dougnoll’s posthaven

This post is about how to support your boss in negotiation.

As a young lawyer, you may not be in charge of a negotiation but may be asked to be an assistant or second chair. There is quite a bit that you can do to help the principal lawyer prepare for and execute the negotiation. The fact that you lack experience will be made up by the thoroughness of your briefing book. Your primary function is information gathering and synthesis.
While the final negotiation strategy will be developed between the principal attorney and client, to the extent that they are well informed by you, they will be that much better prepared. So your job is to put together the information, distillate, synthesize it, and presented in a way that is immediately usable.

Your secondary function is to provide devil's advocacy. You will want to take the other side and develop its negotiation strategy based on the information you have developed to date. This will, of course, require some research on the other side. Fortunately, as you have probably learned, the explosion of social media sites provides a vast amount of information on people. Spending some time doing this research can give you tidbits of information and insight into who people are, their backgrounds, and their predispositions.

The usual function of young lawyers is to do legal research until you learn more about the other skills of lawyering. That role is no different in negotiation, where you are called upon to do a thorough case analysis. This will include a distillation of the salient facts and an analysis of the law applied to those facts. This is core lawyering with which you should be very familiar.
You will also want to do a comprehensive damage analysis. Again, you will have to start with the basic remedial concepts of damages, understand the claims, and work up various damage scenarios. You may be relying upon experts for some of this information and analysis. Do not be afraid to ask them hard questions and do not be afraid to professional ignorance if damage analysis and numbers are not your thing. It is their job to educate you, not impress you with how smart they are.

Very few lawyers are familiar with decision tree analysis so you can provide a useful addition to your briefing book with a decision tree. You may not be able to build a complex tree, but that is unnecessary. If you do nothing else than assess the probabilities of for trial outcomes, you will be adding value to the briefing book.

The briefing book can be something as short as a 2-3 page memo or a binder with detailed analysis and appendices. The amount of time and effort you put into a briefing book will depend upon the nature and size of the case, the litigation case budget, and your time constraints. You will probably never be asked to produce a negotiation briefing book. However, imagine the surprise of the principal lawyer when you present a detailed briefing book for review. I can pretty much guarantee you that you will create a positive buzz about your competency as young lawyer when you do this. The briefing book should contain all of the elements that we have discussed so far. In addition it should have a blank concession strategy plan that can be filled out by the principal lawyer and the client.

You may find yourself in the interesting position of having to explain a concession strategy to them as most lawyers have no clue what they are. We will be covering concession strategies later on.
In all of this work your primary job is to learn. You will take the information you’re learning in this course and apply it on the job. You will probably see behaviors and strategies that I recommend against. Be very careful not to criticize. Simply make note of what is observed and engage in the kind of reflective practice I discussed at the beginning of this course. What you want to do is learn from mistakes of others rather than adopt those behaviors and strategies as acceptable practice.
 In addition, you will see smart negotiators. Watch them very carefully and learn as much as you can about what makes them so good. Again, having taken this course will give you insight as to why they have become master negotiators.

I cannot emphasize enough how important reflective practice as an associate is. The first five years of law practice are an intense learning experience. You have to find time to step back and reflect upon what you are learning.

•    What works?
•    What does not work?
•    What did you do wrong?
•    What did you do right?
•    What could do better?

If you do not engage in reflective practice, your education will be hit or miss. Just do it.

Remember, the best way to win the game is to call it yourself.

Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com

Clients have interests, needs, goals, and desires. Some of these cannot be fulfilled by the legal system. You need to help your client sort through all of this so that he or she understands what is possible through negotiation. The trick is to listen to your client deeply.
This is not a skill that is taught in law school. There are places to go to learn how to listen. I strongly recommend to young lawyers that they take a course in coaching, motivational interviewing, or the like. Learning how to probe the client's true needs and helping the client clarify them is essential in the process of preparing for negotiation.

As you prepare your client for negotiation, be sure to set clear boundaries of responsibility. Who needs to be in the decisional loop? In many cases, the settlement decision affects more than just the direct client. Make sure that you know who has to participate in the decision early on. Have all decision makers and influencers been thoroughly informed about the case, the negotiation, and a range of reasonable outcomes?

Spouses and business partners can easily be forgotten about. It is your job to make sure that they are fully informed, consistent with protecting attorney-client privilege. At the very least, you must inform your client to keep influencers up-to-date on case developments and the negotiation strategy. Again, a letter outlining all of this can be an important protection for you.

Who will be present during the negotiation? Generally speaking, you want all of the decision-makers at the negotiation if the negotiation is in the form of mediation or some other group conference. Sometimes, for strategic or tactical reasons, certain decision-makers might not be physically present. They should be available close by or available by telephone or Skype for consultation as a negotiation unfolds.

Who will have to be present to make a settlement agreement binding? Settlement agreements made during mediation are not binding unless all of the parties have signed the settlement agreement. Therefore, you must take great care to make sure that you know who will have to be present to bind everyone to a deal.

What will be the role of the client during the negotiation? This one is overlooked all the time. Most of the time, you want your client to be an active participant in the negotiation. Sometimes your client will take the lead; sometimes you will take the lead. This should be discussed ahead of time so that there is no confusion over roles during negotiations.

Another related problem has to do with personal accountability. Very few people have the courage to take personal responsibility for their actions. Many times, people will come to lawyers, hoping to shift responsibility for their actions away from themselves. In negotiation, clients are often confronted with the need to take personal responsibility for their actions for the first time. This can be a difficult pill to swallow. A conversation about personal accountability well before negotiation begins is therefore a good idea.

Some clients can become very emotional, often with ample justification. I will give you more information about emotions in the context of decision-making later on. However, recognize that all human beings are 98% emotional and 2% rational. Conflict and stress tend to shut down the prefrontal cortex and activate the emotional centers of the brain. Be prepared to deal with your client’s emotions.

Remember, the best way to win the game is to call it yourself.

Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com

 

This post is about assessing the intangibles of a lawsuit and factoring them into your preparation.

The first thing to realize is that trials are beauty contests. A significant amount of social psychological research has established that jurors form opinions about the case very early in the proceedings. Jury selection and opening statements are the two most important parts of the trial. If you have not convinced the jury by the close of opening statements of the righteousness of your cause, you will probably lose. For the rest of the trial, each juror is going to use the confirmation bias to seek facts that support his or her initial belief. Therefore, you have to assess what kind of story you can tell, and how that story compares to the story that the other side is likely to tell.

You also have to assess how likable your client is and how likable the other guy is. You have to be brutally honest in this process. You want to believe your client and thinking that he or she is going to be liked. However, any warts are going to be magnified intensely in the courtroom.

You also have to assess your experience and opposing counsel's experience. In all likelihood, you have had very little trial experience. Do not be surprised if you are up against a more senior lawyer who also has very little trial experience. I have known senior partners who portray themselves as litigators who have never tried a jury trial.

Experience does count, however. So if your opponent has a lot more trial experience than you do, you have to take that into account. That does not mean that you will lose just because you lack experience. You simply have to factor in that the more experienced trial lawyer is less like to make mistakes that you are.

You can find out a lot about opposing counsel on the Internet. It is amazing what people disclose about themselves in social media, on blogs, in podcast, and videos. It is much more likely that you will get this kind of information about younger lawyers. The vast majority of lawyers in their 60s do not even know what social media is and do not want to mess with it. However, you can still research counsel through verdicts and settlements to see what kinds of verdicts, if any, they have experienced.

Another factor concerns the type of typical juror found in your jurisdiction. You need to think about your best jury and your very worst jury. Some cases lend themselves well to jury trials, while other cases would put a jury to sleep. Think about the kinds of people that live in your community, their political beliefs, their ethnicity, their religious beliefs, their interests, and their hobbies.

You also have to consider who the trial judge might be. If you have a judge assigned for all purposes, as is usually the case in federal court and in some state courts, you will have a pretty good idea of what you are facing. Make a few phone calls to colleagues about their experiences with your judge and learn as much as you can about his or her background, beliefs, biases, and attitudes. Judges are human just like everyone else and are not immune from cognitive biases and decisional distortions. The more you can understand how your judge processes information, the better you can assess what might happen in that court room.

Remember, the best way to win the game is to call it yourself.

Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com

In this post, I want to talk a little bit about the attributes of a master negotiator.
I have mediated thousands of conflicts of all different kinds, both litigated and non-litigated. I have had the opportunity to work with some truly masterful negotiators. There are some uniform attributes and characteristics that are worth keeping in mind as you develop into a powerful, kick ass negotiator.
The first attribute is to recognize that negotiation is a process, not an event. In law school you are taught that the ultimate outcome is either a verdict or a decision on appeal. The focus is on the outcome for the client and not a lot of time is spent on all the processes. Thus, the conversations are around how to avoid mistakes, how to obtain the best outcomes for clients, and the focus is on winning.
In negotiation, the outcome will be defined by how well the process is managed. Master negotiators understand that process determines outcome. Master negotiators will spend considerable time making sure that the process is functioning properly to move the parties towards settlement. In short, master negotiators focus on process.
 Master negotiators also recognize that legal negotiation involves decision-making in the face of great uncertainty and risk. For the client, the stakes of a lawsuit can be very high. No one can predict what a jury will do in any given case. Therefore, sending a dispute to trial for decision is not quite as random as a roulette wheel, but sometimes seems that way.
Master negotiators study disciplines far beyond the law. They want to understand the principles behind cognitive biases and decision-making errors. They understand that emotions drive decisions and therefore knowing about emotions in human brains is just as important as knowing about the applicable principles of law in a case.
Master negotiators also know that negotiation always contains a tension between competition and cooperation. On the one hand, negotiators wish to obtain the best outcome possible for their clients. But if they are too competitive, the negotiation will collapse in impasse. Thus, cooperation is needed. However, if cooperation is to freely given, the possibility of exploitation by the other side is always possible. The master negotiator manages that tension effectively.
The master negotiator cultivates a strategic mindset directed towards helping the client make the best decision possible with an eye towards the deep consequences of that decision in years ahead. Master negotiators recognize hardball players instantly. They have learned how to identify hardball tactics, label them, and deal with them by focusing on the process of negotiation. They do not stoop to emotional, ad hominem attacks or gratuitous comments at the ethics or behaviors of opposing counsel or parties.
Master negotiators also recognize that being a lawyer does not equate to being a master negotiator. Master negotiators have learned that law school teaches analysis based on an adversary ideology. Law school teaches students how to become appellate judges, read appellate decisions, and write appellate memorandums. Generally speaking, those skills are not used in negotiation. Although more law schools are offering elective courses in mediation and even in negotiation, these offerings are considered to be fringe courses. Many law professors do not consider the skills of negotiation to be worthy of instruction in the law curriculum.
Since so much of the law curriculum is based upon the reading and analysis of appellate decisions, litigation is taught as a zero-sum game in which there can only be a winner and a loser. In every case, law students must understand why one side lost, and the other side won. As they distill out the rules of law from the cases, they are indoctrinated in a philosophy that lawyering is about winning cases for clients. The core values of negotiation, which include cooperation, compromise, and collaboration with opposing counsel and parties are not only ignored in law school, they are disdained.
Master negotiators recognize that negotiation outcomes are not always as gratifying as trial outcomes, but neither are they as depressing. Since negotiation involves compromise, there is no high similar to the rush of winning a jury trial. In addition, lawyers do not measure themselves by their skill in negotiation. Rather, they seek reputations for toughness, trial competency, and dogged persistence against all odds. When was the last time you heard a lawyer described as a great negotiator?

Remember, the best way to win the game is to call it yourself.
Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com

Negotiation is a skill that must be learned. Most people never get beyond the simple quid pro exchange of essentially, "I'll scratch your back if you scratch mine." However, sophisticated negotiation requires much more than simple exchange. A lot of people forsake negotiation training. I think this is due to a number of myths around negotiators.

So, let's look at these myths and dispel them.

The first myth is that negotiation is only about the money. Sometimes negotiation is about the money, but many times negotiation is about anything but the money. In fact, the money simply becomes a symbol for much deeper underlying needs and issues that must be resolved.

Another myth around mediation says that negotiation means getting the best deal for me or my client. Often times, the best outcome is not going to be the best deal for me or my client. It can be making sure that everybody gets a good deal out of negotiation. Sure, there are times when negotiation can become very competitive. However great negotiators find that if they can make a deal that satisfies everybody as reasonably as possible, then they really done a great job. Negotiators that are purely selfish find that they reach impasse and suboptimal deals quite frequently.

The third myth is that negotiation is simple, or the opposite, that negotiation is hard. Actually negotiation is not a simple nor is it hard. There is a lot to understand about the theory and practice of negotiation, but it is not a simple process of simply exchanging dollar numbers in a distributive auction.Nor is it an arcane, difficult to understand, highly sophisticated practice that only experienced negotiators can successfully engage in.

There is also a myth that negotiation follows a predictable pathway and that only simple steps need to be followed. The truth is that negotiation is not always a predictable path. It is true that in some broad frameworks of distributive negotiation certain steps follow one after another. However, learning how to negotiate by formula or recipe will lead to disaster. As you study negotiation, you earn about the nuances of negotiation practice and understand that it is not a linear process at all. It is iterative, elicitive, and reflective.

Some people are thought to be born negotiators. Think about this one a moment. Even used-car salesman have to go through extensive training to learn how to sell cars. So negotiators are not born, they are made. The good news is that you do not have to wait 20 or 30 years to become a masterful negotiator.

Another myth is that wicked and evil people make better negotiators.
Actually, if you look around the Middle East in the last two years, you can see that leaders like Sadaam Hussein, Moammar Ghaddaffi, and Hosni Mubarak who have committed crimes against humanity turned out to be very poor negotiators. Most people mistake the fact that people in a position of power may often appear to have a better BATNA. BATNA means "best alternative to a negotiated agreement." 

Some people believe that negotiation is a failure if you do not gain anything at the end of the day. Well, if you are a defense lawyer, you will never gain anything in negotiation. Often times a good negotiation outcome is defined by how risk is managed by the parties and their lawyers.

In addition, there are many negotiations where there is no gain, but there is a restoration of relationship a rebalancing of power, a reconciliation of injustice, and a righting of moral wrongs.

Knowing about these myths can help you overcome the idea that sophisticated negotiation is a skill to be learned and mastered, not an arcane art left only to the very experienced professional.

Remember, the best way to win the game is to call it yourself.
Better still, change the game completely.

Douglas E. Noll, J.D., M.A.
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com