining to the negotiating parties that it often causes resentment on the other side because they feel as if the party who wishes to continue negotiating is unfairly attempting to use the mediator's number as a new bench-mark from which to bargain.
I highly recommend against continued bargaining after the rejection of a mediator's proposal on the day of the mediation. It should serve as a hard stop because the parties respond to it as an ultimatum. That's part of its power. Take it or leave it.
Just as you would not continue bargaining after indicating that you were putting your last dollar on the table, you should not continue bargaining (during that session) after the mediator has, in effect, put both parties' anticipated bottom lines on the table for them.
O.K.,Solo Practice University™ is not Santa Claus but it comes pretty darn close.
Solo Practice University™ is a revolutionary new web-based educational community that picks up where your legal education left off.
Learn from some of the most progressive lawyers, marketing pros, technology consultants and legal business giants how to:
* Plan, build and grow your private practice
* Differentiate yourself from the competition
* Attract and engage new clients more easily
… and much more. They just can’t teach you that in law school.
Need to transform your marketing strategy in these troubled economic times? You can learn not just how to blog your way into your desired market, but how to leverage what you love into how much you make from Blawgfather and SPU Professor Grant Griffiths.
Wondering whether to put rocket fuel into your networking vehicle by adding online social media? You couldn't find a better teacher than SPU Professor Toby Bloomberg who has over 15-years of traditional strategic marketing experience and four years with social media through her company Bloomberg Marketing/Diva Marketing.
Are your clients peppering you with questions you can't answer about their rights and remedies in Cyberspace? Then it is Christmas, Hannukah and Kawanza all rolled up into one. Brett is a patent attorney and frequent national speaker on internet and intellectual property law. Professor Brett Trout is teaching a course on intellectual property in cyberspace.
Whether your presence in Cyberspace is solo or in connection with a group practice, let SPU Professor Stephanie L. Kimbo help you hang out your virtual shingle.
Don't yet know your way around the courtroom? Thinking of adding criminal defense to your practice as a growth industry in troubled economic times? Need to ask questions of a seasoned trial attorney that would make you feel inadequate to ask of your supervising attorney in the PD's office? There's no better winter holiday gift than SPU Professor Scott Greenfield's semester-long course “The Practice of Criminal Defense - The Road to Perdition.”
Still waiting to take that first deposition? Taking your 20th and can't stop worrying that the Court Reporter thinks you're just a tiny bit pathetic? Don't know how to deal with obstreperous opposing counsel? Afraid to run a line of killer cross-examination to re-position your case for summary judgment or settlement? Wish you'd gotten the expert to admit that he'd consider the moon to be green cheese if his attorney had told him to assume it? (yes my partner did).
Jonathan Fields.Awake@the Wheel gives us 7 critical mistakes to avoid when trying to persuade someone to your point of view. Excerpt below: Jonathan's full post is a must read and can be accessed by clicking on the link above.
Don’t Attack - When you verbally attack either a person or their point of view, you immediately raise their defensive shields. . . .
Don’t fail to acknowledge and validate another person’s right to believe what they believe - You may want them to emerge from the conversation with a different opinion, but their experience in life has led them to the point of view they hold today. . . .
Don’t fail to anticipate and address objections - People feel a strong need to act and speak in a way that is consistent with their prior actions and statements. . . .
Don’t skip building rapport, trust, credibility - Often, especially when people have strongly held convictions, they’ll launch into an argument in support of those convictions, before allowing the person on the other side of the conversation to (a) get comfortable with who they are, (b) build rapport and likeability, which is a tremendous aid in the effort to persuade, and (c) establish enough credibility in an area to allow the other person to feel comfortable deferring to your knowledge base. Take the time to establish these elements in the conversation BEFORE launching into your campaign . . . .
Don’t forget to to adequate research - Be informed and prepared with the latest, most relevant information . . . .
Don’t shut yourself down to being persuaded yourself - This may surprise you, we’re not always right. . . . .
Don’t say don’t - By now, you may have realized that by simply removing the word “don’t” from each of these points, you’d end up with seven things to “do,” rather than 7 mistakes to avoid. . . . .
One of my favorite movie quotes is from Angelica Houston’s character in Ever After. As the wicked stepmother, she declares to her favorite daughter
Darling, nothing is final until you're dead, and even then, I'm sure God negotiates.
Although I cannot speak to the question whether God negotiates, I have found the first part of the formulation to hold quite true. I have learned that if I am persistent, passionate, and willing to see my challenges and opportunities from a variety of angles, I am usually able to find a creative solution to a problem and identify common ground with someone with whom I have a dispute.
Whether it’s getting a customer service agent to empathize with my situation, haggling to pay wholesale instead of retail, or building consensus amongst a range of strong personalities, there is always a way to state your case and persuade your audience to see the world through your eyes.
There is one challenge that I have discovered to be most daunting for professionals to negotiate -- the management of their time.
Time is our most precious nonrenewable resource and as such, we put a premium on it. We attempt to prioritize and guarantee a return on our investment. Often we are left feeling that an activity was either not worth our time or took so much time that we were unable to sustain the task's momentum.
Between work and life, we struggle to find balance and sanity.
My work with attorneys -- helping them to build their practices; assisting them in overcoming their own internalized judgments about marketing and business development -- requires me to help them re-negotiate the way in which they allocate their time.
I empathize. It is a daunting task to find a comfortable balance between one's professional and personal lives when you are forced to measure it out in six minute increments. Despite many attempts to eliminate or modify the present system by which we value legal word -- the billable hour remains the entrenched and painful lens through which a lawyer's daily practice is viewed. Given this historic approach, it’s no wonder than that Web 2.0 activities (blogging, online social networking, & wikis) are met with such resistance.
While it is true that there is no one size fits all solution for growing a legal practice, there is one excellent way to refocus the discussion.
I've never worked with an attorney who didn't agree that the practice of law is a relationship-driven business. Relationships take time to develop and require nurturing, both of which can be streamlined with Web 2.0 tools. If used correctly, there are numerous opportunities online to have a "deep dive" conversation - one in which attorneys can quickly learn a potential client's business, current needs, and future risks.
When someone is in pain, there are opportunities to help them find a solution and be of value. Relationships that would take years to develop offline can accelerate faster online because -- for better or worse -- the internet encourages candor.
If you are struggling with how to do more with less in these tough economic times then reconsider making a small investment of your time in the mostly free Web 2.0 resources.
The sense of community, collaboration and reciprocity that exists in online social networks can quickly translate into marketing opportunities that are speedily turned into new engagements. If you contribute positively and regularly to the online conversations at Q&As (LinkedIn), subject matter listserv forums, blogs, and, most recently, twitter, you are highly likely to improve your "know, like and trust" stock.
In the end, professionals who are able to renegotiate their time priorities to set aside a few hours a week to invest in online-relationship-building, will be rewarded many times over by the ease with which your network can be immediately deployed for your benefit or that of your clients.
If you find Web 2.0 daunting, ask a tech-savvy professional friend to advise you or, better yet, give me a call!
Renée Barrett is a business development & marketing consultant, specializing in change management, professional development, branding, social networking, and client relationship management.
If you believe that law blogging is not only informative and entertaining, but capable of transforming our lives, our society, our culture and our legal system as well, run don't walk over to Peter Black'sFreedom to Differ which not only rocks, it twitters, on One Web Day. Surely this will be the BlawgReview of the year!
. . . .one recurring theme on this blog has always been a recognition of the value in a strong and free internet. Therefore it is an honour to be able to host Blawg Review on Monday September 22, 2008, which is One Web Day 2008. One Web Day was founded three years ago by Professor Susan Crawford from the University of Michigan, and she describes it as an "Earth Day for the internet". The One Web Day website describes the day in the following terms:
The idea behind OneWebDay is to focus attention on a key internet value (this year, online participation in democracy), focus attention on local internet concerns (connectivity, censorship, individual skills), and create a global constituency that cares about protecting and defending the internet. So, think of OneWebDay as an environmental movement for the Internet ecosystem. It’s a platform for people to educate and activate others about issues that are important for the Internet’s future.
If you'd like to host BlawgReview or submit to it, click here. All future BlawgReview hosts please note -- THE BAR HAS BEEN RAISED!
A lessee of commercial office space complains that the common areas are not being properly maintained. The local high school has just banned Catcher in the Rye. Again. A prestigious law firm fires a first year associate because he refuses to remove his new “tongue stud.” These seemingly disparate disputes have one quite obvious but ill understood characteristic in common – they are all examples of unresolved conflicts that have ripened into discrete disputes.
Pretend for a moment that you never went to law school. I know. It's hard. But give it a shot.
Lawyers (those other people who went to law school) are are trained to understand, manage and remedy all disputes, no matter however different they might be, in a single, highly controlled manner.
To help their clients deal with the problems mentioned here, lawyers will read the lease; research the latest Supreme Court rulings ("Fuck the draft"); and, study the statutes. Once they understand the facts that are relevant to the law, they “think like lawyers.”
How do they do that? "Think" like lawyers?
First, they subject the facts and the law to as much scrutiny as any idea can bear before it disintegrates into the dust of first principles. They create a chronology of events, highlighting and tailoring the "story" of the conflict that "fits" the available "causes of action" giving rise to "rights" in their client, obligations in their "opponent" and remedies for the harm suffered.
This "legal" dispute was once about a relationship between people. Now it is an "actionable" claim in an extremely controlled process in which one of the parties will "win."
That, of course, rarely happens because the legal system has become too expensive and the law too uncertain for most people to risk what used to be it's goal -- a jury trial.
Lawyers recognize frivolous or baseless or "defendable" claims by observing just how uncomfortably the “facts” sit inside their opponent's “causes of action.” When called upon to justify their entitlement to get their client's claim before a jury (demurrers, motions for judgment on the pleadings, summary judgment motions, non-suits) the Plaintiff's attorneys can and will simply change the way the story is told. They make the facts fit the law. There's nothing wrong with that. That's their job. If the facts won't "fit" the law, lawyers apply themselves to the law's creative expansion.
What attorneys do not learn in law school is how and why conflict develops into a dispute and then predictably evolves, usually getting more acrimonious and difficult to resolve.
My friends who are lawyers (I never went to law school, remember? and neither did you) tell me that they know how to escalate conflict but not how to de-escalate it. They also tell me that they see a lot of injustice. Sometimes the injustice arises because the laws themselves are unjust. Sometimes the tragic and unfair consequences of human interactions just don't have any legal remedy. And sometimes the legal process itself makes disputes worse -- more protracted, frustrating and expensive -- rather than better.
In common law countries, like ours, where the law is forged in the fire of conflict, shouldn't attorneys be taught not only how to "win the case" but also how to dampen the flame? Most litigators I know would respond with a resounding "no!"
Conflict resolution that is not "handled" as litigation or arbitration is for some other professional to deal with. Therapists come to mind. Don't they help the parties deal with that most uncontrollable aspect of any dispute -- something not only lawyers but the law itself exclude from the legal action?
Feelings. Not just sad or mad feelings. But the type of feelings that make teenagers shoot other teenagers on the streets of Los Angeles. Feelings of loss, tragically unfair outcomes, powerlessness, rage and despair.
The purpose of this post and the new thread that it is meant to begin? To start something radical.
If you're not aware of what I'm about to tell you, you should be.
I was just talking to a friend over coffee the other day about how we're using 18th Century technology (the jury trial) to solve 21st Century problems.
Here's the idea. A legal TED Conference.
If you'll look at what TED accomplishes, you'll know what I don't mean. I don't mean a conference to trot out any new/old "ADR" ideas -- mediate this, arbitrate that, create new rules and forms for the lawyers to use.
I mean creating the highest level think tank we can to first envision and then implement a dispute resolution technology that incorporates what we've learned since we first enshrined the jury trial in our Constitution more than 200 years ago.
I have one man in mind -- Larry Lessig. But surely there are others. The first step would be to suggest names for the coordinating committee.
Why do I think of TED? Because what it envisions cannot be accomplished. It cannot even be envisioned. It's a fool's errand. One I'd be willing to spend the rest of my own life working on.
Each of the seven steps can help litigators de-escalate the conflict inherent in litigation before all-important settlement negotiations, whether they are conducted with the assistance of a third party neutral or not.
One or more of them might also help ease tension in the law firm -- a very tense place these days given the recession, lay-off's, the de-equitization of partners and the shedding of non-productive practice groups or of those that might conflict with the law firm your firm is about to merge with.
It's a rough time. Let's all be a little more careful of our social capital there.
We're going to need it.
Decide. The first step is you must decide that you want to improve the relationship. The precursor to this step is recognition - recognizing that the relationship needs improving - but the heart of this is the decision that this relationship matters enough for you to make the effort required to improve it. Without this decision, nothing else matters.
Forgive or let it go. If you feel the other person has done something to cause the rift or break-down, you must either forgive them or let go of your issues with it. Without this step, the steps that follow may help some, but will be limited in their success.
Take ownership. Recognize your role in the relationship, and take ownership and responsibility for it. Yes, deciding and forgiving are accountability actions; but being clear that regardless of the situation you have played a role in the change to the relationship is critical to your success in repairing any damage. Otherwise you are only blaming the other person - which cripples your chance for improvement.
Make your intention clear. Once you have decided to take actions to improve the relationship, your behaviors will change. Take the time to explain your decision and your intention to improve the relationship. Let the other person know that both the situation and the person matter to you, and you want a better relationship. This cements your commitment and communicates your intention to the other person.
Assume positive intent. While I have long believed this concept in a variety of situations, a colleague recently expressed it this way and it makes the idea completely clear. Assume the other person was - and is - acting in good faith. Will you be wrong sometimes? Perhaps. But by starting from this assumption you will immediately change your perception and therefore your behaviors toward that person.
Listen more. We all know how important listening is and how good it makes us feel when we are truly being listened to. Grant that gift to the other person. Listen intently, carefully and actively. Not only will you understand them (and their perspective) better, but they will trust you more and the relationship will build from their perspective.
Make an effort. Deciding is one thing. Doing is quite another. If you want better relationships, you must make the effort - it will seldom, if ever, happen automatically.
For the full post (well worth reading) click here.
Before further discussing the problems created by the Thottam holding,I'm providing a "brief" of the case about which I ranted and raved earlier here today.
A mediation confidentiality agreement entered into by the parties in Thottam provided that “all matters discussed, agreed to, admitted to, or resulting from ... [the mediation meeting]...
"shall be kept confidential and not disclosed to any outside person . . . ;
"shall not be used in any current or future litigation between us (except as may be necessary to enforce any agreements resulting from the Meeting), and,
"shall be considered privileged and, as a settlement conference, non-admissible under the California Evidence Code in any current or future litigation between us.”
One of the parties contended that a chart drawn up and signed by the parties during the mediation,
was sufficiently certain to be enforced according to its terms; and,
was admissble into evidence under section 1123(c) despite its failure to satisfy any of 1123(c)'s requirements.
Evidence Code section 1123(c) provides that a "written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure . . . if
"the agreement is signed by the settling parties and any of the following conditions are satisfied . . .
"(c) all parties to the agreement expressly agree in writing . . . to its disclosure."Id. (emphasis added).
PROCEEDINGS IN THE TRIAL COURT
Without finding that the settlement "chart" constituted a "written settlement agreement" under section 1123, the Thottam trial court required one of the parties to testify about otherwise confidential mediation communications because the Confidentiality Agreement required the disclosure of mediation confidences "necessary to enforce any agreements resulting from the [mediation.]"
Apparently before Elizabeth could testify, the civil action to enforce the alleged settlement agreement was consolidated with other proceedings in the Probate Court,
at the trial of the consolidated matters, the Probate Judge refused to accept the settlement chart into evidence because it did not comply with the provisions of section 1123(c).
THE APPELLATE DECISION
the appellate court reversed the Probate Court's decision.
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; and,
may be satisfied by terms contained in a writing executed before any alleged settlement agreement has purportedly been entered into.
Here, the Confidentiality Agreement satisfied those requirements; and,
The skeletal written settlement chart was enforceable because its material terms were, or could be made, certain.
Because the proceeding in which Appellant attempted to introduce the alleged settlement agreement was an action "to enforce what he claims is a settlement agreement reached in mediation," and,
the parties carved out of the Confidentiality Agreement any discussions that were "necessary to enforce any agreements resulting from the [mediation]"
the Confidentiality Agreement satisfied the requirements of section 1123(c); and,
the skeletal Settlement Chart was therefore admissible in evidence under that subsection.
This opinion threatens to blow a hole in sections 1119 and 1123 large enough to obliterate their protections -- protections thathave been repeatedly enforced to the letter of the law by the Supreme Court in its fairly recent Fair v. Bahktiariopinion -- holding that parties to a mediated settlement agreement must include in it an express provision that they intend to be bound thereby -- and Simmons v. Ghaderi in which the Court held that parties cannot impliedly waive confidentiality nor be estopped from asserting it.
Most Confidentiality Agreements I've seen (and used) naturally carve out an exception for the enforcement of a settlement agreement. If you sign such an agreement after Thottam, you risk the enforcement of a non-1123-compliant "settlement agreement" and risk being required to disclose otherwise confidential mediation communications on the sole ground that one of the parties alleges that the opposition entered into an enforceable settlement agreement during the mediation.
Were I attempting to resist the disclosure of mediation confidences my adversary claimed should be fair game under Thottam, I'd contend that the Thottam Confidentiality agreement, and hence its carve-out, was unusually broad and that the Court's holding should therefore be read narrowly and limited to its facts.
As California lawyers know, the Second Appellate District has jurisdiction over matters litigated in the Los Angeles Superior Court. It is therefore particularly important to take a look at the impact this decision might have upon matters mediated by the neutrals on that Court's pro bono or party pay panels. All such parties are required to sign a Confidentiality Agreement that protects from disclosure all mediation-related "written" and "oral communication[s] made by any party, attorney, neutral, or other participant in any ADR session" except "written settlement agreement[s] reached as a result of this ADR proceeding in an action to enforce that settlement."
Under Thottam, a colorable argument could be made that the mandatory Superior Court Agreement's confidentiality "carve-out" should be treated as either:
an express agreement by the parties to waive confidentiality for the purpose of enforcing "written settlement agreement[s]" even if they do not satisfy the requirements of section 1123(c); and/or,
a part of the alleged settlement agreement so that the two agreements together (confidentiality carve-out + non-compliant settlement agreement) satisfy the requirements of section 1123(c).
What to do? Don't sign any Confidentiality agreement that could possibly be interpreted in a manner similar to the one subject of Thottam unless you want to risk the disclosure of mediation confidences arising from a writing that does not comply with section 1123(c).
You can certainly refuse to sign the Superior Court's agreement in light of the Thottam holding. I don't know as a matter of Court policy whether that limits parties' ability to use the Court's pro bono or party pay mediators.
I'd have to say that this case puts confidences made in mediation sessions controlled by the Superior Court's Confidentiality Agreement at risk whenever one party is contending that the other entered into an agreement pursuant to a signed term sheet.
most . . . plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer . . .
Plaintiffs, however, are not the only ones who made the "wrong" decision -- defendants were mistaken in 24% of the cases. Defense errors, however, were far more costly.
getting it wrong cost plaintiffs . . . about $43,000 . . . For defendants, who were less often wrong about going to trial, the cost was . . . . $1.1 million.
What to do?
It's no answer to say " take the last best settlement offer," though one party or the other will 80 to 90 percent of the time and often on the courthouse steps, i.e., at the point of a gun when decision-making is at its most flawed.
Nor, I must concede, is the answer simply mediation, which is, after all, pretty much a pig in a poke. Why? Because mediation practice ranges all the way from
to a mediator who knows only how to repeat "trial is expensive and the result uncertain"
to a settlement officer who does nothing more than shuttle numbers back and forth between two rooms
to a "transformative" mediator who allows the parties free reign to "vent" their "feelings" without helping them get a grip on the very real and serious consequences of the negotiated resolution that has been proposed to them.
A friend of mine who is a psychoanalyst once told me that patients get better in therapy despite their analysts' "technique." It's the relationship that's curative, she told me. A patient in need will find the water of healing in the desert of a therapist's theory. If the same can be said of mediation -- that it's the relationship that's curative -- the question that naturally arises is whose relationship?
fundamental attribution error -- the tendency to over-emphasize personality-based explanations for behaviors observed in others while under-emphasizing the role and power of situational influences and reversing this error when the behavior at issue is our own.
Just-world phenomenon — the tendency for people to believe that the world is "just" and therefore people "get what they deserve"
We get so stuck in our positions that we fail to ask diagnostic questions that have been proven to result in significantly better negotiated outcomes for both parties.
My friend Judge Alexander Williams -- the soon to retire full-time settlement Judge in the downtown Los Angeles Superior Court -- has the following poster hanging in his jury room.
The surface is what the lawyers know.
The depth and breath; the texture and particularity; the details of the dispute and the desire for justice that exists on both sides, is known only to the litigants. And they haven't (and won't) tell you what they know or want.
Why you should never leave a mediation or settlement conference without letting a skilled mediator facilitate a joint session in which the litigants can explore their joint interests and conflicting goals will be the subject of my next post.
So why would the S[pecial Litigation Committee] release [Wilson Sonsini] and Larry Sonsini? The SLC wrote that it weighed the opinion of a legal ethics expert as well as testimony and documents related to Sonsini and the firm’s roles at Brocade. It also listened to Sonsini and his firm’s “contentions that Brocade employees misled WSGR about stock-option grants” and that the firm had negotiated a good settlement with the SEC and helped avoid DOJ action against Brocade. The committee also considered the firm’s longstanding relationship with Brocade and the firm’s “willingness” to help the company resolve any “outstanding questions” about the backdating.
Check out Underdog's Blog post Practicing non-anger if you're feeling stressed and cranky. Because there's a riot of unruly pre-school children residing inside of me, I too center myself as often as possible by remembering that everything is internconnected. Here's what DUI attorney Jon Katz does to keep himself from boiling over.
One approach I try to use in staying consistently calm and not angry is in focusing on how everyone ultimately is interconnected. Those who reach such a view from a deeply-held religious perspective -- which I do not, still remaining an agnostic who is into Judaism and Buddhism nonetheless -- might have an easier time sticking to the view than I do.
In any event, the more we see that we are interconnected, the less we will be tempted to cause disharmony to others and the more we will want to help everyone rise as we rise, and not to try to pull them into a ditch even if we find ourselves in one.
I was just telling Mr. Thrifty over the dinner dishes that my life as a litigator got far far better when one of my biggest and most enduring pieces of litigation was assigned to Judge Carolyn Kuhl over at the Complex Court here in Los Angeles. She set such an even-tempered example that opposing counsel and I aspired to live up to it. We wanted to please her. Everything got better after that.
That led me to think about the way Judges' ill tempers effects their dockets. The Judge bats the attorneys around the courtroom like cat toys and they begin to behave like caged animals on an electrified grid. The attorneys behave badly and that irritates the Judge who demeans and belittles them. The attorneys then demean and belittle each other and everyone is trapped in the vicious cycle.
Maybe if Judges realized that they have this effect on attorneys, they'd adjust their own attitudes and see the attorney wrangling before them chill out a little.
Change your definition of “winning” to include the business perspective. “Winning for the business” may not mean victory in a trial but preserving management time and protecting the business’s reputation and brand. From Early Case Assessment from Seagate Services.
Seagate is selling an e-discovery product (reason number one for leaving commercial litigation now -- e-discovery). But the quote above nails my own attitude toward resolving complex commercial disputes.
This may be the biggest break-down in attorney-client communication in the history of litigation. Because this public statement by Allstate about its former attorney would be highly defamatory if not true, I'm taking Allstate at its word here.
Allstate claimed that it had not deliberately flouted Manners’ orders. Rather, it said, its now-former attorney — then with the firm of Wallace, Saunders, Austin, Brown & Enochs — had failed to respond to discovery requests.
Allstate said it was appalled when it learned last year that it was being threatened with contempt.
“Allstate litigates hundreds of bad faith cases each year,” Allstate stated in court documents. “And it responds to discovery requests — just like the ones in this case — in many of them. There is no reason in the world for Allstate not to participate in discovery — particularly in this case, where there is an underlying judgment of $1 million.”
Allstate said it “immediately removed” the attorney from the case and retained new counsel.
The answer to the question "how to break bad news to my client" can be found at any of the links below. Most of these links are for health care professionals, who have to break bad news to their patients and their families far more often than we have to tell our clients that something went terribly awry. Put that at the top of your attorney gratitude list.
Do not avoid seeing the [client] or leave them anxiously waiting for news. Sometimes anticipation can be worse than even the worst reality.
Treat others as you would wish to be treated yourself.
Get the facts before you start.
Make sure you will not be disturbed. If necessary switch off phones or bleeps.
Be factual but sympathetic. Always be empathetic however you may feel personally.
Give time for the information to sink in and the opportunity to ask questions before moving on. Do not seem rushed.
If the [client] does not seem able to take any more be prepared to end the consultation and to take it up again later.
Look for all the cues, verbal or others. , , , Perhaps they would like you to speak to someone else or to have someone with them for the next meeting.
Never say that nothing can be done or the [client] will lose all hope.
Whilst trying to be positive never lose track of the fact that this is a serious and potentially fatal [reverse in the litigation]. Be optimistic but do not promise success or anything else that may not be delivered.
Number three on the list of what not to do this summer is --
Being rude to support staff. If you say thank you to everyone who helps you, you would be amazed at how the staff will respond. Support staff work hard to help make you and the firm look good to clients and other third parties. DO NOT treat them like doormats. DO treat them with respect and show your appreciation.
Why do we mention this in a negotiation law blog? Because you need to know who the secret stakeholders are when you are attempting to resolve any conflict or broker any deal. They are not who they appear to be.
And, head's up!! "Your"secretary has been "practicing law" for decades. S/he knows the judges, the court reporters, the clerks at the courthouse and the pecking order in the law firm. S/he also knows where the bodies are buried.
O.K., the subject line was meant to shock you and to draw criticism for what I will admit is my greatest unresolved prejudicial default -- that white men over 65 who didn't participate in the American cultural revolution of the late nineteen sixties and early 1970's did not and will never "get it."
failed to disclose that he'd been censured while on the bench for making "sexually suggestive remarks to and asked sexually explicit questions of female staff members; referred to a staff member using crude and demeaning names and descriptions and an ethnic slur; referred to a fellow jurist’s physical attributes in a demeaning manner; and mailed a sexually suggestive postcard to a staff member addressed to her at the courthouse.”
The majority arbitrators deciding the malpractice case stated that the female claimant was not credible because the "severity of the symptoms to which she testified went beyond what she described to her doctors, adding, “This claimant has had five prior facial surgeries.”
Similarly, in summarizing the claimant's expert’s testimony, these arbitrators noted, “One thing probably everyone can agree upon, after five facial surgeries, [claimant] could have done without a sixth one.”
Back to My Own History as Descriptive of -- But No Excuse for -- My Own Biases
We all have biases that we hide from others and some that we successfully hide from ourselves.
We live, I'm told, in a 200 year present. That means that my early life affects your life today. After all, I'm an old white woman, about whom you may well have biases. If I sit on your arbitration panel, you're going to want to understand those biases. That's why I'm giving you a bullet-pointed history of what the world was like when I was forming my essential character at 17 years of age in 1969.
the "want-ads" in the classified section of every major newspaper in American were categorized by gender -- "help wanted - women" and "help wanted - men"
in my senior year in high school, my entire class took "preference aptitude" tests to give us an idea of what our future careers might look like -- the girls were given "pink" tests and the boys "blue" tests -- had I shown an aptitude for, say, math (and no I didn't) I would have been steered into nursing; my male friends into "medicine" as physicians.
women were subject of explicit ridicule in magazine and newspaper cartoons -- we were airheads, bimbos, bad drivers, harpies or -- the "new" stereotype -- communist-longhair-folk-singing-America-hating-hippie-riot-inciting-"girls" who were alternately "men hating" or -- an old phrase -- "of easy virtue."
it wasn't until the 1970's, when I was in college and already planning a career teaching English (after all, nursing required math-skills) that the idea of a career in the law for women as anything other than a secretary began to seem possible.
by the year I graduated from law school in 1980, Columbia's female population had grown to a whopping 32%
although the enrollment of women in my law school class at U.C. Davis was nearly 50% in 1980, when I told my beloved mother in 1976 that I was going to apply to law school she said "why do that, honey? Be a legal secretary, then you can marry a lawyer."
when my husband attended Yale Law School ('67-'70) he had seven women classmates
when I was practicing law (these all from the early '80s)
a partner for whom I worked told me that women weren't permitted at the local "men's only" club because "we don't want our wives there."
a Judge required me to identify myself as Mrs. or Miss and when I said I didn't think it necessary to identify myself by my marital status, asked "what are you some kind of [women's] libber?" (yes, I lost the motion)
I was advised by the few women attorneys senior to me not to get pregnant until after I made partner
secretaries were allowed to refuse to be assigned to a woman attorney
the first woman to make partner at my law firm was quite openly referred to as "the first muff partner" by her colleagues
on the other hand, when a client said (of my assignment to its case) that the company did not want to be represented by a "girl," my partner told the client "then you don't want this firm representing you because she's the best associate I have"
I promise to work on my prejudices. And I advise anyone who is about to appear before any dispute resolver -- be that person male, female, white, black, young or old, GOOGLE THEM FIRST!
This just in from the Met News for California practitioners.
Where minor entered a settlement agreement with a third party tortfeasor by and through a guardian ad litem, and court made an allocation of the medical expenses portion of the settlement in the order approving plaintiff’s compromise, trial court did not err in rejecting plaintiff's later motion to reduce the amount of Medi-Cal lien against settlement proceeds by the same percentage that the settlement bore to the overall value of plaintiff’s case.
Question: how do you determine the "overall value" of the plaintiff's case in order to reduce the lien by the same percentage that the settlement bears to that value? Declaration by the Plaintiff's attorney? Anyone who's actually read this case, do let my readers know!
Let's say you meet up with an alien race and you need to bargain with them by radio or some other method of signaling. You don't have any other information other than your knowledge of human beings. What traits should you think are overrepresented in humans, relative to what a rerun of evolution can be expected to produce in an intelligent being? Would you expect them to be more or less benevolent than humans? Should it matter if they have demonstrated superior technology? Should such achievement make you think they are more or less cooperative toward "outsiders"?
I suspect that all of these questions are meant to lead to the conclusion that "people" from more advanced civiliations would naturally be more peaceful, less aggressive and more cooperative with one another than we are.
Even though [our primate forbears the] ustralopiths walked upright on the ground, they retained short legs for 2 million years for the same reason squatness helped out other great apes—for male-male combat. With the advantage in combat, short-legged primates would likely be victorious and gain access to females. That meant passing their genetic traits, like shortness, to offspring.
Could intelligent human beings have evolved without aggression? Certainly.
researchers Male and female [chimpanzees] do not associate in families but in separate hierarchies. Males make females defer to them, with violence whenever necessary, and every female is subordinate to every male.
A female chimp advertises her fertile period with a visible swelling and is then so pestered by males that she may get to eat only at night. . . .
Though bonobos are almost as aggressive as chimps, they have developed a potent reconciliation technique -- the use of sex on any and all occasions, between all ages and sexes, to abate tension and make nice.
Assuming the common ancestor of people and chimps had social behavior that was essentially chimplike, how much of that behavior has been inherited by people? The unusual behavioral suite of male kin bonding and lethal territorial aggression may look as if it has been inherited with little change. Among the Yanomamo, a South American tribe, the number of males who die from aggression is about 30 percent, the identical rate found among Gombe chimps.
Dr. Wrangham said the consistent pattern of aggression seen at all the chimp sites suggests that male chimps have ''a strong emotional disposition'' to be aroused by the sight of strange males, to form coalitions against enemies, to be sensitive to balances of power and to be attracted to hunting. The same disposition could have been inherited down the human lineage.
Turns out Freud was right. Aggression is all about sex. But it's also about tool-making (i.e., weaponry). So we have evolved to be competitive and collaborative. Tool making to ease our work-load and to kill our "enemies." So far, our advances continue to outpace our many attempts to destroy ourselves.
What might have worked for the advancement of other civiliations? If all possible worlds exist, as physicists claim, other worlds may well have developed life in some way other than evolutionarily. Maybe by intelligent design! There's simply no telling. I would, however, speculate that a species taste for its members blood must be balanced by affiliative instincts and activities or its development would be cut short by species-cide.
The take-away for negotiators who are strangers in a strange land?
Learn how to communicate with the aliens. Ask them questions concerning their needs, interests and desires. Tell them about your own. Put down your weapons and back slowly away.
Anyone who is as fascinated by these questions as I am, read this post from Such is Life about whether or not we'd "see" aliens if they arrived on our shores. Answer? Not likely.
Before you run over to Gini's site to read Lande's excellent post or his great article, I'd like to simply bullet-point some observations based upon my four-years of full-time mediation and arbitration practice.
when I co-arbitrate with some of the best commercial arbitrators in the business -- these are Ivy League lawyers with many decades of experience representing Fortune 50 Companies in AmLaw 100 Law Firms, the ultimate decision changes many times during the course of deliberations and almost always could go either way.
having spent a considerable time in the Los Angeles Complex Court as an experienced commercial litigator "externing" for credit to earn my LL.M in '06, I can tell you that the deliberations in chambers of these highly respected jurists is not much different that those in which I have engaged when sitting on an arbitration panel
The take away? No matter who is hearing your case, your chances of winning are 50-50. Flip a coin. Think this doesn't apply to you? I have arbitrated cases being handled by the top ten law firms in the country. I have seen those same type of firms litigate and try cases in the Complex Court. It's 50-50 friends.
Below -- observations on how you and your mediator can be "happy together." (And the Turtles from 1967 so that you can have a little musical accompaniment to this post)
Observations of End-Game Litigation from a Mediator's and Settlement Consultant's Perspective.
Despite years of inquiry and the review of millions of documents, sophisticated parties (Fortune 50) represented by dynamite law firms (AmLaw 50) haven't yet learned the most fundamental information about the following matters -- most of which are more important to the settlement of the case than the cost-detriment-benefit-position-driven-chance-of-victory settlement posture:
what are the hidden interests that your opponent must satisfy before accepting a settlement that is below the number he once told his client should never under any circumstances be accepted?
what are the hidden constraints upon your opponent's authority that must be removed before he can pay more money than he once told his client should never under any circumstances be paid?
why was this litigation initiated in the first instance?
who gave the litigation the "green light"?
what are the probable consequences to the continued financial security of the person who gave the litigation the "green light" in the first place or who has authorized the defense bills for the last 5, 10, or 15 years?
is the person who green-lighted the litigation in the first place still employed by your client?
what are the probable consequences to the financial well-being of the corporation who must pay more than it wishes to pay or accept less than it wishes to recover?
Who is the most frightened person in the room, i.e., whose hide might be sacrificed if the litigation settles for more/less than predicted, or, often worse, actually goes to trial.
There are so many of these settlement-driving and -inhibiting questions that only my own personal time contraints -- I must start my day's work -- make me stop listing them.
Let me conclude with this however. Never underestimate your client's reluctance to settle the case on terms that seem unjust to it. This is the most important function a mediator can play on the day of settlement -- explaining justice issues to the clients and helping the clients de-demonize their opponent -- which occurs most easily in JOINT SESSION yet which most litigators would rather have their teeth drilled than attend.
O.K. I can't conclude without saying this. If you have the courage to try a case, you possess the cajones to participate in at least one joint session to help the parties come to terms with the justice issues -- which are often driven by the conclusion, affirmed over and over again in the course of the litigation, that their opponent is an evil, mendacious, grasping, greedy, malicious, duplicious lying liar with his pants on fire.
This is almost never true. The parties on both sides almost always possess equal parts of good and bad, just like the rest of us.
Let your parties re-adjust their perception of "the enemy" in joint session. I can almost guarantee you that a conversation will ensue in which the parties spontaneously tell each other what interests they really need to satisfy to settle and what constraints they are really working under. And I don't guarantee a lot of things.
Why can't I do this for the parties?
Because often neither side will disclose these matters to me because they don't trust that I won't use that information to help settle the case and because the parties won't believe what I say about their opposition in the first place (obviously, they've pulled the wool over my eyes).
"How do you know he's not lying?" is a question mediators are asked on a regular basis. My answer is "I have no idea." But if you let your client talk to the opposition -- with any constraints, restrictions and control you wish to retain -- which I can orchestrate for you -- your client will be able to elicit the details that give any story a ring of truth (or falsity) while at the same time watching the body language that constitutes between 60 and 80% of all communication.
Would you try a case without 80% of the information you need? Of course not! And yet you're content to avoid a joint session when that session could provide you with between 60 and 80% more information than you had when you arrived on the morning of the mediation or settlement conference?
Suspend your disbelief in the mediator ("who-will-do-anything-to-settle-the-case") for just a couple of minutes. Remember that we're in possession of confidential information we cannot divulge to you.
Take our lead. And if you don't trust us to do so, for heaven's sake find a mediator you can trust!
The cost of a thing is the amount of life that you must exchange for it -- now or in the long run (Thoreau)
if you have an on-going relationship -- even as limited as a note payable -- squeezing the last nickel out of the deal may impair your bargaining partner's ability to perform
what goes up, must come down, i.e., squeezing out the last nickel creates enemies who none of us can afford when times are good, let alone when times are bad
taking advantage of another's weaknesses tears at the social fabric
it makes us all more watchful and less productive
it doesn't actually feel good to line your pockets with the misery of others
sometimes the downtrodden rise up -- every couple of centuries or so, creating an entirely new order -- the generous man and woman will not be on the wrong side of that revolution
global warming -- think about it -- the order will change as will the countries who will be asking for favors
you reap what you sow (I'm pretty sure I learned this in Sunday School)
social relations do not exist "out there" -- they are co-created by one person's relationship with every other person -- the society you inhabit is the one you create -- if you don't want your neighbor taking your last dime, don't take his
collaborative effort results in greater progress than individual activity -- if you decrease trust, you impede advancement in business, the arts and science
Readers! Can I count on you to give us all more reasons?
Here I am again hectoring litigators about their obligations to determine whether or not their clients have insurance, to decide whether that insurance might cover the claim or suit against them; and, make a timely demand for coverage, particularly under E& O claims made policies.
Professionals and business people hesitate before tendering "claims" to their insurance carrier because the no. 1 response to conflict is denial. This is particularly true where a professional's or business person's competence has been called into question. You don't want to admit that you might have committed malpractice to yourself let alone to your insurance carrier.
This is a particular problem for professionals because Errors and Omissions insurance generally requires claims to be both made and reported during the policy period. Often, litigators don't see clients until after they've been sued and clients generally don't get sued unless there's a previous demand letter (i.e., a claim).
So what's the very first thing litigation counsel must do? Get a copy of the E&O policy and the first demand letter. Tender the defense and indemnity of the action to the carrier immediately.
You might get a little fudge room by reporting the claim when suit is filed, but if your insured doesn't report the claim in its application for coverage the following year, the carrier will deny coverage on the ground of non-disclosure.
Come to think of it -- transactional attorneys should remind their clients of their obligations to report claims when made, no matter how feeble the claim may look. Take a look at yesterday's ruling on what constitutes a claim with thanks to the Met News for the summary and LACBA for the daily email summaries.
Where policy defined a "claim" as a written demand for civil damages or other relief commenced by the insured’s receipt of such demand, a letter from a third-party claimant’s attorney to insured informing insured that the third-party claimant had been subjected to discrimination and received a right-to-sue letter and suggesting a settlement constituted a claim. Although the letter did not expressly demand payment or refer to any specific amount, the meaning was clear that, absent some form of negotiated compensation, the claimant would sue. Where policy stated that all claims arising from the same events or series of related facts could be deemed a single claim, and third-party claimant filed litigation authorized by the right-to-sue notice mentioned in the letter, the lawsuit was part of the same claim as the letter under the policy. Where insured did not notify insurer of the claim until after the lawsuit was filed, insurer’s notification was untimely, and insurer was not required to tender a defense.
If you serve a 998 offer on the Plaintiff, say $5,000, and Plaintiff's judgment is reduced to zero after set-off for settlements, is the Defendant entitled to recover the costs permitted by 998 if the judgment against it is reduced to zero after the court deducts from the jury verdict the amount of pre-trial settlements paid by others?
Well, yes and no.
If the Plaintiff's recovery at trial would have netted it more at the time of the 998 offer than the 998 offer itself, 998 does not shift post-998 fees to the Plaintiff. If the 998 offer was $5,000, the jury verdict is $10,000, and no settlements had been paid to Plaintiff at the time the 998 was served, Plaintiff's failure to accept the 998 does not shift post-998 costs to it. If, however, the Plaintiff had already received $10,000 in settlement at the time the $5,000 998 was made and the jury renders a $10,000 verdict that is reduced to zero, 998 will shift the post-998 costs to the Plaintiff.
I get stuck in position-based negotiations as well. It remains a challenge for me, after 25 years of litigation practice, not to be sucked into the attorneys' arguments about why they are right. To help all of us in the mediation room . . .
[h]ere is a list of 8 questions you can ask yourself when you suddenly realize that you have to prepare for a negotiation. Use these to generate quick preparation for any negotiation.
1. What are my intended outcomes and interests?
This is about having your goal in mind but also about thinking about the bigger picture at the same time - if you're goal is to get to work on time, speeding to get there might seem like the right choice until the cop pulls you over.
2. What are their possible interests and outcomes?
Look at the negotiaion from their point of view. What do they really want from this?
3. What are some of the options of agreement?
Where are the points of agreement? Focusing on this beforehand will set a tone of reaching agreement rather than a tone of conflict.
4. What is my Plan B?
Once you've thought through the first three questions, what's your fall back position? Having your Plan B in mind gives you a feeling of options so if the deal goes to far against you, you are comfortable with your option B.
5. What is my worst case scenario?
Answering this question sets your "don't cross" line. You've predetermined what you're willing to give up and more than that is a deal breaker… that means you can negotiate confidently, since you know your direction.
6. What are some possible external standards?
External standard are outside measures that can move the negotiation away from personal stakes to measures from an outside authority. Examples might be interest rates, rate of exchange or time frame.
7. What is or are my reserve price / terms / limits?
Knowing what your limits are and then not not going past them results in more useful and enjoyable negotiation.
8. What is my game plan?
Map it out. What do you want and how are you going to get there?
It happened at a settlement conference again just last week. Defense counsel said there was "no insurance" for the defense orindemnity of a professional malpractice claim.
This naturally surprises me. Some professionals are required to have coverage or disclose its non-existence to their clients. No such disclosure had been made in this case.
"No insurance policy?"
"She has an insurance policy; there's just no coverage."
"Why did the carrier deny coverage?"
"The carrier said there was no coverage."
"I don't know. I'm not coverage counsel."
"Is there coverage counsel?"
"No. I told you there's no coverage. Let's get back to negotiating the settlement."
After obtaining (via fax) the policy, the demand and the denial, it turned out that there was a good reason for the carrier to deny coverage for the plaintiff's claim. But the denial letter expressly withheld comment on the existence of coverage for the defendant's principal, who had not failed to make a timely claim for coverage, and who had not yet been sued.
Call me an activist or a "fund raising" mediator if you will, but when there's not enough money to settle a case and the parties continue to wish it could be settled, I start asking questions about sources of available funds.
And, listen. Every litigator must be enough of a "coverage lawyer" to evaluate the likelihood that any existing insurance policy might provide defense or indemnity for the law suit you are defending.
So, if you are a commercial litigator -- or any type of litigator who defends your clients against claims -- you must
ask your clients for all of their insurance policies, even those that seem unlikely to provide coverage;
carefully review the precise wording of the policy's insuring agreements, paying particular attention to the language concerning the defense of claims and the deadlines for submitting those claims to the carrier;
research the case law in the relevant jurisdiction(s) to determine how the courts have interpreted the insuring agreements and other pertinent policy provisions contained in your clients' policies under facts similar to those alleged in the lawsuit you've been asked to defend;
except for some narrow additional protections provided to insureds, be aware that there is no such thing as "the law" of coverage under any particular type of policy -- all coverage flows directly from the precise language of the insuring agreement;
remember that in most jurisdictions, that language -- if ambiguous -- will be interpreted in favor of the insured's objectively reasonable expectations -- that means the law of coverage always favors your client's claim for coverage;
understand that in most jurisdictions the rule of contra proferendum will require a court to construe any ambiguity in an insurance policy against the insurance carrier, once again meaning that the law of coverage will favor your client's claim for coverage;
never accept the carrier's refusal to provide a defense without asking yourself -- or a coverage specialist -- why in the heck you should accept the carrier's word for it when you were born to contradict everything from "good morning" to "let's have lunch";
never conclude your client doesn't have coverage before tendering the claim; the response to the tender will outline the pertinent policy provisions in stark enough detail -- not to mention 12-point type -- and the denial in sufficiently weasley words to activate your B.S. meter;
if you finally accept the fact that your client's policy won't cover the defense of the litigation or indemnify your client in the event of a judgment, continue to keep the carrier informed of the litigation's progress in any event, inviting the carrier to attend all mediations and settlement conferences and to respond to all settlement demands;
remember that the law of coverage changes on a daily basis; read those coverage decisions sent down by your local appellate courts and subscribe to Mealey's on coverage remembering that a really good reason for a client to sue a lawyer for malpractice is your failure to give it reasonably informed legal advice about the availability of insurance coverage; and,
retain coverage counsel If the cost of the lawsuit is beyond your client's means or will deprive it of capital necessary to meet its business goals for the next few years.
The Defendants filed a motion to enforce the mediated settlement agreement [Guess why! Good guess!]. The Plaintiff argued that a “mutual mistake” allowed him to avoid the parties’ mediated settlement agreement.
Not so fast . . . .
Continue reading here. There are two solutions to this problem in any jurisdiction: (1) know your policy limits; or, (2) make your agreement to settle contingent on verifying them.
The friendly bailiff unlocked the small courtroom. After telling me to make myself at home, he pointed to a small red button on the wall. “If you need me, just press that button and I’ll be in here faster than you can blink and eye. It’s an emergency button.”
“Ok, thanks,” I replied, and began to unpack my briefcase.
“I mean it,” he said. “Just press the button. Maybe you should set up your chair so you’re near it.”
I gave him a long look. “You seem to want me to know about that button. Is there something else you want to tell me?”
Here's a teaser to get you to the Business Growth post:
Remember that classic scene in "Erin Brokovich" where the high powered, electric utility law team shows up in force to negotiate with the small town law firm? Ed Masry sees them coming in and gets all his staff to file into the board room so they have more "lawyers" on their side of the table… and overpowers the power brokers.
Would you like to have a system that helps you think on your feet like that?
Here is a list of 8 questions you can ask yourself when you suddenly realize that you have to prepare for a negotiation. Use these to generate quick preparation for any negotiation.
Life is one negotiation after another, though too few of us are equipped for battle. Formidable dealmakers like Warren Buffett, Bill Clinton and sports agent Scott Boras tend to be born, not made.
Yet talk to negotiating pros from the worlds of government, finance and media and they'll admit there is at least some science to this art. Winning every point is rarely an option, of course, but if you keep a few principles in mind, you can tilt things in your favor--whether you're signing a peace treaty or just angling for a raise.
If you remember one thing about negotiating, it should be this: It's not the maneuvering once you're in the trenches, but rather the preparation before sitting down at the table that counts.
That means taking the time to define what you want, what you are willing to accept and at what point you will walk away. It also means doing enough research to know what the other side wants--and how far they are willing to go to get it.
My first day of mediation training progressed in somewhat the same fashion as my first few weeks in Civil Procedure. I remember struggling with the theoretical bases of jurisdiction in Pennoyer v. Neff one day only to be told the following week that Pennoyer was no longer the law. “Why,” I remember thinking, “did we even bother with Pennoyer when this Buckeye case about an exploding boiler now seems to be the law? Or would it be replaced next week as well?”
Law school, which taught me to “think like a lawyer,” was the precise opposite of my new mediation studies. Now, it seemed, I was being trained to stop “thinking like a lawyer.” Still, mediation, like the law, was full of conflicting ideologies from which it appeared I was required to choose.
It was easy for me to be evaluative: I had 25 years of legal practice in my backpack. I learned Dr. Cialdini’s “Principles of Ethical Influence”—Reciprocation, Scarcity (the rule of the rare), Authority, Commitment, Empathy, and, Consensus. These power principles helped the mediator to “make the other side see reason” when called upon to do so.
But the evaluative style was not the only prescribed route to mediation mastery. There were many who favored facilitation. The facilitative mediator first creates an atmosphere of hope and safety before helping the parties locate areas of agreement and mutual benefit. Here, the mediator is a follower or helper on the path to resolution, like the protective figures who appear early in a hero’s journey to enlightenment.
You can’t immerse yourself in mediation for long before you hear the clamor of the transformative crowd. Facilitative mediators, say the transformative folks, too often present themselves as wizards who intrude upon the parties’ conflict with their own agenda—usually “resolution be damned, let’s settle this darn thing!” The transformative mediator lets the session wheel out of control if that is where it is eager to go. Conflict is not seen as a state to be avoided or suppressed. Like a loving mother following the course of her child’s flu, the transformative mediator provides the parties with encouragement, opportunities to rest, lots of fluids and a metaphoric place to lay their heads as the conflict runs its natural course.
When I first brought this tangle of methodologies to the few master mediators I know, they all made short work of it with the scalpel of experience. “You are the technique,” they instructed. “Just stay in the process. Don’t guess. Ask questions. Listen. Don’t give up before the miracle of mediation happens.”
Now, four years into a full-time ADR practice, I am still struggling to embrace the entire dispute—the business or people problem that found its way to an attorney because of the justice issues with which it was burdened. I often feel that I’m walking a razor’s edge. I will never stop “thinking like a lawyer.” Nor will I stop pursuing this new way of thinking—one that looks for the opportunity to finesse the legal impasse by using the problem itself as an opportunity to broker a deal.
Why mediation? For me, it’s simply a broader canvass on which to paint a new picture. How mediation? In baby steps, one after the other, in just the same way I learned to be a litigator and trial attorney. How can the Human Factor help with your own life and legal practice? Stick around. Miracles are common here. We think you’ll enjoy the ride.
I could write an entire book on why law students should study negotiation as well as an entire chapter on why they should study texts written for MBA students rather than law students. The latter topic I will cover in a future post. The former has already been written succinctly as an article -- link and excerpts below.
Cathy Cronin-Harrisis Co-Chair of the Advocacy Committee of the ABA Section of Dispute Resolution. She's a Senior Consultant to the International Institute for Conflict Prevention & Resolution (CPR) and teaches Negotiation at Columbia Law School. She has taught at Georgetown and Fordham Law Schools, and has been an Administrative Law Judge and litigator. She can be reached at email@example.com.
Familiarity with Negotiation Approaches
[N]egotiation is a . . . . complicated process and demands a . . . . mind set that recognizes the inherent tension in negotiation: you must engage the other side in order to get to agreement while both sides are in a seeming struggle to achieve apparently conflicting objectives. That tension demands more subtlety than pushing [your opponent] into submission.
[E]xposure to negotiation theory and practice will help you understand "when to hold 'em," "when to fold 'em" and when and how to develop other feasible options and approaches beyond just holding out or giving in.
[Negotiation] courses stress the collaborative mode of negotiation or mutual gains bargaining popularized by Fisher and Ury in Getting to Yes. Its fundamental concepts stress objective standards, creativity, option development, respect for opponents and satisfying parties - genuine underlying interests rather than their positions.
Such exposure will expand your repertoire and allow you to negotiate with agility. You'll appreciate varying approaches people take to negotiation, discover ways to lessen competitive tendencies, become more conscious of options you can use rather than relying on raw intuition, appreciate the significant human elements impacting negotiation success, and learn the value of planning. As you become familiar with the broad brush approaches, you'll be enhancing the key skills below.
a. Expanded Communication Skills
In adversarial settings, assertion skills dominate: lawyers use logic, well-developed statement and presentation skills, tightly orchestrated cross-examination questions, and tools to connect with the trier-of-fact, such as compelling language, analogies and themes, to win the day. But when you negotiate, an additional set of communication tools comes into play along with asserting. Those skills focus on enhancing dialogue to solve the problem.
It's usually a challenge for lawyers to move from assertive statements to a wider band of communication skills. So negotiators learn to use better listening skills which includes confirming understanding of the other side's statements. They use open-ended questioning rather than restricted cross-examination formats to understand and dig out relevant information. They focus on body language and other signals embedded in communications that can provide information indirectly. They also refine assertion skills by ratcheting down the tone and format of statements to express needs compellingly without rancor. So negotiation will complement any communication skills learned in adversarial settings.
But beyond improving your negotiating ability in disputes, these skills will assist you in conducting your daily practice interactions including interviewing clients, unearthing their real needs and interests, advising them of your evaluations, enlarging their view of solution potential, calming them down, and in a host of other ways both professionally and personally.
b. Enhanced Persuasive Skills
The persuasion studied in most courses emphasizes logical rational analysis. Appellate judges apply it in every case based on the lawyers' logical presentations. Needed in negotiation? By all means. But persuasion to induce another to make a deal requires more. It includes your credibility, command of the subject, astute use of reasonable demands, varied questioning, and relationship building with the other side. We also persuade by showing our willingness to be persuaded: by meeting the other's needs and concerns and exploring a variety of options that might satisfy both entities rather than only pushing our agenda. And some psychological insights come into play about framing our requirements and anticipating likely reactions so we can make our offers more acceptable. While adversarial persuasion involves many of these tools, they are used to convince an outsider that you're right. Negotiation persuasion seeks to embrace your opponent, from whom you want something for yourself, and requires persuasive approaches we ordinarily don't consider. c. Appreciation of the Role of Perceptions
Every trial lawyer knows that perception plays a role in the court room: it's not just about facts. Trial advocacy aims, in part, to shift the judge or juries' perceptions in your favor. In negotiation, we also deal with perception change efforts since negotiators, like everyone else, bring misperceptions to the negotiation table. They make assumptions, they suffer from partial or selective perception, and they tend to view the opposing side with suspicion. So, we seek to amplify those perceptions to remove the negative conclusions the other side draws from their misperceptions which impede willingness to find solutions. We clarify our intent that may have been misperceived; we demonstrate we're not just competing which they might have assumed; and, we suggest solutions to demonstrate regard for their concerns as well as our own. We explore hypothetical outcomes to induce a broader view of settlement potential. Even in making offers, we account for perception barriers in the way we state offers and use rationales to caste new light on their justifiability. We recognize that the way we use actual leverage or power can alter the other's perceptions toward or against us. Exploring these concepts underscores the important role that perceptual awareness plays in negotiation success.
d. Appreciation of the Human Dynamic
One can't effectively negotiate or help orchestrate it as a mediator without recognizing the human emotions at play in disputes. Emotions greatly affect receptivity to settlement proposals. Anger at past events, negative reactions to offers deemed insulting, absence of control over a situation or perceived lack of respect, attention or appreciation can derail deals. On the other hand, creating a positive emotional environment by building trust, building relationships across the table, and acknowledging the other's emotional state can alleviate some of the negative feelings in negotiation. These courses will highlight the need to consider the human element whenever you deal with clients or others in conflict.
e. Expanded Problem Solving Ability
Many lawyers went to law school to help people solve problems. Then, the adversarial adjudicatory system gets ingrained in their blood. That system and the rule of law it's built upon are still the best route to justice I know, when you can't settle matters. But, to function well as a twenty-first century lawyer, you need to complement your adversarial skills with problem solving abilities that support the mutual search for solutions when conflict exists. The negotiation skills you'll garner in the consensual ADR courses will prepare you to engage in collaborative problem-solving whenever possible and apply many of its tenets and skills even in extremely competitive situations.
While I've only touched on the key benefits of gaining negotiation training by enrolling in one of the consensual ADR courses, I hope I've helped you appreciate the need to treat those elective courses as part of your personnel core curriculum. Rounding out adversarial advocacy courses with vital settlement skills will pay vast dividends in every area of law practice despite your chosen field. You'll be more confident and prepared for the challenges ahead and more successful as you join us in the near future.
If you aren't using writs of attachment in contract cases where the amount due is certain, you aren't using the most powerful means of increasing your bargaining power in litigation.
Attend LACBA's Brown Bag Lunch with Judge James Chalfant at the Stanley Mosk Courthouse 111 N. Hill Street, Los Angeles on May 15, 2008. Program Description:
Writs and Receivers: Practice tips for those who are rarely there. Judge James Chalfant will host a brown bag lunch highlighting tips and tricks for those who may not have much experience in this area. There is no cost to attend, but participation is limited to the first 12 attorneys who register. The program will be held in the judge's chambers at Stanley Mosk Courthouse, Dept 85. Please note, there is no CLE credit for this program.
On North Korea: "We should negotiate with the North Koreans. We should be tough. We should require that they stop their nuclear development program. We should have the absolute ability to verify that that has occurred."
On the Middle East: Has said that he believes "a two-state solution is ultimately the answer" but would not negotiate with Yasir Arafat. (before Arafat's death, obviously) Would send an envoy to the region.
Sixty-four percent of Israelis say the government must hold direct talks with the Hamas government in Gaza toward a cease-fire and the release of captive soldier Gilad Shalit. Less than one-third (28 percent) still opposes such talks.
I could go on but you get the point. The first decision any negotiator must make is whether he's willing to negotiate with the "opposition." And the second is on what terms.
That decision -- and the many ways in which you can bring your opponent to the bargaining table any time you wish -- with the expectation that your negotiations will either successfully resolve your dispute or drastically limit the amount of time you spend litigating it before settlement will be the subject of this week's posts.
Along the way, we'll talk about the many ways in which the masters of international diplomacy manage to take advantage of favorable negotiation conditions and to finesse unfavorable political climates for the purpose of getting warring parties to meet in an attempt to reach accord..
Penelope suggests the weakest strategy available -- exchange power for sympathy. "If one person has a great BATNA," writes Penelope, "and the other has a terrible one, it’s not really negotiations; it’s trying to get a little something extra. It’s asking for a favor. If you approach negotiations from this perspective then you are much more likely to get a little bit of what you want."
Two of the savviest negotiators around Deepak Malhotra and Max Bazerman in their tremendously practical book Negotiation Genius have devoted an entire chapter to Penelope's problem called, not surprisingly, Negotiating from a Position of Weakness. Their recommended strategies include the following:
Don't Reveal that You Are Weak
[H]aving a weak BATNA is not terribly problematic if the other side does not know that your BATNA is weak. If you have a weak BATNA, don't advertise it!
Overcome Your Weakness by Leveraging Their Weakness
[W]hen both parties have a weak BATNA, it means that the [Zone of Potential Agreement] is large. In other words, a lot of value is created when the two sides reach an agreement. Who claims more of this value? . . . [T]he one who fares better is the one who makes the other side's weakness more salient throughout the negotiation.
Identify and Leverage Your Distinct Value Proposition
[V]ery often, you do bring something to the table that distinguishes you from your competitors. This is your distinct value proposition (DVP), and it need not be a lower price. You may have a better product,, a higher-quality service, a good reputation, a strong brand, or a host of other assets that your [bargaining partner] values and that you can provide more effectively or cheaply than your competitors.
If Your Position is Very Weak, Consider Relinquishing What Little Power You Do Have (This was Penelope's strategyin the Yahoo negotiation subject of her post).
[I]f you can't out muscle the other side in a negotiation, you may want to stop flexing our muscles and, instead, simply ask them to help you. When negotiators try to leverage their power, others reciprocate. This pattern can be disastrous when you are the weaker party. But when you make it clear that you have no intention of fighting or negotiating aggressively, others also may soften their stance.
Strategize on the Basis of Your Entire Negotiation Portfolio
[A]udit the implicit assumptions you make when formulating your negotiation strategy. You may perceive yourself as being "weak" if you only measure strength as the ability to push hard in any given negotiation without losing the deal. But you may discover that you are actually quite "strong" once you begin to think about your ability to withstand losing some deals because you are maximizing the value of your entire negotiation portfolio.
Increase Your Strength by Building Coalitions with Other Weak Parties
In the realm of international relations, a vivid example of the power of coalitions surfaced during the 2003 World Trade Organization negotiations in Cancun, Mexico. Disgruntled by the continued lack of attention paid to the issues of concern to developing nations . . . twenty-one "weak" countries banded together to create the Group of 21. This group is now in a much stronger position to negotiate for the interests of its members than any member nation would have been on its own.
Leverage the Power of Your Extreme Weakness-They May Need You to Survive
[I]t is often useful to tell the negotiation "bully" that an overly strong show of force can be counterproductive: "If you push me too hard, you'll destroy me -- and lose a value-creating partner."
Understand -- and Attack -- the Source of Their Power
A number of Planned Parenthood clinics around the country have adopted a particularly creative strategy for fighting back [against protesters], usually referred to as the "Pledge-a-Picket" Program. Here's how it works: The clinic asks its supporters to pledge donations to the clinic on a per protester basis. The more protesters that show up to picket the clinic, the more money the clinic raises in donations! . . . The Planned Parenthood of Central Texas in Waco has even posted a sign outside its clinic that read: "Even Our Protesters Support Planned Parenthood."
Once the Planned Parenthood clinics understood that the source of their opponents' power was the ability to draw large numbers of protesters outside the clinic, they were able to think of a novel way of diminishing the benefits of doing so.
Malhotra and Bazerman conclude their chapter on Negotiating from a Position of Weakness by noting that
while being in a position of weakness is sometimes unavoidable, you will negotiate most effectively when you leverage the fundamentals -- systematic preparation and careful strategy formulation.
The Famous Trials website, the Web's largest and most visited collection of original essays, images, and primary documents pertaining to great trials, has been an ongoing project of Professor Linder's since 1996. Professor Linder has contributed book chapters, participated in video projects, and presented public speeches on the subject of historic trials.
The provocative comment we're following is Jay Welsh's remark that to settle most cases the Plaintiff has to accept a lot less than he wanted to recover and the defendant has to pay a lot more than he ever imagined paying. And the response we're replying to is Canadian lawyer Michael Webster's:
When the issues have been crystallized into legal ones so well, you are in a lose/lose situation. The manager's dilemma then becomes counsel's dilemma: how do I manage to convince my client to lose more than I ever predicted and still maintain my own credibility.
The reason litigators settle law suits is because the outcome of litigation is uncertain and its pursuit expensive. But that just states the problem. How do you "tell" a client in the midst of expensive litigation that he's going to have to pay way more or accept way less than his attorney predicted (with appropriate disclaimers) long, long ago?
First, let me provide a checklist for success in commercial mediation:
Bring the real deal-makers to the mediation or settlement conference for it is they -- not their attorneys -- who will make the decision to pay way more or to accept way less than they had previously imagined.
Bring the parties back into the conflict as participants in its resolution again. Businesses have commercial problems that have business solutions. Litigation is often just the stick to force the continuation of commercial negotiations that broke down in so spectacular a way that the parties stopped talking to one another, hired lawyers, and began to fight over legal issues the parties neither care about nor understand. The parties have now experienced how surreal their negotiation becomes when it's conducted in the courts. They're probably ready to deal again. Let them.
Permit the parties to discuss all aspects of the conflict whether they are relevant to the legal issues or not. The reason one party initiated litigation against the other party is not because he wanted to create precedent. And if precedent is what a party wants, money might but often cannot settle the matter.
Bring the experts along and let them talk to one another about the ways in which the matter might be resolved or even why their expert opinions are diametrically opposed.
Address the parties' justice issues. People seek out lawyers for one reason and one reason only. Because they believe themselves to be the victims of an injustice. And if its the defendant you represent, the injustice visited upon it is the litigation itself. I spend a significant amount of time during a mediation discussing justice issues with the parties.
they're being extorted
they're being low-balled
they were defrauded
their trust and confidence was betrayed
their competitor's market tactics have been unfair and violative of any number of state or federal laws
their intellectual property was stolen
etc., etc., etc.
Let the mediator talk with the parties about what the justice system can do, what it should do, what it most likely cannot or will not do. Most parties will not be happy with their attorneys if their justice issues are not addressed at the time of settlement. And its my job to make clients happy with their attorneys.
Let the mediator help the parties understand that their case has -- with no one's fault -- gotten worse rather than better over time and why.
When all else fails, blame the "system."
Why Parties Pay More or Accept Less than They Want To
Jay Welsh is right. If the parties have hired a mediator to settle complex commercial or mass tort litigation, they have done so because they need to pay more and accept less than they are prepared to do. Otherwise, they'd settle without the assistance of a mediator.
This does not mean that the mediator bangs heads or twists arms. There are hundreds of reasons why parties do not continue to trial and thousands of good excuses for corporate counsel to stop the bleeding. They include:
the witnesses on the other side performed better in pre-trial testimony than expected
the Judge made pre-trial rulings that cut the heart out of your case
the Supreme Court (state or federal) just over-turned a hundred years of precedent making one party's legal case far worse and the other's far better than expected
it's the economy, stupid
the client realizes during the course of the mediation that there's more than one way to organize the facts and apply the law -- something lawyers are trained to do and even sophisticated clients find hard to swallow. Having had an "aha" experience during the mediation, the client realizes there's more (or less) at risk than he's been thinking and the offer/demand now on the table looks pretty darn good after all
the other side becomes un-demonized during the course of the mediation, making it easier to part with money for the purpose of resolving the one thing both sides have in common -- a difficult, uncertain, expensive, dangerous lawsuit.
one side simply out-negotiates the other (it happens)
one or both sides lose heart for the battle when they see that the delta between the their bottom lines is not as great as they expected it to be
the parties manage to "expand the pie" (more about this later) such that the plaintiff does not have to accept that much less nor the defendant pay all that much more than each anticipated (it happens)
one party genuinely develops an understanding of and empathy for the other side's position and changes a hard line attitude against settlement as a result (it happens)
Canadian Lawyer Michael Webster asks about Jay Welsh's comment (see videos) that "in a mediation the plaintiff has to settle for far less than they thought and the the defendant has to pay far more than they ever thought."
"So," asks Webster, "this would be the lose/lose theory of mediation?"
I know when Michael's being sarcastic but decided to respond seriously by noting that Jay himself used the phrase "lose-lose."
I went on to say that the most valuable service I can often perform is to "break through confirmation and other biases/ ** that have interfered with case analysis and caused impasse."
Michael's reply was important:
When the issues have been crystallized into legal ones so well, you are in a lose/lose situation. The manager's dilemma then becomes counsel's dilemma: how do I manage to convince my client to lose more than I ever predicted and still maintain my own credibility.
Though I'm a little tempted to be flip ("this is why they pay me the big bucks") Michael's question nails one of the most difficult issue attorneys must deal with in settlement negotiations. It is certainly one of the most delicate tasks a mediator is called upon to perform.
First Let's Re-Visit Interest-Based vs. Distributive Settlement Negotiations, Asking Ourselves Whether There's Really Such a Thing as a "Pure" Money Case
My husband, with 35-years of complex commercial litigation practice under his belt is my attorney-mediator-communication weather-vane. So I asked him over pancakes this morning, "Honey, do you think there's any such thing as a 'pure' money case?"
Two months ago, he would have said "yes," and given me that "you've changed too much" look. I don't know why he said "no" this morning. But here was the gist of his response.
"Every case involves someone's interests, whether it's the GC or a company executive, or even a 'little guy' down the management chain who made a decision that impacted the course of the dispute four or five years ago. So of course there are innumerable non-monetary concerns that impact why the case is settled and when and for how much. Then again, maybe I've just been living with you for too long."
So let me first say that there is no such thing as a non-interest based negotiation. There are only negotiations in which we ignore the fact that party interests are at play.
This is one of those nature/nurture mind/body duality questions. Yes, it's "just" about money. And yes, the money represents party interests. It's nature and nurture, mind and body, budgetary constraints and party goals and relationships.
Here's another thing. Although the disputing parties may never again be in relationship with one another, the people on each side of the conflict-fence are not only in daily contact, their well-being, livelihoods, self-respect, reputation, promotions, demotions, and salaries depend upon their on-going relationships with one another, which are all in play in every negotiation of every commercial dispute.
And one more thing. Conflict cannot arise in the absence of a relationship. Even though the disputing parties may never again be in relationship, they're sure the heck in relationship now. And the relationship of the disputing parties from the moment conflict arises to the minute it settles has everything to do with its resolution.
There is no "zero-sum" game outside the realm of the virtual or the hypothetical. There is no "rational" man. People -- messy, conflicted, emotion- and interest-driven people -- are the necessary pre-requisite to conflict. How we deal with apparent lose-lose conflicts, "manage" party expectations and deliver bad news in a way our clients can hear it in the next post. Immediately hereafter.
It Pays refers to recent work done by Kellogg School of Management Professor Adam Galinsky, who has demonstrated (with colleagues William Maddux -- (INSEAD -- Debra Gilin -- St. Mary's U. -- and Judith White -- Dartmouth) that success in negotiations depends on focusing on the head and not the heart. In other words, it is better to take the perspective of negotiation opponents rather than to empathize with them. (You may remember Galinsky as the academic responsible for demonstrating that the person who makes the first offer will (nearly) always get the larger share of the delta between the two parties' "bottom lines." See Making the First Offer here).
Now Galinksy and friends inform us that we are far more likely to reach a negotiated resolution to a conflict if we use our heads rather than our hearts. As It Pays reports:
Perspective-taking, according to the study published in the April 2008 issue of Psychological Science, a publication of the Association for Psychological Science, involves understanding and anticipating an opponent's interests, thoughts, and likely behaviors, whereas empathy focuses mostly on sympathy and compassion for another.
"Perspective takers are able to step outside the constraints of their own immediate, biased frames of reference," wrote the authors. "Empathy, however, leads individuals to violate norms of equity and equality and to provide preferential treatments."
The researchers performed a total of three studies designed to assess the relationship between successful negotiations and perspective-taking and empathy tendencies. In two of the studies, the participants negotiated the sale of a gas station where a deal based solely on price was impossible: the seller's asking price was higher than the buyer's limit. However, both parties' underlying interests were compatible, and so creative deals were possible. In the first study, those participants who scored highly on the perspective-taking portion of a personality inventory were more likely to successfully reach a deal. In contrast, higher scores on empathy led dyads to be less successful at reaching a creative deal.
Why Enlightened Self-Interest Trumps Sympathy
Just when you were about to stereotype "negotiated resolutions" as commie-pinko limp-wristed new age aquarian left-of-liberal kum-by-ya marshmellow toaster solutions to the problems of (excuse me fellas) real men -- along comes new research once again demonstrating that negotiation requires hard heads rather than soft hearts.
Because our competitive natures ("I need my stuff to survive") will almost always trump our collaborative inclinations ("we need each other to survive"). If this weren't so, the world wouldn't be divided into its current "pie pieces" -- the first, second and third worlds for instance.
More particularly, because distributive non-interest based bargaining is all about getting "our share" of a fixed pie while interest-based or integrative negotiations require the parties to: (1) learn about and attempt to satisfy their bargaining partners' often non-apparent needs and desires; and, (2) to collaborate in an effort to find ways to satisfy those needs and desires in novel and creative ways, reaching an integrative agreement becomes much more likely than reaching a purely distributive one.
Because the integrative deal will -- by its very nature -- serve more of both parties' interests than would its distributive counter-part.
Perspective-Taking, Sympathy and Foreclosure
I don't know my neighbors well. They have a small family with very young children and keep pretty much to themselves. I understand from the local grapevine, however, that they're selling their house because one of them lost their job and they can't make the mortgage payments.
If we lived in another country or if the neighborhood belonged to certain religious sects that make it their business to take care of their own, we might all come together to help the neighbors save their house. But we don't.
We have and express a lot of sympathy when we discuss our neighbors' plight. "Must be hard for the kids," we say, "and the parents have worked so hard to improve the property. It would be a shame if they lost their equity."
Our sympathy, however, does not lead us to trump our self-interest (which includes simply "keeping to ourselves") in favor of the interests of the neighbors.
If, however, we learned that the neighbors were about to sell the house to a local fraternity, you can put easy money on the neighborhood mobilizing into action to find a solution. And once the neighborhood starts looking for an affordable solution to a neighborhood problem, the chances that the interests of the distressed family and their (temporarily) better-off neighbors will intersect and that new resources will be brought to the table ("hey, George, I know a lawyer who specializes in these things" or a banker or a politician or a journalist for the L.A. Times) increase exponentially.
Heck, instead of hiring lawyers to stop the sale to the fraternity, we might put together an emergency neighborhood loan-fund. Or simply help find the unemployed neighbor a new job. There are a lot of resources in my neighborhood. And many good-hearted people. But I'm afraid modern American folk-ways just don't allow for a neighborhood solution to one of its member's problems. Until, that is, our own self-interests are threatened.
So it might seem counter-intuitive to say that mentally putting ourselves into another's shoes to ascertain their interests needs and desires (perspective-taking)is more likely to create a "deal" between people than simple sympathy.
But we didn't survive as a species because we're particularly loving. We survived as a species because its in our best interest -- our only interest -- to cooperate with one another.
As I promised last week, we'll be providing our readers with a series of posts about the use of settlement counsel in sophisticated and complex commercial litigation.
While searching the internet for pertinent articles, I came upon an interview with a New York attorney, Lew Goldfarb, whose entire practice is devoted to settling cases for clients already represented in litigation by other law firms. Mr. Goldfarb's credentials are impressive, his observations shrewd and his opinions about the use of settlement counsel closely match those of our colleague Jay McCauley whose article we published earlier today here.
Typically, I am retained by the defense side as part of a dual-track approach. The litigation continues on one track, while I advise the plaintiffs' lawyers that I have been retained by the defense to take a look at the possibility of settlement. At the outset, I make it clear that I have been given only a 30 day window to attempt settlement and that my involvement should not be construed as a lack of resolve to litigate the case.
Following this initial dialog, I review the strengths and weaknesses of defendant's position. Class action litigation often produces a contentious dynamic that polarizes positions based more on emotion than factual disagreements. One of my most important tasks is to identify the true elements of disagreement. When I have a good understanding of these factors, I make recommendations to my client and obtain parameters for my discussions with plaintiffs' counsel.
I then meet with the plaintiffs' counsel, preferably one who is not involved in the litigation, to focus on ways to settle the case. Plaintiffs' lawyers are usually receptive to this approach, because they are looking for ways to get relief for their clients and to get their legal fees without the costs and risks of further litigation.
In some cases I am first approached by plaintiffs' counsel who are interested in settling a case and who know me from years of litigating class actions. I will then take this overture to the corporate defendant who will decide whether to retain me to attempt a settlement. I have resolved a number of cases in this manner.
I have also found success in ending class actions by combining the resolution of a government investigation with additional relief to class members. Very often class actions follow on the heels of a government investigation. In negotiating a settlement with a government agency, it is often possible to synchronize the remedies that the government wants with those that plaintiffs' counsel is seeking and put them all into one package. This serves not only to end the government's involvement, but also to satisfy the claims of the plaintiffs, and provide a compelling argument for ending the class action. I would then go back to the plaintiffs' lawyers, demonstrate how their clients' claims have been fully satisfied, and offer them appropriate attorneys' fees.
In some cases plaintiffs' counsel demand greater relief for the class, in part, to justify higher attorneys' fees. If agreement is not reached, the client can attempt to persuade the court that the relief to the class is adequate. If the court agrees, the lawsuit becomes a catalyst case where the only issue is whether the plaintiffs' lawyers are entitled to attorneys' fees for achieving results for the class. The defendant often is in a much stronger position arguing this issue rather than the merits of the case.
As information is learned in a given case, great trial lawyers also tell their client the truth. They give an opinion about whether to make, accept or reject a settlement proposal, or indicate that the proposal is so within the range of reason to make it a toss-up. They give these honest opinions whether the client likes the advice or not, and explain the basis for the opinion.
A great trial lawyer will not hesitate to tell a client that the client is making a mistake by not taking a recommendation of the lawyer, but then will follow the client's wishes so long as the course of action is legal and ethical.
In other words, great trial lawyers understand that client is the boss, and unless the client is demanding illegal or unethical action or the relationship between lawyer and client has become so impaired that the lawyer cannot adequately represent the client, the lawyer yields to the client's wishes.
we assimilate information based on our existing biases (remember the OJ verdict);
even when told we're doing so, we continue to organize information in such a way that it supports our existing opinions;
the receipt of additional information, without more, will simply "confirm" existing biases; and,
to make a difference in the parties' views of the merits of their case, mediation practices must include techniques for de-biasing the parties.
Research subjects were given the identical "case" materials and randomly assigned roles as "Plaintiff" or "Defendant." The subjects were put into bargaining pairs and asked to: (1) estimate a "fair" award by a Court to the Plaintiff; and, (2) to attempt to settle the dispute.
The experimental results and their implications were reported as follows:
Plaintiffs' predictions of the [probable award] were, on average, $14,527 higher than defendants'.
Mean plaintiffs' fair settlement values were $17,709 higher than defendants'.
Not surprisingly, the settling parties' assessments of what a fair settlement would be and what a judge would likely award were closer together than were those who did not settle.
Among the 59 pairs who settled, the mean difference between the plaintiffs' and defendants' predictions of the judge's award was $9,050.
For the 21 pairs who did not settle, the average difference was $29,917.
The strong correlation between the magnitude of the bias in a bargaining pair and non- settlement supports the conclusion that the self-serving bias often prevents parties from settling disputes at the most advantageous time and for optimal mutual benefit.
Even when asked to tell the "other side's" story in an essay before predicting possible awards or when told about the existence of the bias, the subjects continued to evaluate the case according to their own material interests.
Only in one experimental setting where subjects were both informed of the bias and made to write an essay substantiating the other side's case was the effect of the bias mitigated.
That subjects were unable to rid themselves of the bias when informed of its existence demonstrates that it is not a deliberate strategy.
Other findings of the experiments point to biased assimilation of information as the likely psychological mechanism underlying the self-serving bias.
When subjects were presented with eight arguments favoring the side they had been assigned (plaintiff or defendant) and eight arguments favoring the other side and were asked to rate the importance of the arguments as perceived by a neutral third party, there was a strong tendency to view the arguments supporting one's own position as more convincing than those supporting the other side, suggesting that the bias operates by distorting one's interpretation of evidence.
This study suggests that litigants may not be seeking to maximize their own payoff, but are rather trying to obtain what they deem to be fair.
Conclusions from the Experimental Data
The application of the self-serving bias to bargaining behavior led the authors of the study to tentatively conclude that
exchanges of information are not in themselves necessarily conducive to settlement, i.e., obtaining more discovery before the dispute is "ripe" for settlement may be neither cost-efficient nor an effective settlement strategy;
the importance of information exchanges to the settlement of a dispute can only be analyzed in terms of how that information may effect preexisting biases, which suggests that attorneys pay greater attention to their opposition's case theories when analyzing information obtained during discovery; and,
to act as an effective counter to the self-serving bias of both "sides," mediation practices should be, at least in part, directed at de-biasing parties rather than simply facilitating information exchange.
See what Lincoln has to say about "God being on our side" and the end of negotiations in this short but stirring speech.
At this second appearing to take the oath of the presidential office, there is less occasion for an extended address than there was at the first. Then a statement, somewhat in detail, of a course to be pursued, seemed fitting and proper. Now, at the expiration of four years, during which public declarations have been constantly called forth on every point and phase of the great contest which still absorbs the attention, and engrosses the energies of the nation, little that is new could be presented. The progress of our arms, upon which all else chiefly depends, is as well known to the public as to myself; and it is, I trust, reasonably satisfactory and encouraging to all. With high hope for the future, no prediction in regard to it is ventured.
On the occasion corresponding to this four years ago, all thoughts were anxiously directed to an impending civil war. All dreaded it--all sought to avert it. While the inaugeral [sic] address was being delivered from this place, devoted altogether to saving the Union without war, insurgent agents were in the city seeking to destroy it without war--seeking to dissole [sic] the Union, and divide effects, by negotiation. Both parties deprecated war; but one of them would make war rather than let the nation survive; and the other would accept war rather than let it perish. And the war came.
One eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the Southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union, even by war; while the government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war, the magnitude, or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible, and pray to the same God; and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces; but let us judge not that we be not judged. The prayers of both could not be answered; that of neither has been answered fully. The Almighty has his own purposes. "Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!" If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him? Fondly do we hope--fervently do we pray--that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord, are true and righteous altogether"
With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations.
You just slip out the back, Jack
Make a new plan, Stan
You don’t need to be coy, Roy
Just get yourself free
Hop on the bus, Gus
You don’t need to discuss much
Just drop off the key, Lee
And get yourself free
Where matchmaking service moved to compel arbitration of clients’ action alleging that "consulting agreements" were fraudulently induced, and agreements were [within a] class of contracts regulated by state law expressly rendering nonconforming contracts void and unenforceable, agreements’ failure to expressly set forth language required under dating service statutes--Civil Code Sec. 1694, et seq.--rendered [them] and [the] arbitration provisions [contained in them] unenforceable. Duffens v. Valenti - filed March 27, 2008, Fourth District, Div. One Cite as 2008 SOS 1811
Using Your Case Management Order or ADR Panel to Convene Your Mediation
There are many reasons you may not wish to initiate mediation. Many lawyers justifiably do not wish to appear overly desirous of settlement. Others are discouraged because their opponents
long ago indicated their client would not consider paying/accepting anything less/or more than $X, which is a non-starter;
say they won’t consider settlement until after some key event; or,
insist their client will “pay millions for defense but not a penny in tribute.”
The best way to encourage settlement discussions without any loss of face is to agree upon a mediator (or mediation services provider such as Southern California’s Judicate West) at the commencement of the case, authorizing the neutral to suggest mediation at any time without prompting by the parties. This is the general practice in most multi-party construction defect cases and there's no good reason to limit the benefits of this practice to complex litigators.
This strategy permits one party to suggest mediation to the neutral who can then initiate a negotiation session without divulging who, if anyone, sought the mediator’s assistance.
Any mediator worth her salt will be trained in and skilled at convening mediations without party pressure.
Some, but not all, mediation service providers also possess these skills. Judicate West’s case managers, for instance, are all skilled professionals with a minimum of five-year’s experience convening mediations for the parties.
At the commencement of your action, ascertain whether a neutral or ADR service provider in your locale specializes in the art of convening. A service provider like Judicate West will often know more about your opposition than you do, particularly in large legal markets like Southern California where you may well not “do business” with your opponent on more than one occasion.
What I’ve discovered is that when you’re writing with someone, you’re negotiating and discussing all the time. Which secondary sources to use and why; how much space a particular piece of the argument should occupy; the particular ways that data should be interpreted; style; etc. And that’s all the stuff that we actually articulate. I’d venture that there is also always a secondary level of negotiation going on non-verbally: should I just take the lead on this part?; am I slowing us down?; is my expertise relevant here?. Essentially, there are all of the interpersonal elements to negotiate as well. Is it any wonder that it takes longer than writing an article alone?
Meanwhile, note to self: next time I assign a group project to students (I’m looking at you, film class!), I need to give them ample time to work through not just content, but interpersonal stuff as well. It would probably also help if I could get them to move across the street from one another, and assign one person per group to be the baker who provides snacks for each meeting. And then someone to do the group’s laundry and grocery shopping while they get their article written—I mean project done.
And yes, Professor, it does take food, drink and clean laundry to accomplish anything worthwhile as a team! Thanks for the thoughts. Now get back to that article right now!
Appellate judges may have a draft opinion prepared, and may rarely change their minds due to oral argument, but — according to at least one justice I’ve spoken to — sometimes they are actually looking for the appellate advocate to give them a reason to change their mind.
So, hey Greg!! My readers, who are looking to change their opponent's case evaluation, would like to know your techniques for: (1)ascertaining what the appellate panel most likely wants to know; and, (2) addressing their concerns in a way that would allow the Justices to reach a decision other than the one they are leaning toward!
In this issue, I also review a little book about networking called The Go Giver by Bob Burg and John David Mann -- a happy prescription for a successful career for those of us who have the education, training and experience to give freely and make use of the benefits that flow from our fortunate human tendency to reciprocate favors.
The "Women's" issue comes at a time when I'm hungrily devouring Lauren Stiller Rikleen's tremendously readable, inspiring and fascinating Ending the Gauntlet -- Removing Barriers to Women's Success in the Law. I'm not even through Chapter One yet and I can tell you that this is no ordinary book about women's challenges in the legal profession. It's a book for men and women who can still recall -- and share with future generations -- a time when law firms were more like professional partnerships than the corporate behemoths so many have become.
As Ms. Rikleen promises, her book explores the "confluence of circumstances" that marked my generation and shaped the following generations of women in the law -- the flood of female attorneys into firm practice in the 1980's coupled with the modern law firms' explosion in size, wealth and complexity.
To give you a small taste of Ms. Rikleen's scholarship and vision, here's a thumb-nail of her diagnosis of the ills that have beset Mid-to-BigLaw practice:
As [law firms] have grown . . . they have failed to develop an infrastructure which could channel the energies that have led to huge financial success into a coherent management framework. The result is a series of internal, unstructured organizational units which often have more in common with life in the frontiers of the Old West than they do with sophisticated businesses.
Sound familiar? Either buy the book now!or wait for my lengthier review in an upcoming issue of The Complete Lawyer.
Soon, the Complete Lawyer'sHuman Factor Columnists (first appearance, Vol. IV, Issue 2 /*) are going to be addressing the ways in which you can use conflict resolution techniques to create, or restore, peace in your law firm.
Though my contribution to that particular column is slicing the law firm's money pie with an eye toward the collective good rather than the individual's advantage, I can't pass up the opportunity to note the importance of accountability -- one of mediation's core values -- covered by The Snark in -- Oops! An Associate Did it Again (excerpt below).
This is the hardest plan to implement because you fear finally being discovered for being imperfect and possibly over-rated. Will you be fired? Will it go down in your "file" only to rear its head in four years when you are denied admission into the partnership and the only reason they can give is, "Back in your second year, you missed that 1 p.m. meeting with our best client, MegaCorp."
But I think in the end it is better to fess up. Just don't do it in a way that makes things even worse: no crying, sniveling or begging for mercy. And no need to shave your head or hold a press conference.
You just need to explain yourself while displaying the appropriate level of remorse blended with confidence that says, "Yes, I screwed up that once, but it was an uncommon lapse that will be rectified. I will work even harder and bill a few extra hours to make up for lost faith in my value."
Provided your mistake didn't actually cause lost revenue or client relationships, you likely will be forgiven. But don't let it happen again. You get paid way too much money to make mistakes.
BigLaw or Small, You are Not a "Cog"
I know the Snark's column is meant to be witty, sarcastic, ironic, snide, and all of that, but the demeaning reference to BigLaw associates as "Cogs" is unfortunately reflective of some young lawyers' felt reality. (Remember Jonathan Swift'sModest Proposal -- eat the poor? It's not a joke)
Here is my advice to every first year associate at every law firm in the country -- be it a Two-Person Enterprise or a Ginormous BigLaw Endeavor:
NOT ONLY ARE YOU NOT A COG, YOU DO NOT WORK FOR THE LAW FIRM
You WORK for the client. If your "boss" or your firm is not helping you do that to the highest level of your own abilities, then he/she is simply the guy/gal you need to circumvent so that you can give your client the best legal advice and services available.
THE BUCK STOPS WITH YOU.
You are a lawyer, with a lawyer's professional responsibilities and the right to be respected for the highly educated, skilled and semi-trained professional you are.
Don't let anyone fool you. You are not only important, you have power. And with power comes accountability.
Sometimes reading my statistics page is the best way I have of taking the pulse of my readers and diagnosing the current actual rather than the aspirational state of settlement and mediation practice.
Listen. Only the squeakiest client or party wheel will tell you that he is feeling coerced into settling the litigation that has become a millstone around your neck.
I'm talking to attorneys here -- but settlement officers, judges and mediators should pay attention as well. Whether you're representing the CEO of a Fortune 500 Company or the 60-year old man who slipped on the iconic darkened bananna peel in the produce section of the local Ralphs, at some point during settlement negotiations your clients are going to suspect one or more of the following:
you're tired of his case and want to get rid of him
you're in cahoots with opposing counsel, with whom, frankly, you have a far more enduring if not affectionate relationship than with your client
you and your old buddy the mediator or settlement judge/officer have joined forces to to compel him to give up his legal rights in exchange for less money than you, his attorney, told him he was likely to recover two years ago
despite his protests, you, the mediator and opposing counsel keep saying the fact most important to his case is "irrelevant" to his chances of recovery
when you talk to opposing counsel or the mediator about the case, he doesn't even recognize what you're talking about -- this is not the same case he brought to you to try two years ago
he feels extorted and no one is paying any attention to that
he feels like he's being sold down the river and no one is paying any attention to that
he paid his you and your law firm tens of thousands, hundreds of thousands, millions or tens of millions of dollars in attorneys fees and he thinks he could have settled the case for the sum that's being offered/demanded now before he paid you to litigate this case to the settlement conference.
he's really really irritated now -- angry even -- though he doesn't get angry; he gets even, and he'll have no trouble spending another few million on attorneys fees so show that lying, cheating so and so in the other caucus room a thing or two
he's a successful business man and he's never been treated with so little respect before.
Now let me tell you something else. If these thoughts are some of those which race through your clients' minds during settlement conferences, your mediator should be sufficiently alert to the changing temperatures in the room to address them.
Because the mediator's job is not to settle the case.
The mediator's job is to:
assist you in helping your client understand the options available to him
assist you in delivering bad news to your client in a way your client can hear it
assist you in negotiating as good a settlement as possible for your client without making your client feel as if he has no other options
assist you in resolving for your client the justice issues that your client originally brought to you to resolve
assist you in helping your client recognize and set aside the emotional experience of the settlement conference for the purpose of doing a sober cost-benefit analysis
assist you in helping your client recognize that legal cases change over time; sometimes getting better and sometimes getting worse, usually both in the discovery process -- this is not the case your client originally brought to you -- untarnished by the harsh adversarial systems but puts "facts" to a more exacting test than any other process in business, political or social life
assist you in helping your client recognize his own fallibility, potential for error, and accountability for his part of the harm for which he is seeking recompense
assist you in helping your client recognize that the other side -- evil, destructive and hateful as it may well be -- also has a few items of "truth" and "justice" on its side of the balance sheet
assist you in helping your client make an informed decision without pressure from anyone whether he wishes to accept less than he wants to or would like to take his chances at trial
assist you in walking away from the mediation or settlement conference with your client clapping you on the back and saying, "great work, John. If I'm ever in need of a litigator again, rest assured it's to you I will come. I'll tell my friends on the block or on the Board of Directors that you're the man.
How do we accomplish these ten aspirational goals together -- attorney and mediator and client? Stay tuned.
The Jerry McGuire video above is for our clients -- with whom we do not share just how hard we are working and what a toll it takes upon us because that's what they've paid us to do -- and paid us handsomely I might add.
O.K., from time to time I draft a brief for someone. It keeps my hand in the game and REALLY -- it's MUCH EASIER to make $$$ doing what I did for 25 years than for what I've been doing for four. I have HIGH HOPES that my research and writing mini-career will soon be shut down by my ADR career, but in the meantime . .. . . .
Shameless plug: Listen . . . . I'm very very very very good at negotiating the resolution of complex commercial litigation. I should be in heavy rotation. Try me! I won't let you down.
Yesterday, I spent hours researching a fairly obscurecontract interpretation question. I didn't find case ONE and I'm a pretty good little first year research associate -- always was. So what did I do? I turned to my virtual buddy, Ken Adams (who never writes a rambling post like this one)over at the brilliant, thorough and sophisticated Adams Drafting. My brain must have been turned off yesterday because I couldn't find anything by searching his blog either.
Voila!! In my in-box this morning, a link to the most comprehensive, practical, brilliant (relatively lengthy) article ON MY PRECISE LEGAL QUESTION that could easily make the difference between winning a $2.5 million appeal or losing it.
Listen. You can't find this stuff in academic articles. And you can't find it in Witkin or CalJur or AmJur or in the case law. You can't find it in the California Civil Code's canons of construction or maxims of jurisprudence (my favorite: "superfluity does not vitiate").
Ken Adams is the foremost authority on contract drafting in the nation. And I have that wisdom tucked into my back pocket the moment it finally occurs to me to go over to his blog to have a look see.
So that's how I use the legal blogosphere. It's my law firm. It's my community. It's my home.
In the middle of the journey of our life I came to myself within a dark wood where the straight way was lost. Dante Alighieri
When the journey turns from litigation to mediation, it's helpful to remember that we litigators are classic Hollywood hyphenates -- the writers-directors-actors of our client's story -- and that our client has generally moved more and more into the background as the "executive" producer, i.e., the money guy with the power of the final cut.
Since we've been building our narratives of right and wrong, good and evil, black and white for a pretty long time before mediation rolls around, it's good for us -- as authors of our clients' morality tales -- to step back for a moment and observe the inevitable structure of the litigation "story" we've been so busy writing.
For full article, click on the link above. The excerpt below concerns the standard litigation narrative that we make our living writing.
Let's start as [legal] narrative itself starts, with the Steady State and the Trouble that upsets the Steady State: The world is in order. People are acting towards each other as they should, or at least no one is straying too far from the norm. And then . . . something happens. One party claims that another party did something to generate disorder, to make the world out of joint. In other words, Trouble disrupts the Steady State.
In a breach of contract case, the parties enter into a contract (Steady State) and then one party breaches the contract (Trouble). In a tort case, plaintiff is walking on the sidewalk (Steady State) and then slips and falls (Trouble), or plaintiff is having a beer (Steady State) and then defendant slugs plaintiff (Trouble). In a criminal case, a bank is doing what banks ordinarily do (Steady State) and then is held up by a defendant armed with a gun (Trouble).
The defendant claims either that: 1) nothing happened, and an attempt to demonstrate otherwise is itself an example of disorder and thus of Trouble, and/or 2) something did happen to generate disorder, but it was the other party that did it.
So who is right and who is wrong, . . . . who is the real source of Trouble? The assumption that one party is right and one party is wrong is not open to question; litigation is based on a shared norm among all participants (litigants, judge, jury) that only one of the litigants is right about "what happened." Since there is only one true source of Trouble, parties expend Efforts to demonstrate to the finder of fact that their story is the "right" one.
These Efforts are subsumed within the procedures of litigation itself. Parties are successful in their Efforts to the extent the judge (or jury) decides that the origins of Trouble are as a party claims. Thus, the end result of successful Efforts is that a judge or jury Restores the Steady State by granting relief to the party whose version of Trouble is the right one.
To recapitulate, parties first come to litigation with divergent versions of Trouble. The court's job is to finish the story the "right" way so that a party's story makes sense. A bare bones representation of this narrative scheme would be as follows:
Joe's Story Steady State [already happened]: Dave and I were talking.
Trouble [already happened]: Dave punched me.
Efforts [is happening]: I am showing and will show that Dave owes me money for my injuries.
Restoration of Steady State [should happen]: Dave pays me money.
Coda [should happen]: Justice is done.
Dave's Story Steady State [already happened]: Joe and I were talking.
Trouble [already happened]: Joe swung his arm to punch me. As a reflex, I hit him.
Efforts [is happening]: I am showing and will show that this case must be dismissed.
Restoration of Steady State [should happen]: This case is dismissed.
Coda [should happen]: Justice is done.
Once the litigation is concluded, the "true" plot of the story can now be told completely and definitively. Either Joe's right, or Dave's right, or some combination thereof is right. Such a story - its fuzziness and indeterminacy stripped away - is familiar to every first-year law student . . . .
Even this brief tour highlights an important dimension of litigation. The engine that drives litigation is a kind of anxiety about story completion. "Facts" need to be "found." The goal of an advocate is to persuade the decision-maker that the advocate's story is the right one, and if the advocate's story is the right one, then the "ending" - that is, the Restoration or Transformation of the Steady State - flows from it. In this sense, the Efforts are a contest about who caused the Trouble, and "finding" who did determines what the proper Restoration should be.
The Mediation Narrative from Professor Rubinson's article tomorrow.
Two short-short stories. Both to acquaint you with who I was as a litigator and how I can help you as a mediator.
A Born Moralist
I was on the telephone with my client talking about a Rand Corp. statistical study that was originally prepared as answers to contention interrogatories (!!) but eventually became the centerpiece of Plaintiff's proof that my client had engaged in a massive conspiracy to drive the Plaintiff out of business. Claimed damages soaking wet: $250 million.
I was talking about how wrong the opposition was on so many levels -- evidentiarily, practically, legally and, yes, morally.
My client said, "I've finally figured out what you are."
"You, Vickie, are a born moralist."
And I took that to be a compliment.
Anything You Can Get Away With
Toward the end of my career all my cases seemed to hover around the quarter-billion dollar mark. This one was an environmental coverage suit for a major petroleum company's potential liablities for 500 + toxic waste sites in every Canadian province. This is one of the few cases in which the insurance carrier can wear a "white hat." My client -- Lloyds of London.
This stuff is complicated. It involves coverage across a couple of decades and up the ladder of excess policies to the billion dollar mark. We use "coverage charts" -- often color coded -- to understand the policy profile at a glance.
At every oral argument in the trial court -- up to the winning summary judgment motion -- I arrived with a clutch of color-coded coverage charts that supported my client's position. On every occasion, plaintiff's counsel complained about the charts. But he never brought competing charts with him. The Judge -- one of the best on the Superior Court bench -- really wanted to understand the issues and get it right. So she spent each oral argument listening to both parties while scrutinizing my coverage charts.
I genuninely believe that this is why I won.
What Does This Have to Do with Mediation Advocacy?
First, if you believe in the very depths of your soul that your client is right -- as I always did -- your mediation advocacy will improve if you begin to understand the principles of mediation advocacy. It's banal, already, to say that these principles are non-adversarial. Yet few litigators are able to shift from a litigation to a mediation model in circumstances in which making the shift would dramatically improve their mediation outcome.
Most attorneys are likely to settle this case at the mediation if they've brought the right stakeholders, properly prepared their strategic and tactical moves, and counseled their clients appropriately. Yet they take their summary judgment briefs or demurrers or complaints, change the title to "Confidential Mediation Brief," make a few editorial changes -- primarily by removing references to the Judge granting their motion or providing them with relief -- send these briefs to the mediator, arrive with one (or more) bottom lines and, too often, a "prove you can settle this case" attitude toward the mediator.
This is not an indictment of the litigation bar nor even a complaint from a mediator. This is the beginning of a series of posts about helping me help you help your client help you win the mediation.
Stay tuned. Really. Your mediation practice is about to go thermo-nuclear. Take it from the "born moralist" who did whatever was (ethically) necessary to win. Usually with pretty darn good results.
For more hilarious law cartoons by the fabulous Charles Fincher, click here.
Yesterday, I had the distinct pleasure of speaking to, and then participating in a mock mediation with, Lisa Klerman'sUSC Law SchoolMediation Clinic students.
Among these bright, energetic, earnest law students are some who would like to make mediation a career before a period of sufferance in the rights and remedies business. It always saddens me to be reminded that we "law elders" do not routinely make it clear to our young apprentices that the business and society of the law is as broad, exciting and varied as their own imaginations can make it. In other words, I encourage young people to do with their law degree whatever the heck they like, including mediating disputes. They need only understand that they are choosing an entrepreneurial rather than an institutional path. They are breaking new ground.
What does this have to do with negotiation? Our ability to negotiate our first post-law school employment opportunities or to end a hostage crisis is embedded in, supported by, and impossible without, a society governed by the rule of law.
Because I don't have a lot of time to explore this topic this morning, I'm cannibalizing my own work to ground both myself and my readers in the topic "culture and the law." We'll be returning often to this theme many times over the next several months.
Culture and consumers precede the law. They rarely, if ever, conform themselves to the needs, interests and desires of business. Culture and consumers govern business. Business does not govern them.
The law follows culture. As we noted over at the IP ADR Blog in Disputing Humor: Comedy, Folkways and the Internet, "the law" is not just a set of rules, but a life condition "in which [people] are carriers of rights and duties, privileges and immunities."
No formal structure supporting the system of law need be visible. . . Law can be found any place and any time that a group gathers together to pursue an objective. The rules, open or covert, by which they govern themselves, and the methods and techniques by which these rules are enforced is the law of the group. Judged by this broad standard, most law-making is too ephemeral to be even noticed. /*
In other words, we govern ourselves more or less naturally, until a conflict within the group arises. When that happens, the group is "forced to decide between conflicting claims [and the] law arises in an overt and relatively conspicuous fashion. The challenge forces decision, and decisions make law." Id.
*/ See, Weyrauch and Bell, Autonomous Lawmaking: The Case of the "Gypsies" (1993) 103 Yale L.J. 323 (1993) quoting Thomas A. Cowan & Donald A. Strickland, The Legal Structure of a Confined Microsociety (University of California, Berkeley Working Paper No. 34, 1965). The Weyrauch book on Gypsy Law can be found here.
Stephen King wrote the Shining here, not in my room, but right down the hall. The book was Inspired by the Stanley. Hence the picture of Jack.
What's most exciting, however, is that I'm attending the Founding Congress of Mediators Beyond Borders; seeing old friends and meeting for the first time people I've long known at a distance; and getting to know an incredibly diverse and fascinating group of people dedicated to bringning conflict resolution techniques to international conflict.
More of that later.
Before getting to the "money shot" about changing the other guy's mind, I want to share with you Ken Cloke's12 Ways Systems Resist Change from his lecture yesterday: Mediators as Global Citizens: How Mediators Can Change the Planet.
I start with resistance because you can't even begin to think about change until you understand why it is you're not getting past opposition's door. You might most readily notice in the following list the ways in which your workplace (or your government!) supports its dysfunction.
You'll also recognize your opponent's opposition to you and perhaps even yours to him.
Marginalization: Making ideas, people, perspectives, or insights that could threaten the system appear unimportant, irrelevant, irrational, or impossible to achieve.
Negative Framing: Using language that frames new ideas and critics negatively so that nothing that threatens the system can be thought or communicated successfully.
Exaggeration: Stereotyping or exaggerating one part of an idea in order to discredit the other parts and the whole.
Personalization. Reducing ideas to individual people, then discrediting or lionizing them.
Sentimentalization: Using sentimental occasions, ideas, emotions and language to enforce conformity and silence criticism.
Seduction. Describing the potential of the existing system in ways that unrealistically promise to fulfill people's deepest dreams and desires and blame the failure to achieve them on others.
Alignment: Communicating that in order to exist, succeed, be happy or achieve influence, it is necessary to conform to the system regardless of its faults.
Legitimization. Considering only existing practices as legitimate an all others as illegitimate.
First, Mediation Earth Mother, Scholar and Entrepreneur, Diane Levin's review:
Shakespeare once wrote, "This above all: to thine own self be true." These words, written 400 years ago, resonate today. They do so especially for the many professional mediators who cringe at the very thought of marketing -- with its associations with shameless self-promotion, glad-handing, and cold-calling. For many mediators, marketing just feels wrong.
Now, at long last, there's a guidebook that achieves something no other mediation marketing resource has done. It helps mediators do the impossible: become more effective marketers and remain true to themselves and their work. Dr. Tammy Lenski, a mediator and mediation marketing coach who has run her own successful practice since 1997, has created Making Mediation Your Day Job, the definitive resource for mediators who want a realistic, practical blueprint for marketing their practice.
The clue to Dr. Lenski's formula for success is in the second half of the title of the book: How to Market Your ADR Business Using Mediation Principles You Already Know. She asks readers, "Would you enjoy marketing more if your primary aim isn't selling and self-promotion? I'm betting most of you would say yes." Like the skilled practitioner she is, she reframes, inviting readers to see marketing anew, "as dialogue or as a learning conversation", something mediators already know how to do, and do well.
Using humor, anecdotes, and real-life examples drawn from her clients, her students, and her own experience, Dr. Lenski encourages her readers to step outside their comfort zone and draw upon the professional skills they already have to build opportunities. She also offers sensible productivity tips, business planning advice, and useful exercises that help mediators master marketing.
What also distinguishes this work from the numerous resources available now on mediation marketing is its emphasis on professional integrity -- on honoring the profession through a commitment to mediation excellence. Dr. Lenski reminds readers that it's not just good marketing that matters; mediators also have a duty to uphold standards of excellence and develop their professional skills. She wisely observes, "In the end, it's the quality of the work you deliver that's going to help keep the clients coming."
More than a book, Making Mediation Your Day Job functions like an honest conversation with a wise and caring friend. Dr. Lenski writes as someone who has been there and understands where and why any of us get stuck when it comes to marketing. She's there to nudge us forward, with encouragement and straight talk. Making Mediation Your Day Job offers authentic, real-world advice for mediators who want to use marketing to take their practice to the next level -- and all the while stay true to themselves and their work.
I just finished consuming Making Mediation Your Day Job: How to Market Your ADR Business Using Mediation Principles You Already Know.
When I say "consuming," I'm talking about the way we exhaust our appetites over a Thanksgiving dinner plate -- eager, greedy and far too quickly -- before pausing to wonder where the turkey, potatoes, gravy, green beans and yams could possibly have gone.
Teacher, trainer, and mediator, Tammy Lenski is less than candid when she says this book is about marketing our ADR Business. This book is about locating and achieving our dreams. But Dr. Lenski doesn't stop there. She goes on to provide practial advice about making our living by living our dreams.
Why such effusive praise for a short book on marketing a mediation practice? Because it's not a "how to" but a "why" and a "what," with workshop questions to help us fill in the gaping holes of our lives.
This book does what no other career or marketing guide I've ever read even seeks to accomplish. It inspires and guides. It suggests reaching for the stars with our feet firmly planted on the ground. It asks us to look inside our very own hearts; to assess our strengths and weaknesses; and, to measure the width and depth and breadth of our desires. Then it gives us the action plan we've all been waiting for. The one that helps us make ME, INC. our day job.
It would be unfair -- selfish even -- to recommend this book only to mediators. Why would we withhold this practical wisdom from the aspiring lawyers, chefs and novelists in the world? Why would we deny the entrepreneurs and financial wizards; the actors and the politicians of the benefits of Dr. Lenski's ground-breaking work? It wouldn't be nice; it wouldn't be fair; it wouldn't be right.
I was a commercial, antitrust, IP and securities litigator long before I devoted nearly a decade of my practice to environmental coverage litigation. In the process, I learned enough about Comprehensive General Liability ("CGL") coverage to make me worry about how well I'd served my commercial clients in regard to the insurance coverage potentially available to them.
If you are a commercial litigator -- or any type of litigator who defends your clients against claims for damages or for injunctive or other equitable relief -- you must
ask your clients for all of their insurance policies, even those that seem unlikely to provide coverage;
carefully review the precise wording of the insuring agreements and research the case law in the relevant jurisdiction to determine how the courts have interpreted those insuring agreements under facts similar to those your client's case presents;
except for some narrow additional protections provided to insureds, be aware that there is no such thing as "the law" of coverage under any particular type of policy -- all coverage flows directly from the precise language of the insuring agreement
in most jurisdictions, that language -- if ambiguous -- is interpreted in favor of the insured's objectively reasonable expectations; and,
in most jurisdictions the rule of contra proferendum will require a court to construe any ambiguity in an insurance policy against the insurance carrier
carefully review the exclusions contained in those policies and research the relevant state's case law (as well as federal cases applying state laws) interpreting those exclusions;
before concluding that there is no coverage, read available treatises as well as recent law review articles that may well suggest creative ways of distinguishing adverse authority or extending existing principles to bring your client's claims within the terms of the policy or outside of pertinent exclusions;
if you have any doubt whatsoever about the existence of coverage, tender the claim to your client's carrier and let the carrier do the analysis;
if the carrier denies coverage, read the reasons for denial critically and respond with any reasonable interpretation of the policy that will support a claim of coverage;
if the carrier continues to deny coverage, keep the carrier informed of the progress of the litigation and invite the carrier to respond to all settlement demands and to attend all mediations and settlement conferences.
If the cost of the lawsuit is beyond your client's means or will deprive it of capital necessary to meet its business goals for the next few years, retain coverage counsel for a second opinion.
Have I mentioned that my beloved husband is one of the best coverage attorneys in the country -- having litigated the World Trade Center coverage action on behalf of Larry Silverstein's lender GMAC? And that I formed my opinion about his brilliance while I was representing the London Market Insurance Carriers and he was representing the policy holder? Even if your case does not justify hiring someone like my husband to give you a second opinion, there are lots of good coverage attorneys out there who can so that you can complete your coverage "due diligence" for your client.
At last, to the 2007 Fifty State Environment Coverage Analysis
If your clients have been hit with demands to clean up toxic waste, this is an invaluable resource. A specialist in the field, however, should be consulted to maximize the chances that coverage will be provided.
Have I mentioned that I'm on the Insurance Coverage Mediation Panel of Neutrals with the International Institute of Conflict Prevention and Resolution ("CPR")?And since I'm a former defense coverage attorney currently married to policy holder counsel, you're unlikely to find many other mediators who are both extremely knowledgeable about the law of coverage and deeply neutral!
How do you achieve the best result for your client in a settlement conference or a mediation?
By having done as much good work to support your own case and destroy your opponent's before you discuss settlement.
And no, you do not need to be an $#%^@ to do so.
Some litigators excuse themselves from cross-examining opposition witnesses at deposition because they "want to save it for trial."
But your chances of going to trial are, at best, ten percent. Don't you want to destroy or seriously depress your opponent's expectations of recovery for the ninety percent chance of achieving a dynamite settlement for your clients? One you can trace back, in writing, to your killer deposition skills?
Most young attorneys -- and I mean from first through fifth years -- have not developed the skills necessary to use the most effective case-destroying device available to them -- impeaching a witness using his inconsistent statements contained in depositions, sworn documents and correspondence.
How do you use prior deposition testimony when you're taking the witness' deposition for the first time? That's what real-time reporting is for. You can use the morning's testimony in the afternoon or, if the deposition goes beyond a single day, you can use yesterday's testimony today and today's tomorrow.
This isn't rocket science. You just have to master a few easy questions while at the same time overcoming any natural reluctance you have to confront the witness when he's sitting across a conference table from you.
And yes, that does require at least a small amount of courage. Fear of this confrontation is, I believe, at the true heart of most litigators' many rationalizations for not impeaching witnesses at the time of their deposition. Or, at least, it was my rationalization in the early years of my practice when I was fearful of those confrontations.
As to the following advice, I likely pulled it from my NITA materials too long ago to remember, having just stumbled across it while looking for something else. It, and a lot of other terrific advice, can be found in the book pictured above. So all credit for the advice below goes to NITA whether it's verbatim or not.
Cross Examination Impeachment of A Witness
One of the most effective ways of impeaching a witness at trial is through the use of depositions and inconsistent statements. Unfortunately, many trial attorneys do not know how to properly impeach using depositions and inconsistent statements.
When a witness makes a statement in trial that is inconsistent with his or her earlier deposition testimony, you should first highlight the question that was answered differently later on. Make sure that the trial testimony being impeached is a direct inconsistent statement with the deposition given before trial. You should then ask the following questions:
Do you remember having had your deposition taken on (state the date)?
Do you remember that a court reporter was present at your deposition?
Do you remember having been sworn in to tell the truth?
Did you tell the truth on that date?
(If applicable) Do you remember having your attorney present at your deposition?
After you have set the foundation for the impeachment, you ask the witness the following question:
"Do you remember having been asked the following question and your giving the following answer."
At this point, you should read the question previously asked and the answer given by the witness in the deposition.
Done. DON'T ASK FURTHER QUESTIONS. You have impeached the witness. Asking further questions simply allows him/her to squirm out of it.
Use of Inconsistent Statements in Documents
A similar method may be used to impeach a person using an inconsistent statement in a document such as an affidavit, sworn statement or letter.
You should first highlight the inconsistent trial testimony that will be impeached. Next, identify and authenticate the document that will show the inconsistent statement given by that same witness. In order to establish the foundation necessary to impeach an individual with the use of an inconsistent statement, the witness should be asked the following questions:
Do you remember having given a statement to (person) regarding how the accident occurred?
Did you give that statement freely?
Who was present when you gave your statement?
When was the statement given?
The witness should then be shown the exhibit and asked the following question:
I show you what has been marked as Plaintiff's Exhibit "A" for identification. Is this a copy of your sworn statement?
Finally, read the relevant portion of the statement that directly contradicts the deposition testimony of the witness.
Impeachment through the use of depositions or documented inconsistent statements should be accomplished in an organized fashion and should be performed smoothly and directly. The relevant pages and sections of the deposition should be marked and highlighted beforehand so as not to fumble through pages or lose control of the witness.
There is nothing more impressive than to see an attorney properly impeach a witness through the use of inconsistent statements in documents or in a deposition. It is a very simple procedure to learn and, once mastered, will prove to be an effective means of cross-examining even the most "dangerous" witness you face.
Aren't you feeling all trial lawyerish now? You can take on anybody. Go get 'em tiger!!
The Negotiation Law Blog's dear good friend, Mark Robbins, pauses in his work to make sure we didn't miss the President's reference -- in his State of the Union address -- to the work Mark is doing in Al-Hillah, Iraq.
And they saw our troops, along with Provincial Reconstruction Teams that include Foreign Service officers and other skilled public servants, coming in to ensure that improved security was followed by improvements in daily life. Our military and civilians in Iraq are performing with courage and distinction, and they have the gratitude of our whole nation.
MARK A. ROBBINS
Rule of Law Advisor
Babil PRT, Al-Hillah, Iraq
File this post in 101-Things-to-Do-with-Your-Law-Degree and Restoring-the-Rule-of-Law-Everywhere!
First, if you are making $67,000 per year, you are the 52,428,447 richest person in the world and are in the top .87% of the wealthiest people worldwide. See Global Rich List to end your week on a note of gratitude with a donation to the charity of your choice.
But you don't compare yourself to half the world's population. You compare yourself to attorneys -- a profession you chose not to pursue or that you left to be happier.
The median salary for attorneys who have been in practice between one and four years is -- oh my goodness!! -- just a couple grand less than the median income for mediators!
And remember, an attorney who has practiced between one and four years has been devoting him/herself to the law for between four and seven years -- the first three of which s/he was spending tens of thousands of dollars for a law degree and earning either precisely -- or next to -- nothing.
So. If you've been mediating for between four and seven years and are making something between $50,000 and $100,000 per year, you are doing every bit as well as the median attorney.
At some point, someone has to have the nerve to step up to the top or bottom of that zone. When you finally enter the realm of reasonable possibility (not necessarily a "reasonable" settlement) you'll get a "sounding" back from the other room. Once that happens, as in battleships, you'll have a pretty good idea of the direction in which you'll need to move to achieve agreement in the "game" of distributive bargaining.
I make every effort not to let the parties conclude a mediation session until I am absolutely convinced that their "bottom lines" do not overlap as shown in the beyondintractability.org chart above.
Remember, however, that I never want to know either party's bottom line because: (1) it will effect their negotiation strategy, i.e., potentially box them in; and, (2) it will effect me andI don't want to sub-consciously drive the negotiation deep into anyone's actual flotilla. (reasons one and two here)
Is THIS All You Do All Day, Ms. Pynchon?
That would be so boring!
Facilitating a distributive bargaining session to resolve litigation is not actually a game of ping-pong or battleships. Remember, nothing is ever only about money. Lawyers translate injustice into money for their clients because it is all we generally have to work with to make a bad situation right again. Mediators translate money back into justice, fairness, or, in some cases, stark, raw, unjust reality -- take it or leave it.
I do not drive the process as a mediator. I nurse it. And because the process is hard on people, it did not surprise me yesterday to hear one of the attorneys tell me that he "didn't want to be sexist" but thought he might just start retaining women mediators because lately they'd been the only ones who'd been getting the job done for him.
Patience. Persistence. And just a little bit of tenderness for everyone involved. It's a tough business and all the parties and their counsel can use a kinder touch -- male or female.
My brilliant and talented step-son who is beginning legal practice this coming Monday is worried about career satisfaction. When I suggested that he read my "Why Lawyers are Unhappy" article, he said, "I'd far prefer to read an article about why lawyers are happy."
Since we've been unhappy-lawyered to death recently, and because I don't want Adam to be unhappy just because everyone says he should be, this post is dedicated to him -- Adam Goldberg, Esq.
The Pursuit of Happiness
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
We all read this in the fifth grade, right? Again in high school History and Civics, one more time in college history, philosophy or political science and, if we took the sparsely attended jurisprudence course in law school, we read it again there.
We know that the founders didn't have week-end spa retreats, golfing getaways, or new BMW's in mind when they included in the preamble to the Declaration of Independence the right of all "men" to pursue happiness. So what did these men of the American Enlightenment mean?
They meant eudaimonia, an Aristotelian concept defined "not by honor, or wealth, or power,
but by rational activity in accordance with virtue over a complete life.
This type of activity
manifests the virtues of character, including, honesty, pride, friendliness, and wittiness; the intellectual virtues, such as rationality in judgment; and non-sacrificial (i.e. mutually beneficial) friendships and scientific knowledge (knowledge of things that are fundamental and/or unchanging is the best).
You don't need to be a workaholic or stress adrenaline addict to understand the concept of "good stress."
The term eustress was coined by the neuroimmune biologist Hans Selye in the early 1970's. This type of stress is a happily adaptive response to what some people call "problems" and others call "challenges." In response to "challenging" problems -- difficulties or barriers people believe they have the freedom and power to address --
the body releases adrenaline and noradrenaline. Both of these hormones result in heightened perception, increased motivation and even increased physical strength. Eustress extends the person's capacity to function (intellectually, physically, emotionally and behaviourally).
This "good stress" acts both as a motivator to creative problem-solving and as its bio-chemical reward. Eustress is simply the scientific-biological explanation for the Aristotelian value and goal of "eudaimonia," which the founding fathers wrote into the Declaration of Independence.
If we can rediscover the concept of eudaimonia, and adapt it to suit our modern values, perhaps we can find a way to achieve longer-term happiness. A modern concept of eudaimonia, for example, might include the need to take account of the effect of one’s actions on the environment, as well as on other people in one’s community. It might take the form of political engagement, or artistic creativity, or volunteer work. By focussing on the effect of our actions on those around us and on the world in general, rather than on our own happiness, perhaps we can learn to be eudaimon, and to be happy.
At last, we come to the point. What makes of legal practice a fulfilling, creative, generous, happy -- even exhilarating -- life.
if you're understandably anxious about any of the following, you are about to experience eudaimoniabecause you will be meeting and managing a great challenge
answering, by way of legal research and strategic thinking, a difficult legal question that will benefit your client
drafting your first motion asking a Judge to make the other side do something that will achieve a greater degree of justice for your client
standing in front of a Judge (or panel of Justices!) delivering your first oral argument in pursuit of something your client needs or in opposition to something that will impede your client's progress toward a just resolution of his dispute
taking your first deposition in an effort to learn what you need to know to further your client's interests
defending your first deposition in an effort to prevent your client from being brow-beaten, manipulated, or, misunderstood
advising your first client (or mom or dad or sister) about their legal rights knowing that without your advice they could easily be taken advantage of or prevented from doing something that they are entitled -- indeed, have a right -- to do
when you experience the following, you will also be experiencing eudaiomonia.
providing pro bono legal services to someone who has never had access to the American system of justice; never experienced the feeling of protection and support that a legal advocate can provide
pursuing a moral or political cause of great importance to you and millions of others by using your knowledge of the legal system to accomplish a small or large objective on the path toward the vindication of, say, universal human rights
being called "counselor" for the first time by people in positions of power, at which point you may well realize that you have been placed in a privileged position in human society and political life whereby you will automatically be accorded respect both by your peers and by anyone who presumes to be better than you
hearing a client say "thank you so much, I wouldn't have known what to do or what my future might be or how badly I might have been harmed without you"
The happy activities that are latticed into legal practice every bit as much as fear and frustration
the pure sport of the legal research treasure hunt -- an endeavor that allows you to exercise your god-given intelligence and creativity to solve the puzzle, detect the crime, negotiate the deal, or actually win the entire case
the moment the factual and legal strategy finally comes together
the thrill of victory -- which would be no thrill at all unless there was a genuine chance of failure
the privilege of spending your working life among people who are bright, talented, creative, vital, ambitious, seemingly fearless and therefore a lot of fun to be around
the opportunity to match your wits against those of the smartest guys in the room
the opportunity to exercise nearly every strength and overcome almost every weakness of character you have -- including the challenges of speaking up for yourself and your clients; adhering to your principles when your clients or superiors ask you to engage in activities you believe to be unprofessional, unethical, or even illegal; finding the balance between fearful and over-bearing; learning grace under pressure; developing leadership skills; exercising your inner-entrepreneur; negotiating the best deal available with some of the most powerful companies and prestigious attorneys in the land
ending your working day tired but knowing you've done a good to great job in a profession never lets you sleep on your laurels or turn in less than your best effort
And perhaps last but not least, never being bored for long.
This is not a job. It's not even a career. It's a calling. You will push yourself harder than you can imagine. In the near term, your victories will be more internal than external; more a process of learning your trade than of setting the world afire. Eventually, however, you will count yourself as one of the lucky ones who are clued in early to society's temple secrets. With a blank screen of life to be filled, you could hardly be better prepared to achieve your dreams while helping others to achieve theirs.
I wouldn't trade a single disappointment, failure, momentary loss of courage or even a lengthy period of lost purpose to have been part of any other professional practice. I am proud of what I have accomplished and grateful for what I have learned.
Welcome to the profession! Do well. Do good. Be happy.
If you don't have your trial ducks in a row and can't convince the other side that you're prepared to try the case -- and try it to a highly favorable judgment in your client's favor -- you've got -- sorry to use the term -- squat for bargaining power.
"Show me the salesman," said a savvy and seasoned defendant recently, "and I'll tell you what I'm willing to pay him for his case."
And while we're talking sales -- why is it that no one ever brings demonstrative exhibits to a mediation?
Hand me a visual diagram of the parties and the facts (including the facts that are bad for you). The chart or diagram should "connect the dots" in the way that is best for your client.
During the mediation, repeatedly refer me to that diagram.
When I was litigating insurance coverage cases with hundreds of millions of dollars at stake, I arrived at every oral argument with a color-coded coverage chart representing my client's position on the issue at hand -- like whether the policy holder was required to horizontally exhaust coverage before any of the excess carrier limits would be exposed.
For reasons I never understood, opposing counsel chronically complained about this last-minute demonstrative exhibit motion practice of mine but never brought competing charts into the courtroom.
Because the Judge -- one of the best on the L.A. Bench -- needed the coverage chart to make sense of the oral arguments, she always denied Plaintiff's request to disregard them. More importantly, she spent nearly the entire course of both parties' presentations checking my coverage chart to understand their position -- which position the chart contradicted.
This is not rocket science.
I genuinely believe that I won a series of successive motions, culminating in a successful summary judgment motion, against a formidable adversary because of those darn color-coded charts.
Though I'm deeply committed to maximizing the value to be obtained in any settlement for both parties, like that Judge, I am subject to persuasion, fallible human being that I am.
This is a topic about which there should be an on-going conversation between lawyers and mediators. We have the identical goal -- to maximize the value available to all parties to settle intractable litigation. Collaborating on the best ways to reach that goal is in all of our best interests. Let's keep the conversation going and thanks to Colm for beginning the new year in this fashion.
First, a good mediator will be tenacious in pursuit of a final settlement. Such tenacity entails thorough preparation, spending sufficient time during mediation (even going over if necessary) and scheduling follow up if the case does not settle during the mediation session. I had a mediation once that started in the morning, lasted all night and ended (successfully) the next morning.
Second, a good mediator must be intelligent and able to learn. Technical knowledge may be needed in certain cases, but it is not essential in most cases. I assume that whatever knowledge the mediator needs I can provide. So, another quality is that I need a mediator who is intelligent and able to adapt to new information.
Third, a good mediator must have significant experience with the litigation and settlement process. Such real world experience enables the mediator to read people in terms of what is driving the litigation. But, there is no substitute for understanding that the settlement process is a little like the grieving process (denial, anger, bargaining, depression and acceptance). The process must play out for both sides and a good mediator will steward the parties through that process. There is nothing worse than having a mediator try to short circuit the process by jumping to a discussion of money. I have found that former judges often have the experience needed to be successful mediators.
Fourth, the mediator must be honest. I do not appreciate having the mediator regurgitate the other side's position if it is patently ridiculous. By the time I get to mediation, I will understand the strengths and weaknesses in my case. But, I need to trust the mediator. My clients will not trust a mediator who does not give an honest or intelligent evaluation. Also, a mediator must be careful not to give an evaluation either too soon or which is overly negative. By the time the mediator actually expresses an opinion (if at all), the mediator should fully understand the mood of the room and how that opinion will be received. The only point of giving an evaluation is to facilitate settlement.
Finally, the main advantage of mediation is that it allows the attorney to preserve his or her integrity and relationship with his client while the client makes a decision to settle. A good mediator will not embarass either counsel, will not undermine the attorney-client relationship and will work with counsel to get a final result (since that is the whole point of participating in mediation in the first place). Joint meetings and opening statements are rarely productive and often make settlement more difficult.
Thanks for taking the time to share these insights with Colm and the rest of the LinkedIn legal community Jim!
In 1975, I was fresh out of college and typing in a typing pool in Midtown Manhattan. I still believed my sixties values at the time -- you know -- that meaningful employment was more important than money. I was -- not surprisingly -- just about as opinionated then as I am today and precisely as willing to share those opinions with anyone, regardless of hierarchy.
So it is that I recall a conversation I had with a young lawyer whose typing I did. He was relatively fresh out of Berkeley (Boalt) Law School. He wanted to be an historian, but the Ph.D's at the time were mostly driving cabs. He'd already left Sullivan & Cromwell for a captive midtown Manhattan law firm because S&C had given him such tasks as color-coding a map of the United States with the insurance programs available in each one. He'd even saved it. Pulled it from his top desk drawer. A momento of the life he'd avoided.
But he wasn't finding happiness at this smaller firm with more hands-on work either .
He was about to marry the young woman he was living with when it seemed time to marry and they were looking for a house in the suburbs. They were thinking of having a baby.
Here's the cheeky part: "don't do it," I urged him. "You'll be chained to this unhappy job for the next quarter-century."
Why did I believe this strongly enough to confront my superior in this way?
Because my entire generation had rebelled against just this type of life. We believed in following our dreams. We had the audacity to believe we could be happy.
The "Ending" You'd Predicted, Pretty Much
This young attorney's children are all grown-up now. And he wouldn't, of course, trade them for anything in the world. He finally left practice in his fifties, after his children graduated from college, to pursue that doctoral degree in history.
Shortly after -- before he had the Ph.D in hand -- his doctor gave him bad news. He has (still in his fifties) a particularly fast-growing and deadly cancer.
So . . . . Listen . . . .
Follow your dreams.
Along the way, if you don't put it off, love will come and commitments will be made. Children will follow with the joys and sacrifices they entail. If you are robustly participating in your own life, these events will take place. You will be successful and you will fail.
Your failures will be your greatest teachers. And sometimes, those failures will be sufficiently dramatic to release you from the bondage of the fool's gold we all haplessly follow from time to time -- status and stuff instead of satisfaction.
That, at any rate, is how my life has rolled out and the lives of my friends and colleagues.
Take the long view. Then commit to the present with passion.
(I've written elsewhere why sometimes lawyers are unhappy -- here and here for instance -- but I promise some "why we're happy" posts in the New Year!)
If I were allowed to give only two pieces of gratuitous advice to every lawyer and business person in 2008, they would have to be as follows:
1. if you think an insurance policy * will not indemnify you or your client against a particular loss or provide a defense to a legal action, you haven't thought deeply enough unless you have, at a minimum:
researched the law pertaining to the pertinent policy language in the jurisdiction in which the loss occurred or suit was brought;
painstakingly compared the law in that jurisdiction to the precise language contained in the insurance policy;
consulted with a policy holder insurance recovery specialist -- I understand that this attorney -- Stephen N. Goldberg of Heller Ehrman -- who represented GMAC in the World Trade Center coverage action is one of the best in the country.
2. treat others as you would expect to be treated yourself (this is the conflict avoidance part)
Two points worth noting for the health of any small city's fisc.
First, as Kingman resident and Plaintiff Travin Pennington is reported to have said, "communication and accountability, could have prevented a bill for  attorneys' fees that exceeded $40,000 following a seven-month battle with the city for e-mail records."
The Back Story?
In June, Pennington filed public records requests for thousands of pages of e-mail from then-City Manager Paul Beecher and two other employees. He said Beecher took him into the city hall parking lot, and instead of asking how to resolve the issue, Beecher allegedly made some comments that pushed Pennington to "the tipping point."
"I said, 'this guy's out of control. I'm going to take this guy to task,'" Pennington told the Miner. And he did. After the city failed to disclose more than 8,000 pages of e-mail whose contents the city claimed were personal, Pennington filed a lawsuit in the Mohave County Superior Court.
The Conflict Avoidance Point? Be civil; be responsible; be accountable; and if you fail, be willing to course correct.
But when civility, responsibility and accountability haven't worked, check your insurance coverage.
The Kingman story continues:
The city's insurance policy will cover much of the costs of the lawsuit, including the city's own attorneys' fees, which topped $32,000, according to City Attorney Carl Cooper.
Good work on the City's part in tracking down the necessary insurance coverage!
Resolution: Cutting the baby in half.
Pennington's attorneys offered $48,337.65 - 75 percent of the $64,448.50 in the plaintiff's total fees. The city came back with a $32,225 offer, and the two parties settled in the middle, at $40,281.30.
We mediators do try to generate solutions other than the one arising from the descriptive (not prescriptive) rule that any zero-sum negotiation will resolve half way between the first two reasonable offers.
The good news: you don't need a mediator to achieve this result. Even your fifth grader is capable of adding two numbers and dividing them by two. _________________________
Types of insurance include Automobile; Aviation; Boiler; Builder's risk; Business; Casualty; Credit; Mortgage; Crime; Crop; Workers'compensation; Directors and Officers Liability; Disability; Errors and Omissions; Expatriate; Fraternal; Financial loss; Fire; Hazard; Health; Kidnap and Ransom; Homeowners; Renters; Environmental Liability; Professional Liability; Locked Funds; Marine; Nuclear Incident; Pet; Political risk; Pollution; Prize Indemnity; Property; Protected Self-Insurance; Purchase Insurance; Stop-loss; Surety Bond; Terrorism; Title; Travel; Volcano; and, Workers' Compensation.
O.K. So you're not really going to ever be a trial lawyer unless you leave that job like you said you would after paying off your student loans. Don't be seduced by the $$$ if you want to keep that promise. Keep your fingers off the year-end bonus and drive the Toyota for a while longer. Even though your friends are beginning to drive Porsches.
While you're paying off the student loans by working 60-70 hours a week, you're unlikely to be doing anything they do on Boston Legal -- like appear in Court or even "first chair" a deposition for a couple of years.
What you're going to be doing is writing, mostly. Thinking creatively. Brainstorming. Strategizing. Researching.
If that's not a lot of fun, take the first train out of AmLaw One Hundred Station to save yourself years of semi-smoldering unhappiness.
That's the 20-20 hindsight at any rate.
So here's what you'll need for your first and second years -- some more really good writing advice, which I stumbled over today while procrastinating that post about negotiating the purchase of the flat screen TV and last night's mid-life (who do you know who's lived to 110?) crisis at the Twisted Sister concert on the Sunset Strip.
There's other good stuff on the Language in Common site, like the "Dear Bosses" memo from creative that I've posted before. Although its the bosses, not the first year associates, who should read this, you might work up the courage to say a few of these things in a nice way to make the management/labor thing more tolerable until you become management and learn it's just a shift from one set of irritations to another. And harder, really, being management, than being labor.
But I know you won't believe that for another twenty years, when I'll be scooting around town on my Segway, waving happily to all the other boomers in retirement.
But seriously. I pretty happily practiced law for 25 years and even miss it from time to time. Especially the winning part. I'm into collaboration now. But I'll never regret the losing cases and motions because it wouldn't have been much fun winning unless my chances had been less than even, now, would it?
But please. Enjoy the winter holidays. And have a GREAT 2008!
Before the negotiation begins, take the time to [do your] research . . . Establish a reasonable range for [compensation], a typical benefits package and common additional compensation (e.g., stock options, annual bonus, performance bonus). This work makes it possible for you to know the ballpark in which any satisfactory agreement has to fall.
Then, from those general points, determine the most favorable compensation package for you. You should be able to justify that package given the field in which you work (since compensation differs across industries) and your experience, expertise and credentials.
Make sure that this package addresses the real needs you have -- you will likely have trouble asking for more later if you overlook something. This package is your counteroffer.
#2: Be Firm
[S]elect a reasonable and appropriate counteroffer -- one based on the data you gathered in your research -- and stay there until the other side offers a persuasive reason for you to move.
By "persuasive," I mean an argument based on additional data or information that justifies a different figure or package than you had developed. . . . . An example of an unpersuasive argument would be "Your figure is too high. We can't do that."
#3: Be Wise
Keep the big picture in mind. Your goal in the negotiation is to reach an agreement that satisfies your interests -- not to win a battle between positions. If your counteroffer is not moving you closer to an agreement, do not hunker down and defend it to the death.
Instead, think of another proposal that addresses your needs and concerns and is supported by data, and put that out as another offer. Use your energy to generate solutions, not to fight battles.
Here in California, we call an "offer for judgment" a "998."
"Have you served a 998?" is a question I often ask the parties during mediation when we appear to be reaching impasse. The usual answer is "we haven't done enough discovery" or "we've been waiting for the mediation [to fail] before serving it."
As Cullum and Tuvel correctly note, it's a mistake not to use this hammer as early in the litigation as possible. I'll add to their excellent advice that it's very good to serve the offer prior to mediation -- not after.
It's ammunition I can add to the "parade of horribles" for the other side.
Apparently, there's a new decision in New Jersey called Palmer that clarifies the previously open question whether you could serve multiple offers of judgment during the course of the litigation. I must admit that I don't know the answer to the question here in California (readers?) but provide you with the Practice Tip of the Week from Cullum and Tuvel.
Nice article guys. Thanks for adding to the collective wisdom.
The Palmer decision provides tremendous guidance to both attorneys and litigants with respect to case management and strategy. For example, if an attorney has not had the opportunity to complete discovery, but has analyzed the case enough to make an informative estimate on damages, an attorney can advise his client to file and serve an offer of judgment as soon as possible to get an early trigger date for fee-shifting purposes under the Rule.
Thereafter, once discovery has concluded or been more thoroughly explored, a subsequent offer(s) can be made that is more likely to invoke a settlement.
In the alternative, a subsequent offer may have only slightly modified a prior offer, and therefore the offeror will stand a good chance of collecting fees on the earlier offer which will cover more of the offeror’s expenses because it has never exinguished in lieu of the Palmer decision.
Good strategy that should be applied for tactical advantage in any jurisdiction that permits it.
. . . with the usual groveling thanks to charles fincher of lawcomix for the generous giving of permission to use his brilliant and hilarious cartoons . . . .
. . . to be fair, the final round contestants were all ridiculously well-prepared, articulate, bright, thorough and just generally the kind of young people you'd hoped would one day be in charge of the world . . .
. . . it's just that the ABA rules apparently require them to be very very very very very NICE . . . .
(disclaimer, right: this is not the sky; photo by NilsGeyland)
Check out C.C. Holland's Law.com article Mind the Ethics of Online Networking about ethical problems that might arise if you use Linkedin, Facebook and the like to build your legal or neutral practice.
If you're risk averse, Holland and lawyers she interviews advise caution.
First, Why Do Those of Us Who Use Social Networking Sites or (Gasp!) Blogs, Take the Risks.
Holland identifes a handful of internet lawyer pioneers, including your faithful blogger.
Colin Coleman, a business attorney in Needham, Mass., uses the networking site LinkedIn to build professional relationships and make introductions. Beverly Hills, Calif.-based Victoria Pynchon, who recently launched a commercial-litigation mediation practice, likes the wayFacebook mimics a neighborhood and allows people to get to know her. And Southern California entertainment lawyer Richard Jefferson maintains a MySpace page to ensure his clients consider him cutting-edge.
While their focuses are different, all three attorneys share one trait: They've recognized the value of these social-networking sites to help support and expand their businesses.
Early adopter attorneys are clearly at the forefront of a new networking movement. At the same time, these pioneers are blazing ethics trails into previously uncharted territory.
Gee, I Didn't Feel as if I Was "Blazing Ethics Trails into Uncharted Territory."
O.K., I sound a little bit like a jerk when I'm quoted as saying
I'm a pretty ethical person and I'm not risk averse -- that's why you buy malpractice insurance. I don't let fears of liability keep me from doing anything."
Particularly when it's followed by Holland's comment that "most standard malpractice policies would not cover an ethical or disciplinary violation regarding an advertisement or communication to potential clients."
I'd meant to conclude that remark with advice given me long ago: that good relationships with your clients is the best guard against malpractice. Even so, as Holland correctly notes, if I'm violating ethical rules, neither good client relations nor malpractice insurance will protect me.
And what I don't know can hurt me. From Holland's article I learn that:
the LinkedIn site . . . testimonials -- e.g., "Jane is a fabulous attorney who really knows her stuff" . . . [run afoul of] . . . the California rules governing advertising and solicitation [unless the testimonial-carrying page] contains an express disclaimer.
My LinkedIn testimonials are primarily from attorneys for whom I've provided mediation services. Though of course they all differ, each offer the opinion that I'm a pretty darn good mediator. Here are a couple of edited examples:
I have had the pleasure of using Ms. Pynchon on several high dollar (and some low dollar) mediation sessions. While the amounts in controversy varied, her results were always great. Did she mediate a settlement in every case - no (but she's come pretty close with a 90% track record). . . . Overall, for my tough cases, I always call Vick[ie] first [because] I know that Vick[ie] can find a way to reach compromise when others will give up or run out of creative options. . . . July 13, 2007
Top qualities: Great Results, Expert, Creative Tappan Zee
hired Victoria as a Attorney in 2005, and hired Victoria more than once
Ms. Pynchon is a brilliant mediator. Not only does she have a natural talent for mediation, but she is committed to improving her skills through hard work and study . . . which translate into the ability to quickly analyze the facts and law of a case and then be able to talk to the attorneys and the parties knowledgeably. I recommend Ms. Pynchon without reservation.”
Top qualities: Great Results, Expert, Creative Lilys Mccoy
hired Victoria as a Mediation in 2005, and hired Victoria more than once
So I should disclaim these by saying, for instance, that although these lawyers thought I did a great job "results might vary and side-effects could include nausea, dizziness, upset stomach and irritation"?
I don't mean to make light of the issue, but I've never found disclaimers of any sort of much use to anyone. And other than Tappan's comment that I generally resolved about 90% of his cases, these are all opinions as to quality, not representations of fact.
Still, I do have a disclaimer on this blog, warning my readers that:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
I suppose that's all I really have to say on my Linked In and FaceBook pages and I guess I'd better do so. Today, in fact.
But d'you think I really need to say that the photo on those sites is two years old when I was twenty pounds lighter?
(an image of Snoopy at his typewriter with the caption "gradually a shot rang out" graced the Shell v. Winterthur opinion holding that the term "sudden" meant "quick" and not simply "unexpected.")
Every deal you negotiate must eventually be "reduced to writing."
I haven't talked much about negotiated agreements here. I usually defer the entire topic of contract drafting to the experts, particularly to the meticulous and scholarly Ken Adams over at Adams Drafting.
Although my own response to Ken's ethical question (it's not unethical until you pull the trigger) can also be found on the linked post, it's really the pragmatic question that interests me:
IS IT EVER GOOD BUSINESS OR LEGAL PRACTICE TO INCLUDE IN A NEGOTIATED AGREEMENT AMBIGUOUS TERMS THAT ONE PARTY BELIEVES THE OTHER PARTY WOULD NOT AGREE TO FOR THE PURPOSE OF EXPANDING THE CONTRACT'S REACH AT SOME LATER DATE?
As is often the case, I find it easiest to answer that question with a story -- this time, with one about a word that cost American and U.K. businesses at least a billion dollars in legal fees.
Does Sudden Mean Quick?
This question consumed at least half a decade of my professional life. Why?
Because sudden's story is lengthy and complicated, I’m forced to reduce the tale here today to its bare essentials. If you wish to understand its well-documented journey through the American regulatory and legal system, click here or here. If the pragmatic question interests you, read on.
The Word that Launched an Entire Legal Specialty
Once upon a time, a few creative and persistent litigators of great reputation demanded insurance coverage for the environmental liabilities imposed upon their chemical and petroleum company clients by the Federal “Superfund” law (CERCLA) enacted in 1980. Many equally creative and persistent litigators of great reputation represented the insurance carriers who refused to provide coverage for many reasons, one of which was the presence of the “sudden and accidental” pollution exclusion in the “polluters’” insurance policies. Many of the names of these attorneys are here.
That provision excluded coverage for
any liability of any insured, arising out of the discharge [etc.] . . . of . . . . . pollutants into or upon land, the atmosphere or any . . . body of water unless such discharge . . . . is sudden and accidental.
The 64 hundred million dollar question?
“Does ‘sudden’ mean ‘quick’ or only ‘unexpected’?
Because most environmental contamination took place over decades as the result of the slow seepage of chemicals and petroleum products into the land, water and air, the answer to this question was worth billions of dollars to corporate insureds and to the carriers that insured them. If “sudden” meant only “unexpected,” rather than “quick,” those billions of dollars would likely be paid by Lloyds of London or AIG – two of my clients -- rather than by Texaco or ARCO, two of my husband’s clients.
The petroleum and chemical companies accused the insurance industry of dissembling about their contractual intent when seeking approval of the "sudden and accidental" exclusion language. The carriers, contended policy holders, had represented that the use of the word "sudden" would not narrow existing coverage -- coverage that would have excluded unexpected -- but not "quick" -- releases of pollutants into the environment. (see here, note 5)
Assuming that the insurance industry "gamed" regulators and policy holders by placing narrow language in a contract while simultaneously intending to interpret it broadly, and without addressing the ethical issues raised by that assumption, would it have made good business sense to have done so?
I answer with another story.
When negotiating the settlement of a $250 million environmental insurance coverage action, the General Counsel for one petroleum company said the following to me about the cost of the looming three-month trial:
You don’t seem to understand. We pour hundreds of millions of dollars a day into dry holes searching for oil. We are not risk averse. The expense of litigation does not deter us.
If you and your clients can say that – or something remotely like it – including ambiguous terms in a contract to take advantage of the uncertainty thereby created might make good business (if not necessarily ethical) sense.
If you cannot, I would suggest that contracts be used for the purpose they are intended – to create as much certainty as possible in your clients’ unpredictable future so that their plans today can make them profits tomorrow.
GC boasts aside, even the richest players far prefer planning that profitable future to fighting over an unprofitable past.
Anyone who can green- or red-light the final agreement.
Why Can't They Simply Be Available By Telephone?
For the same reason you don't want your jury to "call in." A settlement negotiation is part process, part presentation, part drama, and, part human interaction.
Those who don't participate will never understand the principled reasons for the settlement achieved by day's end. I cannot tell you how distressed many (particularly young) attorneys are when the "partner in charge" or client questions their wisdom (or sanity!) for recommending a settlement that no one but those in the room could possibly understand in all of its texture and dimensionality.
Leave stakeholders home at your risk. Not only might you blow a significant chunk of change on the mediator's fee, you risk losing a day's worth of time for yourself and your client "representative." Perhaps more importantly, this particular settlement opportunity may never present itself again.
2. Leaving too soon
"Americans" (and I use the term loosely for anyone, citizen or not, who buys retail) become uncomfortable after two or three bargaining "moves," i.e., offer, counter-offer, counter-counter, "I'm outta here."
Unfortunately, lawyers have readily at hand the legal version of a weapon of mass destruction -- the threat of which is usually phrased as "see you in court, buster."
Until the mediator or settlement judge tells you that she/he is convinced the parties' aren't already secretly in agreement, i.e., willing to accept a settlement within the other's "bottom line," you risk losing the best deal you're likely going to get by leaving the negotiation too early.
3. Failing to take clues from the mediator/settlement conference judge
Just as you will always know more about your bargaining position and the business interests underlying it than the mediator does, the mediator will always know more about your opponent's bargaining position and ability to settle the lawsuit than you do.
Remember, the mediator is honor bound not to disclose information that is highly beneficial to your bargaining position. Unless you've hired a disreputable or simply unreliable mediator (and you know who they are after you've hired them once) don't ignore the mediator's suggestions that a little patience with the process might result in a big reward for your client.
4. Failing to strategically use joint and separate caucuses
To everything there is a season . . . .
Rigidly adhering to any negotiation or settlement conference format reduces your ability to strategically use whispered confidences in the hallway; candid conversations between counsel without their clients; meetings between the mediator and a difficult client without his/her/ attorney; discussions between the mediator and one or more of the attorneys without their clients; and, meetings between the disputants without anyone else's presence.
There are dozens of different permutations and combinations of attorney-client-mediator dyads, triads and the like.
Think about it. Each different relationship draws out of us someone slightly different. We're more or less comfortable, deferential, authoritative, subject to persuasion or persuasive depending upon our "audience."
During the course of the mediation, the mediator learns about these dynamics and is able to use them toward what should be the mediator's goal -- to serve as many of the parties' interests as possible in an agreed upon settlement by day's end.
Not only should you listen to the mediator about these dynamics, you should hip the mediator to those you likely understand better than she/he ever will.
The mediator is your team mate. Don't miss the opportunity to call as many game "plays" during the day as possible.
5. Letting the Judge or Mediator Act the Bully
It's always easier to get what you want by talking about the reasons you desire or need it than by bullying the other side into accepting what you want.
A judge or mediator who is bullying you or your client to settle simply hasn't gotten the knack of asking questions and creating opportunities. He/she is still too used to wielding power. If it's important enough to spend your day mediating, it's important enough to tell the Judge or mediator that you or your client are feeling bullied and would prefer to explain your interests and positions than to be pressured to accept a deal you're not comfortable with.
If the Judge/mediator is unable to shift from power to collaboration, try to get as much out of the negotiation as possible and find yourself a new mediator for the next settlement conference.
6. Believing that any competent judge or mediator can help you achieve the best settlement.
Face it, you wouldn't hire a personal injury lawyer to try your complex insurance coverage action. Nor would you hire a Skadden Arps attorney to handle a motion to increase your spousal or child support.
Mediators are not all-purpose "peace-makers" or negotiators. As Colin Powell has said, the most important factor in an international diplomatic negotiation is to "be inside the other guy's decision cycle."
What does that mean? In a personal injury case, it means understanding the claims adjusters' levels of authority and pressures to bring back to the office a settlement that is in line with similar cases -- better than those of his or her colleagues if at all possible. In a commercial case, it often means satisfying not only General Counsel, but the CEO or CFO or even the shareholders.
It's not so much the law the mediator needs to know, as it is the culture in which the law is being applied.
Listen. I've been retained for the sole reason that I'm a woman. I'm not wild about this because I bring 25+ years of high-level commercial corporate legal experience to a mediation and am much much more valuable as a commercial mediator than I am as any random woman with a little skill in law or mediation. But it's ok because I am a woman and there are times when that's important to the settlement of the matter. There are some things that you just need a woman for. And some you need a man or an African-American or a Korean or an expert on the construction of toilet seats for. You should be thinking about all of these variables.
Most of all, you should choose a mediator or settlement judge who you believe is most "inside the other guy's decision cycle." Would Colin Powell steer you wrong? Well . . . . about something other than the War in Iraq?
7. Sidelining Your Client on the Day of Mediation
If you've been practicing for more than, say, five years, you know that your client never tells you everything that is important to its case. If you had the luxury of trying cases to a jury early in your career like I did, you learn this most quickly at trial. Usually when you receive a copy of a subpoena of someone you've never heard of.
"Harold," I said as a first year associate second-chairing the third trial day, "who is Jean McCarthy at the Sutter Mill Nursing Home?"
Harold, the Plaintiff, who was retired because of his injuries, hadn't worked at all for the last five years and had already given moving testimony to the jury about how difficult his life had been.
"Uh," Harold responded, "she's my . . . . uh . . . boss."
"Well, I've been doing odd jobs for the Nursing Home for the last several years."
Don't miss the opportunity to let the mediator have a little chat with your client and learn both the good and the bad of your case -- some of which you may well not yet (or ever) be privy to.
8. Failing to use the Mediator to Help You Bring Reality to Your Client.
This differs from Trap No. 7 but has some of the same causes. When your client explains his/her case to you, he/she presents it in the very best light. Your side of the case rarely gets better over time. Your client, however, has not had the same opportunity to see the "dark side" of the case as you have during discovery. Your clients often feel as if you're betraying them if you point out the differences between your view of the case on Day 1 and your view of the case on Day 632. Let the mediator help you out with that.
9. Failing to Maximize the Mediator's Strategic Skills
The mediator is your partner. And you are his/hers. Take the time to learn and maximize your unique skill-sets and knowledge to the highest advantage.
10. Negotiating in the Nano- and strato- spheres.
Spending a significant amount of time negotiating numbers that are far out of the range of potential agreement is not only a waste of everyone's valuable time, it strains the parties' patience and often results in impasse even when the parties' "zones of potential agreement" overlap.
One of the parties has to have the courage to step up to the line of potential impasse at some point in the mediation. The person who does so first will always gain the bargaining advantage as a result.
The good news/bad news according to Guberman is you have a job/now you're able to lose it.
At most law firms, associates think writing is their greatest strength, while the partners think writing is the associates' greatest weakness.
Chalk this up to a generation gap if you like, but the partner you're writing for has the power to put you on the type of case you want to be litigating with the people you like working with.
And this has what to do with negotiation?
You negotiate every day of your working life for plum assignments, week-ends off (maybe next year), bonuses, salary, and access to power.
We cannot mention often enough negotiation's bottom line -- your bargaining partner's Better Alternative to a Negotiated Agreement ("BATNA"). What does your preferred bargaining partner (the firm shareholder with the right practice and the most firm power?) want and need?
A great writer on his/her team.
When it comes time to for you seek favors, concessions and bonuses, your "target" partner's BATNA is using or cultivating an associate who is better than you. If you're the best writer in the first year associate ranks, the concessions you seek should always be a better alternative to losing you.
And no, the Kerouac'ian stream of consciousness, wonderful as it is, will not work here.
This month brings us interviews with two mediators -- Geoff Sharp -- who talks about his mediation practice and yours truly, who talks about, what else, business and practice development while wearing my literary writer and editor's hat.
To whet the appetites of my mediator readers, here's a snippet of Geoff's advice about being a mediation chameleon.
Gini: Do you have a “conflict resolution hero,” and if so, who and why?
Geoff: Yes I do. It is the chameleon. I have always thought that mediators are natural chameleons. Good mediators can’t have egos, or at least they can’t bring them into the room, and they must to some extent mould themselves on the day to the environment they find . . . To me that is all to do with being self aware, reflective and having very good antennae to know what and how one should present. If not the chameleon it is a little pig out at our bit of dirt just north of Wellington here in New Zealand. This little black kune pig lives with about five horses in a field. I think it thinks it’s a horse. It regularly intervenes when there is a problem between horses. It is a bit like George Orwell’s Animal Farm!
To read the rest of Gini's interview with Geoff, click here.
I am the crazy glue on the soles of your sneakers that keeps you committed to your book, your project, your Big Idea. I'm the kick in the pants you wish you had nine months ago when you birthed that Big Idea in the first place. I'm equal parts left-brain, right-brain and I have three words for all you lurking, burning, idea-crazed writers, entrepreneurs and dreamers: Someday is now.
Because I'm the editor of a literary journal and a writer when I'm not mediating or blogging, and because Lisa liked my journal (thanks Lisa!) she interviewed me about pursuing ones writing dreams, which the journal surely is for me.
Lisa: How do you market or carve out your niche in the literary journal landscape?
Vickie: You just start networking. I was innocent. I downloaded Yahoo's free internet-design program, taught myself to use it and am continuing to use it to this day. I think the website costs me about $20/month and the ad in Poets & Writers costs $60 every other month. I just do it.
That's what I've learned since '04 about everything in life. You just start the thing. You take a single step in the direction of a dream and another the next day, and the one after that. Things begin to grow. People start to hear about you or tell their friends or post something on a blog like you're doing. You become a kind of attractor. I'm not new age so you'll have to understand that what I'm about to say is truly metaphoric and not a concrete belief.
I think the power of intention coupled with action creates a kind of force that becomes bigger than you are, and everything you've ever done aligns with that intention and becomes part of the engine of the dream.
I think both Geoff and I would say, whatever your dream, go for it!
Listen Up!! This may sound foolish but I had the best study group in my law school (all of us graduated in the top 10%). Why? Because I naturally gravitate toward the smartest people in the room and then boldly ask them to join my study group or be a member of my law firm or speak on a panel or write an article with me.
Gee, legal practice is actually just one life-long study group when you think about it, no?
In any event, I loved my study partners and people I practiced with (o.k., there were a few exceptions) and continue to seek out the best and the brightest from whom I can learn and work at the same time.
How about two of the best and most sophisticated settlement and trial judges in the entire Los Angeles Superior Court system: full time settlement Judge Alexander Williams, III and Complex Court Assistant Supervising Judge Victoria Chaney?
But that's not all. Joining us will also be former Federal Magistrate and Judicate West mediator, the Hon. John Leo Wagner (Ret.); former Paul Hastings partner, AAA arbitrator and Judicate West mediator, Jay McCauley; and, Les J. Weinstein, registered patent attorney and antitrust guru (an AAA arbitrator and complex commmercial and IP mediator).
These are the people at whose feet I sit to improve my game and my skill set is pretty darn good if I do keep saying so myself.
What You Will Learn if You Attend This Seminar
The ten social psychological insights that will minimize your own self-defeating negotiation behavior and maximize your opponents’ bargaining weaknesses
The ten basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations
The ten ways to “expand the fixed sum pie” by exploring and exploiting the client interests underlying your own and your opponents’ legal positions
The ten ways to get your case settled to your clients’ best advantage at Mandatory Settlement Conferences for both routine and “bet the company” cases
The Top Ten Errors Made by Parties When Attempting to Settle Disputes that their Contracts Require Them to Arbitrate
The Ten Rules of Cross-cultural negotiation in International Arbitration
The Ten Laws Critical to the Enforcement of Mediated Settlement Agreements
The Ten Mediation/Settlement Conference Traps for the Unwary
THE ACTUAL "GOODS"
9:00 – 10:00 a.m. The social-psychological dynamics of conflict resolution taught by attorney-mediator and high-profile ADR blogger, Victoria Pynchon, J.D. LL.M (conflict resolution). Victoria is an Adjunct Professor at the Straus Institute for Dispute Resolution and a neutral with the Southern California ADR firm, Judicate West and the International Institute for Conflict Prevention and Resolution.
10:00 – 11:00 a.m. Settling Disputes in the Arbitral Forum by AAA commercial arbitrator and former Paul Hastings Janofsky & Walker litigator, Jay McCauley. Mr. McCauley is an Adjunct Professor of Arbitration Law at the Straus Institute for Dispute Resolution and a neutral with the American Arbitration Association and the Southern California ADR firm, Judicate West.
11:00 – 11:15 a.m. BREAK
11:15 – 12:15 p.m. Mediating the settlement of intellectual property and technology related litigation with cautionary tales from the antitrust trenches taught by patent infringement and competition law litigator, arbitrator and mediator, Les Weinstein, of Sheldon Mak Rose & Anderson. Mr. Weinstein is an arbitrator with the American Arbitration Association.
12:15 – 1:15 p.m. Lunch on your own
1:15 – 2:15 p.m. Mandatory Settlement Conferences (MSC) “best practices” taught by JudgeAlexander Williams, III, Los Angeles Superior Court Settlement Department and Adjunct Professor of Clinical Practice at the Straus Institute for Dispute Resolution
2:15 – 3:15 p.m. The Machiavellian Negotiator taught by former Federal Magistrate John Leo Wagner, who was formerly head of Irell & Manella LLP’s ADR Practice Group. Judge Wagner is a neutral with Judicate West..
3:15 – 3:30 p.m. BREAK
3:30 – 4:30 p.m. Settling Sophisticated, Multi-party Commercial Litigation in the Complex Court, taught by Judge Victoria Chaney, Complex Court Assistant Supervising Judge
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.
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.
Welcome to the firm! Now fasten your seat belts because it's going to be a bumpy ride.
Your supervising partner might look like Dumbledore, but he's much more likely to feel like Voldemort (photo and wikipedia entry right).
That's why we're beginning the new legal year with . . .
WRITING THE LEGAL RESEARCH MEMO: ADVICE FOR FIRST YEAR ASSOCIATES
Forget everything you've ever learned about legal research and writing. Here's the answer to any question that begins with the words "can we . . . "
I once worked for a partner who asked every first year and new lateral associate whether our client could successfully plead a federal civil rights cause of action in case B, Q or X. Not only were these cases highly unlikely to support such a cause of action, this question was never posed in any case where the facts detailed might.
The research-question-posing lawyer was then the managing partner of an AmLaw 100 firm and a former Justice Department attorney who had worked under Robert Kennedy. Only this latter fact made any of us suspect that the question might conceivably be genuine and not simply a hazing ritual for the firm’s new young associates.
But what, you ask, if the answer is an unequivocal “no.”
Herewith are a few ways of surviving the mysterious to malicious legal research assignment posed by Lord . . . uh . . . I mean Mister Voldemort.
The best way to insure your ability to provide even an equivocal “yes” is to ask the supervising partner what s/he is trying to accomplish by alleging this cause of action before commencing your legal research.
Knowing the answer to this question will permit you to suggest an alternative means of accomplishing the same objective if you absolutely positively cannot say "yes."
Other acceptable alternatives to “yes” or “here’s another great way of accomplishing the same goal” include:
It would be a stretch, but there are several cases suggesting that we might survive a demurrer.
It will be tough to survive a demurrer but if we argue x, y and z, I believe we can avoid sanctions if our opponent seeks them.
All of the American case law says we cannot allege this cause of action based on the facts you provided to me, but I checked the British authorities (or recent law review articles) and we can argue that the X line of case authority should be abandoned in favor of the British Rule (or Professor Tribe’s new theory of recovery).
I took the liberty of ordering the file and reading all of the pre-litigation correspondence between the parties. There are some additional facts [that you didn’t tell me about] contained there that would allow us to bring this cause of action.
If x, y or z, happened, we would be able to assert this cause of action. Have you asked the client whether any of these events occurred? Would you like me to make the call?
There are hundreds of ways to skin your partner’s cat and only one way to irritate, annoy, frustrate or – in extreme but not unheard of circumstances – enrage him. What is that one way? To say, "no, I'm sorry, but you cannot do what you want to do and here are the 25 reasons why.”
What does this have to do with negotiation? If you want your BATNA (Better Alternative to a Negotiated Agreement) to be better than finding other employment, you'll become expert at resolving the seemingly impossible problems posed to you by your superiors this year.
Don't worry, it won't be all that long before you're the new Voldemort on the block. In the meantime, welcome to the profession. Mostly, it's challenging, rewarding and very often just plain fun.
In Catholic Mutual Relief Society et al. vs. The Superior Court . . . , victims sought to learn whether the nonprofit entity, which administers self-insurance funds for more than 300 archdioceses and other Roman Catholic entities in the United States and Canada, could meet its policy obligation should they enter into a settlement with the Archdiocese of San Diego.
In 2004, a Los Angeles County trial court judge said the victims could seek reinsurance information . . . A state Court of Appeal . . . rul[ed] that California law authorizing limited discovery of a defendant’s insurance coverage does not authorize pretrial discovery of reinsurance agreements with a “nonparty” liability insurer.
On Monday, the California Supreme Court agreed. It found that discovery of reinsurance is allowed when a reinsurer’s policy functions “in the same way as a liability policy (fronting arrangement), or where the reinsurance agreement is itself the subject matter of the litigation at hand.”
I'd just been musing on this issue (really! -- listen, only nerds blog) because I think attorneys should use discovery as much as possible to settle litigation as to try it.
Conducting Discovery to Settle the Case
I'm just back from vacation so I haven't yet read this Supreme Court opinion. I have, however, fought the reinsurance issue more times than I care to remember. I also once sought to discover the extent of a privately owned corporation's ability to pay a sizable judgment only to be thwarted by the rule that discovery must be relevant to the subject matter of the action (etc.)
Still, I recommend that counsel find creative ways to learn facts that will assist them in settling the case during depositions (where "background" questions receive less scrutiny than interrogatories).
What information pertinent to settlement is useful to obtain other than the ability to fund an award? Plenty! but since I'm still on Hawaiian time and in an Hawaiian mind, I'll provide only a few -- let your own imagination make far longer lists than the following.
The identity of those making the settlement decision is question number one, not only to assure that you have the proper parties at your first settlement conference, but also because -- as McElhaney recently suggested -- you want to "hip" corporate deciders to some of the dangers of proceeding that the company's attorneys might not have mentioned (or couldn't stress strongly enough).
Where the corporate entity is split into operating divisions, which division is going to take the "hit" if the case settles.
Whether there are any corporate acquisitions or mergers on the horizon -- or any major upheavals in management -- that might suggest that the executive team green-lighting the litigation is on its way out and less litigation-friendly management about to come on the scene.
Whether other litigation on this same issue, product, financial practice, etc. is pending, making the possibility of bad precedent an issue for any eventual settlement "team."
How can you obtain answers to these questions during a deposition when none of them are relevant to the subject matter of the action or likely to lead to the discovery of admissible evidence? The same way you do everything else in your legal practice -- with chutzpah, imagination, creativity, preparation and sheer good luck.
I'd innocently sprinkle most of these questions into the background portion of the deposition when opposing counsel is generally less attentive than during "substantive" questioning. You can also get away with "it's just background, counsel" when s/he begins to awake with his/her morning latte. If it's a big case with less experienced attorneys assigned to less important depositions, I'd first ask these questions of low level corporate representatives who might be, shall we say, under-represented.
Then there's always simple dumb luck. When I was a first year taking one of my first depositions, opposing counsel fell asleep after lunch! He was snoring while his client innocently waited for me to continue questioning him as if this were a normal event!
I genuinely didn't know what to do. Could I legitimately and ethically continue to question my opponent's client in his "absence"? I suppose a more experienced or aggressive attorney might have done so. But because it just didn't seem right to me, I woke him up before continuing with my line of questioning.
Some defenders, however, might just as well be asleep. As I teach my NITA students, you can do that which you can (ethically) get away with in a deposition. And that is quite a lot if you are a skillful poker player who doesn't let on that the questions you're asking might be strategically beneficial even though entirely irrelevant to the substance of the litigation.
It's the beginning of a new "school" year. Go get 'em!
The interview season is over and you have three job offers.
One is from BigLaw in Manhattan, a dazzling, dizzying opportunity coupled with a salary that (you believe) would end all of the financial insecurity you've experienced after 7 years of part-time jobs; student loans; and, macaroni and cheese dinners.
Your last job offer is from a mid-size firm in your own home town. You really like the people you met with there and you can see yourself spending an entire adult life with them. Getting married, raising a family. The local schools are good and the chance to build your own "book of business" is better here than in D.C., Manhattan, Los Angeles, Chicago or San Francisco. You'd be a big fish in a little pond, not to mention remaining close to your extended family.
What to Do?
We have no specific advice. We do want to alert you to Bazerman's and Malhotra's chapter on cognitive biases in their new book, Negotiation Genius, and particularly their section on
THE VIVIDNESS BIAS
(note to readers: whenever the word "McKinsey" appears, think Skadden, or whatever law firm would most dazzle your professors and classmates if you told them you'd been offered a job there).
Apparently, many Harvard MBA students change jobs very quickly after accepting their first position. Why? One important reason is the effect of the "vividness bias." They explain:
Specifically, [the student job seekers] pay too much attention to the vivid features of their offers and overlook less vivid features that could have a greater impact on their satisfaction. This is a potential trap even for seasoned negotiators.
M & B go on to conduct a little thought experiment, imagining their students talking about their job offers and, more particularly, the following attributes of those offers:
great medical benefits
proximity to extended family
high degree of happiness apparent in the offeror's employees
opportunity to travel to Europe on a regular basis
$140K starting salary
employees have a significant degree of control over work assignments
the office space is comfortable; the environment inviting
the offer is from McKinsey
I would not have to travel too much
You know what's coming next.
Which of these statements will travel most quickly through the MBA student grapevine, conveying the highest degree of prestige upon the job-seeker.
For all of our knowledge and sophistication, we're pretty simple creatures. Bazerman and Malhotra believe that "the answers to these questions are the high salary ($140,000) and the offer from McKinsey (a top consulting firm)." They continue:
These two items are not only the easiest to communicate quickly, but also the easiest for others to evaluate. Students who receive these offers will notice the impressed reactions of their peers when such information is shared, and these reactions will make the information more prominent in their mind[s]. As conversation after conversation focuses on these two factors, other aspects of the offer will be overshadowed or entirely sidelined.
One result: students accept -- and soon quit -- high paying jobs with prestigious firms because they over-weighted vivid or prestigious attributes of their offers and under-weighted other issues that would affect their professional and personal satisfaction, such as office location, collegiality, and travel.
Malhotra and Bazerman's suggested solution to counter the vividness bias is to create a scoring system that assigns "weights" to job attributes. They suggest that a professional job seeker "who does not have at least five to ten issues ranked and weighted in her scoring system is probably not thinking rationally enough about all of the important issues in her job negotiations."
the left hemisphere of the brain tends to screen creative thoughts from the right hemisphere. Too much screening, and creativity is stifled; too little, and useless ideas can’t be eliminated. Creativity also requires topical knowledge and a detailed examination of the problem. While there’s no simple path to creative thinking for most of us, Kraft concludes by recommending that relaxing and stepping back from the problem are often helpful in letting the brain do its work.
To conclude our series on job hunting for lawyers, I leave you with the the following list of dangers and pit-falls based upon my own experiences and those of my colleagues, all of whom have been practicing law for at least twenty-five years.
if you're one of those people who believes you can take a BigLaw job, save your excess salary and then move "down" to a more congenial firm, just make sure you have the mental toughness to do so -- I have seen many lawyers "trapped" by the lifestyle this salary can afford them -- I know dozens who have been miserably stuck there for years if not decades;
your mom and dad really will continue to love you no matter what you do; you do not have to take an impressive job to prove to them that the kid who could never keep his room clean is all grown up now and a credit to his family; and,
money can't buy it (Annie Lenox)
Congratulations on the job offers.
Choose wisely and well. It's a great profession; one you and your family can be proud of of; and one you will never ever completely master -- meaning it will continue to astonish, trouble, bedevil and reward you for the rest of your life.
While it's great to know about these biases, it's good to remember when job-seeking that you cannot make any decision whatsoever without emotions. In the absence of emotion, the brain scientists tell us, we would spend our lives making pro and con lists without ever coming to a decision, a kind of existential hell depicted so well by philosopher and playright Jean Paul Sartre.
Because my Advice to Young Lawyers column is a repository for unsolicited advice I try not to give to my step-"children" (who are starting their professional careers this year) here's a little of my own experience to highlight the heart/head conundrum.
When interviewing with BigLaw during my second year in law school, I answered one of Mr. Big Firm's questions (during a call-back interview) in the following manner:
Mr. Big Firm: "Hmmmmm, I see here Ms. Pynchon, that you're in the top ten percent of your law school class. Why aren't you a member of the Law Review?"
Ms. Pynchon: Because I don't like to write [!!???!!!!???]
Mr. Big Firm: Well, writing is pretty much all you'll be doing your first several years at Blank, Blank and Blank . . . . .
O.K., this was either the stupidest (not to mention most inaccurate) response ever given during a job interview or I was being driven by my true desire, which was to have courtroom (and preferably trial) experience during my first year of practice. Unfortunately, my class standing made employment in the AmLaw100 highly likely unless I sabotaged my interviews -- which you can see I did.
The result? I started practice with a two-man personal injury law firm and appeared in court to try my first one-day court trial the day after being sworn in to practice law in the great State of California.
Everyone, by the way, all of my mentors, professors, and, advisors, urged me not to start my practice with a small Sacramento P.I. firm because I'd never ever be able to move "up" from there to the kind of practice I was supposed to desire (and you know what that is).
Turns out, I had more fun practicing law (and no billable hours!) during those first three years of my practice than I'd ever have again. Also turns out that my courtroom, appellate and trial experience made me very attractive to future AmLaw100 employers because none of their associates had any courtroom, let alone trial and appellate experience, by their fourth year as I did when I decided I wanted to switch from P.I. to commercial litigation.
Lesson learned? Only you know what's "best" for you. It can never be a mistake to follow your own dreams.
Yesterday, I suggested that young attorneys use the considerable bargaining power they do not believe they possess to negotiate the terms and conditions of their first year associate positions with the AmLaw 100.
Because I know a young man who is about to commence his first year in those ranks, I also know all of the reasons why this can't be done:
although the $$$ involved are considerable ($160K/year) the day-to-day terms and conditions of an AmLaw 100 first year's employment are so apparently set in stone that negotiating terms has not even crossed young lawyers' minds;
the push back from the top firms is predictable, even understandable:
making exceptions among first year ranks will sow seeds of dissent among all associates with unpredictable (but unquestionably bad) consequences;
WADITW:We've Always Done It This Way.
the system is in place
everyone depends upon it being this way
exceptions will invite chaos into an orderly and predictable regime
since it's not broken (from OUR perspective) don't fix it.
HOW FIRST YEARS CAN NEGOTIATE THE TERMS AND CONDITIONS OF THEIR EMPLOYMENT
First, let's not kid ourselves, it would take brass $#%^'s to say to Skadden Arps, "listen, there are a few things I'd like in my employment contract that aren't contained in your offer."
On the other hand, if you're reading this from the point of view of a recent Harvard or Yale Law School Graduate who was Editor-in-Chief of the Law Review and a Clerk for a Federal Appellate Judge, now's the time to earn those %$#&# while at the same time creating the one and only professional life that you have already, in large part, earned.
You Are Not a Widget in a Widget Factory
Since your first year in law school, your employment search has made it seem as if there were only a few coins to earn and spend -- class standing; law review or moot court, and the relative prestige of your clerkship. Oh yes, and the all important ability to get along reasonably well with your colleagues duirng your summer clerkship.
Because there are many other bright, hard-working law students with qualifications similar to yours, you've come to think of yourself as fungible, which any fool can see you are not. Nevertheless, there's good reason for you to believe that you must accept the terms offered by your future employer because the "system" was in place before you entered it; has been in place for decades and seems a whole lot more powerful than you are.
How can you create and claim value when your counterpart [here, your potential employer] is only interested in discussing price [no matter how high that "price" might be].
[Y]ou can improve your prospects by changing the game you are being forced to play. Consider that, in negotiation, your ability to legitimately claim value is a function of your ability to create value. . . .
[V]ery often, you do bring something to table that distinguishes you from your competitors [i.e., other Law Review EOC's from Ivy League law schools]. This is your distinct value proposition (DVP) and it need not be a lower price . . .
If you bring . . . value-adding elements to the deal, you have the possibility of using them to get what you want . . . The key is to figure out how to make your DVP a factor in the negotiation.
Unique Value + Understanding Your Bargaining Partner's Interests + the Courage to Claim Value for Value = the Rest of Your Professional Life
You've been competing for so long in the stratosphere against the same cohort (people in the top 1%of the bell curve) that you've forgotten how uniquely valuable you are.
Therefore, step one to negotiating the professional life you want is to sit down, take a deep breath, and list everything of value you have to bestow on a law firm other than academic and clerkship accomplishments.
Step Two is to identify your potential employer's interests, which include:
landing you as a first year;
retaining you for at least five years so that your employer's considerable investment in recruiting you has the meaty pay-off of your billable hours and book-of-business-building ability that commences in earnest between your fifth to seventh years of employment;
keeping the entire class of first-years stimulated, appreciated, and fairly rewarded; and (which will require a reasonable "excuse" for treating you differently);
creating new and valuable niches of expertise in the firm to increase the firm's market-share.
Step three is to offer to meet more of your potential employer's interests than it ever considered you might be able to satisfy:
contracting to continue your employment through the end of your fifth year;
offering to defer a certain percentage of your yearly income until the end of your fifth year as your incentive to abide by your agreement;
offering to help the firm expand a new (or suffering) area of its current practice by committing to, for instance, write two publishable articles per year in that niche practice area; and/or,
if you have contacts, offer them now, i.e., "I've already spoken to my dad's friend, the CEO of X Corporation, and he's agreed to meet with the ___________ practice group for the purpose of putting this firm on its short list of "go to" counsel for, say, IP or securities fraud or regulatory litigation.
In exchange for which you want what?
Well, how about a first year that is devoted solely to learning with no billable hour requirement.
If you're a litigator, you might want to observe and then take depositions, as well as defend them, during your first year. You'd like the opportunity to join a team that is on its way to trial and you'd like to second (or third) chair that trial. You want to argue motions and/or appeals.
If you're a transactional attorney, you want to go to client meetings, observe negotiations, help with the drafting of critical contract terms, and, be included in the strategy sessions.
Perhaps most importantly, you want to be included in practice development with one or more of the firm's few rainmakers.
These are just suggestions. This is about what you want.
Someday, first-year associates who can command salaries of $160K a year, will get hip to the jive and negotiate the deal now being offered (as far as we know) only by Atlanta-based Ford & Harrison -- real world training without billing requirements for their first year of practice.
Listen up young lawyers! These firms are willing to pay you close to $200K/year to land your talent. You have negotiating power. Go for it.
The Ford & Harrison initiative, however, stops just short of perfection, suggesting that some first-year hours might be billed to the client. I say, throw it all out! Teach these youngsters how to draft a motion, take a deposition, even try a case during their first year without billing any of their time (law firms will find a way to make up for the loss in first year billables, I'm certain of it).
This is what clients are demanding (see the ABA Law Journal article on the new On-Ramp Program, which I'll find & link to as soon as the sun hides behind a cloud on this picture-perfect Hawaiian beach day again). For excerpt, see the extended entry here.
Way to go F&H!! You'll have the happiest and best-trained second year associates in the entire world! Excerpt and link below.
The billable hour: demanding, disparaged and now dead -- at least at one Atlanta-based law firm.
Ford & Harrison, a 190-attorney labor and employment firm, has tossed out billable-hour requirements for first-year associates. The program aims to close the practical-skills gap of law school education and increase value to clients. The firm also hopes it will enable associates to handle meatier matters more quickly.
Overall, Ford & Harrison's leaders expect the new program to help retain beginning lawyers and appease clients.
"Everyone sits around and complains about the problems," said C. Lash Harrison, managing partner of the law firm. "I figured, what the heck, maybe we can try something."
The idea is for associates to spend their time observing depositions and witness interviews and attending hearings and litigation strategy meetings. While the firm has no specific expectations of associates meeting the 1,900 billable hours it previously required from new attorneys, it does anticipate that some of the work they undertake during their first 15 or so months will be valuable enough to bill.
Laurie Hartman, assistant dean for the Office of Career Services at Emory University School of Law, said that she was not aware of any other sizeable law firms that had completely done away with billables for new associates.
"It's a great idea," she said, adding that the program would help students to differentiate Ford & Harrison from other law firms.
Chistine's commercial litigation specialties include insurance coverage and professional liability, fields in which I labored for many years
MAJOR ASIDE ON INSURANCE COVERAGE
If you're litigating a commercial case, are not a coverage specialist and have decided -- from reading the policy language -- that there's no coverage -- run to someone like Christine, or if it's a really really really big liability, my husband, Steve Goldberg over at Heller -- who litigated the World Trade Center coverage litigation on behalf of Silverstein's lender -- for counsel and advice. It's not difficult -- it just requires specialized knowledge, knowledge many commercial litigators lack. See the sad tale of Guess v. Jordache here.
END OF ASIDE
Christine says she's new to the blawgosphere so I wanted to thank her for the mention of our blog by showing her how the whole machinery of the thing works == like a giant internet barter circle of the kind described by author-lawyer Patricia Williams in her groundbreaking work, An Alchemy of Race and Rights. See also the Benefits of Barter here.
Queen Latifa from Chicago on the seemier Tit for Tat side.
So, what do you say, Christine? Get your law firm to take the blogging plunge by talking to my good friend Kevin O'Keefe over at LexBlog. Online networking and practice development is geometric, as is LinkedIn, both of which I highly recommend, whether you're building your own business or just expanding your "book."
Just because I've become a Jedi negotiator does not mean I do not continue to love the adversarial process -- and I'm just geeky enough for evidence to have been my favorite class (and highest law school grade). Thanks Professor Wydick.
ESTABLISHING EMAIL AUTHENTICITY UNDER THE FEDERAL RULES OF EVIDENCE
The bar for establishing authenticity is not high under Federal Rule of Evidence 901. In the 3rd U.S. Circuit Court of Appeals, a court need only be able to legitimately infer that a document is genuine to find it to be "authentic." . . .
Some e-mails can be self-authenticated under Rule 902(7). Business labels, including signature blocks, that evidence the company from which an e-mail was sent, or even the name of a company in an e-mail address, might be sufficient proof of authenticity on their own.
Other circumstances, such as the distinctive characteristics of an author's e-mail address or the subject matter and style of the e-mail itself, may also be sufficient to establish authenticity.
BE PREPARED TO AUTHENTICATE EVERY STEP IN THE EMAIL CHAIN
An e-mail often has attached to it the e-mail or series of e-mails to which it is responding, creating an e-mail "chain," also known as a "string" or "thread." Some courts have found that each e-mail in a chain is a separate communication, subject to separate authentication and admissibility requirements. A lawyer should thus be prepared to authenticate every step of a chain.
THE HEARSAY EXCEPTION IN EMAIL EVIDENCE
The second major hurdle for getting an e-mail into evidence is the hearsay rule. By definition, hearsay is an out-of-court statement "offered in evidence to prove the matter asserted." The first way, therefore, to overcome a hearsay challenge to the admission of an e-mail is to claim that it's not hearsay at all.
An e-mail that is an admission by a party-opponent is "not hearsay." If your opponent is an individual, this is a simple test. In the corporate setting, however, damaging admissions may be authored by lower-level employees who do not have the authority to be making such statements. In order for the e-mail to qualify as a party admission, the author needs not only to be acting in the scope of his or her employment but also to have the proper authority.
Party-opponent admissions would also include statements by "a party's agent" concerning matters within the scope of the agency, i.e., "vicarious admissions." In addition, if your opponent's e-mails contain statements of others without reservation, e.g., when a party forwarded e-mails received from others, the e-mails may be introduced in evidence as "adoptive admissions" . . . This kind of statement has indicia of reliability because "the party has manifested an adoption or belief in its truth."
IT AIN'T AS EASY AS YOU THINK: APPLYING THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE
Many practitioners would consider e-mails as classic examples of business records for corporate entities that routinely use e-mail for both internal and external communication. Under Federal Rule of Evidence 803(6), however, only "if it was the regular practice of that business activity" to make that record can a document come into evidence under the exception.
An e-mail might fit this "business records" exception if the company -- not just the individual, but the company itself -- has a reliable practice of sending, receiving and storing that kind of e-mail. A company might have that kind of practice if it takes and records purchase orders via e-mail. Notably, an e-mail that fits into the "business records" exception may also be self-authenticating, under Rule 902(11), if its authenticity is supported by an affidavit.
Many e-mails, however, do not meet the "business records" exception because they are merely chatter, statements that are made casually and not as a matter of obligation or even routine. An e-mail sent at an employee's sole discretion is not likely to have the necessary indicia of reliability and trustworthiness to be admitted as a "business record."
If an employee sends off a quick e-mail to a colleague commenting on the substance of a meeting with a business partner, it may not be admissible. By contrast, minutes of the same meeting kept by the same employee and circulated to all in attendance, in e-mail form, at the request of management could qualify under the "business records" exception.
Although there is not yet a well-established line of cases on this issue, courts appear concerned that if they allow e-mails into evidence as "business records" too easily, people will begin to use the convenience of e-mails to write self-serving internal communications.
AND HOW ABOUT THOSE BLACKBERRY COMMUNICATIONS?
With the advent of handheld devices as well as the ubiquity of laptop computers, e-mails may actually be admitted into evidence on the basis of "present sense impressions," or even as "excited utterances," as in Lorraine. People are often using e-mail to comment on events as they are transpiring, even during meetings.
If one can show that an e-mail was written while perceiving an event or immediately thereafter, or while under the stress caused by a startling event, it might meet the "present sense impression" or "excited utterance" standards of rules 803(1) and 803(2).
Of course, these standards are difficult to meet because contemporaneousness or near-immediacy is necessary. An e-mail might still meet the "present sense impression" standard if written 10 minutes after an event, but many e-mails are written hours or days later.
The special problems posed by e-mails do not change the rules of impeachment. A lawyer's ability to cross-examine a witness with a prior inconsistent statement does not change merely because the statement is contained in an e-mail.
AND FOR THE UNDER 30 SET: TEXT MESSAGES!
Text messages, instant messaging, chat rooms or "team rooms" (in which all materials concerning a project are preserved electronically for the entire project team to access) all present unique evidentiary challenges.
Practitioners need to be proactive in their efforts to ensure that key pieces of evidence can be admitted at trial. From the time of the initial review of documents through discovery, lawyers need to focus on how to get in or keep out such evidence.
Beatrice O’Donnell is a senior partner in the trial practice group of Duane Morris. She practices in the areas of product and professional liability, as well as commercial and insurance litigation. O’Donnell has tried to verdict more than 80 major civil jury trials in both state and federal courts, and has tried hundreds of arbitrations and mediations. She has been both national and regional coordinating counsel for a number of pharmaceutical and other clients facing mass tort litigation. Thomas A. Lincoln is an associate with the trial practice group of the firm.
Thomas A. Lincoln practices in the areas of products liability, consumer fraud, and commercial litigation, including complex litigation such as multidistrict litigation proceedings and class actions, representing both defendants and plaintiffs. Mr. Lincoln is admitted to practice in Pennsylvania. He is a 1999 graduate of New York University School of Law and a graduate, with honors, of Swarthmore College
I'm therefore reprinting here that part of the interview reflecting the career questions so often asked by young lawyers -- is litigation the right career path for me.
Though my own answer is, of course, unique to me, I think every litigator will find something of their own professional struggle briefly recounted here.
Gini: What is the best advice that you have been given? And what advice would you give a budding conflict specialist?
Vickie: Joseph Campbell, the brilliant and recently departed student and professor of comparative religions and mythology, long ago gave me advice I needed but was not ready to apply – follow your bliss.
I didn’t know what my bliss was and couldn’t find it. I had to spend a lifetime quieting a lot of other voices that were vying for my attention before I was ready. Voices that told me to prove to my dad how brilliant and successful I could be; that told me to compete and “succeed” by running the fastest and the farthest whenever anyone shot off a starting gun in my vicinity; that told me I needed property, (perceived) power and prestige to accept myself in all my human fallibility.
It took more than twenty-five years for me to realize the bankruptcy of those thoughts and to experience the results of that way of living.
Then a new voice entered my head and it spoke very very very clearly. “Why don’t you mediate?” it asked.
I just finished teaching the second NITA Deposition Skills Program in Southern California this year. What a pleasure it always is to teach and watch the students learn a skill that law school surely doesn't bother teaching and few law firms have the luxury to pass along to newly minted attorneys eager for real-world experience.
More on the many lessons I always learn from my students when my energy returns.
Cruising google reader before getting some well-deserved shut-eye, I found the following which reminded me of our final NITA depo segment on cross-examination.
The story started out in the blogosphere. Monica Emmerson, a former Secret Service agent, posted a little account on a website for city parents, where she said she'd been harassed by TSA agents on a recent trip, causing her to miss her flight and generally riling up her family.
A blogger, Bill Adler, saw the note, then called Emmerson to get her story, which he posted on his blog, where it was soon picked up by other bloggers. It was a great story--Big Brother; David versus Goliath; police state versus helpless woman. In her account, Emmerson said that as she went through security with her young son, the TSA screener seized her boy's sippy cup and told her she'd have to empty it out of any liquids if she wanted to keep it for the trip. Then, while trying to comply, she accidentally spilled the cup when her son started crying, after which security was called and Emmerson was forced to clean up the spill in front of watchful police.
This is where cross-examination comes in. In court, everyone has a good story. But all stories have two sides, and sometimes one is decidedly better than the other.
In this instance, there was a video, which TSA decided to release.
Here's how it would go in court:
Curmudgeonly lawyer: Now, Ms. Emmerson, you testified a moment ago, under oath, that you accidentally spilled your son's sippy cup, is that right?
Emmerson: That's correct, it was an accident.
CL: And after you accidentally spilled the sippy cup, security officers moved in and detained you without any provocation, correct?
CL: Now, Ms. Emmerson, were you aware that the security area at the airport was under video surveillance?
E: (Confidently smiling at jurors) No, but I'm not surprised.
CL: And if such video existed, it would support the story you just told to the jury under oath, is that right?
E: (Squirming slightly) Yes, that's right.
CL: Your honor, we request permission to show Defense Exhibit 1, a video excerpt. [After the inevitable objection is overruled by a Judge who's now awake and amused at what's likely to happen next, the video plays.]
CL: Now, Ms. Emmerson, isn't it a fact that the video just seen by the jury clearly shows you screwing off the top of the sippy cup and deliberately dumping the contents on the floor in the middle of the security screening area?
E: Well, I don't think that's what it shows.
CL: So, your idea of accidentally spilling from a sippy cup is to screw off the top and dump it on the floor, is that right? (This question is accompanied by exaggerated movements of opening a sippy cup and dumping its contents on the floor.)
At this point, it doesn't matter what she says. The jurors are all nodding, the judge is smiling--finally a moment of drama in the courtroom--and the few spectators are murmuring. A good lawyer then says "no further questions" and sits down.
As a general practitioner, I help “real people with real problems,” and I have adopted that slogan as my professional credo. And it is a great answer to the inquiry “What kind of law do you practice?”
Grappling with the client, and not the chicken, enables the attorney to deal with the divorcing mother of three, the debt-ridden restaurateur and the juvenile offender. Another lawyer once told me, “We all know what the law is—the hard part is finding out what the client is.”
The public does understand this: but they just prefer to be entertained by that old razzle-dazzle (like the lawyer in the musical Chicago) and ignore the realities of the profession. It is said that people hate lawyers as a group but love their own lawyers.
For me and my practice, the proof of that is in the telephone. It rings. People want advice. People send money for that advice. It’s a nice system.
I have learned that the system is geared for the lawyer to assist the client, salve their wounds, remediate the problem and to obtain a goal. It’s almost spiritual.
"Writing a brief," counsels McElhaney, is like trying a lawsuit."
You start with your theory of the case—the basic idea that not only explains the legal theory and the factual background but also ties as much of the evidence as possible into a coherent, credible whole.
That means making choices. You throw out arguments that aren’t plausible.
You pick between the inconsistent legal theories. You cull out the weak points. You toss out whatever gets in the way. You discard what doesn’t need to be said, even if it doesn’t hurt.
What’s left is tight. Lean. Spare. It crackles with power because it’s undiluted with stuff that doesn’t matter.
Doesn't trial and motion practice focus on the parties' positions, you ask, and the settlement of litigation on the parties' interests.
Yes, but only after you've established that you have the ammunition necessary to make your adversary your partner in the mutual problem of making the litigation go away for a price (or on terms) that make a negotiated agreement far better than potential victory at trial.
I tell people that I prefer the symmetrical to the "asymmetrical" lawsuit -- both as a litigator and as a mediator. What is an asymmetrical lawsuit? One where the plaintiff is an individual represented by an over-burdened sole or small practice contingency fee litigator and the defendant is a repeat player -- an insurance carrier or other "deep pocket."
Why? Because all too often the plaintiff is unwilling (or unable) to devote the resources necessary to pose a real threat to the defendant's interests (costs of defense and potential verdict or judgment) despite the merits of the plaintiff's case.
In these cases, the defendants can afford to wear the other side down in court (why should I settle?) and often resist settlement because they firmly believe they are victims of legal extortion (yes, this applies even to insurance carriers who work by and through people who resist and resent being pushed around by an aggressive opponent who appears to be bluffing).
Although it is important to convince the mediator that your case has real merit and genuine potential for judgment, it is critical to impress your opponent with:
Your theory of the case in which the evidence tells a coherent, credible story, and one of injustice that a court or jury might respond to with sufficient passionate intensity to inflict some "unjust" harm on your opponent; and,
Your ability to make good choices -- "throw[ing] out arguments that aren't plausible," "backing up those that are with the least amount but most compelling detail," and "pick[ing] between the inconsistent legal theories. . . . cull[ing] out the weak points . . . toss[ing] out whatever gets in the way. . . [and] discard[ing] what doesn't need to be said. . . "
If "[w]hat remains "is tight. Lean. Spare. . . . crackles with power" you'll force your opponent to do some intensive interest-based negotiation to arrive at a settlement that is best for both of you.
And for women entering the job market, here are the grim statistics:
women's earnings relative to men's have stagnated at 73.2 percent.
In surveys, 2.5 times more women than men said they feel "a great deal of apprehension" about negotiating.
Men initiate negotiations about four times as often as women.
When asked to pick metaphors for the process of negotiating, men picked "winning a ballgame" and a "wrestling match," while women picked "going to the dentist."
Women will pay as much as $1,353 to avoid negotiating the price of a car, which may help explain why 63 percent of Saturn car buyers are women.
Women are more pessimistic about the how much is available when they do negotiate and so they typically ask for and get less when they do negotiate—on average, 30 percent less than men.
20 percent of adult women (22 million people) say they never negotiate at all, even though they often recognize negotiation as appropriate and even necessary.
Women Suffer When They Don't Negotiate
By not negotiating a first salary, an individual stands to lose more than $500,000 by age 60—and men are more than four times as likely as women to negotiate a first salary.
In one study, eight times as many men as women graduating with master's degrees from Carnegie Mellon negotiated their salaries.
The men who negotiated were able to increase their starting salaries by an average of 7.4 percent, or about $4,000.
In the same study, men's starting salaries were about $4,000 higher than the women's on average, suggesting that the gender gap between men and women might have been closed if more of the women had negotiated their starting salaries.
Another study calculated that women who consistently negotiate their salary increases earn at least $1 million more during their careers than women who don't.
In 2001 in the U.S. women held only 2.5 percent of the top jobs at American companies and only 10.9 percent of the board of directors' seats at Fortune 1000 companies.
Women own about 40 percent of all businesses in the U.S. but receive only 2.3 percent of the available equity capital needed for growth.
Male-owned companies receive the other 97.7. percent.
Women Have Lower Expectations and Lack Knowledge of their Worth
Many women are so grateful to be offered a job that they accept what they are offered and don't negotiate their salaries.
Women often don't know the market value of their work: Women report salary expectations between 3 and 32 percent lower than those of men for the same jobs
men expect to earn 13 percent more than women during their first year of full-time work and 32 percent more at their career peaks.
You Can Do It
It's not that we're not good negotiators. A Harvard study (which I'll find & link to later) showed that women negotiated as successfully as men when they were negotiating for someone else!
So just pretend you represent yourslef and go for it.
From time to time I publish advice and "cheat sheets" for young lawyers who are just beginning practice. This last week-end, I once again had the privilege of teaching some of the brightest young lawyers in the country how to take a deposition.
I've been teaching this workshop for the National Institute of Trial Advocacy since the mid-nineties. The day before the workshop every year, I think, why did I sign up to teach this again?
And the first day of the workshop I answer, because these young lawyers learn with the speed that children heal. They come in not knowing how to ask a simple question and leave three days later running a competent line of cross-examination.
I give you the "funnel technique" and will soon provide extra tips for your first or fifth or tenth deposition.
Have a great career. Many complain but, really, its a stimulating, character-building, multi-dimensional board game with real stakes. You never master it. That's the good of it. There's always a challenge.
Mr. and Ms. Keene (names changed) entered the community mediation conference room and cautiously took their places next to one another at the scarred wooden table. Though slightly wary, their greetings were warm. He touched her lightly on the arm. She pulled away, but smiled back.
After the preliminaries were out of the way -- introductions, "rules of the road," the signing of a confidentiality agreement -- Mr. Keene launched into a low-key but passionate tirade about . . . . . .
THE ATTORNEYS . . . . . .
a topic upon which there was complete agreement.
The attorneys had been
disrespectful, retiring to chambers with the judge while the parties sat outside the closed door listening to their attorneys' laughter;
unresponsive to telephone calls; and,
high-handed in responding to the Keenes' repeated requests to deviate from certain "standard" or "accepted" custody arrangements in favor of arrangements they knew were best for them and their child.
I apologized for the way we attorneys sometimes act as if the dispute is our own; as if our relationship with Judge and opposing counsel is more important or compelling or fun than our interest in our clients; and, as if we know more about what's good for our clients' business (be it the business of running a family or a Fortune 500 company) than our clients do.
By the time Mr. and Mrs. Keene arrived at the door of the Community Dispute Resolution Center, they were not simply exhausted and angry, they were nearly entirely disempowered.
"How do we 'de-power' our lawyers?" they asked.
"By taking your power back," I responded, alert again to my own inclinations to give unsolicited advice or raise problems only I might think the parties have.
I've seen attorneys unite disputants before. Early in my career, I observed the bitter progress of a case involving hundreds of millions of dollars in lost profits and a fight for the control of intellectual property worth more than a billion dollars. After the parties had turned one another into the tax and custom authorities, they met without their white shoe attorneys, settled the case, and sued counsel for malpractice.
The Keenes left the mediation with an agreement in hand and their self-respect restored.
I do not fault their attorneys. I do not know what transpired before I arrived on the scene.
I only know that at some point, the attorneys lost "control" of their clients by asserting too much of it.
Thank goodness Shipley and Schwalbe have included in their concise and lively tome, “Five Ways to Apologize for an Inexcusably Tardy E-Mail Reply.”
Dave Barry's Belated Amends
"On that last topic," writes Barry,
the authors advise that “it’s always better to send a hideously late response — even an inadequate one — rather than none at all, if you have any interest in maintaining a relationship.”
With that in mind, I want to state the following: Bill Osinski, I’m sorry I never replied to you regarding that thing you e-mailed me two years ago. I got swamped. It got so bad that I was doing my e-mail in the “Small World” ride. But that is no excuse, so I’m stating here in The New York Times Book Review that I am worthless scum.
Victoria Pynchon's Amends
I'm glad Dave Barry had only one such amends to make. I have three currently keeping me awake at night (you'd think it would be more efficient to just get up out of bed and respond). I'm certain there are more of which I'm blissfully unaware.
My friends are so used to the apology accompanied by the "worthless scum" admission, that I have to do Dave Barry one better and include in my amends a promise that in the future I will really really really make an effort never again be inexcusably tardy.
In my mediation practice, I find that people accurately assess how risk-averse they are and that they will readily tell you why ("I was poor"; "I was rich"; "I survived the Viet Nam War"; "I lost my parents when I was ten and was sent to live in an orphanage" etc., etc.)
Because I now help people make decisions on a weekly if not daily basis, I know that both the "why's" and the "therefore's" of risk-tolerance are as unique as fingerprints.
Story: Dad and the Grapes of Wrath
I, for example, was raised by parents who experienced the Great Depression. My father's family worked its way west from Nebraska to Portland and finding no source of sustenance there, drove the model-T south through California's fertile Imperial Valley, picking fruit and vegetables on the way (the entire family, including all children old enough to pick).
Dad's family eventually settled in the foothills of San Diego (Ramona) where they raised chickens. His mom took in the neighbors' laundry to fill in the financial gaps.
Other than Mr. Thrifty, Dad is the most financially risk-averse person I know. (oh no! you DO always marry your dad!)
Story: Me and Mr. Thrifty
But let's go to the second generation. Raised by depression-era parents, my older sister is incredibly financially risk-averse and I (to Mr. Thrifty's horror) am on the far end of risk-courting. Mr. Thrifty's childhood financial distress, on the other hand, seems to have produced two financially prudent children -- neither pathologically "tight" nor abnormally risk-seeking.
But this is all anecdote, you say.
Yes, but the truth resides in the particular, not in the general.
Story: Innocence and Experience
At the beginning of the semester at the Straus Institute one year, the professor asked each student to jot his or her greatest fear on a piece of paper. Roughly half of the class was post-forty mid-career people and the other half twenty-something law students.
I was genuninely shocked by the result. In a roomful of statistically over-achieving outliers, every twenty-something law student said "failure" and every mid-career student said "nothing."
If pressed, I'm sure we mid-career types could have populated a lengthy list of fears: ill health, war, earthquake, loss of our children, etc., etc., etc. That our first response was "nothing," however, said something about us. What? And why were all these bright, talented young people who were so clearly successfully achieving so afraid of failure.
Then it struck me. We mid-career people were not afraid of failure because we had likely already failed. And survived. Rather joyously. The law students who haven't yet failed think failure will be a far greater catostrophe than it ever actually is. This is not only the wisdom that comes with age, but also the new finding of the neuroeconomists.
although people are relatively adept at knowing which emotion they will experience and whether it will be positive or negative, people are surprisingly inaccurate at predicting the intensity and the duration of those emotions. Moreover, this is so even for relatively “straightforward” emotional experiences, such as winning the lottery or suffering severe injuries. It is on such inaccuracies—in predictions of the intensity and duration of future emotional experiences—that most of the affective forecasting research has been focused.
Id. (emphasis added).
Parting thought? There's no greater gift to one's peace of mind than failure.
Geoff Sharp kindly passes along his dad's advice not to be average and to always be in mid-career in his brilliant article on Starting a Mediation Practice here. (chart is Geoff's own)
My dad's career advice? Never be a civil servant or wear a hat. Huh??? Some dads give sound career advice and others zen koans to chew on for the rest of your life. We love them equally because, well, because they're our dads!
Somedays, however, thinking of this little chart is all that keeps my internal energizer bunny rev'ving.
(BELOW, Katherine Hepburn and Burt Lancaster in The Rainmaker. Dated and melodramatic. But because this scene was my dramatic interpretation selection for high school speech tournaments in 1969, I can't think of rainmaking without recalling this scene)
Start with Your Mother Was Right Part II to get an idea of the ample marketing resources you already possess. Resources that you need only begin to use. It's EASY, say I, who developed not a LICK of business in 25 years of practice and am now a business development queen (since I only eat what I can kill).
But it's not desperation that made me realize I had what it took to develop business. It was simple necessity. Everything else followed, without having to change my personality or do or say stuff that wasn't "me." I'm not golfing or talking about the Final Four or pushing myself on the attorneys who have become my market. But, this isn't about me. This is about you. Here's Sara Holtz's advice on that subject from "Your Mother was Right."
Your mother told you that when others inquired about you, it was polite to reciprocate and ask about them. What she didn't tell you is it is also good for business development.
I was reminded of this during two recent conversations.
I was speaking with a (male) client. He is a funny, personable sort. In the course of our conversation, I asked him a number of questions - What was new with him? What were his plans for the holidays? What were his kids up to?
He didn't ask me a single question in return.
Least you think this is a "guy thing", I had a similar experience when having dinner with a (female) classmate from Law School. We had an entire dinner in which she failed to ask me a single question about myself or my family, even though that had been the focus of our conversation about her.
I was a bit puzzled in both situations. What do I make of this?
That it was a missed opportunity to enhance their relationships with me. Carried over to the business development context, don't make the same mistake. Make a point to ask appropriate questions, learn about the other person, let them know that you are interested in them. It will strengthen your relationships. And strong relationships are good for business.
I'll add to this that both lawyers and neutrals are problem solvers. You don't need to know what complicated antitrust problem your dinner companion is wrestling with (unless she's dying to talk about it). Casual conversation over a relaxing meal will inevitably reveal some challenge your dinner companion is facing.
Be a problem solver. I can now do this in minutes, holding a glass of soda water at any bar function anywhere anytime. I do not tell people I am a mediator. It tends to make them start looking over my shoulder for someone else to talk to. They're afraid I'm going to try to sell them my services. I simply ask lots and lots and lots of questions about them. How's your practice? Are you progressing as you want to? How's the firm doing? Are your associates getting the training they need, etc., etc. At some point, I begin helping my new bar association friend with one or more of these challenges.
Eventually they look at me with real interest and say "what is it that you do anyway?" That's when I tell them, "I'm a professional problem-solver -- a mediator." We exchange cards. The business does not come directly and sometimes not at all. But at the next bar association function, I often see my new old friend, ask how he's rising to the challenge we discussed when last we met. He introduces me to someone else with kind words about how I helped him with, say, the paper clip supply in the mailroom. Really, any problem solving whatsoever will do.
This is how you build a network, a reputation and a business. If I'd known it was this easy, I'd have had a book of business before I was made (a non-equity) partner. You can build yours too. Starting now.
That said, here are the matters Mr. Archer recommends be included in all stipulations entered into at the close of every deposition.
I propose that we agree to
relieve the reporter of his/her statutory duty to maintain custody of the original transcript.
after it has been transcribed, the reporter shall send the original transcript [by UPS, FedEx, DHL, or the equivalent] to the witness at [witness’s office or residence address].
the witness shall have 30 days within which to read and review the transcript, make any changes that he/she deems appropriate and list any such changes on the errata page provided by the reporter.
upon completion of the review and listing the changes, if any, the witness shall then sign the transcript under penalty of perjury where indicated at the end of the transcript.
the reporter shall provide a preposted and preaddressed envelope so that the witness may then send the reviewed, corrected, and executed original transcript and errata page to [counsel].
[counsel] will maintain custody of the original executed transcript and will agree to produce it and lodge it with the court at the time of trial or for any motion for which it may be required upon reasonable request.
[counsel] will also advise all other counsel in writing of any changes, corrections, additions, or deletions made by the witness at the time of the review of the transcript and will provide all counsel with a copy of the errata and signature pages within 10 days of counsel’s receipt of the original executed transcript from the witness.
should the original executed transcript not be reviewed, corrected (if necessary), or signed by the witness within that time frame, or should the original executed transcript later become lost or otherwise unavailable, the parties agree that a certified copy may be used for all purposes, as if it were a duly executed and corrected original transcript.
As Archer notes, don't try to memorize this. Just copy it and stick it in your briefcase. We're all tired at the end of a long deposition day and it's no time to strut your stuff by proving to opposing counsel that you've memorized the $#^%& thing.
Better yet, for each case agree upon the deposition stipulation ahead of time and ask the court reporter to attach the fully executed copy to the transcript. This is particularly helpful in big cases where many associates and partners are taking depositions on the same case.
The most common complaint I hear from young attorneys at all levels is the lack of mentoring available to them. Since the internet is their domain, I ask those attorneys over thirty-five to pick up this "Advice to Young Lawyers" meme tag and run with it.
Nothing throws more fear into the heart of a young litigator than using documents at a deposition.
Here's the good news. It's easy if you know the rules and follow the steps.
Here are the steps.
Lay the foundation for the business records exception to the hearsay rule
Lay the foundation for any available hearsay exception for hearsay statements contained in the business record itself;
Question the witness about the documents
to refresh his/her recollection
to impeach his/her testimony
to obtain an explanation of the meaning of language contained in them
to forward your case and tell your client's story
Feel free to bring "cheat sheets" with you to the deposition, remembering that you can rarely save your face and your ass at the same time.
Scratch an exhibit number on the document (or post-it) if it hasn't previously been marked
Hand copies to opposing counsel and to the court reporter
Say, "the Court Reporter will mark as Exhibit Q, correspondence from X to Y dated June 16, 2003, carrying Bates Stamp number 325490."
Pause as the reporter affixes an exhibit number to the document and hands it to the witness
Say to the witness, "do you now have exhibit Q before you?"
Q. "Please identify Exhibit Q for the record."
A. "It's a letter I wrote to Mr. Jones."
Q. "Is that your signature at the bottom of the second page?"
A. "Yes it is."
Q. Is this a true and correct copy of the letter you wrote to Mr. Jones on such and such a date?
A. Yes, it is.
A. "It's a letter I received from Mr. Green."
Q. "Is that Mr. Green's signature on page three of Ex. Q?"
Q. "How are you able to recognize it?"
A. "Because I . . . corresponded with him regularly or I've seen him sign his name on several occasions and I recognize this to be his signature."
Q. "Is this a true and correct copy of a letter from Mr. Green that you received on or about such and such a date?"
A. "Yes it is."
ESTABLISH THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE
Q. You were employed by ABC Company in 2002?
A. Yes I was.
Q. The Court reporter has marked and placed before you Exhibit Y, carrying Bates Stamp range 20056-98. Can you identify Ex. Y for the record.
A. Yes. It appears to be a copy of ABC Company's ledger book.
Q. What is the function of the ledger book?
A. We use it to record all of our sales and payments.
Q. Are the entries in Ex. Y made at or near the time of the recorded sales and payments.
Q. Are the entries made as part of the regular business of ABC Co?
Q. Is Ex. Y, the ledger book, kept in the ordinary course of ABC's business?
Q. How is it that you're familiar with the ledger book?
A. "It's prepared . . . . by me (or under my supervision)" or "as part of my job duties, I review the ledger on a monthly basis" or "I've occasionally seen the ledger and am aware that it is maintained by Mr. Brown, who works in the accounting department" or any other way in which the witness is familiar with the document.
You've now accomplished that which, I'm afraid to say, 90% of the attorneys taking depositions fail to accomplish every day. If you don't get any other useful testimony from this witness, you will have created a record that will permit you to use these documents as evidence in summary judgment motions and at trial.
We will cover in a subsequent post the following two steps -- laying the foundation for hearsay exceptions to hearsay statements contained in business records and using the document itself to forward your case.
Thousands of young attorneys will sit down to take their first deposition every year the same way I did, with roughly the same amount of dread and exactly the same amount of training.
A lot and none whatsoever.
So that someone might benefit from my own painful experience more than twenty-five years ago, I give you my earliest deposition mistakes.
Within my first month of practice, I was assigned an "easy" first deposition. We represented an injured plaintiff who broke her arm in a skating rink accident.
I was charged with taking the deposition of the young man who'd caused her to fall. No documents. Just the facts m'aam.
Here's what I learned the hard way.
You don't have to rephrase a question in response to an objection.
I did this dozens of times in a two-hour period. At lunch, one of the grizzled old Sacramento P.I. defense attorneys grabbed me around the shoulders so hard I felt like I might break.
"Just wait for the answer," he whispered in my ear. "You don't need to re-phrase the question. If the witness doesn't answer, ask the court reporter to read it back. Say, 'do you have the question in mind? Yes? Would you answer it please?'"
I fell all over myself thanking this kind man who growled in response, "I just wanna get outta here before Christmas."
The court reporter doesn't really "strike" anything from the record.
This is someone else's painful story. I was defending a deposition that was obviously the examiner's first time. Every time he rephrased a question mid-phrase, he'd turn to the court reporter and say, "strike that."
Then he waited for her to do something. When she didn't, a confused look would cross his face and he'd return to his questioning. He must have done this a dozen times during the first hour.
Each time, the reporter just smiled that inscrutable court reporter smile, benevolent, knowing and, as I thought during most of my first year of practice, thinking, "what an idiot!"
After several of these lengthy pauses, the reporter took pity on the poor attorney, put her hand gently on his arm and whispered, sotto voce, "I'll explain at the break."
There is no usual stipulation.
At the end of the many depositions I'd seen before I first took my own, I watched attorneys look across the conference table and ask, "the usual stipulations?"
So that's what I did in my first deposition.
"The usual stipulations counsel?"
Defense counsel eyed me with the admixture of pity and contempt seasoned lawyers reserve for new admittees. This is the moment during which they decide whether to bat you around the deposition room like a cat toy or exercise mercy.
"Why don't you put the usual stipulation on the record, counsel," he said, choosing option no. 1. Not a question. A declarative sentence. An injunction. A challenge.
Even then, a terrified newbie, I wasn't entirely a fool. Never underestimate the power of youth and femininity. If I could have batted my eyelashes I would have.
What I did say, sweetly and with great deference, was this, "No, please. You know them far better than I. I'll let you put them on the record."
Score one for the first year attorney, who then went back to her boss to ask what the %$^# the usual stipulaitons were.
And for a break with your third Grande Latte of the day, check out this video of a first DAY lawyer defending a phony deposition in a phony sexual harassment action -- videotaped to great hilarity by his employer. He handled himself pretty darn well under the circumstances!
The lengthy cross-examination was written by the man who brought you The West Wing, Aaron Sorkin. Do not attempt this in a court of law without a screenwriter by your side.
And just in case you think you're uniquely insecure, the brilliant Mr. Sorkin, who added, "you can't handle the truth" to the small pantheon of justifiably immortal movie lines has this to say about the process of writing:
"I love writing but hate starting. The page is awfully white and it says, 'You may have fooled some of the people some of the time but those days are over, giftless. I'm not your agent and I'm not your mommy, I'm a white piece of paper, you wanna dance with me?' and I really, really don't. I'll go peaceable-like."
THE SET UP
KAFFEE Colonel, when you learned of Santiago's letter to the NIS, you had a meeting with your two senior officers, is that right?
KAFFEE The Executive Officer, Lt. Jonathan Kendrick, and the Company Commander, Captain Matthew Markinson.
KAFFEE Yes sir. Colonel, at the time of this meeting, you gave Lt. Kendrick an order, is that right?
JESSEP I told Kendrick to tell his men that Santiago wasn't to be touched.
KAFFEE And did you give an order to Captain Markinson as well?
JESSEP I ordered Markinscn to have Santiago transferred off the base immediately.
JESSEP I felt that his life might be in danger once word of the letter got out.
KAFFEE Grave danger?
JESSEP Is there another kind?
KAFFEE holds up a document from his table.
KAFFEE We have the transfer order that you and Markinson co-signed, ordering that Santiago be lifted on a flight leaving Guantanamo at six the next morning. Was that the first flight off the base?
JESSEP The six a.m. flight was the first flight off the base.
THE SEEMINGLY INNOCENT LINE OF QUESTIONING SET-UP
KAFFEE gets a document from his table.
KAFFEE (continuing) After Dawson and Downey's arrest on the night of the sixth, Santiago's barracks room was sealed off and its contents inventoried. (reading) Pairs of camouflage pants, 6 camouflage shirts, 2 pairs of boots, 1 pair of brown shoes, 1 pair of tennis shoes, 8 khaki tee- shirts, 2 belts, 1 sweater--
ROSS Please the Court, is there a question anywhere in our future?
I've been reading a lot about creativity lately because it is central to my practice as a mediator and central to the business opportunities of my commercial clients. As Colin Powell says when speaking to business people, "to negotiate a deal, you need to be inside the other guy's decision cycle."
Understanding the creative process in business is one of the ways I try to stay in my clients' "decision cycles."
So why Juggling in a Cone?
HOPE AND CREATIVE SELF-EXPRESSION
First, it gives me hope for humankind. That we follow the creative call and then spend hundreds (THOUSANDS?) of hours perfecting our heart's desire without realistic chance of material gain makes me believe we WILL find solutions to global warming, tribal and border warfare, poverty and disease. I can't help myself. Juggling in a Cone makes me marvel, makes me laugh, lights up my world.
Second, Juggling in a Cone is all about exploring creativity with severe constraints. There's not a lot of room in that cylinder. Given its limitations, what might a juggler do? Hit the play button and see if you're as enchanted as I am.
TURNING LIMITATIONS INTO SOLUTIONS
In Turning Limitations into Solutions (the February online issue of Business Week) Marissa Ann Mayer, vice-president for search products and user experience at Google, says
Creativity is often misunderstood. People often think of it in terms of artistic work -- unbridled, unguided effort that leads to beautiful effect. If you look deeper, however, you'll find that some of the most inspiring art forms -- haikus, sonatas, religious paintings -- are fraught with constraints. They're beautiful because creativity triumphed over the rules. Constraints shape and focus problems, and provide clear challenges to overcome as well as inspiration. Creativity, in fact, thrives best when constrained.
Yet constraints must be balanced with a healthy disregard for the impossible. Disregarding the bounds of what we know or what we accept gives rise to ideas that are nonobvious, unconventional, or simply unexplored. The creativity realized in this balance between constraint and disregard for the impossible are fueled by passion and result in revolutionary change.
Having recently been turned on to cartoonist and copyrighter Hugh McLeod's Gaping Void comics (care of Geoff Sharp's eagle eye) I find that artists have been hip to the creativity-constraint principle for some time. In McLeod's case, the constraint is the size of a business card.
In mediation practice -- the practice building part -- the constraint is generally expressed as a series of reasons one can't make a living at it -- the pro bono panel distorts the market, I'm not a judge, I'm too young, I did transacitonal work, I came to the market too late, there are too many mediators in Los Angeles, the commercial panels have the market all tied up, etc., etc., etc.
If we use these constraints rather than complain about them, we might find ourselves, well, juggling in a cone.
For excellent advice from an artist about pursuing your heart's desire, go to the extended entry, Advice on Being Creative . I took the time to read this in full yesterday - a highly worthwhile time commitment. I recommend it to anyone searching for a solution to the intractable problem of "what are we to do with our one and only lives?"
I was thinking immodestly about what a great deal my own mediation fees were the other day. A deposition transcript alone, I was thinking, must cost only a little less than my half day fee. Casting about the internet for a good source on the cost of a deposition, I ran across attorney-mediator Thomas A. Cohen's article, Anatomy of a Lawsuit, which he has graciously given me permission to re-print for you here.
Even the most savvy business executive could benefit from reading this step-by-step guide to the great American pass time, litigation.
ANATOMY OF A LAWSUIT
by Thomas A. Cohen
So. You want your piece of the American dream. You want to do the dance sensation that is sweeping the nation. You want your ship to come in. In short, you want to file a lawsuit. Here’s what you can expect: the steps involved, the costs, and the likely result.
We will assume that you have cleared the first hurdles: you are aggrieved; the law can furnish relief; and there appears to be some reasonable chance of winning and collecting the judgment. We will also assume that you can assert jurisdiction over the defendant in either State or Federal court.
A lawsuit begins when your attorney drafts a complaint. This is a written pleading which identifies the legal and factual contentions involved, and sets forth what a party proposes to prove at trial so that his opponent will know what contentions he must be prepared to meet. The complexity of the complaint varies with the complexity of the issues to be tried. At the simplest level, certain disputes are so run of the mill that a Judicial Council form complaint may be filled out by checking certain boxes and filling in a few sentences of narrative. For example, a form complaint may be used for the collection of a written promissory note. In contrast, a class action alleging that Hollywood studios have conspired to deprive writers of profits from feature films (an actual pending suit) requires significant detail covering many pages.
The complaint is filed with the court and then served with a summons on the defendant. The filing fee in California Superior Court is $185; in federal court it is $120. The summons and complaint generally must be served by personal delivery to the defendant. Simple local service of process costs from $25 to $50. A summons is a one page form which is completed and signed by the attorney, and filed with the court. When properly served, it requires the defendant to file a written response within a given number of days. In California a defendant has 30 days to file a written response. Failure to file a response results in a default judgment against the defendant. If unchallenged, this default judgment is as valid as a jury verdict. Thus, the penalty for failing to respond to a lawsuit can be severe, and it is the rare solvent defendant who ignores a properly served complaint.
Generally, a defendant responds to a complaint with a pleading called an answer. This document, which must be filed with the court, can often be very simple. While not available in all cases, a general denial of all allegations will often suffice. Each defendant must pay a filing fee in the same amount as the plaintiff’s fee. The defendant is not limited to filing an answer. Instead, or in addition, he may file a motion to dismiss/demurrer, or a cross complaint/counterclaim. Different terms are used in state and federal court, but the essence of the pleading is the same.