The Winklevosses are sophisticated parties who were locked in a contentious struggle over ownership rights in one of the world’s fastest-growing companies. They engaged in discovery, which gave them access to a good deal of information about their opponents. They brought half-a-dozen lawyers to the mediation. Howard Winklevoss—father of Cameron and Tyler, former accounting professor at Wharton School of Business and an expert in valuation—also participated.

In specific response to the claim that Facebook misled the Winklevosses during the mediation leading to their execution of a skeletal “deal point” settlement agreement, the Court had several responses:

• the mediation confidentiality agreement signed by all parties prohibited them introducing into evidence “in any arbitral [or] judicial. . . proceeding” any statements made during the mediation;
• the skeletal deal point agreement provided for the execution of the broadest possible release of claims by all parties, which clearly encompassed the Securities Fraud cause of action the Winklevosses were attempting to pursue; and,
• people engaged in litigation with one another have little reason to believe anything their adversary says when pursuing the settlement of a claim – a fact of life with which the Winklevosses and their stable of high-priced lawyers were well acquainted.

For lawyers and litigants, the central lesson of this case is far more important than the fate of a few billionaires. If you’re in federal court in the Ninth Circuit's hood (Alaska, California, Arizona, Hawaii, Idaho, Montana, Nevada, or Washington)  you cannot rely on mediation confidentiality provisions contained in the District Court’s rules nor upon state law protections.

The evidence the Winklevosses asked the lower court to consider would have been admissible even though made in the course of a mediation if the parties had not entered into a written agreement to the contrary.If you're not thinking out all of the ramifications of the absence or presence of a bullet-proof confidentiality clause in your mediations, you might as well put your malpractice insurance carrier on notice right now.

So, Is It Over Yet?

Not on your life or the life of future Winklevoss generations. If those Olympic rowers had their way, this would be the internet’s Bleak House. When you’re already rich and insatiable, it’s never over brother. This from the Wall Street Journal:

Jerome Falk of Howard Ross in San Francisco, lawyer for the Winklevosses [said]: “I respectfully disagree with the Ninth Circuit’s conclusions.  In my judgment, the opinion raises extremely significant questions of federal law that merit review by the entire Ninth Circuit Court of Appeals. For that reason, my colleagues and I will file a Petition For Rehearing En Banc within the next fifteen days.”

For a few ways to Winklevoss-proof your mediated settlement agreement (and avoid malpractice for having failed to do so) read on here. Hat tip to intellectual property lawyer Jackie Hutter for the new legal term. Jackie left this comment, appropriately on my Facebook page, this morning:

Working on a settlement now with a founder–lawyer said he is striving to make it “Winkelvoss-Proof.” They spent alot of money to lose this litigation, but at least they got a legal term named after them.

For my full article on the Winklevoss loss at ForbesWoman, They're Handsome, They're Rich and They Didn't Invent Facebook, click here.

Thanks to @NeilDenny of Lawyer 1point9  for the head's up.

I have to tell you that I believe every one of our She Negotiates graduates understands and knows how to use the bullet point takeaways from Extreme Negotiations below.  Let me also say it's not enough to read about these techniques ~ you must practice practice practice practice.

Get the Big Picture

• avoid assuming you have all the facts
• avoid assuming the other side is biased but you're not
• avoid assuming the other side's motivations and intentions are obvious and nefarious
• instead, be curious ("help me understand"); humble ("what do I do wrong?") and open-minded ("is there another way to explain this?")

Uncover and Collaborate

• avoid making open-ended offers ("what do you want")
• avoid making unilateral offers ("I'd be willing to . . . "
• avoid simply agreeing to or refusing the other side's demands
• instead ask "why is that important to you?"
• proposed solutions for critique ("here's a possibility - what might be wrong with it?")

Elicit Genuine Buy-in

• avoid threats ("you'd better agree, or else . . . "
• avoid arbitrariness ("I want it because I want it."
• avoid close-mindedness ("under no circumstances will I agree to - or even consider - that proposal"
• instead appeal to fairness ("what should we do?")
• appeal to logic and legitimacy ("I think this makes sense because . . . ")
• consider constituent perspectives ("how can each of us explain this agreement to colleagues?"

Build Trust

• avoid trying to "buy" a good relationship
• avoid offering concessions to repair actual or perceived breaches of trust
• instead explore how a breakdown in trust may have occurred and how to remedy it
• make concessions only if they are a legitimate way to compensate for losses owing to your nonperformance or broken commitments
• treat counterparts with respect, and act in ways that will command theirs.

Focus on process

• avoid acting without gauging how your actions will be perceived and what the response will be
• ignoring the consequences of a given action for future as well as current negotiations
• instead talk about the process ("we seem to be at an impasse; perhaps we should send some more time exploring our respective objectives and constraints."_
• slow down the pace:  ("I'm not ready to agree, but I'd prefer not to walk away either.  I think this warrants further exploration.")
• issue warnings without making threats:  ("unless you're willing to work with me toward a mutually acceptable outcome, I can't afford to spend more time negotiating")

I'll be blogging on each one of these steps in the negotiation process for the next two weeks so stay tuned.

Cross posted at She Negotiates and the ABCs of Conflict Resolution.

Angela was profiled in the Daily Journal today here.  As that profile noted,

Drawing on her years of experience in alternate dispute resolution, [Angela] is creating a section on women in ADR. The association has many ADR professionals in its membership, she noted, but this will be the first time it has had a section dedicated to women who have made great inroads into what had become a male-dominated practice.

Haskins also will keep a eye on addressing the changing dynamics affecting women lawyers. Two years ago, she said, WLALA President Kathy Forester of Munger, Tolles & Olson created a joint task force for women, focusing on how to make partner, stay partner and to make that be an important part of their career.

I'll be chairing the ADR Committee this year.  As part of Angela's Empowerment theme, the ADR Committee's activities will be highlighting its own "Women Do Refer" initiative ~ details here and at WLALA's web page here soon.

CONGRATULATIONS TO ANGELA!

Gail Killifer has been actively mediating with Killefer Mediation for the past nine years.  In addition to her mediation experience, knowledge and training, she brings to the new job an unusual depth of academic experience from her nine years as an Adjunct Professor at U.C. Hastings College of the Law where she taught mediation to law students.

Having served on the ADR panels of the U.S. District Court for the Northern District of California and other Bay Area superior courts, Ms. Killifer is well acquainted with the challenges facing federal attorneys, mediators, administrators and the judiciary in running the robust and highly qualified settlement officer panels that the U.S. Courts are known for.

Ms. Killefer served as an Assistant United States Attorney in San Francisco from 1989 to 2001.  She served as a Deputy Chief, Civil Division, 1994-1998, and as Chief, Civil Division, 1998-2001.  Prior to joining the U.S. Attorney’s Office, she served as a Trial Attorney with the U.S. Department of Justice, Torts Branch, in Washington, D.C., and as a law clerk to the Honorable Barrington D. Parker (D.D.C.).  She received a B.A. from Stanford University and a J.D. from the Vermont Law School.

The Back Story

When I first dipped my big toe into mediation's waters by taking Mediating the Litigated Case in a downtown hotel ballroom back in the Spring of 2004, generous attorney-mediators like Jeff Kichaven, Laurel Kaufer, Bob Steinberg, Jan Frankel Schau, Steve Cerveris, and Deborah Rothman all arrived on the beachhead of my new profession with advice, support, empathy, and warnings.  Starting a new profession, particularly one that is entrepreneurial, is just like moving into a new neighborhood and these wonderful mediators were my Welcome Wagon (for which I will always be grateful).

It didn't take me long to learn where the landmines were buried. And a lot of them surrounded the perimeter of the downtown Los Angeles Superior Court.  There's an mediation pro bono panel there where new mediators can first practice their new trade, learning the skills, picking up best practices, and, beginning to build a reputation for excellence among the litigation and trial bar.  This was all good and I was grateful for the opportunity to have cases referred to me to test my new-found mediation knowledge and growing skill-set.  Never mind that I was paid to practice my new legal trade as soon as I'd passed the Bar.  I understood that this was a kind of internship and I was happy for the opportunity to serve.

My new mentors, however, as well as pretty much everyone else I met, had some dire warnings about conflict between panel mediators and the Superior Court.  Conflict?!?  By May of 2004 (a month after I'd finished my first mediation class) I'd enrolled in the Master of Laws program at the Straus Institute for Dispute Resolution, not because I thought it would give me a necessary credential, but because I was on fire for this new field of study. 

How could there be simmering conflict in a community of conflict resolvers, I repeatedly asked, long before I realized (once again) that people chose their occupations at least in part to work on improving their ability to handle situations that baffle them.  Yes, we conflict resolvers were, like therapists, "wounded healers."  We had conflict issues!

The Problem

The problem that existed when I entered the mediation profession was this - the pro bono panel had been providing free mediation services to Los Angeles lawyers for years.  There are a set of understandable and complex reasons for the initial "decision" to ask L.A. citizens (panel members are not necessarily lawyers) to provide free mediation services on behalf of the Court to the organized bar. Those reasons, and the unresolved conflict that existed in 2004, are the same today as they were then - witness Jeff Kichaven's recent Daily Journal article excoriating the maintenance of this free service once again, this time on behalf of women and minorities.

Here's the intro to Jeff's article:

August 13, 2010 DIVERSITY IN MEDIATION:HERE'S HOW By Jeff Kichaven

Here's a piece I missed in April on real litigation filed over virtual property in Second Life.

Architect David Denton spends much of his time on a lush tropical island, where he experiments with cutting-edge building designs and creates spaces for artists to showcase their work.

Never mind that the island only exists in the virtual-reality world of Second Life, a popular online venue where people interact via digital avatars. Denton, 62, said he purchased the island for about $700 — real money, not virtual cash — from its former owner, and considers it his property.

Here's the thought this article triggers.  If 90% of all litigation involving people (I'll skip corporate litigation and litigation brought to vindicate rights such as that declaring Prop 8 unconstitutional) will end with a retired Judge telling the people that litigation is too expensive and a jury trial too uncertain for them to bear, why don't we just litigate virtually (with Linden dollars!) giving the parties the experience of litigation that will eventually drive them to settlement?

I'm sure some smart programmer can come up with an algorithm for most personal disputes, including both factual templates and the application of simple legal principles.  A "ticker" could keep track of the dollars your virtual attorney is billing on your law suit's screen everyday.  Continuances, discovery motions, pre-trial proceedings and depositions could all be simulated.

Then the parties return from the virtual life of Second Life Litigation and sit down in the old fashioned way to negotiate a resolution to their dispute or, if necessary, hire a village elder trained in conflict resolution, sometimes called a mediator, to help them do so.

Thanks to the SCOTUS Blog for the following resources on the upcoming Kagan hearings.  Follow SCOTUS Blog all week for commentary. 

Why should negotiators be interested in the composition of the Supreme Court?  Because the freedom to negotiate requires a strong rule of law culture.  And because everything we negotiate assumes the enforcement of certain agreements and non-enforcement of others, of particular interest to negotiators and ADR practitioners - arbitration agreements. 

SCOTUS whitepapers below:

Diversity Hiring

Abortion

Diversity on the Court

Gays in the Military

Corporate Rights (Citizen's United)

Conservatives

Executive Power

Kagan's Qualifications to Serve

I know, opposing a law that seeks to prevent workplace bullying is like criticizing mom and apple pie.  Still.  More workplace litigation???  And why isn't the existing cause of action for the intentional infliction of emotional distress a perfectly good alternative for anyone who's truly "severely" damaged by "outrageous" conduct that goes beyond the bounds of human civility?

One of the great benefits of posting on this topic over at Forbes.com is the number of comments it generates.  Not because it insures "hits" but because it engages a far larger community in a constructive multilogue on an issue of genuine and important public interest.  Here's an excerpt:

According to a post in the Wall Street Journal Law Blog yesterday --  For Businesses, Bully Lawsuits May Pose New Threat -- New York's state Senate has passed a surprisingly bipartisan workplace anti-bullying law.

According to the Journal, the law would "allow workers who've been physically, psychologically or economically abused while on the job to file charges against their employers in civil court."

Economically abused????? The mind boggles.

The bill defines "bullying" broadly as  the "repeated use of derogatory remarks, insults and epithets" that the (mythical and chronically overly sensitive) "reasonable person" would "find threatening, intimidating or humiliating."

Let's give this proposal a second thought, particularly in the context of legal practice.  We lawyers do endeavor to "keep calm and carry on."  We have been known, however, to push ourselves and to be pushed past our tempers' limits.  We're human.  We're under a lot of pressure.  And we're fallible.

Read more here.

[P]laintiffs’ articulations of their litigation objectives rarely correlated with legal actors’ perceptions.

In fact, a regular and conspicuous occurrence was the failure to mention financial compensation as an objective at all unless probed (occurring in 65% of interviews).

Instead, what plaintiffs recurrently repeatedly was a lexicon of non-fiscal, extra-legal objectives for litigation. The issue of ‘principle’ was prominent for plaintiffs as revealed in the various objectives they passionately spoke about. ‘It’s not about the money’ was a recurrent theme throughout. Many of the comments concerned dignity and respect after the injury, inability to be heard, refusal to listen, dismissal and victim blaming.

Moreover, plaintiffs’ extra-legal objectives did not appear to be affected by the passage of time, as there were no marked disparities in the way plaintiffs spoke of why they sued and what they wanted from the civil justice system as between plaintiffs who had commenced litigation three to four months earlier (interviewed subsequent to court-mandatory mediations) and claimants who had been litigating for several years (interviewed after voluntary mediations of cases already on trial lists).

Here are the results from the question:  what are your aims in mediation?

The disparity in mediation aims of plaintiffs and plaintiff lawyers revealed important differences in what each planned for mediation in terms of how to resolve the same case.  Other than wanting settlement, the mediation objectives of plaintiffs and plaintiffs’ lawyers were diverse in all categories. For instance, though some plaintiff lawyers noted their clients wanted defendants to admit fault (37%), regardless of feasibility not a single one sought this at mediation. In comparison, virtually all plaintiffs (94%) sought fault admissions at mediation. Similarly, plaintiff lawyers never mentioned wanting to hear defendants’ explanations of the disputed incidents. Again this was something that most plaintiffs desired (71%). Finally, as compared with the bulk of claimants (88%) who sought apologies at mediation, only a minority (32%) of plaintiff lawyers did (though almost half remarked that apologies were important for their clients).

For more charts, data and analysis, see the incredibly useful post over at Concurring Opinions here.

Why is three the magic number?

Recent studies have shown that it takes three women corporate board members to avoid the deliterious effects of group think on corporate decision making - my own supposition on the question "why three" being that one or two women easily risk falling into male group-think.  This isn't male bashing, by the way. I assume three men on an otherwise all woman's board would have a similar performance enhancing effect.  

1. Illusion of invulnerability –Creates excessive optimism that encourages taking extreme risks.
2. Collective rationalization – Members discount warnings and do not reconsider their assumptions.
3. Belief in inherent morality – Members believe in the rightness of their cause and therefore ignore the ethical or moral consequences of their decisions.
4. Stereotyped views of out-groups – Negative views of “enemy” make effective responses to conflict seem unnecessary.
5. Direct pressure on dissenters – Members are under pressure not to express arguments against any of the group’s views.
6. Self-censorship – Doubts and deviations from the perceived group consensus are not expressed.
7. Illusion of unanimity – The majority view and judgments are assumed to be unanimous.
8. Self-appointed ‘mindguards’ – Members protect the group and the leader from information that is problematic or contradictory to the group’s cohesiveness, view, and/or decisions.
   

When the above symptoms exist in a group that is trying to make a decision, there is a reasonable chance that groupthink will happen, although it is not necessarily so.  Groupthink occurs when groups are highly cohesive and when they are under considerable pressure to make a quality decision.  When pressures for unanimity seem overwhelming, members are less motivated to realistically appraise the alternative courses of action available to them.  These group pressures lead to carelessness and irrational thinking since groups experiencing groupthink fail to consider all alternatives and seek to maintain unanimity.  Decisions shaped by groupthink have low probability of achieving successful outcomes.

From What is Groupthink  at the Psychologists for Social Responsibility site.

We’re celebrating Mothers Day by posting Blawg Review #263 at the She Negotiates Blog for one obvious and some not so obvious reasons.  The obvious reason is the word “She.”  The not-so-obvious reasons are:  (1) Mother’s Day was a peace and reconciliation movement before it was a holiday; and, (2) peace exists only when we have the political will to seek and the negotiation tools achieve the resolution of conflict.

In addition to the main post, we've also posted Blawg Review #263 on our She Networks, She Succeeds, She Transforms and She Resolves pages (up at the top of the blog).

Oprah's settlement of the defamation action on the eve of trial reported here

"The two parties met woman to woman without their lawyers and are happy that they could resolve this dispute peacefully to their mutual satisfaction. Ms. Winfrey testified in her deposition that she did not intend the implications placed on her words by the plaintiff. Ms. Mzamane testified in her deposition that she has no evidence that Ms. Winfrey knowingly made a false statement about her or entertained serious doubt about the truth of what she said. We are pleased both parties have reached a conclusion."

Gee, do you think they could have settled it like that before all the legal folderol? Having spent 25 years of my life doing the legal folderol, I believe so.  (not to diminish the importance of a system that enforces the Rule of Law - just saying for an action like this one . . . . "girl talk" much more likely to resolve the matter). 

Today I stumbled over the post Women Deal with Conflict Differently than Men, reporting on a study done by the Program on Negotiation at Harvard in 2008.  Results of the study showed the following similarities between men and women including:

• Integrating, the ability to meet the needs of both parties; and,
• Compromising as a strategy, except women showed a "high level of agreement that every issue has room for negotiation"

The differences included:

• women's tendency to choose equal distributions when compromising which the researchers apparently ascribed to women's greater concern with fairness;
• competitiveness - with men scoring 25% more competitive than their female counterparts
• "smoothing," with women engaging in that behavior 20% more of the time than men - smoothing being defined as "giving in to the other party while ignoring one's own needs"
• avoiding or withdrawing with women doing so 30% more than men
• expressing feeling, with women apparently doing so "more" than men but no percentages are provided

We'll be working with gender differences through the end of the month of March and will likely discuss this data in more detail later.

What both Lisa and I are finding with our women clients (women are Lisa's market and my quarter-market) is that they're always doing stuff for free!!!!!!!!!!!!!!!  Let's not waste our time analyzing why we do this.  Let's just stop doing it.  

Run on over to the Commercial ADR Blog right now to see - yes - Lisa's and my free Twitter negotiation seminar where I take Lisa through a very short negotiation role play to help her negotiate a price for her services rather than simply saying "yes."

I am the plaintiff in a malpractice action against a prestigious hospital. After eight years of litigation, the case is finally  set for trial in in May. The Court ordered the case to mediation, which is taking place tomorrow.  Our attorney, who demanded $2 million for my injuries, was confident of our chances of success at trial until two days before the mediation.  Today I received an email from my lawyer telling me that the hospital has offered to settle the case for $10,000.  He advised me to take the offer because my case is "weak," something he has never said before.  I have made several telephone calls to my attorney in response to this email but he hasn't returned my calls.  It appears as if we're just going to "wing" tomorrow's mediation.  I am  flabbergasted.

In addition to these pre-mediation emails, I also receive post-mediation emails where the complaints/misunderstandings include:

• I was left for seven hours in a conference room while my attorney conferred with opposing counsel and the mediator; I was not offered lunch nor permitted to leave the building.  By the time my attorney returned with the offer he pressured me to accept, my will was weak.  Though I protested, I eventually signed.  Don't I have 24 hours to withdraw my consent?
• The attorney and the mediator both pressured me to accept the settlement offered, which was tens of thousands of dollars less than my attorney told me my case was worth.  He never changed his opinion until the day of the mediation.  I asked for an explanation and all my attorney and the mediator told me was that my case had only "nuisance" value and I was lucky to be offered the sum of money "on the table."  If I didn't accept the settlement, my attorney told me he would withdraw from the case and I'd have to find a new lawyer to represent me at a trial scheduled in two months.  I signed but now want to withdraw my consent.  May I do this?

Here is my standard response:  I am sorry to hear about your troubles.  Unfortunately, I no longer practice law.  Over the course of litigation, laws change as does the testimony of witnesses.  Your attorney should be able to explain to you the many reasons he has valued your case less well after months or years of litigation than he originally did.  If you are not satisfied, you can always seek a second opinion.

If I had the time, I add the following:  Often, facts come to light that significantly decrease the value of your lawsuit.  Attorneys value litigation by predicting, as best they can, what the likely outcome will be at trial.  The factors they take into consideration include the effect each side's expert witnesses are likely to have on a jury based on how well the experts' testimony went (or is expected to go) in pre-trial testimony ("depositions"); how their credentials stack up against the opposing experts' resumes; whether their testimony will likely be impeached at trial (often based on admissions made during deposition); and, what type of "jury appeal" each of those experts has.

(continue reading after the jump)

Attorneys think in ranges of potential outcomes - complete victory; partial victory; and, loss.  They also think in ranges of potential damages, based upon their own personal experience with jury trials and the experience of others, the latter of which is often made public in local, state, and national legal newspapers, magazines and journals.

Your case will generally both get better and worse over time.  People's memories are notorious flawed and it is relatively easy to "impeach" (diminish their veracity) them with documents that were written at the time the events occurred.  You must also remember that when you first told your story of injustice to the man or woman who might be your attorney, you did, as we all reflexively do, cast your tale in the best light possible, often leaving out "unnecessary" details or facts that would make your claim appear more "complicated" than you believe it to be.  And, here's a shocker.  Clients also do not always tell the truth.  When they've testified to something under oath and are later shown to have "fudged" the facts (or worse) the value of their case plummets, even though their injuries and the events that led to them are not changed in any significant way.

Lawyers call this a "risk analysis," multiplying the range of potential outcomes by the likely range of damages.  60% chance of winning, for instance, times a probable award of $100,000 in damages, leading to a "value" of approximately $60,000.  Although attorneys engage in this type of risk analysis, it misrepresents the reality of the risk.  If you have a 40% chance of losing, four times out of ten you and your attorney will receive less than nothing for your efforts.  I say "less than nothing" because your attorney will have expended monies on expert witnesses; deposition transcripts; filing fees; and, the like that either you or he will have to pay the other side if you lose.

Here's the rub for the individual plaintiff.  You do not try ten cases out of ten.  You try only one case.  And because the potential for victory is based upon so many factors and your fate in the hands of twelve people whose background and attitudes you do not know (or know very little) it is almost impossible to predict the result in any single trial with any degree of confidence.  The defendant who is represented by an insurance company is also trying only one case, not many.  But the insurance company tries thousands and cases every year.  And it is the insurance company making the decision whether and how much to offer you to avoid the possibility that it will lose. The "risk analysis" discussed above is more useful to these "repeat players" than to individuals who will have only a single chance to "get it right."

If statistics appeal to you, take a look at Beyond Right and Wrong:  the Power of Effective Decision-Making for Attorneys. Though I'm giving you a link to Google Books, this tome should be near at hand in the office of every lawyer engaged in predicting litigation outcomes.  Here's a link where it can be purchased.   Here's what the most recent research indicates about the way in which plaintiffs and defense attorneys predict jury verdicts.

[P]laintiffs make decision errors more often than defendants but the cost of defendants' decision errors is dramatically higher than the losses Plaintiffs sustain.  The decision error for Plaintiffs is 60%, compared to defendants' decision error rate of 25%.  In other words, Plaintiffs would have achieved better financial results if they had flipped a coin whether to settle or try a case, and defendants made a decision error in one out of every four cases.  In only 15% of the cases did both parties obtain a superior economic result by rejecting each other's settlement proposal and proceeding to trial.  Out of every 100 trials [studied] only 15 trials resulted in a nominal win-win award after the parties walked away from the negotiating table.

For the Plaintiffs, the average cost of decision error - the difference between what they received at trial and the amount they could have received through settlement - is $73,400.  The Defendants average cost of error, in comparison, $1,403,654, about 19 times the loss sustained by Plaintiffs.

Because I didn't set out to analyze decision error, but only to give litigants an idea of the difficulty and complexity of predicting trial results and affixing a set value to a claimed injustice, I will leave it at that for now.  Anyone with sufficient interest in this subject, particularly attorneys, should buy the book and keep it, if not on their night-stands, at least on their desks.

There is no "solution" to the problem of "decision error."  Hopefully, you have an attorney who is an experienced trial lawyer with dozens, if not hundreds, of trials on his resume.  The seasoned trial attorney has more of the right kind of experience that will permit him to value your chances of success before a jury.  He or she has won and lost on multiple occasions, learning with each one how to better present a case and knowing, down to the knuckles of his or her spine how unpredictable and often irrational both juries and judges (not to mention the sometimes inevitable appellate justices) can be.

I hope that helps.

Thanks to Roger Wood at the Association Law and Other Musings Blog for passing along the Order for Lunch issued by the Maricopa County Superior Court (.pdf) excerpted below.  Roger generously shared this truly glorious Order (and supporting opinion that you can read in the .pdf) over at Construction Law Musings today in response to my Guest Post there ("How to Get Sued"). 

Thanks Roger!  This didn't just make my day; it made my year!

 Plaintiff’s Motion to Compel Acceptance of Lunch Invitation

The Court has rarely seen a motion with more merit. The motion will be granted.

The Court has searched in vain in the Arizona Rules of Civil Procedure and cases, as well as the leading treatises on federal and Arizona procedure, to find specific support for Plaintiff’s motion. Finding none, the Court concludes that motions of this type are so clearly within the inherent powers of the Court and have been so routinely granted that they are non-controversial and require no precedential support.

The writers support the concept. Conversation has been called “the socializing instrument par excellence” (Jose Ortega y Gasset, Invertebrate Spain) and “one of the greatest pleasures in life” (Somerset Maugham, The Moon and Sixpence). John Dryden referred to“Sweet discourse, the banquet of the mind” (The Flower and the Leaf).

Plaintiff’s counsel extended a lunch invitation to Defendant’s counsel “to have a discussion regarding discovery and other matters.” Plaintiff’s counsel offered to “pay for lunch.”  Defendant’s counsel failed to respond until the motion was filed.

Defendant’s counsel distrusts Plaintiff’s counsel’s motives and fears that Plaintiff’s counsel’s purpose is to persuade Defendant’s counsel of the lack of merit in the defense case.

The Court has no doubt of Defendant’s counsel’s ability to withstand Plaintiff’s counsel’s blandishments and to respond sally for sally and barb for barb. Defendant’s counsel now makes what may be an illusory acceptance of Plaintiff’s counsel’s invitation by saying, “We would love to have lunch at Ruth’s Chris with/on . . .” Plaintiff’s counsel. 1
___________
1 Everyone knows that Ruth’s Chris, while open for dinner, is not open for lunch. This   is a matter of which the Court may take judicial notice.

Read on by clicking on the .pdf above.

And how could I resist adding the "will you go to lunch!" scene from David Mamet's Glengarry Glen Ross.

Diane describes her series, Fallacious Argument of the Month, as follows:

With the goal of promoting clearheaded and reasoned debate and improving discourse, each month I skewer a different fallacy.

Before giving you entree to this excellent series, let me first note that these arguments do not justify any movement in your negotiation position.  Remember - you need a new number and a new reason to counter that new number.  If your mediator or negotiating partner expects you to give up something, he'd better have a darn good reason for you to do so.  If you're a lawyer representing a party, you can feel your client figuratively or literally tugging on your sleeve when you offer more or agree to accept less in the absence of a justification that makes business sense.

The Appeal to Authority

Argumentum ad Hominem (this one is so irritating it can create impasse where none previously existed)

The Red Herring

Confusing Cause and Effect

The Misleading Ellipsis (to which I add this caution ~~> the quickest path from respected advocate to deceitful scoundrel is the misleading ellipsis - Judge, Arbitrator, Mediator and Opponent will all distrust your bona fides from that date forward; if you can't think of a better argument, fall on your sword on this issue and create a better one just over the next hill).

The False Analogy

The Straw Man

Diane adds one new fallacious argument every month.  I'll endeavor to keep up with her.  But more reliably, get her RSS feed, add it to your google reader and never again be without the wisdom of this brilliant mediator and negotiation trainer and consultant.  That's her smiling face at top.  Visit her often! at The Mediation Channel.