Southern California Arbitration Mediation and Conflict Resolution : Settle it Now Dispute Resolution Services : Serving Los Angeles, Beverly Hills, Century City : Settle It Now Negotiation Blog

Need CLE Credits? Mark your calendars!

The American Bar Association Section of Litigation will hold a live teleconference and webcast on July 14, 2009 titled “Deal or No Deal: Improving the Odds of Successful Mediation.” Reinsurance and Insurance expert Katherine Billingham from KB ReSolutions, Inc. and Randall Kiser from DecisionSet will present at the event. Randall’s article Lets Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations was featured recently in the New York Times.

Donald R. Philbin, Jr., friend of this blog and adjunct professor at Pepperdine’s Straus Institute for Dispute Resolution will also speak at the event. Here are two excellent  papers written by Don:  The One Minute Manager Prepares for Mediation: A Multidisciplinary Approach to Negotiation Preparation published in the Harvard Negotiation Law Review and  Deal or No Deal? or Perhaps a Better Deal? The Impact of Improved Information published by CPR.

Find out more about the event here.

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Does it ever serve a purpose?

One extremely good answer to the question whether an insulting first offer ever has a purpose can be found at Steve Mehta's Mediation Matters Blog Taking Escalates More than Giving.

In this example from Entourage, Terrence's insult is reciprocated by Ari in conflict escalation (as Steve predicts) and Ari's eventual victory as demonstrated by my longer post about this episode, Negotiation from a Position of Weakness, Hollywood-Style.

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Women in the United States Judiciary

2009 State Court Judges in the US:

• 4,325 women of 16,950 total
• 26% women

2008 Federal Court Judges

• 47 of 164 active judges on the thirteen federal courts of appeal are male (29%).
• 25% of United States district (or trial) court judges were women in 2008.

Women in Corporate America

• In November 2002, women represent 15.7% of the corporate officers in America’s 500 largest companies. These percentages are up from 12.5% in 2000 and 8.7% in 1995.
• In April 2002, there were six female CEOs in the Fortune 500 and a total of eleven in the Fortune 1000.
• The number of women corporate officers:  2,140 out of 13,673.
• The number of women corporate officers:  2,140 out of 13,673. T
• Almost 95% or 2,141 of the top earning corporate officers are men, compared to only 188 or 5.2% of women top earners in the Fortune 500.

Earnings on the Dollar Compared to Men

• Asian/other women: 67 cents
• White women: 59 cents
• African American women: 57 cents
• Hispanic women: 48 cents

Family

• Women managers are more likely to be single parents than male managers.
• Women managers who are unmarried and have children under 18: 22 percent African-American, 15 percent Hispanic, 8 percent White, and 5 percent Asian/other women.

Women Lawyers

 JOIN THE PROFESSIONAL WOMEN'S NETWORK OF SOUTHERN CALIFORNIA TODAY!  We're "on the ground" locally and online nationally.  Building business one relationship at a time.

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Here's a copy of the Judgment Confirming Final Arbitration Award.

Comment later.  In the meantime, Money Money Money from Cabaret.

 

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Worth reading from last week's Mediator blah blah blog (the Lord Chief Justice arms himself with a hammer); just in case you missed it or didn't download the .pdf as I just did this morning.  Thanks Geoff!

Let us take a blank sheet of paper and imagine that we are trying to create a system which would provide a satisfactory means of resolving civil disputes, bearing in mind, without being over dramatic, that in the end, it becomes almost inevitable that some civil disputes will end up in criminal activity. I do not think I am exaggerating.

A few years ago I was taught a lesson by a very intelligent young woman in one of our County Courts. We were talking of the cost – the exorbitant cost as it was then - of taking proceedings for very small sums of money. She explained to me that the cost of just starting the proceedings would represent her children’s shoes – she thought this a disproportionate cost. She knew areas of the City where her husband could go and find someone who would throw a few bricks through a window for £50 – no doubt she was right. And, perhaps, that would be more effective, she suggested than a judgment and getting back the compensation. A little self-help could end up with a brick being used against an individual and a few bricks being thrown back in return.

In short, a civilised community has to provide a system which means that those in dispute can refer to an independent tribunal for a decision. It is a further requirement that the system should actually exist and be capable of being used. If court fees are disproportionate or if legal fees are disproportionate the system is not open to those who cannot afford its processes.

My experience in practice at the bar was that some of my clients wanted their disputes sorted out. They had tried to sort them out before they got to the stage of seeing a solicitor and going to counsel. Others of my clients, or should I say, it was always my opponent’s clients who were unreasonable, didn’t want to sort the dispute out at all. There were all sorts of reasons. One is that very human characteristic sometimes but not always an attribute, the indomitable bloody mindedness of the bull dog.

So that on your sheet of paper the system which we are creating has to cater for both those who wish to settle and those who do not. If both sides want to sort out their dispute, and they have tried and failed, being sensible people, their next step would not be to come to lawyers, but to go and ask someone they trust to try and sort out their dispute, to see where there are points of disagreement and points of agreement. Let’s give it a name. Why not call it “mediation”? A successful mediation is a wonderful outcome. But with the best will in the world, it may not always happen. So you have to have a formal system.

You also have to have a formal system when one side or other to the dispute simply has no intention of sorting it out save in court and at the end of a protracted and expensive court proceeding. That is more troublesome. That may be the party with pots of money trying to squeeze the party with modest means away from the court process. That may mean that the party with real merit in his or her case is deprived of the proceeds of litigation for many years to the advantage of the intransigent party. It may be that the intransigent party is entirely justified and believes that there is no form of mediation which would be acceptable either to it or indeed in the end to the other side.

Now time and time again, in practice as a barrister and now as a judge, I have been perfectly well aware that if only the parties had come together at an early stage, long before they saw their counsel, long before they got to the door of the court, they could have resolved their dispute at a fraction of the cost and without the emotional expenditure and commitment of time and energy required by the litigation. One of the ways I used to try to persuade clients to settle was to remind them of a Chinese curse – “may you be involved in a litigation in which you are in the right.”

One vivid memory is a boundary dispute, or rather a dispute over a garden. My opponent and I turned up at the County Court armed with an abundance of authorities because we had to address limitation periods, laches, injunctive relief, indeed just about every facet of civil justice. In the end we negotiated a settlement in which he and I, not the judge, went to the land and armed not with books but with hammers and stakes literally pegged out the property into equal halves. The case was settled. In truth my opponent and I had acted as mediators. How much better for everyone if the mediation had happened much earlier.

Can we just take a long term view? Every few years, or about every ten years, there is a great hullabaloo about the cost of civil litigation. Arbitration, after all, is a system of avoiding the court process. Do you remember when employment tribunals began? These were to be informal meetings at which the opposing parties would put their cases to a tribunal, almost a form of palm tree justice.

Consider now how much more complicated and expensive the processes have become.
I do urge the Council to recognise this danger. The mediation process, could, unless danger is recognised and addressed, particularly if it is part of the court process, may eventually, and quite unintentionally, and by unforeseen accretion become increasingly formalised and procedural. It really must not eventually become just one more part of the expensive process that all of us are trying to avoid.

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If you're worried about your law job becoming -- as they say in Britain - "redundant" or if you've already been laid off due to the recession, join Lawyer Connection which was born today as the result of a twitter conversation I had with Gwynne Monahan (who you can follow @econwriter).

Here's an exploration of what a mutual aid group is from the viewpoint of a social worker -- which speaks to me because I lived through my first husband's MSW in Social Work studies before he lived through my Law School experience (an eventual relationship-killer). 

Visit Lawyer Connection

From Andrew Cicchetti's Mutual Aid Based Group Work blog:

Mutual aid as group work technology can be understood as an exchange of help wherein the group member is both the provider as well as the recipient of help in service of achieving common group and individual goals (Borkman, 1999; Gitterman, 2006; Lieberman, 1983; Northen & Kurland, 2001; Schwartz, 1961; Shulman, 2006, Steinberg, 2004; Toseland & Siporin, 1986). The rationale for cultivating mutual aid in the group encounter is premised on mutual aid's resonance with humanistic values (Glassman, 2002) and the following propositions: 1) members have strengths, opinions, perspectives, information, and experiences that can be drawn upon to help others in the group; 2) helping others helps the helper, a concept known as the helper-therapy principle (Reissman, 1965) which has been empirically validated (Roberts et al, 1999); and 3) some types of help, such as confrontation, are better received when emanating from a peer rather than the worker (Shulman, 2006). Mutual aid transactions that occur amongst and between members stimulate cognitive and behavioral processes and yield therapeutic, supportive and empowering benefits for the members (Breton, 1990;Northen & Kurland, 2001; Shulman, 1986, 2006).

Obviously, we're not pursuing the therapeutic benefits of a mutual aid society as social worker Cicchetti is.  Having been a member of such a group (a community-based women's credit union in the early 1970's for instance) I can say that the experience is not only economically, but also personally, enriching.

Let's not wait for the economy to improve.  Let's start improving it TODAY.  We are the change we want to see in the world. 

JOIN US!!

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Hat tip to

Virginia Construction Lawyer Christopher Hill

for introducing us to the extremely multi-talented

federal appellate attorney David Mills

.

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I'm re-posting below an article published in both the Los Angeles and the San Francisco Daily Journals (the local legal rags) about the dangers inherent in email communication.  I do so because I had several complaints about the use of abusive email by in-house counsel last week at my negotiation training as well as in my twitter network from attorneys exasperated with combative emailers who refuse to take telephone calls (see post about conflict avoidance here)

My advice?  Use the tried and true tit-for-tat strategy:  retaliate for uncooperative conduct and be quick to forgive as soon as your bargaining partners bring themselves back into line.  The advice I gave on twitter (@vpynchon) this morning was simple and pointed:  tell opposing counsel that you will program your email system to automatically delete all of their emails until they pick up the telephone and give you the courtesy of a return call.

Below, my Daily Journal article on the Dangers of Using Email During Litigation.

 

This story occurs in the spring of 2001, in a hotel room in Toronto, at 3 a.m., the morning of a deposition I've been preparing to take of an aging petrochemical engineer.

2001 is a  year I'd dreamed of since elementary school.  But the technological changes predicted in the science fiction of my childhood and adolescence are nothing like the "hi-tech" I'm living with now.  

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Richard DeWitt is a member of the American Arbitration Association's National Roster of Neutrals serving on its large, complex case panel, its commercial, employment and technology panels and its panel of Mediators. He is also a Member of the FINRA Dispute Resolution Board of Arbitrators and serves on the National Arbitration Forum's Panel of Neutrals and the CDRS Panel of Neutrals. He is a Florida Supreme Court Certificated Arbitrator and Florida Supreme Court Certified Circuit Civil Court Mediator. 

Since the 1970s Jerome Landau has been a professional Alternative Dispute Resolution (ADR) specialist, particularly in the fields of arbitration, mediation and group facilitations. He is also an author on these subjects and presents interactive educational workshops trainings for ADR specialists as well as other professionals. His expertise as an ADR professional has been regularly recognized through his professional certifications from various organizations and prestigious panels such as the American Arbitration Association, the U.S. District Court, the international Association for Conflict Resolution ("ACR"), U.S. Arbitration & Mediation panel and service on the American Arbitration Association's Commercial Advisory Panel.

Jerome has twice been invited to present workshops at the United Nations where he was described as "bringing techniques for conflict resolution to those endeavoring to bring peace to the world." He is also a contributor of articles to "ACResolutions", an international magazine serving dispute resolution professionals, and formerly served on its editorial board.

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Although a California Court may properly sanction a non-party insurance carrier who possesses the authority to settle litigation for its failure to participate in a mandatory settlement conference, there is no statutory (nor inherent) authority given the Court to sanction the carrier or a party for its purported failure to negotiate in "good faith."  As the Court in Vidrio v. Hernandez (2d DCA) explained today:

In sum, even were we to agree with the trial court's assessment of the conduct of counsel and the [insurance] adjuster, the failure to increase a settlement offer or to otherwise participate meaningfully in settlement negotiations violates no rule of court and is not a proper basis for an award of sanctions.11 (See, e.g., Triplett v. Farmers Ins. Exchange (1994) 24 Cal.App.4th 1415, 1424 [“[w]e eschew any notion that a court may effectively force an unwilling party to settle by raising the specter of a post hoc determination that failure to do so will be evidence of failure to participate in good faith”]; Sigala v. Anaheim City School Dist., supra, 15 Cal.App.4th at p. 669 [“„[a] court may not compel a litigant to settle a case, but it may direct him to engage personally in settlement negotiations, provided the conditions for such negotiations are otherwise reasonable‟”].) [Defendant] filed an appropriate settlement conference statement; her lawyer and Mercury [the insurance carrier] attended the conference and participated in it. While the trial court‟s frustration at the parties‟ lack of movement is understandable, no more was required.
 

In particular, the Court of Appeal, held that the Court was not at liberty to "judge" whether the defendant and its carrier "should have" offered more than had previously been offered at a mediation either because the case was "worth" more or because the offer was so low in light of the attorneys fees and costs that would likely be incurred at trial.

I believe most mediators would approve of this ruling, even though it applies only to settlement conferences and not to mediations, the latter of which is protected from the Court's inquiry by Evidence Code section 1119.  Whether or not a mediator, a settlement judge, a party or a trial judge believes a defendant "should" offer more or a plaintiff "should" accept less by way of settlement, should not form the basis of an award of sanctions.  Not only would such a rule decrease citizens' trust and respect for the Courts, whose job it presumably is to provide a forum in which litigated disputes may be tried, such a rule would impermissibly chill the parties' Constitutional right to a jury trial.  

 

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As every lawyer knows and most students of high school geometry must learn in mastering "proofs," the answer often comes first, the rationale later.  I used to say, "I'm a litigator, I can rationalize anything."  As a mediator, my rationalizations have turned from the way in which facts can be shoe-horned into causes of action or affirmative defenses to the way in which harm arising from a dispute (including, most assuredly, the moral harm of injustice) can be monetized.

Now David Brooks in the New York Times (which appears to have disabled the "copy" function/1) tells us that philosophy has been sacrificed on the alter of emotion in his column The End of Philosophy. 

As Brooks explains, reasoning comes after moral judgment and "is often guided by the emotions that preceded it."  The good news is that those emotions are not merely competitive.  Brooks again:

Like bees, humans have long lived or died based on their ability to divide labor, help each other, and stand together in the face of common threats.  Many of our moral emotions and intuitions reflect that history.  We don't just care about our individual rights, or even the rights of other individuals.   We also care about loyalty, respect, traditions, religions.  We are all the descendents of successful cooperators.

My mediation experience teaches me that the "soft" arts of influence, empathy, community-building, and prejudice reduction, are as important (and often more important) to the successful (i.e., satisfying) resolution of a lawsuit than our prized ability to parse the evidence,  rationalize away the bad and privilege the good to sell our "proof" to judge or jury.

Most importantly, I find that when attorneys' clients leave a mediation with the belief that a certain rough justice has been obtained, they are more satisfied with the outcome, and with their attorneys' representation of their interests, than they might have been had they left with 10% more change jingling in their pockets.

The experts who study mediation tell us that "neutrals" don't make the difference between settling or not settling.  The cases will settle with or without us.  The difference mediators make is not settlement, but  client satisfaction.  Satisfied clients are  an absolute necessity for a successful legal practice at any time.  In these hard times, legal practices may fail in the absence of resolutions addressing the justice issues your client sought out a lawyer to resolve in the first place.

Money is the instrument.  But justice is the issue.

 

 

 

 

_____________

1/  More about this at IP ADR later today.

 

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(image by the great Charles Fincher at LawComix)

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

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

Here are two facts:

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

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

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

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

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

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

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

 

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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.

 

 

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Transparency Will Eliminate Unnecessary Wariness Between Parties (.pdf) from the April 1, 2009 Daily Journal

FORUM COLUMN By Victoria Pynchon As a mediator, the question I hear most frequently from lawyers is "How do I convince my opponent to sit down and negotiate without losing my competitive advantage?" Believe it or not, the answer is transparency. If you can remember way back to last July, when firms like Microsoft and Yahoo were still engaging in business as usual, you might recall that a merger fell apart because Yahoo was acting "weird." At least that's what Microsoft's chief executive, Steve Ballmer, told the Wall Street Journal. "We had an offer out that was a 100 percent premium on the operating business of the company and there wasn't a serious price negotiation ... until three months later. It was a little ... weird." Lawyers know that three months rushes by in the blink of an eye. The board of directors meets. It seeks an analysis from the mergers and acquisitions people, who consult with outside counsel's antitrust department, which renders a decision but whose members first have to chat with the tax guys. Then there are the IP people with whom to discuss license agreements and, of course, the managers in the human resources department, who may or may not have advice about executive parachutes - platinum, golden or brass. And yet the Yahoo-Microsoft merger fell apart because Microsoft felt that Yahoo's delay was "weird." Let's go back to what every trial lawyer knows. In the absence of information, people make stuff up. Weird stuff. And the stories we tell ourselves about our uncommunicative commercial partners do not include one where the other guy is laboring day and night to fulfill our fondest desires. No. In the absence of information, we weave elaborate conspiracy theories in which our opponents are scheming to fleece us of our rights, obstruct our prospective economic advantage and turn our world upside down. Your dentist can tell you what your opponent wants to be told. A fully illustrated pre-game outline of the upcoming procedure that goes something like this "First I'll put a little numbing cream on your gum. That way the shot of Novocain won't hurt too much. Then I'll drill," she'd say, holding the fearful appliance up and switching it on. "It may sound louder in your mouth than it does here in my hand, but I'll only have it on for about five minutes, after which ... etc., etc." So how do you get your opponent to the bargaining table without sounding weak? You say "Listen, Ted, I know both our clients believe their cases are as good as gold but after an initial round of discovery, it's my practice to call a timeout to discuss settlement." Pause. "How does that sound to you?" Ted says it sounds all right. Which it does. Because Ted's got three incredibly acrimonious cases in his practice right now. Last year, one of his adversaries served an ex parte application with three bankers boxes of exhibits the day before Christmas. At 4:59 p.m.  And she scheduled the hearing for hearing on the day after Christmas. Sure, the judge would deny it, but Ted couldn't assume anything. He worked 15 hours on Christmas Day. So it sounds good to Ted. More important to your own litigation plan, your opponent has just agreed to come to the bargaining table, even though the actual meeting won't be held for several months. When the appointed hour arrives, you will not have to ask for a settlement conference at a time when it might show weakness on your part. It's part of the plan. For the remainder of the article, click here.

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Challenges to good faith settlements that cut off the rights of non-settling defendants to seek indemnification and contribution from settling defendants are nearly always doomed to failure.  Trial courts are understandably eager to clear their dockets and there's no docket-clean-up pitcher like the first defendant to settle.  Deny the motion and bring a settled defendant and his trial-ready resources back in to the litigation when the first defendant-domino has just successfully toppled over?   Not likely, my friend. Not in the trial court at any rate.

These motions are so difficult to oppose that I've seen a target defendant threaten a marginal player (my client) with sanctions just for challenging the target's very low six-figure settlement in an eight-figure antitrust action.

It looks like low value settlements got just a little bit harder to defend yesterday when the Second District Court of Appeal reversed a trial court's good faith settlement finding in  Long Beach Memorial Medical Center v. Superior Court (Conners).

Best quotation:  "The hospital contends that the physicians‟ $200,000 settlement -- representing 2 percent of plaintiffs‟ $10 million damages estimate -- was so far out of the “ballpark” it was not even in the parking lot."  With a first runner-up to "If section 877.6 is to serve the ends of justice, it must prevent a party from purchasing protection from its indemnification obligation at bargain-basement prices."

The Court of Appeal relied upon the following "facts" in finding that the trial court abused its considerable discretion in granting a good faith motion to defendant physicians in light of defendant hospital's opposition.

• payment of $200,000 in settlement for a $10 million claim, which the appellate court found to be "wholly disproportionate."  As the Court opined "[e]ven a slight probability of liability on [the settling doctor's] part would warrant a contribution more significant than 2 percent."
•  the "evidence" supporting the court's finding that the settling physician's probable fault was "not de minimis,"  which appears to have been based upon Plaintiff's attorney's fault analysis (not generally known for its unbiased nature) and the physicians' counsel's candid (?) suggestion that his clients' contribution to a global settlement might be in the range of $1.5 million;
• the availability of $2 million in coverage, which "militated against a good faith determination" because the settlement constituted only 10% of available policy limits [carrier alert here!];
• the non-settling Hospital's contention that the physicians and their attorneys engaged in "bad faith tactics" during two mediation sessions -- a factor the appellate court acknowledged it was barred by mediation confidentiality from considering -- but which it neatly avoided by concentrating on post-mediation negotiations; /*
• the timing of the physicians' settlement offer, which suggested to the appellate court that their "reason for entering into the settlement with plaintiffs was to cut off the hospital's . . .  right to indemnity from the physicians" (I thought that was a legitimate reason to settle litigation but see the Court's citation to Mattco Forge, stating that when a defendant  “enters into a disproportionately low settlement with the plaintiff solely to obtain immunity from the cross-complaint, the inference that the settlement was not made in good faith is difficult to avoid.” Mattco, supra (emphasis added); and,
• a consideration I've never seen defeat a good faith motion before - that a settlment "dictated by the tactical advantage of removing a deep-pocket defendant . . . is not made in 'good faith' consideration of the relevant liability of all parties. . . ." (leading to the question whether we're now required to consider the interests of clients other than our own in entering into a settlement agreement on a contested claim)

If this case isn't depublished (an unfortunate California practice) or taken up for review, it will bear re-reading and deeper thinking about the stategy and tactics of breaking away from the mob to cut a separate deal beneficial to one's own client without "consider[ing] . . the relevant liability of all parties . . . "

Comments welcome!!

 

________________

*/  This is a good place to note the importance of either indicating in the parties' post-mediation written negotiations that the mediation is continuing (hence the communications remain absolutely protected) or that the mediation has concluded (hence bringing those post-mediation settlement negotiations outside the scope of the strictly enforced mediation confidentiality restrictions).

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 . . . and they're all talking about the same thing!  How do you put the "clothes," the drama, the pathos, the dimensionalty and texture back into the sterile legal cause of action we litigators have been working on for months, years, even decades.

There are no professions whose success depends quite so much on the coherence and authenticity of story, narrative.  The gun that appears in the first act.  The man who must be lying dead on the stage as the curtain closes.  The way everything leads to one unexpected and yet repeatedly foreshadowed conclusion.

To this mutual quest for telling the persuasive truth of the parties' lived experience comes a new jury blog:  Things that make you go hmmmmm from the Jury Impact people here in Southern California.  Back in the day, I worked with CEO Chris St. Hilaire on a quarter billion dollar antitrust and unfair competition case.  I've worked with others such as the rightly famous Don Vinson of Litigation Sciences, the first person to introduce me to jury work as Madison Avenue advertising.  The Jury Impact people are that good.

Add their new blog to your news reader.

Talking of Madison Avenue, here's Mad Men's best ad pitch -  Nostalgia:  the pain from an old wound and the product that takes us to a place where we ache to go again.

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Learn, refine, perfect your deposition skills at Solo Practice University's The Art of the Deposition here!

   

Asking Open-Ended Questions with the President and his Secretary of State.

 For the remainder of this series, as well as short lectures and demonstrations that will make you one of the best examiners, cross-examiners, defenders and users of depositions at trial and in pre-trial motions, sign up for The Art of the Deposition at Solo Practice University today!

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Sweating out your first deposition?  Wish you were doing a better job on your tenth?  Fed up with well-coached witnesses?  Want to learn everything the witness knows without an agony of effort?

 

Take my course at Solo Practice University.

These guys are still practicing.  

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I'm attaching a Policyholders Guide to Mediation not because it's particularly useful in regard to the strategy and tactics necessary to be a successful mediation advocate, but to share with my fellow mediators just how low an opinion many litigators have of us.

Notice on page 2 (Mediation Downsides) the following:

• mediator may inappropriately discourage/scare the policyholder to force a settlement
• mediator may "tell insurance company things you ask them to keep secret" (!!!)
• mediator may have a financial stake in keeping the insurance company happy

Thanks to policyholder counsel extraordinaire Stephen Goldberg of Dickstein Shapiro for passing this along to me.

 

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We need an open source solution to lawyer unemployment.  If I had time for a post this morning, I'd write a great creative plea for an open source solution to lawyer unemployment.  It's all right here in my head this morning.  But I don't have time so here are my random thoughts with a plea to send me ideas and links, either by way of the comments section or via email.

Here goes:

the gig economy.

Solo Practice University.

the last time the baby boom was poor, it was also:

• entrepreneurial:  candles, belts, "head" shops, collectives, free schools, credit unions based on affiliation (i.e., the Women's Federal Credit Union at a time when we still couldn't get credit cards in our own names); crash pads; food co-ops; the Diggers; "alternative" social service agencies funded by grants and existing federal program assistance (i.e., Vista volunteers; federal revenue sharing funds); "free" press . . . . more from my baby boomer readers please
• inventive - this category probably entirely overlaps with the first one
• largely unemployed or under-employed while pursuing greater interests
• expert at navigating federal benefits for medical services and dietary needs (food stamps)
• unashamed to:
  • ask friends for help
  • use local, state and federal benefits for the poor, knowing that we would eventually pay these back in taxes over a lifetime
  • shop at Army-Navy stores
• generous with our resources; "yes you can"
  • "crash at my pad"
  • borrow a little "bread"
  • have dinner at my place
  • join my collective ("network")
  • work at the co-op
  • send your kids to our free school
  • get a loan from our credit union
• industrious
  • all this generosity meant that people who could do did
  • those who were good at getting grants got them
  • those with medical skills shared them
  • those with organizational skills organized
  • those with contacts shared them
• socially conscious
  • we didn't envy those with more than us or look down on those with less than us
  • we tapped the rich (please can you contribute) and provided services to the poor
  • if we didn't like the way the government was doing something, we didn't just protest (a thousand documentaries on the sixties to the contrary) we got up in the morning and formed an alternative to the governmental or existing societal organizations that we believed were not serving the needs of ourselves and our communities 
  • we believed we were part of a tribe and we were loyal to it and to one another
• very very young
  • we made a lot of mistakes (think:  Jane Fonda:  Hanoi)
  • we were ridiculously overly optimistic about our own ability to change the world
  • we were overly pessimistic about the good of the society we were born into
  • we were arrogant
  • we were brave
  • we were not risk averse
  • were were opininated
  • we were fractious

OK.  So now we're here.  What are WE going to DO about it???????

Thoughts

1. no lawyer should be "unemployed" PERIOD
2. the "gig" economy:  several streams of income
3. F--k the "experts"
4. the law isn't keeping up with the problems lawyers are experts at solving
5. the adversarial system - 18th century dispute resolution technology - is not fast or flexible enough to efficiently and effectively solve 21st century conflicts ("conflict": a struggle over scarce resources and/or a struggle to impose control over the standards, values, rules, etc. of the society)
6. when the times get weird, the weird turn pro
7. find a way to help markets in need creative solutions to "legal" problems so they don't have to SUE THEIR MARKET (NEWSPAPERS) /1
8. think like an entrepreneur not like an employee
   1. did I mention Solo Practice University?  it's not just for solo practitioners; it's for the new wave of lawyers whose task is to re-structure the system so that it works for all of us
   2. you did it when you were, oh, 16, 20, 25, 30 . . . do it now
9. Network!!!

More later.  I have a gig.

_______________

1/  "Who reads newspapers, mom?"

     "Bloggers, honey."

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I do have ONE more post on the "negotiated" resolution of law firm layoffs, using "negotiation" in its broadest sense as in this definition at the online American Heritage Dictionary online.

INTRANSITIVE VERB:	To confer with another or others in order to come to terms or reach an agreement: “It is difficult to negotiate where neither will trust” (Samuel Johnson).
TRANSITIVE VERB:	1. To arrange or settle by discussion and mutual agreement: negotiate a contract. 2a. To transfer title to or ownership of (a promissory note, for example) to another party by delivery or by delivery and endorsement in return for value received. b. To sell or discount (assets or securities, for example). 3a. To succeed in going over or coping with: negotiate a sharp curve. b. To succeed in accomplishing or managing: negotiate a difficult musical passage.
ETYMOLOGY:	Latin negtir, negtit-, to transact business, from negtium, business : neg-, not; see ne in Appendix I + tium, leisure.

First, a directory to the series on this blog:

Negotiating Unemployment:  Hope for Laid Off Lawyers

Negotiating Law Firm Layoffs:  the Two Professions

Negotiating Law Firm Layoffs:  You Can't Save Your Face and Your Ass at the Same Time

Negotiating Law Firm Layoffs:  Property, Power and Prestige

Negotiating Law Firm Layoffs:  My Part in It

Negotiating Law Firm Layoffs:  Crash and Recovery

Negotiating Law Firm Layoffs:  Good Fortune and Bad

Negotiating Law Firm Layoffs:  the Narrative of Mediation

Negotiating Law Firm Layoffs:  Wisdom from the Trenches

This series has been picked up by the following notable online publications:

Legal Blog Watch by Bob Ambrogi (thanks again Bob) Layoff Lessons from One Who's Been There

Laid Off?  Might Be Time to Fly Solo at the AmLaw Daily

Helpful Links

(coming soon)

 

 

 

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Because I litigated the meaning of contracts for more than twenty years, Ken Adams' contract drafting blog is a guilty pleasure. 

Ken's not a confessional blogger like I am.  He's an expert; a teacher; and, a scholar.  But the recession seems to have put more than one seasoned attorney in a mind to share the winding career path that can -- if we're lucky -- lead to a passionate engagement with our occupation. 

Here's an excerpt of Ken's excellent post Law, the Working Life and Innovation.  I highly recommend the entire post to any lawyer wondering what to do with his/her law degree other than what he/she is doing now.

At law firms throughout the land, lawyers are pondering what’s in store for them. Here’s what I suggest:

If you’re a zealous law-firm type, then you’ll likely survive the current bloodletting, or at least find a welcome somehere. And if, like me, you’re clearly unsuited to law-firm life, you have no choice but to reinvent yourself.

A more tricky choice faces those at law firms who have no great appetite for the work but can tolerate it and have performed well enough not to be culled, at least thus far. If that applies to you, you may be inclined to stick with the devil you know.

I had no choice but to make the leap. I set about making myself an expert in a topic that I found fascinating, then I devised new solutions to meet an evident need. Engaging in that sort of innovation has given me a new lease on life. If you’re passionate about what you do, you’ll not only derive vastly greater satisfaction from your work. You’ll also be more energetic, more creative, and better equipped to win others over to your cause, whatever it might be. As a result, you’ll be more likely to weather any economic storm.

So whether your job is currently safe or whether you’re one of the casualties, you might want to consider your own potential for innovation, within the law-firm world or elsewhere. The legal profession is a vast, varied, and ever-changing ecosystem. It should offer plenty of underexploited niches for those with enough energy and imagination.

I’m not suggesting that innovation comes easily. It’s beyond the reach of most, and even those with the appetite can expect to travel a rocky road and be stalked by failure. But it can provide great rewards. And given that the U.S. is falling behind on too many fronts, innovation isn’t simply a matter of individual opportunity, but also of civic duty.

Continue reading here.

Thanks Ken!  You'll never know how many lives your post will change.

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For more than a week, I have been narrating a story of loss from the 1992 recession and my own recovery from that loss (or, more precisely, those losses).  Had my narrative been a legal one, I would have been required to analyze my rights (if any) against the blameworthy and the remedies available to me according to the character of the blameworthy act and the nature of my loss.

As Professor Robert Rubinson has written in Client Counseling, Mediation and Client Narratives of Dispute Resolution, every legal narrative

starts, with [a] Steady State [the "Status Quo"] and the Trouble that upsets [it]: 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.

My story - at least the surface of it - was one of a (1) successful legal career (2) disrupted by the (3) Recession.  A bad legal narrative because you can't sue the economy (at least not yet). 

Rights and Remedies

If I'd wanted to assert a legal right and claim a legal remedy, I would have been required to survey the scene to locate someone whose activities were:  (1) wrongful; and, (2) a substantial factor causing my termination.  You might recall that I was told that my layoff had nothing to do with my performance and was solely caused by economic conditions firm-, industry-, state- and nation-wide.  This was kind of the firm to say to me but it  couldn't have been strictly true.  Although I wasn't among the first group of layoffs, I was in the second.  Third and fourth rounds would follow.  Some people, however, would not be laid off at all. 

So though the recession was the immediate cause of my layoff, there had to be others, many of them "rightful" but some of them possibly wrongful. In fact, more than a few of my colleagues suggested (for reasons I will not recount here) that I had a "pretty good cause of action" against the firm.  

The litigation story always assumes one party was wronged and the other was a wrongdoer.  It also assumes that one party's factual account of events is accurate ("right") and the other party's is inaccurate ("wrong").  As Professor Rubinson explains, litigation is a search for the "real source of Trouble."  Furthermore, 

[t]he 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.

The parties are successful and the adversarial system is justified when

the judge (or jury) decides that the origins of Trouble are as [one] party claims [and judge or jury] Restores the Steady State by granting relief to the party whose version of Trouble is the right one.

I may well have had a colorable or tenable or "fair" or "good" or even "excellent" legal story that would have justified using the adversarial system in an effort to regain what I had lost -- money and benefits. But I haven't told a legal story this past week, I've told a mediation story.

The Working Parts of the Mediation Narrative

Though "mediation as settlement conference," has long been part of the legal "story" in which the search for "right" and "wrong" remains paramount, as a true alternative to the adversarial process, mediation,

rejects the idea that "what happened" is a unitary or stable "truth" to be found "out there."

Instead, a primary - if not the primary - thrust of mediation is that conflict resolution entails some recognition on the part of disputants that "what happened" is informed by perspective [requiring the disputants to] "begin to acknowledge another view of the situation," or [help the disputants understand that] two [good faith but] contending perceptions coexist" . . .

According to Rubinson,

the Story of Litigation [assumes] that conflict [itself is] a breach of the norms of conduct. . . [I]n mediation, conflict is a norm of conduct, a necessary byproduct of humans having distinct experiences and personalities and needs. Conflict is thus not necessarily a disruption of the moral order, and, indeed, can sometimes be productive . . . 

The mediation narrative, says Rubinson, is set in the present, rather than the past, a present in which the parties engage in a cooperative effort to resolve the conflict in a way that meets the current needs and desires of the parties instead of "restoring" them to a state they enjoyed in the past.  This story, says Rubinson, "does not generate a binary moral universe that divides the good from the bad, but, rather a universe that values collaborative striving to achieve common ground and resolution."

Mediation accomplishes this goal by

embracing the notion that perceptions of the world (including perceptions of the actions of others) are unstable, thus enabling parties to appreciate alternative perspectives as a way to promote resolution of conflict. .  .

In the story of mediation, the "Trouble" and its "Cause" are not capable of being "discovered" and not worth the effort to "prove."  Though the Mediation Story rejects portrayals of one "side" as the "victim" and the other as "oppressor," it commences with both parties characterizing the other as the cause of their distress.  Instead of determining which party is to "blame" however, the mediation story requires the parties acknowledge one another's contradictory experiences as authentic; asks each of them to take responsibility for whatever part their own conduct might have contributed to the "Trouble" and resolves with an agreement in which the parties' present and future desires and needs are sufficiently satisfied for each to believe the resolution reached is the best they can, in good faith, do. 

These are the broad strokes.  The specific ways in which the mediation story can be accomplished (and its benefits and limitations) tomorrow.  The roles of interest-based and competitive negotiation in the mediation story later this week.

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Here's a Sunday morning homily to get this tale through fifteen years of sobriety and the career; love, marriage; and family that came with it.  It's also meant to give a little hope to the recently laid off.

There was an old farmer who lived in a shtetl in Poland.  This was before the First World War.  One day, the farmer's only horse broke through the fence and ran away. Without the horse, the farmer couldn't plow his fields.  The loss was an unfathomable catastrophe.  The farmer's neighbors came and did what they could but no one had an "extra" horse. "Such bad luck!" they exclaimed. 

"We'll see," said the farmer sagely.  "We'll see."  And the neighbors went away beginning to doubt the man's sanity.

The very next day the horse came back followed by two new wild horses that the farmer "broke."  He was able to triple his output and became one of the leading men in town.  His neighbors were amazed. 

"What good luck you have," they said, with a mixture of genuine happiness for their neighbor's good fortune and envy that it seemed to come to him so easily. 

"We'll see," the farmer responded, "but thank you very much for your good wishes."

The following year, one of the wild horses bucked while the farmer's son was riding it, breaking his leg so badly that he would never walk without a cane.

The neighbors brought food and flowers and bemoaned their neighbor's ill fortune.  A disabled son was a worse fate than a lost horse.  Once again, the farmer's fortunes diminished and the neighbors greeted him with expressions of the greatest sympathy.  "What terrible luck," they'd say and the farmer would once again respond,

"We'll see." 

A few months later, a military brigade marched through the village on the way to war, drafting all the young men for the army.  The farmer's son greeted them walking with a cane and they spat at his father.

"This young man is worthless!" they exclaimed.  "Not even good to be a foot soldier" and went their way.

"Such good luck!" said the neighbors.

"We'll see."  

A Career in the Law

Here's the problem with a small firm handling big cases.   Sometimes you win them.  And that's what happened with the case I worked on from '94 to '96.  A few months after our victory and happy celebrations, my employer walked into my office and said "I can only make payroll for two more weeks."

Fortunately, I still had friends handling the environmental insurance coverage cases I'd worked on before my misfortune landed me in Westwood.  A "catastrophe" akin to the farmer's loss of his horse.  So I returned to a BigLaw practice in a mid-size law firm where I spent the remainder of my legal career; where I met my husband; and, where I hired a brilliant young attorney who also happened to be mediating cases in the Los Angeles Superior Court.  The '92 recession also gave me literature and poetry back in the form of a writers' group of - yup - fifteen years; my literary journal; and, probably, this blog and my other writing.  Finally, it delivered me to me my genuine bliss:  a career in mediation.

Before I leave the topic of good fortune and bad, let me add only this:  I practiced law for fourteen years in various states of insobriety and have worked as a lawyer and then a mediator and arbitrator for fifteen years sober.  Whatever "the fates" had in store for me, my ability to maximize good fortune and ride out the bad, was both easier and better, when I was awake. 

The calamity of the 1992 recession was the greatest gift life had ever presented to me. 

Tomorrow, what I promised yesterday:  what any of this has to do with negotiation and mediation.

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The Life

It is 1994 and this is the view out the window of the house I am renting in Echo Park. 

At some point during this year, I moved from the basement of this house (tricked out as a college dorm room studio) to the small one-bedroom upstairs because my friend and roommate fell in love; married and left me in her Echo Park bungalow for an extremely reasonable rent.   I'd lost my condo to foreclosure and my credit cards to bankruptcy. 

I can see my 30-day "chip" in this photo, hanging from the black lamp in the corner.  The longest thirty days of my life. 

Listen, we all have something to recover from - if we're very lucky.  This was my recovery house.

I was working in Westwood, going to my writing classes and spending a lot of time in rooms like this.

There were no blogs in 1994 so I was writing a lot of letters, like this one:

I was at a loss late this afternoon, after all the company was gone and my obligations fulfilled. That restless, listless, nowhere feeling that usually precedes panic or despair.

Fortunately, the dusk and the sweet scent of the night blooming jasmine drew me outside, where, without a thought, I fell to my knees and started weeding the garden. Stooping and kneeling and breathing and weeding and moving and stooping and kneeling and breathing, repeating to myself, like a mantra, "this is enough, this is enough, this is enough. I don't need to achieve or become or produce anything more than this. This tending, this caretaking, of what is directly before me, is enough."

Pulling each tall, spindly, red-rooted weed with its wicked serrated leaves, out of the rock path leading to the compost heap, away from the rosebushes, clear of the artichoke plot, off the dirt-packed steps curving down by the bare wisteria vines, my finger-tips touching the cool damp soil around the stem of each one, pulling it slowly until I feel the tug of the earth give way and the dirt fall from the weed's feathery white roots, clearing first this patch of garden and then that one, the green piles of limp weeds growing as I move about the yard, knowing I can't do it all today, thinking I'll just clear one more area before the sun goes down, until a clean, blue strip of the horizon turns pink and magenta, vermillion and then blue-black, the lights of the city come up in the valley below me and the garden turns dark and rustling in the warm breeze.

At some time during this work, my head stopped yammering about how I should be doing something else, something more productive -- starting a new story or planning some activity that will start my new life. I just let that cranky, complaining voice yammer on while I continued to move and breathe and stoop and kneel and weed and pray, "I am doing your work, God. I am tending your garden," until a new voice said, "just as the dusk and the jasmine drew me effortlessly out into the yard to pull these weeds, I will move toward the next story and the next plan and the next activity, when it is time, when it is right, when it is effortless."

Move, stoop, kneel, breathe, pull, pray . . .

I wrote the first short story I'd written in more than twenty years during this time (Dangerous Places) and it would later be published in an online journal named Kudzu, which appears to have gone out of business just this year.  I was also writing poetry, some of which would later be published in Poet Lore, The Ledge, Kalliope, and Transformation, A Journal of Literature, Ideas & the Arts.  I also published one literary non-fiction piece in the Southern New Hampshire University Journal.  Eventually, I'd become part of Law Professor James Elkins lawyer-poet project, Strangers to Us All:  Contemporary Lawyer Poets.

In 2004, I celebrated ten years of sobriety and founded the r.kv.r.y. quarterly literary journal which I continue to edit to this day (and of which I am very proud)

The Law

I was recruited in '94 to come back to BigLaw and for the first time ever had the courage and conviction to refuse.  I had time - precious time - and enough money to suit my newly reduced needs.  My life and my heart were full.  I was, frankly, afraid to return.  I had too much to lose.

Eventually, however, I did return, working on larger and more sophisticated cases than I ever had before.  Still, something continued to be missing.

Next:  Mediation and why any of this matters to negotiation.

 

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(right, Joshua Tree, California, 1992; I'm pretty sure the statute of limitations on this misdemeanor has expired)

To go in the dark with a

light is to know the light

to know the dark, go dark.

Go without sight, and find

that the dark, too, blooms

and sings and is travelled

by dark feet and dark wings.

American Poet, Wendell Berry

Here's the thing about the recession of 1992.  It was my life that collided with it, not someone else's.  There were many lawyers in my practice group of my "vintage" who also had no book of business.  A substantial majority of them found AmLaw200 life-rafts.  They were hired by other AmLaw200 or 100 firms.  Or they formed small, specialized practice groups, took a chunk of the firm's business with them and hung out their own boutique shingles.

I was not among them.  As you'll recall, I landed in a three-man commercial litigation practice in Westwood.  The shock of this transition jarred me awake enough to begin taking writing classes at UCLA.  I didn't have as much money as I used to.  But I did have time.  And as Thoreau famously wrote - The cost of a thing is the amount of [your] life which is required to be exchanged for it, immediately or in the long run.  I was learning the cost of the first twelve years of my life as a lawyer.

The MCLE Substance Abuse Self-Study Course (with credit for California lawyers)

I was lucky.  I had what people call a "high bottom."  I'd just lost my place in the AmLaw200, not my license to practice law.  Others are not so lucky.  As of July, 2005, "42 percent of the State Bar Court’s active caseload involves attorneys with chemical dependency or mental health issues." (California Bar Journal, July 2005, A Heavy Caseload of Addiction.)

In 2003, an estimated 19.5 million Americans (8.2 percent) age 12 or older had used illicit drugs during the month prior to the survey interview.  Marijuana was the most commonly used illicit drug (14.6 million past month users, 75.2 percent of illicit drug users).

No lawyer in practice for any period of time will be surprised to read in a recent post in the blog Women and Substance Abuse that drug and alcohol abuse is twice as likely among attorneys compared to the general population.

Frank Galvin: I changed my life today, what did you do?
Laura Fischer: I changed my room at the hotel.
Frank Galvin: Why did you do that?
Laura Fischer: TV didn't work.

February 8, 1994, a Work Day Like Any Other

I've been with this small firm for more than a year and I'm liking it.  My employer handles cases far more sophisticated than I'd expected and opposing counsel are often from the AmLaw100.  I like that because the quality of lawyering is high and I get to be the underdog.  Because of my 1800-hour requirement, I've been able to take three different fiction writing seminars at UCLA and have assembled a new group of friends who are as passionate about literature as I am.  I'm feeling returned, restored to myself.  And I'm enjoying practice because it doesn't totally dominate my life.

I have a hearing this morning in our most important case - a motion for judgment in a lawsuit brought by an HMO against the hospital at which it once practiced.  I've prepared the papers and the oral argument, which is taking place in our conference room before a AAA panel of arbitrators, including the expert who provided the legal punditry on the OJ Simpson case for the E! channel (it will always be Hollywood here).  Smart guy.  Best hearing officer I've ever had the pleasure to appear before.

I'm ready for the hearing but I'm feeling a little . . . dizzy.  And I'm shaking a lot -- too much to punch the right numbers on the telephone in the office to call my doctor to see what in the heck might be physically wrong with me.  I did stop drinking and smoking three days earlier but I am not an alcoholic so I can't imagine my present state has anything to do with that.  Why am I not an alcoholic?

• I  never drink in the morning, unless, of course, it's brunch, in which case my drinks come with fruit and festive decorations.  Drinks at brunch are one of the four major food groups for goodness sakes.
• I only drink Chardonnay.  Good Chardonnay.  I'm particular about this and about the cost of the wine I buy at the Sun Bee Food and Liquor Mart just down the street on the Sunset Strip. I make a point of never paying less than $10 a bottle.
• I'm employed! and I'm functioning at a pretty high level.  I'm a good attorney and I never ever  drink or smoke anything other than tobacco on the job.
• I drink only after five (weekends excluded, of course, for festive brunch concoctions)
• calling myself an "alcoholic" would be overly dramatic, hysterical even; really, I'd just become a little bit dependent on a drink at the end of the working day (didn't everyone drink at the end of the day?) and I'd decided to lay off for awhile to see if it made any difference in my life
• I'd quit drinking three days before primarily to help me give up a two-pack a day cigarette habit.  I couldn't drink without smoking.  Cigarettes were the problem, not alcohol.
• I'd seen alcoholics before.  My best friend's father was an alcoholic.  He sat in a darkened room watching television and drinking all day.  He'd tried that antabuse medication - the medicine that makes you violently ill if you drink.  But he always drank anyway.  He was an alcoholic.

Nope.  No alcoholic here.  And I managed to get through that hearing with flying colors.  Then I went to see my internal medicine guy.

Tomorrow:  recovery.

(remember to get your 1-hour substance abuse credits above!)

And for the "worried well" here's a comparison of BigLaw severance packages from Above the Law.  Thanks to @brucecarton in my twitter network for the head's up.  Read his Securities Docket here and follow him on twitter.

 

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I'd always told myself  I was not interested in or affected by the trappings and perquisites of high-end law firm life.  But those benefits - first class travel; upscale hotels in world-class cities; and, the deference of maître d's, personal trainers and the like  - tends to skew one's view of one's place in the world.

So though I'd just been an associate, I had tasted the rewards of property and prestige.  And I represented people with a load of worldly power.  By the time I was laid off in 1992,  I'd managed to acquire the illusion of what more spiritually minded people tell me are the three primary obstacles to ordinary happiness:  property, power and prestige.

And man, do I need a drink at the end of the day because here come two horsemen of the apocalypse.  

Foreclosure and Bankruptcy.

Then there was my personal life.  Just as the career was cratering, my  post-divorce, mid-life European motorcycle-riding, Morrissey-listening, unemployed artist boyfriend, packed up his canvasses, paint brushes and acrylics and moved back to Holland.

That Lit Major Thing that You Do What You Do to Me

I have said on far more than one occasion that law school is the default career-path for the liberal arts major.  We were philosophy, political science, literature, sociology, and drama majors. If we'd had the guts (or talent we wished we had) we'd be singing, dancing, acting or writing for a living.  But we weren't.  We were lawyers.  Which meant, among other things, that we had precious little time for anything other than the law.

But here's the thing about calamity.  It tends to wake you up.  

I was talking on the telephone to a friend, bemoaning my newly single state, when it occurred to me for the first time in my life that I'd married and partnered with artists because I wasn't doing my own art.  And though my financial circumstances were greatly reduced, so were my job obligations.  I was billing 1800 hours a year instead of 2100-2300.  I had time, motive and opportunity to commit the crime of art again.  I was working in Westwood, just a few blocks from UCLA.  I called their Extension office.  I enrolled in a fiction writing class.

Tomorrow:  sobriety.  

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When last we left the damsel in distress, she'd been laid off by an AmLaw200 firm and employed by a three-man outfit in Westwood.  They promised to clean up her office, but right now it was a storage room with a desk.  Used computer equipment, wire and cords were strewn about the floor; boxes of redwelds from cases long since settled or tried were precariously stacked one upon the other; while new and used demonstrative exhibits leaned against all four of the black scuffed beige walls. 

Just the facts.

• I'm making exactly one-half the income I previously made
• my new firm provides me with health insurance, but no other benefits
• I don't have access to Westlaw or Lexis, but am provided with a set of  3 and a half inch disks that contain California cases and Witkin
• I don't really have a secretary - there are two but they are "taken" - if I ask nice, once in awhile one or the other of them will do me an administrative favor, like format a pleading.  

(cartoon by the brilliant Charles Fincher of LawComix.com)

Although I continue to practice general commercial litigation, everything about my practice seems slightly off. Like in that Ray Bradbury story (A Sound of Thunder) where wealthy game hunters go back in time to bag themselves a dinosaur only to return to a subtly skewed "present."  One pulls the wings of a prehistoric butterfly from the sole of his shoe.  The butterfly effect.

I make telephone calls to opposing counsel and am treated with less respect than I had previously been accorded.  I make court appearances.  The Judges are no longer slightly deferential.  They do not ask after any of my locally famous partners.  My new clients are rougher around the edges.  More "street smart," less polite.  There are no paralegals; no "IT" guy; no word processing department; no embossed business cards. 

Then there's my boss.  My boss hums when he eats.  If he walks into a room, the furnishings fall into greater degree of disorder as if to accomodate themselves to his style, which is aggressively messy.  

I drive home one late summer evening and tote up my bills.  The housing market has crashed and my condo is underwater.  I owe the homeowners' association five grand - then a considerable sum.  I cannot pay the HOA and my house payment as well.  I have other bills.  I'd just returned from rafting rivers through Costa Rican rainforests when I was laid off.  I'd been too busy to keep track of my expenses.  

It seems that I have, finally and quite irrevocably, failed.

Tomorrow:  a New Life

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When last we left Pauline on the train tracks, it was 1992 and she was being laid off by a law firm that paid her AmLaw100 salary and benefits.  Oh right.  That's me.

Network, network, network

I hadn't consciously built a professional network in 1992, but was fortunate that it had more or less been created for me.  I'd been handling environmental insurance coverage cases in the 8- to 9-figure range for a major international insurance carrier.  That carrier generally issued first level excess coverage to the Fortune 500 companies who claimed that their insurance carriers were obliged to defend and indemnify them for toxic cleanup actions.  Because those companies sued all their carriers both up and across the coverage profile, we litigated the cases in groups.  Joint Defense Groups.

The lawyers in the Joint Defense Groups worked together, strategized together, traveled to depositions together, and often settled cases together.  We appeared in Court together, argued motions together, worked on appeals and writs together, and played together as well.

So I turned for employment assistance to my friends and colleagues in the Joint Defense Group.  You'll remember that I was a twelfth year associate with no book of business, i.e., I had a marketing fool (myself) for a client (myself).  

I was not in demand at the level of practice I'd been working at.  Nevertheless, I had a lot of contacts in the Los Angeles legal community, who in turn had contacts.  As a result, I was unemployed for fewer months than my severance pay lasted.

But . . . . .

. . . I was about to cross the divide from one legal profession to another . . .

The peak on the right represents . . . law school graduates [who] joined . . .  commercial law firms. They are earning [between] $125,000 - $150,000 + per annum as they start [their careers]. . . . This peak, furthermore, is moving inexorably to the right in response to increased demand by these firms for premier entry level talent . . .

The peak on the left is a different matter. It represents all . . . law school graduates who are following career paths other than the top tier commercial law firms. They peak [around]  $35,000 to $40,000 compensation per annum[;] [r]oughly $100,000 a year less than their peers on the right!

From Rob Millard's Adventure of Strategy, America's Two Legal Professions, 24 September 2007.

Tomorrow, from tall buildings with sleek interiors to a storage room in a three man law firm. 

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The last recession is vivid in my own mind because an AmLaw200 /1 law firm laid me off in the Spring of 1992 - a year after the recession's "official" end in March of 1991.  As the U.S. government's Monthly Labor Review Online explains in The 1990-91 recession, the "end" of the recession wasn't much noticed by the labor market which

• continued to deteriorate long after other economic indicators began to improve and the official ending date of the recession was chosen. 

• resulted in job losses for white-collar workers in general, and workers in the finance, insurance, and real estate industry in greater numbers than at any time in the past 

• created many more unemployed workers who would not be rehired when the economy improved than experienced in downturns.

Those, of course, are just the statistics and no lawyer laid off by AmLaw firms in the past few months is much interested in yesterday.  They are rightly focused upon today and tomorrow.  /2  That's the focus of this piece -- today and tomorrow -- even though my 1992 "today and tomorrow" took place more than a decade ago.

Success or Failure

I teach a lot. Sometimes in law schools, sometimes in law firm settings, sometimes for the National Institute of Trial Advocacy, and sometimes in business schools.  The young people I teach are understandably concerned with one of life's "big" questions: 

WILL I BE SUCCESSFUL?   

My answer -- "sometimes" -- may sound glib, but it's one of the few pieces of genuine wisdom I have to offer from the tail end of the legal career path.  Sometimes you will be successful and sometimes you will fail.  Sometimes your failure will be wholly circumstantial and out of your control - layoffs because of national and international economic calamity, for instance.  Sometimes your success will come because you were in the right place at the right time.  And sometimes it will be the result of persistence, hard work, talent, skill and courage.  Usually, success and failure will be a combination of all of these factors. 

So begins my cautionary and hopeful tale.

The fall from a very high perch

The years 1989 through 1992 were among the most "successful" of my legal career if you measure success the way attorneys in the higher echelons of the profession tend to do - by the complexity and size of the cases I was handling; the prominence - both monetarily and reputationally -- of my clients; the parties opponent; and, opposing legal counsel; and, my salary - then pegged to an AmLaw 100 standard.

I was really busy and not paying that much attention to the economy.  I'd just bought my first ever sports car.  New.  Hot.  Turbo-charged.  And I'd been living in a newly acquired condominium just below the Sunset Strip for less than a year.  I was single and travelling a lot.  My colleagues were high-flyers and I slip-streamed behind them.  I was also . . well . . drinking a lot.  See Wikipedia, Early 1990s recession ("Like all recessions, the one of the late 1980s and early 1990s had a profound impact on society. Rates of alcoholism and drug abuse increased, as did rates of depression.")

People were being laid off but I knew their fates were tied to performance rather than the contracting economy.  My father, god rest his soul, had the following to say when I told him how much money I was making:

"I'm worried about you."

"Why?"

"Because you now have so far to fall."

Lay Off

The managing partner was a "buddy" of mine.  You know the type.  More than a colleague and less than a friend.  A member of the posse our practice group formed in the firm.  We'd biked 50 miles from Rosarita to Ensenada together.  Drank together.  Danced together.  Talked about who was interested in who together.  The male lawyers in the group had created a quite public "impunity" list of the  women lawyers they could sleep with "without impunity."  Everyone thought it was funny.

So, like I said.  I wasn't paying attention.

The managing partner took me to lunch.  We had a couple of drinks.  He told me the firm was laying me off.  I felt like I'd been punched in the stomach.  Tears welled up in my eyes.  I had trouble catching my breath.  The firm would pay me three months severence.  They'd hire me a head-hunter.  I could use the office or leave as I chose.  It didn't have anything to do with my performance.  

I was a twelfth year associate with no book of business.  I was making a lot of money with liberal bonuses, and tremendous benefits.  And I was pretty much spending all of it every month.  The new car and the new condo.  An expense-account life-style I'd taken on when not on a business trip.  An attitude.

Sound familiar to anyone?  Next post, unemployment.   

_______________________

1/  Although the AmLaw 200 did not come into existence until 1999, the firm that laid me off in the Spring of 1992 would likely have been a member.  Most pertinent to this story, that firm was paying its associates AmLaw100 salaries.

2/  According to Law Shucks Layoff Tracker As of February 13, 2009, there have been over 4,376 layoffs since January 1, 2008. There have been 2,614 in calendar 2009 - 1,071 in February alone.

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I've scaled my MCLE way back this year, including any continuing education that requires travel unless, of course, it's something I'm speaking at to continue growing my business.  Some MCLE courses, however, stay on my radar -- particularly those that don't require me to leave the office and that teach me skills to help me thrive in hard times.  This IP settlement webinar is one of those continuing education courses I'd attend unless I thought I was already the best settlement attorney I could be.  So seriously consider joining me and Chicago-IP lawyer extraordinaire R. David Donoghue of Holland + Knight for Hard Times? Learn How to Negotiate the Best IP Litigation Resolution

ADR in IP Litigation from ALI-ABA

Wednesday February 18, 2009 from 1:00-2:00 pm EST

Why Attend?

In a difficult economy, intellectual property protection and assertion is more important than ever. The combined stressors of a poor fiscal climate and shrinking legal budgets place a significant strain on any business dependent upon IP assets. as companies face difficult economic decisions, it is increasingly difficult to fit the expense and extended uncertainty of copyright, patent and trademark litigation into a forward looking business plan. This one-hour seminar explores the use of alternative dispute resolution as a means of protecting intellectual property and business activity, while minimizing the expense and devotion of time related to traditional IP litigation.

What You Will Learn

This program examines how to move an IP dispute toward alternative dispute resolution; best practices for controlling the expense and length of the process; and best practices for successful alternative dispute resolution. Whether you are an experienced IP practitioner or simply one grappling with IP issues in your general commercial practice, knowing how to offer your clients a wide array of ADR options might make the difference between a practice that survives and one that thrives. The seminar will cover the following topics:

How to choose between litigation and ADR.

• The most successful strategies for guiding your dispute into the best ADR forum at the most productive time.
• The five basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations.
• The five ways to “expand the fixed sum pie” by exploring and exploiting the client interests underlying your own and your opponents’ legal positions.
• The Ten Mediation/Settlement Conference Traps for the Unwary.
  

Invest just 60 minutes at your home or office to learn about alternative dispute resolution in the IP field from this duo of experts. This audio program comes to you live on Wednesday, February 18, 2009, 1:00-2:00 pm EST, via your phone or your computer. Materials corresponding to the course may be downloaded or viewed online.

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Lawsuits arise from a process social psychologists call "naming, blaming and claiming."  I broke my toe last week (youch!)  when I was talking to my husband from another room and walking into a closet to hang up my jacket.  Jammed it on the door frame, once again engaging in the risk-courting activity of walking and talking at the same time.

If I were mentally ill, I suppose I could go so far as to name my husband as the source of my own lumpish carelessness; blame him for my injury; and, claim some sort of recompense beyond his willingness to kiss my toe to "make it all better."

"Well, I guess that doorway was just too narrow," my husband the litigator joked.  "I suppose you could sue the architect."

Much litigation flows from incidents nearly as foolish as this.  If you'd like to see a collection of such outrages, you likely already know where to go -- Walter Olson's Overlawyered where suits against McDonalds for obesity and the like can regularly be found.  Today's entry, about the alcoholic who sued Marriotts "after falling over a stairway while plowed" is a prime example.

Naming, blaming and claiming (as well as the litigation that flows from this process) will always be with us.  But if you have some degree of communication with the people likely to name and blame you before making a legal claim against you, an understanding of the social psychology behind that process may well help you understand and deal with the problem "on the ground," i.e., short of suit.

Today, I'm directing you to Attributing Blame — from the Baseball Diamond to the War on Terror as a good primer on the process and its underlying cause -- Fundamental Attribution Error.  Link courtesy of @JuryVox who any litigator or dispute resolver should be following on Twitter along with @annereed.

Whenever we witness something harmful or unexpected, we humans look to make attributions of causation, responsibility, and blame. Social psychologists have been studying the way we make those attributions for the last half century. Part of that research, known as attribution theory, focuses on how we draw inferences about how much control people exert over their behavior: the more control they appear to exert, the more we hold them responsible or blameworthy for the consequences of their actions. To assess control, we draw inferences about, among other things, whether the person acted volitionally or intentionally and about the person’s motivation. When we think an injurer acted intentionally and maliciously we attribute blame — which is accompanied by a desire to punish the injurer and to compensate the victim.

This naive psychology of blame attributions is fairly automatic and depends on more or less instantaneous impressions. And although our attributions result from inferences of, among other things, intent and motive, we are hampered by the fact that we cannot directly access someone else’s motives or intentions (in fact, we’re not very good at ascertaining our own). And, often, the individuals who we are judging have an interest in presenting themselves as innocent — regardless of the truth of the matter. In making attributions about another person’s harm-causing actions, therefore, we are often forced to rely on imperfect external cues. Conflict between individuals and groups often emerges precisely because attributional ambiguity leads to divergent interpretations and reactions. What a victim might perceive as outrageous, an injurer might construe as merely unfortunate or even richly deserved. The legal system is caught up in these attributional contests every day. For instance, most of tort law — in doctrine and in practice — is devoted to the question of resolving competing attributional accounts for the same personal injury.

Continue reading at the linked headline above.  My most popular article on this process - Conspiracy Theories and Granfalloons can be found here.

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From the Department of Counter-Intution we learn that our general assumption about pre-trial discovery -- that the open exchange of information will help align the expectations of disputants and increase efficiency by facilitating settlement /1 -- is probably inaccurate.

In When Ignorance is Bliss:  Information, Fairness, and Bargaining Efficiency, George Loewenstein, Department of Social and Decision Sciences and Don A. Moore, Graduate School of Industrial Administration, at Carnegie Mellon University, tell us that when "information . . . is complex or ambiguous enough to allow for different interpretations" by opposing counsel,

[s]elf-serving interpretations of fairness encourage biased estimations of the probability of prevailing in court and lead people to hold out too long, fight too hard, and settle too slowly.

Simply put, because we interpret incoming information as confirming -- and often strengthening -  our existing views, the "convergence" of adversarial views pre-trial discovery proponents hoped for, does not occur.  Rather, discovery tends to increase the parties' belief in the rectitude of their analysis, thereby proportionally decreasing the potential for settlement.  As Loewenstein and Moore explained:

In studies examining the self-serving bias, the magnitude of the bias was an extremely strong predictor of impasse, and two different manipulations that eliminated the bias led to close to 100 percent settlement compared to an impasse rate of about 25 percent in the absence of such debiasing.

The full article is well worth reading even though much of it is burdened with academese.

Because we attorneys pride ourselves on being able to "see the other side," here's an article entitled Confirmation Bias in Complex Analyses about a study in which intelligence analysts were provided with an analytic tool to help them overcome confirmation bias.  The tool -- Analysis of Competing Hypotheses -- was an

hypothesis testing matrix,” where the rows represent the evidence, the columns the hypotheses under consideration, and the cells the extent to which each piece of evidence is consistent or inconsistent with each hypothesis. The goals of the ACH matrix [were meant] to overcome the memory limitations affecting one’s ability to keep multiple data and hypotheses in mind, and to break the tendency to focus on developing a single coherent story for explaining the evidence—a tendency which [other researchers] hypothesized create[d] predecision distortions (and presumably the confirmation bias).

ACH [was] hypothesized to offset confirmation bias by ensuring that analysts actively rate evidence against multiple hypotheses and reminding analysts to focus on disconfirming evidence.

Absent the template, the process sounds a lot like that we attorneys use to test our theories and evaluate those of our opponents'.  Alas ACH provided the least amount to help to those study participants with professional analytic experience.  As the authors report, "ACH had no impact at all" on the professional analysts' tendency to give greater weight to the evidence that supported their theories and less to that which disconfirmed them.

What to do?  I'll attempt to find an answer before writing my next post.

______________________

Loewenstein and Moore quote Richard Posner on this expectation as follows: 

a full exchange of information…is likely to facilitate settlement by enabling each party to form a more accurate, and generally therefore a more convergent, estimate of the likely outcome of the case.

Richard A. Posner (1986:525) Economic Analysis of Law (3rd ed. Little, Brown 1986)

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Below, an excerpt from my article, Revisiting the Gauntlet In Monday's Los Angeles Daily Journal (subscription required)

According to statistics being updated monthly at the "Law Shucks" Layoff Tracker  10 national law firms have each axed between 50 and 270 lawyers since the first of January. During that same time, half a dozen others have laid off between 25 and 50 working attorneys. Bloggers and legal pundits who have been predicting the demise of "Big Firm" practice for years have been reporting these numbers (along with last year's collapse of giants such as Heller Ehrman) with ill-concealed delight.

As the recession and its effect on legal practice deepens, it is time to revisit Lauren Stiller Rikleen's 2006 indictment of law firm management practices, "Ending the Gauntlet - Removing Barriers to Women's Success in the Law." Rikleen, the executive director of the Bowditch Institute for Women's Success and equity partner at Bowditch & Dewey, suggests that women lawyers are the canaries in the mine shaft of modern legal practice - sending unintended early warning signals to management of the threat its present inefficiencies pose to the entire enterprise.

"Ending the Gauntlet" was and is meant to counter the widespread belief that women leave BigLaw in outsized numbers because they "don't want to work as hard" or "are more dedicated to their families" than their male counterparts.

Statistics tell the tale. In 2005, two full generations after women entered the profession in droves, the Massachusetts Bar Association reported that while 32 percent of its male members earned in excess of $150,000 per year, only 12 percent of its women did so. Women were not only under-represented at the higher levels of compensation, they were also over-represented at the lower, with 75 percent reporting earnings of less than $101,000 per year compared with 47 percent of the men. Three-thousand miles away, in Washington state, a 2001 survey of private law firm compensation by gender showed that 77 percent of the highest earners (the top 25 percent) were men while 62 percent of the lowest earners (the bottom 25 percent) were women. Even more troubling, a 2004 nationwide study reported that the overall gap in earnings between male and female attorneys was 60 cents on the dollar, worse than in the workforce generally [this 2005 Forbes article says 69 cents].

Subscribers to the Daily Journal can continue reading here.  I'll post the full story after the DJ article runs.

For those following the unemployment statistics, take a look at this very scary chart or go to the extended entry.

 

Continue Reading...

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The British call layoffs "redundancies."    I prefer the American term - layoff -  because it focuses on the employer's need in times of economic stress ("I can no longer afford to pay you and so must lay you off) to the British locution which focuses on the employee's presumed inefficiency ("because your work is being performed (better?) by others, you have become redundant.")

Why the attention to semantics?  Because in times of massive law firm layoffs (see Law Shucks Lay-off Tracker here) you don't want today's efficiency become tomorrow's crushing legal liability. 

Lawyer Layoff Paranoia by the brilliant Charles Fincher at LawComix.com.

So how do you avoid the looming threat of litigation by laid off employees?  According to researchers, you terminate graciously, honestly, with expressed respect and compassion, and, if possible, with offers to help the laid off employee find work and replace critical benefits such as health insurance. 

Why do terminated employees bring suit?  It's not, as I'm always saying, just about the money. 

Researchers have found, for instance, that:

• Feelings of unfair, insensitive treatment at the time of termination had nearly twice the effect of the next most potent factor in bringing suit.
• Blame was not strongly related to the claiming process 
• There is some, but slight, support for the proposition that certain groups -- women and minorities - are especially likely to sue
• Perceptions of poor on-the-job treatment motivate lawsuits as much or more than an individual's belief in his or her ability to prevail in litigation
• the shorter the notice of termination, the greater the likelihood of suit

Finally, and most importantly for law firm management, the best predictor of a former employee's willingness to file claims for wrongful termination was highly educated respondents.

Researchers have also catalogued the most common on-the-job experiences that lead to litigation, including most prominently,

• negative experiences with supervisors;
• the belief that processes used by the supervisor are unfair.
• violations of procedural justice (the perceived fairness of the procedures by which outcomes are determined)
• perceived violations of equity and distributive justice  (the perceived fairness of outcomes)
• perceived violations of interactional justice  (the perceived fairness of the nuances of interpersonal treatment)
• survivors' attitudes toward their organization are strongly associated with their beliefs about the fairness of the manner in which their companies laid off other workers
   

"Blaming and claiming" activity (lodging grievances; seeking relief from the EEOC; retaining legal counsel to file suit) is strongly correlated with the manner in which employees are terminated.

Why?

Because Termination Causes Employees to Reevaluate Fairness in Working Conditions.  And you do not want to give employees the opportunity to reevaluate those conditions in light of their last employment experience - termination - unless that experience is positive.

The researchers have found that:

• people react strongly to nuances of treatment and style at the time of termination
• the quality of dismissal affects people’s decision to bring suit as much as termination itself.
• a fair, honest, and dignified termination should substantially reduce the temptation to retaliate through litigation.

The experts therefore recommend that employers:

•  treat their laid-off or fired employees with compassion and respect at the time of termination
• give several weeks advance warning to all laid-off or fired employees
• provide terminated employees with help in finding new employment
• give terminated employees honest accounts for the cause of their termination
• provide transitional alumni status to terminated employees when possible
• provide symbols of positive regard to terminated employees such as letters of reference, departure gifts or parties
• offer counseling services to terminated employees to ease the psychological shock of employment termination

According to a recent ABA Journal article entitled One Lawyer Layoff Saves an Average of $250,000 also notes that:

• some of the savings from layoffs is initially eaten up by severance payments
• at least one firm chairman indicated that the firm pays about $7 million in severance for every $10 million saved in compensation
• another firm chairman estimated that it takes about nine months before any savings are realized by lawyer layoffs.

If law firms don't want these savings to start bleeding red ink, they'd do well to study "naming, claiming and blaming" behaviors of terminated employees and to implement processes and procedures to reduce the potential for litigation flowing from these cost-saving measures.

For further reading, see my own Power Point Presentation from which most of the above statistics were taken here and the article from which most of that information was derived:  The Winding Road from Employee to Complainant here.

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It's the British, of course, who we have to thank for the common law, the adversarial system of justice and that most lyrical denunciation of lawyers' passionate pursuit of legal procedure, Bleak House.  Charon QC is a serial podcaster, writer and producer of the satiric online soap opera West London Man, founder of the largest private law school in Great Britain, and all around QC about town.

My postcast interview with the great QC is here and his own is below.

Podcast 94: US lawyer Victoria Pynchon on ADR, mediation and settlement in the USA

Today I am talking to Victoria Pynchon, a US lawyer based in Los Angeles, California. She was a commercial litigator and trial attorney for 24 years before shifting her practice from representing clients in court to helping lawyers settle lawsuits hat involve greater risk, expense or time than their clients wish to expend. She this work through Judicate West Dispute Resolution Services, serves as a private judge (arbitrator) for the American Arbitration Association, is an adjunct professor at Pepperdine University and blogs at IP ADR and Settle it now. Interestingly Vickie also acts as a sherpa for Blawg Review the international rolling carnival of law bloggers and is on Twitter.

So who is Charon QC?  Let him tell you himself in this Podcast Interview at Family Lore, the blog of British family law attorney John Bolch.  To get an even better idea of Charon QC and the many reasons to read his blog, I give you his own introduction to himself at Charon QC the Blawg.

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I play squash.

I learned to play the game when living in New York and continued to play at U.C. Davis (Law School) which had both regulation courts and racquets to lend. 

At a time when racquetball courts were being constructed with the speed of social media sites, I continued playing squash for pretty much one reason:  I'm a woman and just about any (mostly male) colleague I played with could beat me out of sheer physical strength.  Though both games require strength,  squash requires finesse and strategy more. 

How did I get my legal colleagues off the racquetball court and into my game of  squash?  Simple.  I told them I had no chance of beating them in their game (flattery, ingratiation, a "contentious" dispute resolution tactic) but that I was confident I could beat them at mine (challenge or "threat," also a "contentious" tactic).

So what do I mean when I say you have to "win" your litigation before you can settle it?  I mean you need to get your adversary playing on your court and actually win a few rounds.  You can shake your stick and fulminate and threaten, but unless you're capable of actually winning, your adversary's Best Alternative to a Negotiated Agreement (his BATNA) is beating the pants off you at trial or watching you fold like a lawn chair on the courthouse steps.  

In most litigation, the first chance you have to prove your trial skills is in a deposition.  Yes, you want to obtain information and that's pretty easily done so long as you remember to ask reporter questions (who, what why, when, where and how).  You shouldn't, however, stop there.  Show opposing counsel that you can also theory test and undermine his witness' credibility on a few points, without giving away your entire game plan.

Whether you win by smashing the ball deep into your adversary's court or by aiming it oh so close to the "tell," letting it softly roll to the floor while your adversary is panting by the back wall, you must win on strength or skill or finesse (whichever you're best at) before you're entitled to "win" by way of settlement.  

That being the case, I give you the first of a three-part series on how to lose the game at deposition, a challenge to get you thinking about "winning" it there.

From Illinois Trial Practice: 

 15 Ways to Ruin a Deposition (Part 1 of 3)

In this series of posts, I'll dig into the archives of The Trial Practice Tips Weblog and highlight some of my prior posts about depositions. Although you can see all of these post in this weblog's deposition category, I thought I'd try to reorganize some of them in a new way.  

I'll begin with the first five ways a lawyer can ruin a deposition. I've been guilty of all of them at one time or another--

2. Failing to investigate the witness online. Just a few minutes of Internet research can turn up lots of things about a witness you didn't know before.  Here's a post about that: "Deposition Tip: In Preparing for a Witness, Always Check the Web."

3. Trying to wing it. Maybe you're so good that your only preparation is getting to the deposition on time. Sound foolish? It is. See this post: "The Dangers of Winging It in Depositions."

4. Neglecting the preliminary questions. Those cookie-cutter questions lawyers ask at the beginning of a deposition have a purpose. Don't skip the "you know you're under oath"-type questions, but don't turn them into a speech either. Here are two posts that make these points: "Those Preliminary Deposition Questions: What's Their Purpose?" and "Those Preliminary Deposition Questions: Don't Make a Speech."

5. Assuming the witness is telling you the truth. As human beings, we're conditioned to believe what people say. I feel like I am, at least. That's why I'm constantly making this mistake, even though I wrote this post: "Practice Tip: "Assume Your Deposition Witness Is Lying."

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Savvy Lawyers Value Their Human Capital by Victoria Pynchon and Gini Nelson at The Complete Lawyer.

These are hard times and none of us is immune. I’ve been here before. In the early 1990s, my law firm announced we would ride out the economic crisis by henceforth buying legal pads without our firm name embossed on the binding. Layoffs of partners, associates and staff quickly followed. Some caught life rafts to other law firms; some were not so lucky. Those who stepped on others going up the compensation ladder were not treated well on their way back down. The water was cold and filled with sharks.

Read full article here.

Other great articles in this month's issue of The Complete Lawyer:

How Will You Thrive in an Uncertain Economy by by Sandee Magliozzi and Susan Beneville

Solos Have Unique Advantages During Harsh Economic Times by the indefigitable Susan Cartier Liebel

Your Firm's Future is Tied to Your Referral Sources by Shawn McNalis

. . . and much much more!

While you're on the topic, read The Top Five Reasons Why Clients Leave and How You Can Prevent It by Jeffrey Miller and Jill Kohn.

 

 

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Wheat and Chaff: Juries and Litigation

Let me tell you a short story.

A senior in-house lawyer is meeting with the CEO to talk about a problem the in-house lawyer had been asked to solve.  The in-house lawyer describes how his efforts at negotiation had failed, so he had taken steps to find a random person off the street so that person could resolve the problem for the in-house lawyer.  The CEO looked at the in-house lawyer like he was out of his mind.  The in-house lawyer, now worried by the CEO's reaction, asked if the CEO would feel better if he instead chose 12 people randomly from off the street.  The CEO fired the in-house lawyer.

Does anybody think the CEO is crazy?  Me either.  But let's rerun the story with three extra sentences.

For remainder of story, run right over to Patrick J. Lamb's blog, In Search of Perfect Client Service.

Knowing that a bench or jury trial is the only Better Alternative to a Negotiated Agreement (BATNA) what's a concerned CEO to do?  No, I'm not going to say "hire a mediator."  I'm going to say this.  Hire a litigator who understands and is skilled at interest-based bargaining.  The mediator, after all, is your last option.  You need an attorney who maximizes the potential for the best negotiated resolution possible at every major turning point in the litigation.  If you've hired a hot-head litigation firm, that's good.  There's absolutely nothing wrong with playing hardball.  Just make sure you also have available the litigation marital counselor -- at least one attorney in the hardball lawfirm, or settlement counsel outside of it, who is able to call a cease-fire and bring the parties to the negotiation table.

I like what Patrick J. Lamb has to say in his blog and in his bio.  He's got big firm background and 21st century thinking.  If I were looking for a business litigator/dispute resolver/efficiency machine, it's to people like Patrick I would go.

Also, see today's post at the IP ADR Blog about patent infringement jury trials and what you don't know about what your jury is thinking can hurt you.

 

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It's getting very late in hour eleven of the mediation and everyone is tired and cranky.  We've agreed upon:

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

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

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

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

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

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

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

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

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

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

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

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

 

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The anger, suspicion and ill will that has characterized the first eight hours of this mutli-party, eight-figure antitrust mediation is about to heightened as I deliver Defendants' terms:  they will pay the settlement agreed upon in six equal yearly installments over three full years without any security to back it up.

Are you wondering what your mediator is thinking at times like this?

Aaaarrrrggggghhhhhhhhhhhhhhhhh!!!!!!!!!!!

That "thought" is momentary, however, like the cry you squelch when the trial judge does something like, say, grant the other side's motion to disqualify your expert witness during the second week of trial. 

I don't have a plan, but I do have ideas.  Just as my suggestion that we use a bracketed offer to break impasse had eventually done just that, I'm already thinking of ways that the parties' most intractable and conflicting positions might move them toward agreement.

"They can wait," defense counsel is saying, "or they can try the case in February and see if they can collect it," to which a principal adds,  "this puts them on our side for a change.  If we make the money we believe we can, they'll benefit too."

"I thought you said you knew you could," I say, laying groundwork for the contingency ahead. 

"Yes, absolutely.  We know we can."

Back in the Plaintiffs' caucus room, the parties and their counsel aren't simply angry; they're flabbergasted.

"They sand-bagged us," says Plaintiffs' counsel.  "We'll report this to the Judge.  They didn't come here in good faith.  They're deliberately wasting our time."  

After some calming discussion about why the cash-poor defense would deliberately pay their own attorney and one-half of my daily fee in bad faith . . . a question to which no answer ever eventuated . . . Plaintiffs and their counsel begin to confidently predict the defense's inability to make a single installment payment.  Plaintiffs believe the defendants have resources - secreted away somewhere - but will never use them to settle this case.

When the temperature of the room has diminished to that of the sun's surface rather than its core, I ask about the possibility of a stipulated judgment in the event of default. 

"In a sum you hope the jury will award you at trial," I proffer.  "If you're right; if they have no intention, nor any ability, to pay even the first installment, you'll be in the same position on default that you'd be in if you prevailed at trial.  And if they're capable of paying, they're much more likely to do so if the alternative is a mutl-million dollar judgment against them."

Though the total sum of the Stipulated Judgment is the main topic of discussion over the following two hours, the parties' insistent conflicting predictions for the future make it all but inevitable they will eventually reach agreement.  If the defense never pays, the Plaintiffs will have their judgment more or less immediately, without the burden of proving it up.  And if the defendants are good for their word that they can service the "debt" the settlement agreement creates, they never have to worry about this potential judgment becoming a reality. 

The Stipulated Judgment as Contingency Contract

As Professor Leigh Thompson of the Kellogg School of Management, Northwestern University, writes in The Mind and Heart of the Negotiator, the contingencies built into the parties' agreement (and the Stipulated Judgment providing for its enforcement) permit them to use their differences to reach agreement - betting on their own predictions for the future and protecting themselves against their worst fears about the other.  As Professor Thompson instructs:

Often, a major obstacle to reaching negotiated agreements concerns negotiators' beliefs about some future event or outcome.  Impasses often result from conflicting beliefs that are difficult to surmount, especially when each side is confident about the accuracy of his or her prediction and consequently uspicious of the other side's forecasts.  Often, compromise is not a viable solution, and each party may be reluctant to change his or her point of view.

Fortunately, contingent contracts can provide a way out of the mire.  With a contingency . . . differences of opinion among negotiators concerning future events do not have to be bridged; they become the core of the agreement. . . . [Parties] can bet on the future rather than argue about it.

Here, the agreement calling for a Stipulated Judgment of sufficient size to deter default, allowed the parties to:

1. bet on rather than argue about their different forecasts for the future;
2. manage their decision-making biases (overconfidence and egocentrism) by building them into the settlement agreement itself;
3. solve the trust problem by creating a contingency (judgment) against the unknown ability of the defendants to perform
4. diagnose the other side's honesty by "daring" him to bet on his own predictions
5. reduce risk through sharing the upside gain (defendant will pay) and the potential loss (defendant will default)
6. increase defendants' incentive to perform at or above contractually specified levels.

See The Mind and Heart of the Negotiator, The Six Benefits of Contingency Contracts, Box 8-2.

There's more, however.  The parties agree to the Stipulated Judgment in principle and sum during hour eleven and we've got three more hours to go.

Stay tuned!

 

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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.

 

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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."

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

Date:_________________

Stipulation for Settlement


    VS.                           

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

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

• Settlement / Release Agreement   Prepared by _____plaintiff_____defendant

• Request for Dismissal     Prepared by _____plaintiff_____defendant

Other____________________________________________________________

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

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

What do you do?

My own answers in next post.

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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.

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

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

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

NOW!

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Daily Journal Newswire Articles www.dailyjournal.com © 2009 The Daily Journal Corporation. All rights reserved.

FORUM (FORUM & FOCUS)  •  Jan. 08, 2009 Every Case Is a Winding Road FORUM COLUMN 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. To read entire article, click here. Here's a .pdf of the article taken from the "hard copy" of the paper.

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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.

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Dear Colleagues:

On behalf of the UCLA Mock Trial Program and the UCLA Anderson School of
Management, I am inviting you to volunteer as a trial judge or scoring
judge at the 2009 UCLA Mock Trial Invitational Competition on Martin
Luther King weekend, January 17-19, 2009. The trials will be at UCLA Law
School and the UCLA Anderson School. This year’s case involves a civil
defamation case where a political candidate was wrongfully accused of
murder by a national news network. The case has both civil and criminal
law aspects. No prior trial experience is necessary to serve as
volunteer judge.

You'll see college students present Openings, Closings, Direct & Cross
Examinations. Trial judges will rule on objections and introduction of
exhibits, while scoring judges will rate the students' performances.
Some of the top teams in the nation will compete, and most of the
California colleges will be there (UCLA, USC, UCI, Cal, Stanford, etc.)

I have attached a Word file containing detailed information about the
3-day event. You can volunteer on Saturday, Sunday and/or Monday (Jan.
17, 18, 19). If any of you can volunteer to judge for one or more of
these rounds we would be very grateful. Parking and meals will be
included! Please e-mail or call Associate Dean Gonzalo Freixes of the
UCLA Anderson School (faculty advisor for the UCLA Mock Trial teams) if
you can help us out at gonzalo.freixes@anderson.ucla.edu or
310-794-6640. Thanks for your consideration and Happy Holidays.

-Gonzalo

Gonzalo Freixes, Associate Dean
Office of Professional MBA Programs
The Anderson School at UCLA
110 Westwood Plaza, Suite A101f
Los Angeles, CA 90095-1481
gonzalo.freixes@anderson.ucla.edu
Phone: (310) 794-6640
FAX: (310) 825-3165

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I'd stop flogging this dead horse if I didn't have to weekly convince litigants of their own enduring human tendency to prefer relative well-being over absolute material possessions.

This week, that "news" is brought to you by the New York Times to explain why a surprising number of us have not been made terribly unhappy as our financial fortunes decline.  As Op-Ed contributor Sonja Lyubomirsky (of The How of Happiness: A Scientific Approach to Getting the Life You Want) observes today:

the economists David Hemenway and Sara Solnick demonstrated in a study at Harvard, many people would prefer to receive an annual salary of $50,000 when others are making $25,000 than to earn $100,000 a year when others are making $200,000.

Why? Because we "care more about social comparison, status and rank than about the absolute value of our bank accounts or reputations."  In other words, we're more concerned with justice (fairness) than we are about the money.  Which is why our clients have sought out our help with their personal, financial and commercial problems -- because we're in the justice business.  When we understand this, the negotiation of financial settlements becomes a whole lot easier because there are many more ways to deliver justice than by throwing money at it.  

Read the full (short) article Why We’re Still Happy here.

 

 

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Book Review of Conflict Revolution; Mediating Evil, War, Injustice and Terrorism: How Mediators Can Help Save the Planet by Kenneth Cloke reviewed by Victoria Pynchon - Get more College Essays

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From E-discovery implications of Twitter at Lawyers USA

The social networking site Twitter.com allows users just 140 characters to describe what the user is up to – a post known as a "tweet."

But lawyers advising clients on e-discovery or using Twitter themselves need to realize that tweets are discoverable.

"Twitter posts are like any other electronically stored information," explained Douglas E. Winter, a partner at Bryan Cave in Washington, D.C. and head of the firm's Electronic Discovery unit. "They are discoverable and should therefore be approached with all appropriate caution."The increasing popularity of Twitter has made electronic discovery even more complicated.

Litigators!  Remember, you and your opponent(s) have a choice. It's not only in arbitration that you can make your own law, but by way of stipulated case management orders cooperatively crafted with an eye toward relative cost and likely benefit (ask me for a template!)

I don't need to tell you that clients are cutting back in 2009.  The litigation practice that thrives will be the most efficient and effective dispute resolution vehicle on the road.

And now, for your moment of zen - Charlie Dickens.

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.

Jarndyce and Jarndyce has passed into a joke. That is the only good that has ever come of it. It has been death to many, but it is a joke in the profession. Every master in Chancery has had a reference out of it. Every Chancellor was "in it," for somebody or other, when he was counsel at the bar. Good things have been said about it by blue-nosed, bulbous-shoed old benchers in select port- wine committee after dinner in hall. Articled clerks have been in the habit of fleshing their legal wit upon it. The last Lord Chancellor handled it neatly, when, correcting Mr. Blowers, the eminent silk gown who said that such a thing might happen when the sky rained potatoes, he observed, "or when we get through Jarndyce and Jarndyce, Mr. Blowers"--a pleasantry that particularly tickled the maces, bags, and purses.

How many people out of the suit Jarndyce and Jarndyce has stretched forth its unwholesome hand to spoil and corrupt would be a very wide question. From the master upon whose impaling files reams of dusty warrants in Jarndyce and Jarndyce have grimly writhed into many shapes, down to the copying-clerk in the Six Clerks' Office who has copied his tens of thousands of Chancery folio-pages under that eternal heading, no man's nature has been made better by it. In trickery, evasion, procrastination, spoliation, botheration, under false pretences of all sorts, there are influences that can never come to good. The very solicitors' boys who have kept the wretched suitors at bay, by protesting time out of mind that Mr. Chizzle, Mizzle, or otherwise was particularly engaged and had appointments until dinner, may have got an extra moral twist and shuffle into themselves out of Jarndyce and Jarndyce. The receiver in the cause has acquired a goodly sum of money by it but has acquired too a distrust of his own mother and a contempt for his own kind. Chizzle, Mizzle, and otherwise have lapsed into a habit of vaguely promising themselves that they will look into that outstanding little matter and see what can be done for Drizzle--who was not well used--when Jarndyce and Jarndyce shall be got out of the office. Shirking and sharking in all their many varieties have been sown broadcast by the ill-fated cause; and even those who have contemplated its history from the outermost circle of such evil have been insensibly tempted into a loose way of letting bad things alone to take their own bad course, and a loose belief that if the world go wrong it was in some off-hand manner never meant to go right.

Thus, in the midst of the mud and at the heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.

 

 

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The National Law Journal's annoying practice of making its "best" content available only with a secret decoder ring forged in the fire of subscription dollars, nevertheless did not stop me from access to an intriguing article about arbitration's "e-discovery conundrum" (here for people with the secret code).

In Arbitration's e-Discovery Conundrum (thank you Mr. Thrifty for the copy) the author contends that:

. . . as litigation discovery techniques have become more prevalent in arbitration, arbitration has become just as time-consuming, expensive and burdensome. Without the benefit of an appeal process for the losing party, the primary remaining benefit for binding arbitration -- privacy -- is often outweighed by the other negative factors.

Parties and their litigation counsel have pointed to runaway discovery as one major reason why they have abandoned arbitration in favor of mediation in the United States and even internationally.

So how can "the long-recognized benefits of arbitration -- speed and cost savings -- be restored?"

(top:  is this what any of us went to law school for? Flowchart from Integreon)

The author recommends that the process must "address the needs and interests that led them to arbitration in the first place: to balance the need to discover those documents reasonably necessary for a party to prove its case with the cost, burden and time involved in producing such documents, while taking into account the need for fundamental fairness and to avoid surprise and trial by ambush."

Here's where reformers fail to get the direction the law is moving in.  It's not about finding a process that fits your needs - it's about creating the process that is tailor-made for your one and only completely unique and unrepeatable dispute.

The beauty of arbitration is not what it is.  It is what it can be.  The beauty of arbitration is that it allows you to make up your own $%#@^ law and procedure.  It restores control of the process to you.

What, you say?  Your opponent and you can't agree?  This is no longer a good enough reason, particularly because I do not see many attorneys making the effort to craft discovery and case management plans that reasonably addresses the parties' actual need for every document that someone marginally involved in the dispute might have once breathed upon.

I know whereof I speak.

The solution?  Sit down, for goodness sake, with your adversary, for as many days as it takes, to reach agreement about what each side actually needs.  Leave your huffing and your puffing, your posturing and your adversarial chops at the conference room door.  There will be plenty of time for all of that after the only people who actually understand the dispute -- YOU -- agree upon the type of process necessary to resolve it as efficiently and effectively as possible.

The law firms that do this will survive the recession. 

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FINRA Securities Arbitration or Class Action Lawsuits?

A common question asked by investment fraud victims is whether they should partake in a class action lawsuit of a securities arbitration claim. Often, investors are presented with a choice of either partaking in a class action lawsuit or FINRA arbitration action. As a general rule of thumb, investors are better off avoiding class action lawsuits. The recovery rate in class action lawsuits tend to be paltry. Please realize this is not always the case but it is very common.

The main reasons for why FINRA securities arbitration actions are typically better than class action lawsuits for investors include the following reasons…

Continue reading here.

By the way, I'm not expressing any opinion on this issue at the moment.  Just pointing you to one lawyer's view.

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Are mediators being hook-winked by clients who create artificial impasses for the purpose of procuring a favorable mediator's proposal?  Does the mediator's recommendation carry so much weight that the parties are subject to a manipulated mediator's proffer?  Does the mediator become just a tool of a party bent on flim-flam?   Or is all distributive bargaining flim-flam?

Check out John DeGroote's in-house point of view over at Settlement Perspectives and leave a comment.  I've already left two there myself.

I understand some lawyers are settling all their cases with mediators' proposals.  Why is that?  Are they savvier than their colleagues?  Or do they just need the authority of the mediator to "sell" settlement to their clients?

Jump in here or over at John's place.  Whether you're a mediator, a litigator, or a client, we'd both appreciate your fresh ideas. 

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From this coming Monday's Forum Column in the Los Angeles Daily Journal (byline V. Pynchon):

 

Psychologists tell us that we are not only "meaning making" beings, but that we are all born conspiracy theorists. Viewing a field of nonsensical, unrelated data, we naturally begin to "connect the dots" - to organize the information into a coherent, and often compelling, narrative.

Pattern making or conspiracy theorizing is a human survival mechanism. We have never been the fastest or the biggest creatures on the planet. We don't have the sharpest teeth or blend in all that well with the scenery. Our soft, easily punctured skin is not covered with a protective shell. In a pinch, we can't take a running leap and fly away from land-bound carnivores who might make us their prey.

We are, however, the canniest creatures on the planet. To avoid the tiger who made lunch of our best comrade, we surveyed the scene and committed the pattern of otherwise unrelated details to memory. Five banyan trees, a narrow stream, and, a pile of rubble left by a recent avalanche means "there are tigers here."

Couple this with Fundamental Attribution Error and you have all of the ingredients necessary to blame inadvertently caused harm on elaborate conspiracies cooked up by our untrustworthy companions - Fundamental Attribution Error being our universal tendency to over-emphasize the role of others' negative personality traits to explain why harm befell us.

So it is with our legal adversaries. Once the channels of communication have been severed by the filing of a lawsuit, attorneys and clients alike begin to make up "what really happened" based on predispositions, scattered conversations, faulty memories and scraps of documentation.

 

Continue reading Monday's Daily Journal Forum Column here.

 

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Thanks LACBA for the daily case reports!

Trial court lacked authority to review discretionary, prehearing order by arbitrator, who imposed stay on arbitration of dispute concerning uninsured motorist policy until plaintiff--who was driving on work-related business in company car provided by employer when rear ended--pursued workers’ compensation benefits in light of Insurance Code Sec. 11580.2.

Briggs v. Resolution Remedies

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Friend and colleague Los Angeles attorney-mediator Linda Bulmash of ADR Services, Inc. advises  us to be consistent in negotiating the resolution of litigation in this month's LACBA negotiation tip.

The Power of Consistency in Negotiation and Mediation
 
When a person makes a public commitment to a course of behavior, the human psyche will push them to follow through with their commitment. For instance we break New Years resolutions because we seldom share them with others and usually do not write them down.

An interesting phenomenon occurs when the commitment is made public or a person pro-actively takes the first step to follow through with a course of action. An interesting research study found that although people are often unsure of their choice of the winning horse at a racetrack, they become much more confident of their choice once they place their bet. They are driven to consistency once they make a public commitment to a course of action.

Therefore experienced negotiators and mediators focus on getting people to publicly verbalize and/or write down each small commitment to follow a certain course of action (e.g. buy a car or resolve a dispute) knowing that once done publicly, it is highly likely that they will believe this is the best choice and will find a way to attain the object of their commitment.

Thanks, as always, for the great advice Linda!  And if you're looking for a local neutral, check out Lucie Baron's dynamite list of L.A. mediators here!

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Must read:  Embracing Conflict's analysis of Dueling Banjoes in Deliverance written by  Niel Denny, a Collaborative family solicitor working in the South West of England who is a member of my twitter network here: @nieldenny.

Excerpt and video below but a reading of the entire post is a must for anyone looking for reasons to believe that we can reach one another across political, cultural, religious, social and economic divides.

The music develops by a process of answer and call. One of them plays a riff, or a short section of music, which is then followed by the other. They react to one another responding to and developing upon the riff they have just heard. By doing so they produce this amazing music in a memorable scene that is part of cinema folklore.

It represents a rare moment of optimism in what is an otherwise unbearably dark, oppressive film.

In the process of exchanging these riffs the protagonists are effectively collaborating. They are communicating. We can see their riffs as an analogy for talking. The riffs work where the spoken word does not. Drew and the Banjo boy clearly develop and enjoy a relationship while they are playing.

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Video below is part I of an interview on negotiation challenges, strategies and tactics for women with

Vicki Flaugher, founder of SmartWoman Guides.  The full audio of the video is here along with Ms. Flaugher's kind comments about our conversation.   Ms. Flaugher describes her site resources as follows:

If you’re a beginning female entrepreneur or a women who is thinking about starting in business for herself, you have found your tribe. You have arrived at a safe place to talk about business. Especially if you are 35-55 years old, you are going to love this site because that’s a magic age time. You really discover who you are during those years and finally decide to do what you love instead of just what you’re “supposed” to do. The spirit of that revelation and all the promise it holds is why this site was created.

Now, Part I of Negotiating Women!

"Never Fear to Negotiate" from JFK's Inaugural Address with video here.

So let us begin anew -- remembering on both sides that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear, but let us never fear to negotiate. Let both sides explore what problems unite us instead of belaboring those problems which divide us.

Let both sides, for the first time, formulate serious and precise proposals for the inspection and control of arms, and bring the absolute power to destroy other nations under the absolute control of all nations.

Let both sides seek to invoke the wonders of science instead of its terrors. Together let us explore the stars, conquer the deserts, eradicate disease, tap the ocean depths, and encourage the arts and commerce.

Let both sides unite to heed, in all corners of the earth, the command of Isaiah -- to "undo the heavy burdens, and [to] let the oppressed go free."

And, if a beachhead of cooperation may push back the jungle of suspicion, let both sides join in creating a new endeavor -- not a new balance of power, but a new world of law -- where the strong are just, and the weak secure, and the peace preserved.

All this will not be finished in the first one hundred days. Nor will it be finished in the first one thousand days; nor in the life of this Administration; nor even perhaps in our lifetime on this planet. But let us begin.

 

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People who are joined together by a dispute -- which includes everyone engaged in litigation and their attorneys -- are suffering more than most from a universal cognitive bias known as fundamental attribution error.  FAE is one of the ways we explain our troubles to one another. 

If we have suffered misfortune and are able to attribute our loss to the actions of another, we will universally attribute the series of events resulting in our loss to the bad intentions or evil character of the person we lawyers call "the defendant." 

If we are the defendant, we will universally attribute the series of events resulting in the injured party's loss to the circumstances causing Plaintiff's harm (or, of course, to the Plaintiff's evil intentions). 

The attribution of harm primarily to character or motive on the part of the victim and primarily to circumstance on the part of the accused is fundamental because it is hard-wired into the way we think.  It is an attribution error because it attributes effect to a particular type of cause.  It is error because all human activity and the inevitable conflicts that arise from it

"take[s] place not only between individuals, but in a context, culture and environment; surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people at a particular moment in time and history; on a stage; against a backdrop; in a setting or milieu."

See Ken Cloke's Conflict Revolution (this from the Introduction) here and my review of it at The Complete Lawyer here.

In other words, all events, conflicts, injuries, and benefits, all causes and effects are determined both by human actors and by circumstance.  We are the cause and the effect of everything that surrounds us and everything that we surround.

How does this knowledge help us resolve our disputes and why does the way we tell our stories hold the key to resolving them?   I could give you more explanations from the field of social psychology or I could simply tell you a story.  In this case, I tell the story of a book of stories written by Malcolm Gladwell who writes about the stories we tell ourselves and one another about success. Gladwell, we're told, introduces us to Bill Gates as

a young computer programmer from Seattle whose brilliance and ambition outshine the brilliance and ambition of the thousands of other young programmers. But then Gladwell takes us back to Seattle, and we discover that Gates’s high school happened to have a computer club when almost no other high schools did. He then lucked into the opportunity to use the computers at the University of Washington, for hours on end. By the time he turned 20, he had spent well more than 10,000 hours as a programmer.

At the end of this revisionist tale, Gladwell asks Gates himself how many other teenagers in the world had as much experience as he had by the early 1970s. “If there were 50 in the world, I’d be stunned,” Gates says. “I had a better exposure to software development at a young age than I think anyone did in that period of time, and all because of an incredibly lucky series of events.” Gates’s talent and drive were surely unusual. But Gladwell suggests that his opportunities may have been even more so.  

Continue reading the NYT Sunday Book Review of Gladwell's new book, Outliers, here.

More on using dual narratives to help you settle litigation tomorrow (or later this afternoon)

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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.

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From the Los Angeles Daily Journal

November 21, 2008

CONFIDENTIALITY QUESTION HEADED BACK TO TRIAL COURT  By Greg Katz

LOS ANGELES - The state Supreme Court has denied review of an appellate decision that had become a cause celebre for mediators concerned about confidentiality precedents.

Instead, the case will head back for a new trial that includes a dispute over whether a hand-drawn chart, created in a probate mediation and initialed dozens of times by the parties, should have been admissible as evidence.

 A trial court had said that it was not, but the 2nd District Court of Appeal overturned the decision, saying it was in effect a settlement agreement and admissible under Evidence Code Section 1123(c). Thottam v. Thottam, B196933 and B196934 (Cal App. 2nd Dist., filed Sept. 3, 2008).

Many mediators expressed concern that the appellate ruling hurts mediation confidentiality by making draft documents admissible, and the case drew amicus letters from pro-ADR lobbying group California Dispute Resolution Council and others.

But the high court Wednesday denied review. 

Tyna Orren, who won the appeal for Los Angeles-based attorney and political activist Peter Thottam, said she was happy but unsurprised that the court didn't take up the case. 

"The reason mediators don't need to be concerned is that the opinion now tells them precisely what they need to do to avoid what happened in Thottam. Nobody should sign anything which leaves an opening for anything to be divulged," she said.

The 2nd District panel reasoned that the document appeared to be a settlement agreement, and that the parties had signed a premediation agreement allowing for the admissibility of mediation evidence that supported any agreements reached. That qualified the document for an exception in mediation confidentiality statutes.

"Whether or not the document contained all necessary details for enforcement, it certainly contained adequate manifestation of mutual consent to material terms which were capable of being made certain," making it a settlement agreement, Presiding Justice Norman L. Epstein wrote for the unanimous panel.

Justices Thomas L. Wilhite Jr. and Steven C. Suzukawa joined in the opinion.

Beverly Hills-based mediator Victoria Pynchon, who closely followed the case, said it was more about interpretation of the mediation agreement than about confidentiality, that the Supreme Court has vigorously defended the state's confidentiality laws in the past.

Attorneys should rely strictly on those laws when drafting mediation agreements, she said. "Just quote the statute or refer to the statute. Don't get fancy."

Stephen L. Kaplan of Laguna Niguel's Hicks, Mims, Kaplan & Burns, who had petitioned for review, said he was disappointed but expected that the new trial would go in favor of his clients, as the first one had.

The only difference: "There'll be one more piece of evidence," Kaplan said.

greg_katz@dailyjournal.com

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See the Complaint here.

h/t to @taxgirl

As the ABA Journal explains:

A law firm contends new Louisiana lawyer advertising rules slated to take effect in April will restrict its right to comment on Twitter, Facebook, online bulletin boards and blogs.

The Wolfe Law Group filed a federal suit today challenging the rules, claiming they would subject each of the firm’s online posts to an evaluation and a $175 fee, according to a press release. The construction law firm says in the suit that its own blog may qualify for an exemption for law firm websites, but its comments on other blogs would not.

The firm claims the rules would restrict its First Amendment right to speak freely about its trade. To make its point, the law firm has launched a blog called Blogging is Speaking.

Sometimes your business or professional negotiation has to take place in Court.  This is an example.

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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

• Excelling at Our Work with links to Drug and Device Law; Law Prof on the Loose; and our own post on sincere and effective apology.
• Switching Practice Areas with links to the Bankruptcy Practice Pro; The Volokh Conspiracy; Conglomerate; the Electronic Frontier Foundation; PomTalk; the Legal Blog Watch; Pepper Podcasts /*; and, the Antitrust Review.
• Going Solo with links to Charon QC (an interview with Susan Cartier Liebel about Solo Practice U; ) the greatest American Lawyer; and, Law21; and,
• Leaving Law with (what else?) Above the Law; JD Bliss; and, Rush on Business.

There's advice for law firms here as well, so crawl on out of the loser gene pool and make your way over to Blawg Review # 187.  The survival of the legal species might just well depend upon it!

Note that Eric Turkewitz at the New York Personal Injury Law Blog  will host Blawg Review #188.  Anyone interested in participating in future blog carnivals should take a look at Blawg Review, which has information about next week's host and instructions on how to get your blawg posts reviewed in upcoming issues.

Finally, in true celebration of Evolution Day, take a look at some of the most enduring misconceptions about Darwin's paradigm breaking theory here, including the fact -- noted by Fruchter -- that Darwin did not originate the phrase "survival of the fittest."

________________

*/ 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.

 

 

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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.

Mediator's Proposal: 

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.

 

 

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First she's all about the election and now she's back to post-mid-Century America's gender wars?  Say it ain't so, Vickie!

These are just statistics from an extremely limited sample that tells more about this particular program in this particular place concerning the particular types of cases being mediated than they are about the relative abilities of male and female mediators.

I'm unaware, however, of any controlled studies on gender differences in mediation results.  I do know that there's a gender imbalance in the profession and have had panel administrators acknowledge on the QT that even when they're choosing mediators or settlement officers pro bono lawyers tend to choose men most of the time.  

So for women struggling in the profession, here's your moment of zen.

Examining the graphical representation of mediator gender and settlement rates, one can see that there are male mediators who settle cases at higher than average rates, as well as female mediators who settle cases are lower than average rates. Nevertheless, it appears that most of the popular mediators who settle cases at higher than average rates are women, while the majority of popular mediators who settle cases at lower than average rates are men.

Some may object to this “battle of the sexes” analysis on the grounds that men and women should be treated as equals. Based on our data, however, male and female mediators are not statistically equal with respect to the rate at which they settle cases. Whether this “good” or “bad” is more a matter of philosophy than statistics.

In her book In a Different Voice, Carol Gilligan described how men and women think about moral conflicts differently. Her research suggests that men tend to consider conflict in terms of rights while women generally view conflicts in terms of dynamic relationships. Accordingly, a “female” approach to conflict resolution may be better suited to the process of facilitating mediated settlements than a “male” approach to conflict.

For a colored chart and remainder of post, see Correlation of Mediator Gender to Settlement Rate at Practical Dispute Resolution here.

When I think of my own experience as a neutral for the past four years and compare it to my experience as an attorney in the first four years of my practice 1980-1984, I can only say that it is somewhat similar.

What made the difference in the years that followed?  Women flooding the profession.  As women litigators and bench officers begin to retire, I suspect that we'll begin to see greater use of women neutrals.  And no, I do not believe that the paucity of women on commercial mediation panels nor what I believe to be their greater struggle to build a thriving practice there is based upon conscious sexism.

Like the tendency to prefer judges over attorney mediators (a preference I believe to be waning) I believe that the sub-conscious preference for male over female mediators arises from a continuing misunderstanding among members of the bar about what settles cases.  Too many attorneys continue to believe that they need a mediator who can overpower the will of their adversary.  And if you're looking for raw power (particularly the power of authority) in American commerce and law, you will naturally choose the judge over the attorney and the man over the woman.

I haven't written about this in the past because it is a topic that tends to divide people and it is not my intention to start a tiny gender war in the tiny world of mediation.

But when these statistics started pouring into my in-box, I couldn't ignore the topic any longer.

Please feel free to comment.

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The management of the Obama campaign among the lowest level operatives (i.e., me making cold calls and walking precincts) reminded me of the way in which every organization squanders its resources.

I forgive the Obama campaign its trespasses because it was run by a dedicated, exhausted, physically ill cadre of poorly paid tweens -- tweens in this case being young people in that awkward period between University and real life or University and graduate school (listen to This American Life's spot-on audio-documentary on College Voter Registration Drives here).  In any event, the Field Organizers whose goal it was to make X number of telephone calls and knock on Y number of doors were young and inexperienced in using human resources of any kind other than perhaps the counter-staff at the local McDonalds.

So it was that during the course of the last days of the campaign in Henderson Nevada that I met a growing number of 40+ volunteers who had given up going to the campaign office after walking precincts because its management style was anti-Obama -- top down, inflexible, and numbers rather than people-driven.  Two of the three campaign buzzwords -- inspire and empower -- were lost in the tumult of real life.

Law firms, unlike local political campaign offices, are presumably being run by mature adult professionals who understand that which Obama Field Organizers could not.

If it takes 1,000 phone calls to recruit a single volunteer (or lavish summer programs; sky-high salaries; and, signing bonuses for first year associates) it's best to treat that volunteer or freshly minted lawyer like the valuable commodity they are.  When the local campaign head or firm manager rages out of his office and browbeats his human resources into (temporary) submission, he might as well be keying his own new Bugatti Veyron.

I won't repeat most of what Jordan Furlong has written in his terrific post The Perils of Squandering Talent (a must read ) but I will give you his bottom line:

the legal profession [may be] at risk of becoming the North American automobile industry, about to be hammered by market forces we never prepared for[.] Are our clients, fed up with the cost of tapping our traditional resource, ready to cast about for alternative sources of legal talent? And does your firm in any way foreshadow General Motors, a well-known name poised to collapse from short-term thinking and a failure to give customers what they want?

Why is a negotiation blog put to the task of examining the well being of the profession as a whole?  Because the negotiated resolution of disputes requires innovative, value-creating "out of the box" thinking as does the health of our profession in the 21st Century.  That's why I've begun a new post category - Outside the Box - so that we can continue exploring those issues critical to our survival as legal professionals.

 

 

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It's official!  I've joined the faculty of Solo Practice University™

Huh?

I don't see that University in any tier of the U.S. News and World Report's Law School Rankings!  And if it's not ranked for goodness sakes, does it even exist?

Yes, Virginia, a school for legal practitioners does exist "as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy."

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 when SPU 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). 

Then you'll want to sign up for my Deposition Skills course based upon the NITA techniques I've taught for more than a dozen years and my own OJT during a 25-year commercial legal practice.

Let your real legal education begin at Solo Practice University™

 

 

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 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.

1. Don’t Attack - When you verbally attack either a person or their point of view, you immediately raise their defensive shields. . . .
2. 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. . . .
3. 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. . . .
4. 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 . . . .
5. Don’t forget to to adequate research - Be informed and prepared with the latest, most relevant information . . . .
6. Don’t shut yourself down to being persuaded yourself - This may surprise you, we’re not always right. . . . .
7. 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. . . . .

Rock on!

 

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Simply great post on Obama's oratory from About.com thanks to Grammar Girl in my Twitter network.  Excerpt below from Barack Obama's Secret for Stirring a Crowd:

Oh sure, this may look as easy as one, two, three, but the truth is it takes more than a flag-draped stage and a run of tricolons to turn an ordinary speech into great oratory. Also helpful is the occasional series of four--a tetracolon ("democracy, liberty, opportunity, and unyielding hope")--along with effective repetition, a bit of alliteration, and a few conventional metaphors. The insistent use of the first-person plural ("we," "us," and "our") invites identification. And the right combination of anaphora ("It's the answer") and epiphora ("Yes we can") can lift a crowd off its feet and land a speech in the history books.

But that's not all. About 2,000 years ago, Cicero taught us that what makes or breaks a speech is effective delivery, which includes the qualities of dignity and grace:

All these parts of oratory succeed according as they are delivered. Delivery . . . has the sole and supreme power in oratory; without it, a speaker of the highest mental capacity can be held in no esteem; while one of moderate abilities, with this qualification, may surpass even those of the highest talent.
(De Oratore)

So to the list of Obama's persuasive skills add standing tall, speaking forcefully, and exuding confidence.

Oh, and one last thing. Especially in troubled and uncertain times, it never hurts to extend the promise of change, the prospect of hope, and the reminder that we're all in this together.

And if you haven't yet seen this hilarious video about 20-somethings' malaise post-election, click on play immediately!

 

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Here are my upcoming speaking and teaching engagements in November and January!

I'm baaacccckkkkkkkkkkkkkkkkkkkk!!!!!!!!!!

Judicate West Neutral and IP ADR Mediator and Blogger Victoria Pynchon.

Coach/Instructor, National Institute of Trial Advocacy: Building Trial Skills
Location: Loyola Law School Los Angeles
City: Los Angeles, CA
Dates: 1/2/2009 - 1/8/2009
Director: Williams, Gary C.

This is a week-long intensive program for new and/or experienced attorneys who need to learn/brush up on their basic trial skills.  If you can take the time, your entire practice will benefit from the experience.

BrightTALK Intellectual Property Summit here! on November 11, 2008 Webcast Free

Negotiating a Settlement in IP Litigation

   12:00 pm
   Presenting Victoria Pynchon, Judicate West, CPR, Settle It Now, IP ADR Blog

And coming soon!  Deposition Skills Training (NITA techniques) at Solo Practice University!!

 

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By Guest Blogger Renée Barrett aka AAARenee 

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.

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Want a horror story for Halloween?

Remember that Heller Ehrman collapse?  Seems that you don't get COBRA benefits if the health plan your former employer maintained is kaput because it has gone out of business.

Now think, pending surgery, no health insurance, pre-existing condition. 

Why do I lead a post about resolving work-place conflict with bankruptcy and tragedy?  Because no 100-year old AmLaw100 firm fails so spectacularly without having made some conflict resolution mistakes.

Can you eliminate conflict in the law firm?  Hellllloooooooooooooooo???????????  We're lawyers who Anne Reed at Deliberations this morning reminds us have been characterized as . . . well . . . sharks with

skin that is tough and rough -- covered with thousands of tiny hard teeth call denticles that abrade any passerby made of softer stuff. Lawyers are also thick-skinned. Easily identified by their humorlessness and abrasive personalities, they are the bane of many social gatherings.

Ouch!

What to do?  Apologize when your "denticles" abrade passersby, but more importantly, ask yourself the most important Bob Sutton-inspired organizational wellness question noted over at The Non-Billable Hour this morning:

 What Happens When People Make a Mistake?

 

 

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Over at the Mimosa Systems Blog, we get some good advice about in-house eDiscovery management.  What does this have to do with conflict resolution?  Some of our smartest, most well-educated, highly compensated, creative and dynamic conflict resolution specialists -- litigators -- are in imminent danger of becoming clerical workers.  Listen folks, it's e-Bleak House out there!.

Someone must be capable of providing a turn-key solution for attorneys who spend far too great a portion of their days filing e-mail into the right group folders.  I get these complaints both from my 35-year litigator husband and first-year litigator step-son, both of whose hourly rates would blow the top of your head off.  Think about it.  Clients are paying them to spend no small amount of time filing.

Though the below post does not address that particular issue, it does recommend ways to manage and control the new business-scourge of email management in-house.  Check it out.

More Lawsuits = Need for In-house eDiscovery Infrastructure

A recent New York Times article discusses how today’s financial crisis sets up a probable boom in lawsuits. Investors feel wronged by banks and financial advisors.

The creators of some of these risky investment vehicles spoke publicly of how financially sound the vehicles were while (stupidly) emailing each other about how concerned they actually were. (It still amazes me what people will put in an email - completely oblivious to just how discoverable what they write is).

What’s a company to do? First, realize that keeping the data around is not the risk. What do I mean? I spent the last week listening to lawyers talk about wanting to get rid of data as quickly as possible, when what they should want to do is better manage that information so they can find what they need as quickly and cheaply as possible.

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There's nothing like getting a new Harpers in the mail to upset my idealistic dreams of a new America flourishing under an Obama administration.  Here's the opening November '08 Harpers slap-in-the-face for dreamy liberals like me:

After eight years of catastrophic Republican misrule—in the midst of economic crisis and rising unemployment, in a nation plagued by ruinous energy costs and inflation, bank failures, and staggering public and private corruption—an eloquent, charismatic, intelligent Democratic candidate was locked in a statistical tie with a doddering old hack whose primary argument for his claim to the most powerful office on earth is that he was shot down over Vietnam and tortured for five years. Indeed, this remained the case even after McCain demonstrated beyond all doubt, in his impetuous selection of a ludicrously unsuitable vice- presidential candidate, that he lacked the good judgment that is the primary qualification for the job. If the Democratic Party loses this election, then it should forever concede the presidency.

Ouch!  I read this magazine for the same reason I watch Fox News.  To upset my own comfortable ideologies.  That's the trouble with us liberals -- we're always fretting about being fair, when, according to Harper's Roger Hodge we're just a big bunch of conflict-avoidant pussies.  

Conflict in politics is not a metaphor, and as with any fight, the audience is likely to get involved. That is the essence of politics. A campaign that decides in advance that voters are tired of negative campaigning, that they are sick of partisan attacks and will respond only to positive messages, has stupidly left the field of battle. The people who truly dislike political combat are presumably among the 95 million who do not vote. Senator Barack Obama, a sophisticated and intelligent man with sophisticated and intelligent advisers, promises to change Washington, to eliminate the tone of partisan rancor, to foster a new spirit of brotherhood and cooperation. Poor lamb, he wishes to lie down with lions. But the Kingdom has not come.

The answer? 

Attack!!

Unfortunately, the sovereign voter can do little, on his own, to remedy the situation, especially if he happens not to live in Florida or Ohio. Yes, he can make a campaign contribution, a slightly more effective form of voting, but unless the Obama campaign decides to wage a more creative and destructive war, casting monetary ballots remains an empty gesture. (Of course one can also join the battle personally, perhaps by repeating the rumors about John McCain’s Alz heimer’s meds or the Sarah Palin sex tape.) Ultimately, we return to the problem of political will, to the Democratic Party, to the commitment of its party bosses to prevail, finally, in this election.

We can hope for change, that the Republicans will make some fatal error, or that Obama’s party will fight hard enough to persuade a decisive number of “low information” voters that John McCain is not only a liar but a menace to our children’s future. Recent precedents, however, are not encouraging. The Republican Party lied its way through eight years of criminal misrule while Democrats mostly just cowered in a back room. Now, faced with a clumsy deception about whether Sarah Palin sought an earmark for a small town in Alaska, Obama exclaims, “Come on! I mean, words mean something, you can’t just make stuff up.” Oh, yes, Barack, we can.

In the same issue that suggests we dirty our hands by calling John McCain a liar and the Bush administration's "misrule" criminal, we read that Obama is a detached blank screen upon which voters can project any quality they like (or dislike) because . . . well . . . his mother was lonely and so is he:

Obama wants to believe in the common good as a way of providing a fullness to experience that avoids the slide into nihilism. But sometimes I don’tknow if he knows what belief is and what it would be to hold such a belief. It all seems so distant and opaque. The persistent presence of the mother’s dilemma—the sense of loneliness,doubt, and abandonment—seems palpable and ineliminable. We must believe, but we can’t believe. Perhaps this is the tragedy that some of us see in Obama: a change we can believe in and the crushing realization that nothing will change.

See The American Void by Simon Critchley

This is usually the point at which my own McCain-supporting mother breaks in with "honey, you know, you can think too much."  And after years, decades really, of finding this refrain irritating, I finally agree with her about the thinking part if not about her taste in Presidential candidates.

Like the Obama caricatured in this month's Harpers as an ineffective dreamer as intent on replacing his deceased mother's lack of faith with liberal-Christian-do-gooding as Oliver Stone suggests "W" was intent on finally pleasing Daddy, I simply choose to have faith in the stated values of the Democratic party.  I continue to believe that over time, we can do better as a nation through consensus and problem-solving, collaboration and compromise, than we can by adopting the tactics of the world's strong-arm leaders and disciples of discord. 

The Good News

Assuming that the guy I think Obama is -- highly educated, articulate, and idealistically dedicated to serving the common welfare -- actually exist on the political scene (and I will not give up this faith any more readily that others would renounce their own religions) I believe them to be riding the bow-wave of transformation.  I have staked my professional life on this faith in my fellows' ability to work toward the common good, abandoning the extremely lucrative practice of legal battle in exchange for the far less financially rewarding practice of collaborative negotiated conflict resolution. 

Who are the real cowards here and who the heroes?  People who refuse to negotiate face-to-face "without pre-condition" ("we won't discuss settlement unless they're willing to put $10 million on the table first") and without the protection of several layers of legal counsel?  Or those who are willing to test the rectitude of their "position" by sitting across a table with their opponent to frankly discuss their mutual role in whatever commercial or personal catastrophe flowed from the intersection at which their (mis)fortunes collided? 

The social psychologists tell us that we live on the razor's edge of individual survival (me, me, me, me, me) and the collective good.  It is our great challenge as a species to live that which we cannot refuse to understand -- "we" cannot drill a hole in "their" side of the boat without sinking all of us.

So I will continue to brave reading Harpers (which discourages me) and risk the challenge to my world view of Fox News commentary (which so often enrages me) on the off-chance that my religion -- tolerance; compassion; collective effort; empathy and the like, has more staying power than the religion of hate; discord; and, denial. 

And I will also continue to believe that none of us could ever possibly be right.  

Only that we could potentially be happy.

Ending on a positive gaping void note with Hugh McLeod's greatest to date contribution to humanity:  How to Be Creative.  You can catch him on Twitter here.

 

 

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The first thing we mediators are taught (after digesting the imperative to "be conscious") is that people in conflict need to be in an atmosphere of hope and safety to be able to:  (1)  recognize the point of view of another; (2) be accountable for his/her own "part" in the dispute; and, (3) generate creative solutions to bust past impasse.

This is the reason one of the post categories over at the IP ADR Blog is "Innovate, Don't Litigate," which is the dispute resolution mantra of Sun Microsystems CEO Jonathan Schwartz.

That said,  I am happy to link my readers to The Financial Crisis' Silver Lining over at Harvard Business Publications.

Perhaps the good times are in fact dead. And certainly someone thinking of forming the umpteenth "Web 2.0-widget-to-grab-audience-and-find-advertisers" ought to pause to think whether they really have some kind of defined competitive advantage that can translate into a sustainable business.

But real customers continue to face real problems. And as always, innovators who figure out different ways to solve those problems--and make money doing so--will have opportunities to create new growth businesses. In fact, the creative destruction unleashed by a crisis always opens up opportunities for innovation.

As a simple example, consider a New York based startup called On Deck Capital, Inc. As described in Monday's Wall Street Journal, the company loans money to small businesses. Instead of relying on individual loan officers to pour over episodic financial information and make decisions, the company has an algorithmic approach that uses software to analyze a company's day-to-day activities in a non-obtrusive way to assess credit worthiness. Its loans feature higher interest rates than loans from most banks, but lower than alternative sources.

The company launched in May, and has already distributed $10 million in loans. It has suffered very few defaults. The current credit crisis and hesitancy of many banks to loan to even the best-run small businesses creates substantial opportunity for On Deck to extend its model.

Llssez le bon temps roulez!

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It's effective, it's efficient and it's client-centered.  Just what we need to weather the financial storm.

 What?  The mediated resolution of litigated cases. 

Nobody blogs it better than Diane Levin at the Mediation Channel, who hosts Blawg Review # 181 in celebration of International Conflict Resolution Day.   BR's anonymous Ed. recently had these kind and grateful  words for Diane:

We'd like to take this opportunity to thank Diane for her many contributions to Blawg Review, having now hosted four outstanding presentations -- #43, #94, #130 and #181. Behind the scenes, in her role as a Blawg Review Sherpa, Diane has made contributions to many other issues of Blawg Review, too. So, speaking for myself and all the other Blawg Review hosts she's helped along the way, we'd like to say thanks a bunch and give you this extra little bit of link love to show our heartfelt appreciation.

Tomorrow I'll start my day by reading, and giving my own readers a head's up on what looks to be one of the best Blawg Reviews of the year by the best ADR blogger ever.

Anyone working up the nerve to host, click here. Lesser mortals can submit their week's best post by taking a look at the submission guidelines here. Next week Blawg Review  will appear at ..

 

Preaching to the Perverted.

(totally unrelated photo; just getting my iPhone photos from Paris in the mix)

But what a Blawg Review Diane has given us.  Thank goodness it's Columbus Day or I'd be short-changing my actual work-work by reading #181 half the day and its links the other half of the day.  And don't expect Diane to limit herself to mediation.  Most of us are also lawyers, after all, so she also covers the best legal posts of the week on the topic of the law, legal practice, life as lawyers -- the "whole catastrophe" as Zorba said. 

Geoff Sharp is spot on in urging you to read Blawg Review #181.  It could be malpractice not to do so!!

Brilliant Diane!  Thanks.

 

 

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Earlier this week I was asked the following question by a concerned General Counsel:  how can we help our employees grapple with on-the-job justice issues without leading them to believe that our proposed solutions are untrustworthy.  

The problem, as eloquently described by a lengthy email posing the question, is one that all employers face, large and small.  For this GC to have thought that mediators might make a difference is particularly heartening on a day when mediator Justin Patten was reporting that mediators are the furthest thing in a UK company's mind when dealing with conflict.  

(above, the work of the brilliant Hugh McLeod)

To understand the depth of the problem posed, I'm providing you with the full email sent to me:   

Victoria:

I just read your blog post of September 15, 2008 regarding Peter Murray's article (which I have not read yet). I was having a discussion today with my Director of Human Resources, and raise a related issue.

Our company spends an inordinate amount of time explaining disability, workers comp and federal employment law to employees who misunderstand what their rights are, or do not give us the right information to help them get the help they need.

Of course, we are the big bad employer, so any information we give them is suspect. I have considered hiring a social worker as a case manager/advocate for these people, but that position would just be interpreted as another tool of the evil employer out to keep them out of work/make them go back to work in violation of their best interests, so it would be a waste.

We would LOVE if there was an independent agency that would assign a case worker, not to work as an attorney for the employees, but as an advocate to help them understand their rights and access the system correctly. I would gladly pay to fund this service.

Then I realized, if the employer, or a group of employers, funded this employee advocacy agency, employees would think the advocates were biased toward the employers and were just in a sham relationship to deprive them of their rights to serve the interest of the employer.

Now, I do not believe this would be the case. I trust in the professionalism and ethics of mediators, but I do believe that uneducated and single users would form that opinion. Professor Murray's opinion reinforces that conclusion, even though at first glance, he would seem to be "educated."

But, is bigger government the answer. My experience with the EEOC is that they want employers to do MORE than is required by law. We have had success with mediators after complaints are filed, but my goal is to get the employees what they need when they need it, not have a mediator help us fix it after time has run out.

What are your thoughts on this?

The Problem as Cognitive Bias

I've highlighted the sections of the GC's email that raise the problem of reactive devaluation -- our tendency to devalue and resist anything our "opponent" offers to us.  Most attorneys were taught reactive devaluation as first year associates -- "if opposing counsel wants it, you don't." 

As the linked article -- Reactive Devaluation in Negotiation and Conflict Resolution -- notes:

One can be led to conclude that any proposal offered by the “other side”—
especially if that other side has long been perceived as an enemy—must be
to our side’s disadvantage, or else it would not have been offered. Such an
inferential process, however, assumes a perfect opposition of interests, or in
other words, a true "zero-Sum" game, when such is rarely the case in real-
world negotiations between parties whose needs, goals, and opportunities
are inevitably complex and varied.

Combatting Reactive Devaluation in the Workforce

Cognitive biases such as reactive devaluation are not random artifacts of an irrelevant evolutionary past.  They are built-in protections against deception by our friends as well as by our adversaries.  There is only one lasting protection against this bias -- to engage in clear communication with your work force on a daily basis concerning the mutual and complementary interests of employer and employee; to express your belief in your interdependence in word and deed, i.e., by engaging in dialogue and activities demonstrating  benevolent intent; and to willingly listen to one another's complaints, understanding that one man's benevolence is another's bondage. 

As recent legal news touching too close to home (the Heller dissolution) bears out, the workplace will not work if the middle or the bottom collapse.  If human resources are your greatest capital asset, attend to the wisdom of Adam Smith Esq. on Heller's recent failure:

"Our assets go down in the elevator every night."

Take that bromide seriously.

You must give people a persuasive reason to come back "home" every Monday morning.they go down the elevator every night and must have a good reason to come "home" the next day. 

Asking Diagnostic Questions and Using Transformative Mediation Methods

I repeatedly tell my clients what I've learned from the academics who teach negotiation strategy and tactics at elite business schools throughout the country -- 93% of all negotiators fail to ask their bargaining partners diagnostic questions the answers to which would dramatically improve the benefits of the bargain to everyone. 

What's a diagnostic question?  One that would reveal our bargaining partners' needs, desires, priorities, preferences and motivations.  I'm no employment expert, but I have participated in the management of law firm personnel as a partner and have been managed by others throughout my professional life.  As a full-time mediator for more than four years, I have also asked hundreds if not thousands of diagnostic questions to help litigation adversaries understand one another's motivations, to reframe those motivations as non-threatening, or, at a minimum, the result of ordinary human fallibility, and to explore the parties' mutual and complementary interests. I also remind my parties and myself as often as possible that you cannot drill a hole in the other guy's side of the boat without making your own side sink to the bottom of the lake as well.

As the transformative mediators who have been most successful in workplace disputes tell us, our job is to assist the parties in moving from fear and powerlessness to accountability and mutual recognition of the interests of the other.

Empowerment, according to [the fathers of the transformative paradigm] Bush and Folger, means enabling the parties to define their own issues and to seek solutions on their own. Recognition means enabling the parties to see and understand the other person's point of view--to understand how they define the problem and why they seek the solution that they do.

(Seeing and understanding, it should be noted, do not constitute agreement with those views.)

Often, empowerment and recognition pave the way for a mutually agreeable settlement, but that is only a secondary effect. The primary goal of transformative medition is to foster the parties' empowerment and recognition, thereby enabling them to approach their current problem, as well as later problems, with a stronger, yet more open view. This approach, according to Bush and Folger, avoids the problem of mediator directiveness which so often occurs in problem-solving mediation, putting responsibility for all outcomes squarely on the disputants.

Rights and Remedies vs. Interests

It's not surprising that employees just don't seem to "get" the legal rights and remedies company HR departments keep trying to explain to them.  They don't make any sense absent legal training.  

People who are not lawyers simply don't understand why there is a legal remedy for one type of injustice but none for another that feels just as unfair.  Let's take our patchwork of Constitutional protections for employees.  As an life-long ACLU member, I'd be the last to denigrate them.  But we have to understand that we've created a "fair" workplace for only some of our citizens, not all of them. 

Women, people over 40, under-represented minorities and the like, can take the square peg of their unfair work treatment and cram it into the round hole of a viable cause of action.  If an employee does not want to cry "gender discrimination" even though she's being treated badly on the job, or if he has no bundle of legal rights to assert, there is no remedy for a termination that feels (yes, feels) wrongful.  Remember, it took us lawyers quite some time for the legal worldview to "click" and we were immersed in it, drilled in it and eager to learn it.  Employees just want someone to listen to their problem and to help them resolve it.  They don't want to know the wage-hour laws, the need to exhaust administrative remedies with the EEOC and the like.  

Employees and employers have people problems with justice issues, not legal problems with "irrelevant" emotional responses that get in the way of resolution. 

Expressed emotion is the key, not the lock. 

It is we -- the lawyers -- who legalize and monetize injustice, shutting our clients down when they try to explain what the problem really is because it's irrelevant to the legal solution.

If you're old enough to remember the lingering moment in United States history when our educational institutions went from white, on the one hand, to multi-hued, on the other, you'll know intimately how you deal with reactive devaluation.  You get to know one another.  Do this and Kaneesha is not "black" or "African American" but a well-known acquaintance or dear friend.  The same is true for employers and employees.  Create activities in which (alleged) oppressor and (purported) oppressed come together to engage in mutually productive (Habitat for Humanity springs to mind) and mutually enjoyable (basketball?  girls nights out?) activities.  At the holiday party, don't relegate the "underlings" to their own table.  Walk your talk.  Destroy the hierarchy everywhere except where it's actually necessary to get work done. 

I can't describe the benefits of interest-based resolutions over rights-based solutions any better than does my mentor and friend, Ken Cloke, in his brilliant new book -- Conflict Revolution.

[r]ights-based processes . . . generate winners and losers, undermine relationships, and result in collateral damage, . . . Since rights rely on rules, change is discouraged, though not prevented, and conflicts are settled rather than prevented or resolved.

This is not easy work. As a mediator, I know how elusive Cloke’s “outcomes” can be

--  outcomes [in which] both sides win and no one loses, when former adversaries en-
gage in meaningful dialogue and reach satisfying agreements, and when power is exercised with and for each other by jointly solving common problems.

I have, I am afraid, given my GC a problem rather than a solution.  More accurately, I've suggested an altered way of looking at the problem without a great deal of detail about crafting a solution.  Not only could people better versed in employee relations write books on this topic, they have.  Therefore, I'm asking my good ADR blogging buddies to please chime in here for you.

Diane Levin?  Geoff Sharp?  Blaine Donais?  Ombuds Blog? John DeGroote?  Nancy Hudgins?  Stephanie West Allen?  Gini Nelson?  Tammy Lenski?

 

 

 

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My only regret about leaving legal practice when I did is that I did so before Ken Adams started the AdamsDrafting Blog.  Now he's made me doubly regretful, having published A Manual of Style for Contract Drafting, Second Edition.  See the ABA Q&A with Adams here.

One of the panels that uses my services is the International Institute for Conflict Prevention and Resolution ("CPR").  No other ADR panel I'm aware of preaches PREVENTION the way CPR does. 

The best means of preventing conflict from ripening into a dispute?  Clear communication.  And the best way to make sure your business deal is durable?  Clear contract drafting.

I've got Ken's book on my nightstand (did anyone ever SAY I wasn't geeky?).  You should have it on your desk and more importantly, open and in your hand even when writing confirming letters.  It's full of great dispute prevention strategies and tactics. 

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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's Freedom 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!

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After generously commenting on my own comments to his article on the Privitization of Justice (any chance I can get permission to publish it here Professor?), Harvard Law School Professor Peter Murray left a comment which I've decided to bring "upstairs." 

Murray assures me he is no "enemy" of mediation, reminding me that behind every accusation (mine) is a cry for help (mine) which I sometimes think this entire blog-effort consists of.  In Jerry McGuire's words, help me help you.  Professor Murray has graciously offered to do so by joining the (soon to be formed) steering committee of the LegalTED Conference about which you'll all see much more after the election. 

Professor Murray's comment below.

Ms. Pynchon's comments on my article on privatization of civil justice are right on. Of course the situation is nuanced. Mediation is an excellent technique to facilitate settlement of many, perhaps a majority, of the disputes which end up in the civil courts. My point is that having this service provided by private professionals rather than public servants increases the likelihood of economic influences playing a larger role than they would in a purely public institution. And mediated results, while providing some attributes that litigants cannot obtain in public judgments, does not provide others, namely a kind of vindication and creation of public norms to govern others.

I would be delighted to join a Steering Committee to set up a conference on these issues.

Let the conversation continue!

 

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Are you spending too much time surfing channels or cruising YouTube for quality documentary film? 

Absent my NetFlix picks, I'd be wailing 600 channels and there's NOTHING to see!

Now there's KobreGuide with its own law channel here.

The Guide takes its name from its publisher and editor  Ken Kobré whose textbook (right) has been  widest-selling text on photojournalism in the world for nearly thirty years.  

I'd be excited about this new way to find quality moving journalism on the 'net whether or not my good friend journalist-mediator Jerry Lazar wasn't serving as Editorial Director -- a guy with some of the best instincts for quality journalism in the country.  Here's how the Kobre Guide describes itself:

This project is an antidote to comprehensive Web video portals, such as YouTube and MetaCafe... We're focusing instead on handpicked, high-quality documentary-style journalism that is being produced primarily by major media outlets -- and frustratingly difficult for consumers to find...

We're a "curated" site (to use the latest buzzword, now that "edited" seems to have lost favor), which means that we're relying on discerning eyes and ears of people like YOU (and not search engines or web bots) to help alert and point us to the creme de la creme ...

We've already located scores of prizeworthy multimedia gems to showcase at launch, and now we're soliciting input from smart folks like you, who are in a position to know about and share the good stuff out there...

Criteria? ... Think "60 Minutes" TV newsmagazine-style journalism (NOT daily news or event coverage) -- but geared for the Web... Mainly video, but also compelling audio-slideshows, or a hybrid thereof...

In short: True (nonfiction) journalism Web multimedia stories of the highest professional quality...

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