Writing a Brief, Trying a Case and Negotiating a Settlement that "Crackles with Power"
(pictured: the indispensable McElhaney Trial Notebook)
From the ABA Journal E-Report, comes James W. McElhaney's article Legal Writing That Works : Persuasive briefs are the product of tough choices about substance, style
"Writing a brief," counsels McElhaney, is like trying a lawsuit."
You start with your theory of the case—the basic idea that not only explains the legal theory and the factual background but also ties as much of the evidence as possible into a coherent, credible whole.
That means making choices. You throw out arguments that aren’t plausible.
You pick between the inconsistent legal theories. You cull out the weak points. You toss out whatever gets in the way. You discard what doesn’t need to be said, even if it doesn’t hurt.
What’s left is tight. Lean. Spare. It crackles with power because it’s undiluted with stuff that doesn’t matter.
Doesn't trial and motion practice focus on the parties' positions, you ask, and the settlement of litigation on the parties' interests.
Yes, but only after you've established that you have the ammunition necessary to make your adversary your partner in the mutual problem of making the litigation go away for a price (or on terms) that make the negotiated agreement a far better option than potential victory at trial.
I tell people that I prefer the symmetrical to the "asymmetrical" lawsuit -- both as a litigator and as a mediator. What is an asymmetrical lawsuit? One where the plaintiff is an individual represented by an over-burdened sole or small practice contingency fee litigator and the defendant is a repeat player defendant -- an insurance carrier or other "deep pocket."
Why? Because all too often the plaintiff is unwilling (or unable) to devote the resources necessary to pose a real threat to the defendant's interests (costs of defense and potential verdict or judgment) despite the merits of the plaintiff's case.
In these cases, the defendants not only can afford to wear the other side down in court (why should I settle?) they often resist settlement because they firmly believe they are victims of legal extortion (yes, even insurance carriers who work by and through often beleaguered claims adjusters -- people -- who resist and resent being pushed around by an aggressive opponent who -- because of lack of preparation -- appears to be bluffing).
The solution?
Although it is important to convince the mediator that your case has real merit and genuine potential to result in a harmful judgment for your opponent, it is critical to impress your opponent with:
- Your theory of the case in which the evidence tells not only a coherent, credible story, but one of injustice that a court or jury might respond to with sufficient passionate intensity to inflict some "unjust" harm on your opponent; and,
- Your ability to make good choices -- "throw[ing] arguments that aren't plausible," and backing up those that are with the least amount but most compelling detail and "pick[ing] between the inconsistent legal theories. . . . cull[ing] out the weak points . . . toss[ing] out whatever gets in the way. . . [and] discard[ing] what doesn't need to be said. . . "
If "[w]hat remains "is tight. Lean. Spare. . . . crackles with power" you'll press your opponent to do some intensive interest-based negotiation to arrive at a settlement that is best for both of you.

(photo: Just a Minute by
(photo by
I must tell you that I have not read this new book on negotiation, but it looks intriguing and I intend to order a copy for myself. It's entitled:
The following excerpt from the
(Hollywood Bowl Fireworks by
Symonds, Larson, Kennedy & Smith, P.C
We recently posted a brief discussion about
In the political arena, the power of framing is generally called "spin." You needn't, however, be an expert at renaming torture "coercive interrogation techniques" to become skilled at framing your demands during negotiations.
(photo by
Check out 

(photo by 
As I mentioned yesterday, I've launched a new 
The question whether mediation should be "fair" or "just" elicited the following thoughtful response from one of our attorney readers, who, as you can tell from the context, primarily represents plaintiffs seeking to recover commercial debts allegedly owed by individuals and small businesses.
The Litigation and Dispute Resolution Sections of the
Among the benefits of the
Step four in The Art of Getting the Best Deal: Solve the Joint Problem.jpg)
As promised, we bring you Step Three from the Lax and Sebenius article, the ".jpg)

Our friend 
Everyone who knows the difference between distributive and integrative bargaining and the iconic story of the ONE ORANGE should go directly this morning to Geoff's blog, 





I'm always a little surprised that parties to a pre-trial settlement conference or mediation have any expectation that they might be able to resolve a dispute of years standing in half a day, or even a single day. That they often do settle their differences in so short a time is pretty amazing when you consider the time and effort (and resulting polarization) that have gone into the litigation of that dispute.
This comment on my last post about Google's Moon Shot (from
Check out
Anyone who uses the word "cerebrate" twice in a single post makes me think he's doin' an awful lot of thinking. And, it turns out that the thinking is pretty darn good.
Sometimes we mediators get caught in a conversation with ourselves and, in the process, get farther and farther away from what the attorneys who seek our assistance need from us.
Even the Evangelical-Pie-Expanding-Negotiation-Collective (which awards this week's Exploding Pie Trophy to 
Recognize this?
Hat tip to our favorite Neuroscience-for- Dummies blog --
Hooray for the publication of a new volume on the social psychology of negotiation edited by Professor
That's the Fuller Brush Man and if you're old enough to recognize him, it's time to quit practice and go on the bench or start mediating (or, if you've been very very very good, retire) 
From .jpg)
There isn't a mediator working today who can teach you more about obtaining the winning edge in your next mediation or negotiation than 


Michael Richards' Mea Culpa Mediation
Because I've been building a new business for the past two years and do not have a money tree in my back yard, I've learned to appreciate the value of barter. .jpg)
The Case on a Single Page
. . . understanding cognitive biases can help the parties settle .jpg)
.jpg)
"Tough" or competitive bargaining techniques include making high initial demands; maintaining those high level demands throughout the course of the negotiation; making few (and small) concessions; and, adhering to a high level of aspiration for your own side.
Negotiators have much to learn from game theorists. In the book, 






Because People often ask me about the wisdom of making aggressive opening offer, I'm summarizing below a recent article on anchoring by a Kellogg Graduate School of Management Professor. His conclusion is that .jpg)
.png)