dougnoll’s posthaven

In legal negotiation, your client will have to make the final decision about whether to make a deal or not. As we have seen, human decision-making in the face of great risk and uncertainty is fraught with peril. Our brains simply do not handle statistics, probabilities, or logical thinking very well, especially when under stress, fear, or other emotion.

The job of the lawyer is to not only manage the negotiation so that the best possible outcome can be obtained, but also to help the client overcome the inherent distortions of the human brain so that decisional error is minimized. This is what I mean by cognitive counseling.
Some lawyers shy away from this idea saying that they are not therapists. I think it is important to understand that were not talking about therapy. Therapy involves diagnosis, prescription, and prognosis with the goal of healing injury. Cognitive counseling is more like coaching to help clients make good decisions.

The first step in cognitive counseling is to recognize decisional errors. This will take some practice, but armed with the information he received from you so far, you can see that any type of emotional reaction is potentially the cause of decisional error.

In addition to calling out decisional errors, you can slow the process down. Sometimes getting outside and walking around for a while is a useful way of getting some cognitive rest. Do not allow the process to accelerate so quickly that your client becomes overwhelmed emotionally or cognitively. Frequently, clients will leap ahead to find objections why a certain decision should not be made. As a cognitive counselor, try to maintain the decision-making one step at a time and bring your client back when he or she leaps forward.

In these situations, you will have to make an empathic connection with your client by listening, reading his or her emotional data field, summarizing the essence of what your client is saying, and labeling his or her emotional experience. When your client seems overwhelmed, have your client focus on what is really important. Most lawsuits are not life-changing. Therefore, you can ask questions about what life will look like five and 10 years ahead. Helping your client gain perspective on what is really important can be of crucial importance during the heat of a negotiation.

As I have repeatedly said, take good notes and be sure to memorialize your conversations with your client in a follow-up letter. The problem of the under settled case is growing as negotiation and mediation becomes more of a mainline practice. You will need to keep your client in line by making a written history of what happened.

Cognitive counseling is an iterative process, which means that you will repeat the same things over and over again. Sometimes it will seem like you are spinning your wheels. However, it is your repetition, patience, compassion, and understanding that will be the greatest service to your client. Your client will not remember your brilliant legal analysis. She will remember how you treated her and a very difficult and extreme moment of her life.

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 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

In this post, we are going to look at the two fundamental forms of negotiation.

The first form of negotiation, and the one that is most familiar to lawyers, is called distributive negotiation. In distributive negotiation, the parties are negotiating how to divide or redistribute things. Thus, in a lawsuit, negotiation is often about how much money the defendant will pay the plaintiff for the case to go away. This type of negotiation is called distributive because value is being distributed from one party to another.

The second form of negotiation is called integrative negotiation. In integrative negotiation, the parties are looking for ways to expand their options and create value. In contrast to distributive negotiation, integrative bargaining involves problem-solving and value enhancement. An example of integrative negotiation might occur in a lawsuit involving two businesses over breach of contract. While the parties might negotiate for a fixed payment to settle the claim, they might also find a way to expand, and renew, their business relationship so that both sides benefit from the negotiation.

Sometimes you hear the terms zero-sum and win-win. These are important terms to understand in negotiation and are often misused because they are misunderstood.

In a zero-sum situation, the only way that I can gain is if you lose. In other words, there is no way for both of us to come out ahead or be winners. This is the pure definition of competition because in competition, there can only be one winner.

Distributive negotiation is often viewed as a solution to a zero-sum problem. But a zero-sum problem confronts us with a fundamental strategic problem in negotiation. You might have already come across this and wondered about it.

The dilemma is “Do I compete and play hardball?”or “Do I cooperate?”

The problem is this:

If I am too competitive, I will blow a chance for settlement.
But if I am too cooperative, I might give up too much.

This is the fundamental dilemma facing every negotiator.
 
How do I avoid impasse, but not give up everything to get a deal?

Sometimes, a highly cooperative approach, such as integrative negotiation can foster a deal. Other times, a more competitive approach, such as distributive negotiation, is more effective.

The takeaway is that the nature of the problem dictates the negotiation process to be used. As long as the conflict remains centered on things and is not too emotional, distributive negotiation and evaluative mediation will tend to work. However, distributive negotiation is not efficient or effective at high levels of conflict or when emotions are in play. In these kinds of disputes, either traditional or facilitative mediation is often needed to de-escalate the emotions before there can be distributive bargaining. It is important for you to remember these two principles:

•    As long as the conflict remains emotional, integrative negotiation processes are effective and efficient.
•    Integrative negotiation is not efficient or effective at low levels of escalation or when things are solely in play.

You should not be surprised to know that most negotiations involve emotions and most negotiations involve things. Therefore, you must be skilled at both integrative and distributive negotiation. You must also be comfortable with evaluative, traditional, and facilitative mediation processes because a good mediator will use all three in a given process.

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 your role in negotiation. Negotiation is a strategic communication that involves either making deals or resolving conflicts. We are going to explore these two aspects of negotiation.

Let us start with negotiating business deals. In business deals, the usual goal is for both parties to gain something they did not have before.

In a buy sell negotiation, the buyer is acquiring an asset, such as a business, and the seller is gaining a more liquid asset, such as cash. Likewise, in a joint venture or private equity deal, the investors gaining a position in a company, while the owners are gaining much needed capital.
The question is, what is your role in negotiating a business deal?

Are you to do the deal? Or, are you just to do the documents?

Or, are you to have a role in both aspects of the negotiation?

In many business deals, the clients negotiate between themselves, decide on the essential terms of the deal, and then turn the details over to the lawyers.In these situations, the lawyer's role is to anticipate failure points and document what will happen in worst case situations. Typically, one side will be looking to restrict the consequences of failure, while the other side will be looking to expand the consequences of failure.

For example, in a loan negotiation, the lender will want as much collateral and limiting conditions as it can reasonably obtain to protect against nonpayment in the event of default. The borrower would ideally like a nonrecourse unsecured promissory note that results in no liability in the event of default. The negotiation between the lender and the borrower might be quite brief, while the negotiation between the lawyers over what rights and obligations will be created in the loan documents could be very lengthy.

Clients often complain that lawyers tank deals. There is a certain amount of truth in this complaint because the negotiation between the lawyers can become so competitive that they are unable to agree or compromise on sticking points.When you are negotiating the details on behalf of a client, it therefore becomes important to have constant communication with your client.

Although you might be the expert in secured transactions, for example, you need to be explaining the risks and problems to your client so that you work as a team in deciding what is important and what can be conceded.

The other aspect of negotiation is settling conflicts, especially lawsuits. Very few civil cases go to trial. The only civil trial lawyers that really gain significant trial experience are insurance defense lawyers. Even then, with rare exceptions, a defense lawyer might only try three or four cases a year. For plaintiffs' personal-injury lawyers, trying cases is unprofitable. Thus, the vast majority of personal-injury cases settle. he same is true in other types of civil litigation. Business cases almost always settle, although there are notable exceptions like the Samsung v. Apple case in 2012 when Apple obtained a billion dollar  judgment against Samsung for patent infringement. Most family law cases also resolve through settlement.

The fact of the matter is that litigation is a sport of kings. Very few middle-class people and small businesses can afford the cost and risk of a lawsuit. It is why people buy liability insurance. Consequently, as a lawyer representing a client in a conflict or dispute, you play a major role in negotiating towards resolution of the problem.

In disputes headed for litigation or in litigation, your goal is to manage the risk of loss if you are defending and to optimize gain  if you are prosecuting. Thus, your role is much different settling a case than in negotiating a business deal.

Lawyers generally take a leading role in negotiating settlements of disputes and claims. There are times when the client is actively involved in the negotiation process. In other cases, the client is passive and relies upon you to negotiate the best deal possible.

The most important thing to remember is that clients make the final decision. And they do so only after being informed by the lawyer of the risks and benefits of the settlement.

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