The Five Keys to Success in Reverse Auctions: Part 2

Notes on Negotiations
By Marty Latz, Latz Negotiation Institute

What should you do if you’re selling and your potential buyer puts you in Conference Room A and your competitors are in Rooms B, C and D? It’s a reverse auction – and it can be brutal.

Last month I detailed the first two keys to success in this environment: 1) Prepare a Strategic Plan and Write Down Your Goal; and 2) Investigate Your Counterpart’s Interests/Options and Creatively Address Them. (click here to read part 1)

Here are the final three keys.

3.    Research Competition and Evaluate Incumbency Advantage
Knowing your competition sounds simple. It’s not. How much will your competitor discount to get a foot in the door with your client? Will competing bidders operate at a short-term loss – the classic loss leader – intending to make it up later?

Some contractors always bid super low to get the contract. Their profit comes from scope changes they “unexpectedly” incur later.

Companies spend billions to find out this strategic intelligence.

How can you get this information? Ask around at industry conferences. Talk with your customers who have previously worked with your competitors. Hire industry consultants who know the competitive landscape. Reach out to your social networks.

A supplier once told me how he negotiated a great deal with Walmart. He was sitting in Conference Room A and stuck his head out the door – and there was no one in Conference Rooms B or C or D.

Find out who else is bidding, before the reverse auction if you can. Then develop your strategic plan. (By the way, Walmart made a strategic mistake by giving this supplier the opportunity to see that no one else was bidding).

And if your customer is running the reverse auction, you probably don’t need to undercut your competitors’ bids to keep their business. Why not? Because changing suppliers involves risk and cost – and your customer knows this. This incumbency advantage can be significant.

4.    Differentiate with Independent Standards
It’s one thing to say you’re different and/or better than the competition. It’s quite another to get a potential customer to believe it and be willing to pay more for it.

The best way to effectively differentiate on issues other than price is to provide independent, credible evidence and standards supporting your differentiation.

For example, “here are a dozen references – from companies just like yours – who will tell you about our timeliness, reliability and creative ability to solve your problems better than our competitors.”

Or, “here’s an independent study by industry experts attesting to the true quality of our product or service.”

5.    Strengthen Your Pipeline/Plan B
Earlier this year a Fortune 500 company asked me to bid on training 1,000 of their employees to more effectively negotiate. At first, it sounded like a potentially significant deal.  However, after analyzing their RFP and talking with their representatives, I decided not to bid.

Why? It became clear to me – despite their rhetoric – that they were looking for a low price leader. That’s not my business model.

In addition, I was already pretty booked for the time in which they wanted the training. Could I have fit them in? Sure. But already having work, and the pipeline for more work, gave me the luxury to sit this one out.

Strengthen your pipeline. You may even decide not to bid.

Latz’s Lesson:  Effective differentiation from your competitors plus a solid pipeline will put you in the driver’s seat in reverse auctions

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Facebook Posts Held Admissible in Juvenile Delinquency Trial

By Richard Mann, Richard A. Mann, P.C., Indianapolis

The Indiana Court of Appeals on December 22, 2016, in the case of M.T.V. v State of Indiana, 36A05-1607-JV-1681 held that the Facebook posts between two (2) high school students were admissible as evidence of a conspiracy to commit felonies. The case involved the students’ plan to commit a Columbine-style attack at Seymour High School on the anniversary of the Columbine attack. The students were overhead discussing the attack by another student at the cafeteria table. That student reported what was said to the school officials who called the police. In their investigation police obtained records of Facebook posts between the two students.

The two (2) students involved in the Facebook posts were questioned and M.T.V. was charged and convicted. During the trial the posts were admitted over the defendant’s objections of improper foundation and argument that the statements were hearsay and not qualified as a business record. The court did not reach the issue as to whether it was a business record as the court found it admissible under Evidence Rule 901(a), Rule 801(d)(2)(A) as an opposing party’s statement and Rule 801(d)(2)(E) as a statement by a co-conspirator in furtherance of a conspiracy. The court analyzed how the statement fell within Rule 801(d)(2) and, therefore, was not hearsay.

What one should take away from this case is to introduce a Facebook post you first need to be able to authenticate the post as that of the person whose statement you are trying to introduce. Once you authenticate the statement, your work is not done. The post must also fit within a rule that otherwise makes the statement admissible. As this case points out, first you authenticate and then you must show it is not hearsay or is admissible under another rule.

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Richard A. Mann has been practicing Family Law for more than 36 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Richard A. Mann, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition for 2009, 2010, 2011, 2012, 2013, 2014, 2015 & 2016.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

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Trial Court’s Handling of Contempt Satisfied Due Process Standards

Family Law Case Review

In re the Marriage of: Thomas Todd Reynolds v. Tricia Reynolds
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court’s finding of Father in contempt, for failing to provide tax and income documents required under the parties’ Decree to calculate irregular income for child support, was not an abuse of discretion. The trial court’s handling of the matter satisfied Father’s due process rights, even if it did not strictly comply with Indiana’s contempt statute.

HELD: The provision of the contempt statute that requires a trial court to give a party “an opportunity to purge himself of contempt” was not applicable in this instance because Father was not sentenced to jail time. Even were that not the case, the contempt statute requires the trial court to extend an opportunity to purge “on proper showing,” and the record supported a conclusion that no such “proper showing” was made.

FACTS AND PROCEDURAL HISTORY:
Mother and Father divorced in 2010. The Decree and a subsequent modification included terms to address Father’s fluctuating, irregular income. In 2014, Mother filed a verified motion for rule to show cause against Father, pursuant to which Mother sought various income and tax documents from Father. After Father failed to provide all of the requested documents, Mother filed a motion to compel.

After a subsequent hearing, the trial court found Father in contempt for failing to provide Mother with tax documents for 2010 forward, per the parties’ Decree. Father was ordered to provide those documents within 30 days, and was ordered to pay $3,000 towards Mother’s fees. Father appealed.

In a memorandum decision, the Court of Appeals reversed the trial court because: (1) the trial court did not strictly comply with Indiana’s contempt statute; and (2) the trial court failed to give Father a way to purge himself of the contempt.

On transfer, the Indiana Supreme Court affirmed the contempt finding. The Court concluded that strict compliance with Indiana’s contempt statute is not necessarily required, if it can be demonstrated that the trial court’s handling of the contempt nevertheless satisfied due process standards. The Court concluded that Mother’s verified petition for rule to show cause fairly put Father on notice of the contempt related allegations levied against him.

The Court also disagreed with the Court of Appeals’ conclusion that Father was entitled an opportunity to purge himself of contempt. The contempt statute includes the provision that: “The court shall, on proper showing . . . give the defendant a reasonable and just opportunity to be purged of the contempt.” Ind. Code 34-47-3-5(c). The Supreme Court concluded this provision was inapplicable to the instant case, because that provision applies only to contempt orders that impose jail time. Further, even if this provision did apply, the record indicates that there was no “proper showing” that Father was entitled to an opportunity to purge.

The trial court’s contempt order was affirmed.

Justice Slaughter dissented, writing that, by enacting the Indiana contempt statute, the legislature was electing to impose procedural safeguards that exceeded bare minimum due process requirements. Given the trial court’s acknowledged failure to comply with the statute, he would have reversed.

To view the text of this opinion in its entirety, click here: In re the Marriage of: Thomas Todd Reynolds v. Tricia Reynolds

 

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review0 Comments

Can You Have Your Gender Changed On Your Birth Certificate?

By Richard Mann, Richard A. Mann, P.C., Indianapolis

With the issue of sexual identity becoming more prevalent, some question: How do I address the fact that the gender reflected on my birth certificate does not truly represent my gender?

The Indiana Court of Appeals held in In Re Petition for Change of Birth Certificate, 22 N.E.3d 707 (Ind. Ct. App. 2014), under Indiana Law found at I.C. 16-37-2-10, a court may order the Indiana State Board of Health to change the gender markers on a person’s birth certificate. The court shall grant a petition to amend the birth certificate as long as an adequate showing has been made in support of the petition, and the petition is filed in good faith and not for a fraudulent or unlawful purpose. The amount or type of documentary evidence needed to establish an adequate showing for an amendment of gender on a birth certificate is generally left to the court’s discretion. However, when a petitioner can present “ample medical evidence regarding his gender transition, which culminate[s] in sex reassignment surgery,” as well as an apparent display of genuine desire “to have all identifying documents conform to his current physical and social identity,” an adequate showing is assumed to have been made. 22 N.E.3d 707, 710. A court order stating the person’s name, date of birth, place of birth, and a statement telling the Indiana State Department of Health (ISDH) to change the original gender of the person on the person’s birth certificate is required before the state department may make any additions to or corrections in a certificate of birth.

In In Re Petition for Change of Birth Certificate, Appellant was a transgender male who identified as a man, lived as a man, and underwent extensive medical treatment for gender transition, including testosterone treatment, ongoing psychotherapy to address longstanding gender dysphoria, and gender reassignment surgery. Subsequently, Appellant legally changed his name and gender mark on his driver’s license, as well as with the Social Security Administration.[1] His birth certificate was the only significant life document left to be changed.

In 2013, Appellant filed a petition for change of legal gender in Tippecanoe Circuit Court so that he could correct the gender markers on his birth certificate from female to male. Appellant stated in the petition that he had transitioned successfully to a male role in society, in accordance with accepted medical standards of care for gender dysphoria, and he desired to change his gender designation so his birth record “may be more congruent with his appearance and social role.” 22 N.E.3d 707, 708. At Appellant’s hearing on the petition, he presented evidence from his surgeon, therapist, and endocrinologist detailing his transition. Although the court specifically found that the petition had been made in good faith and not for a fraudulent or unlawful purpose, the trial court denied the petition based upon a perceived lack of authority to grant such a request. The Court of Appeals of Indiana reversed, holding that the trial court erred in denying the petition. On remand, the Court of Appeals directed the trial court to grant Appellant’s petition and issue an order directing the ISDH to amend Appellant’s birth certificate to reflect his male gender.

Before 2014, this issue had never been addressed in the Court of Appeals of Indiana. However, “the amendment of a birth certificate with respect to gender [was] not novel.” 22 N.E.3d 707, 709. At the time forty-seven states, Indiana included, allowed gender reclassification on birth certificates. “Twenty-eight of those states specifically authorize gender reclassification by statute or administrative ruling, while the other nineteen have no written rule stating that they allow sex designation change, but provide the change upon application in practice.” Id.

Petitioners seeking the same relief as the Appellant in In Re Petition for Change of Birth Certificate may file with the court a petition for change of gender to have the gender marker on their birth certificates amended by the ISDH. The law that applies in Indiana is set forth in I.C.§ 16-37-2-10(b), which states, “The state department may make additions to or corrections in a certificate of birth on receipt of adequate documentary evidence.” Similar to the need for a court-order under I.C. 34-28-2-2 for an individual to obtain an amendment to the name on a birth certificate (In re Resnover, 979 N.E.2d 668 (Ind. Ct. App. 2012)), the ISDH’s official process (as stated in their Registrar’s manual) requires a court order to establish adequate documentary evidence for an amendment of gender on a birth certificate. Such a court order must state the person’s name, date, place of birth, and must tell the ISDH to change the original gender of the person on the person’s birth certificate. The ISDH Vital Records office will accept any court ordered gender change from any valid court in the United States.

As the Court of Appeals of Indiana made clear in its opinion, I.C. § 16-37-2-10 does not expressly limit a court’s authority regarding gender amendments of birth certificates, or impliedly provide otherwise (in the statute or elsewhere). Without specific guidance in the statute, the Court of Appeals has firmly concluded that the ultimate focus should be based upon whether the petition is made in good faith and not for a fraudulent or unlawful purpose. The amount or type of documentary evidence needed to establish an adequate showing for an amendment of gender on a birth certificate is generally left to the court’s discretion. However, where a petitioner can present ample medical evidence regarding his or her gender transition, which culminates in sex-reassignment surgery, as well as an apparent display of genuine desire to have all identifying documents conform to his or her current physical and social identity, there is no question that an adequate showing has been made in support of a petition for change of gender and a trial court should grant said petition for the ISDH to make corrections in the certificate of birth.

While the petitioner in the controlling case had substantial evidence of his commitment to being properly identified, the Appellate Court found that the trial court’s inherent authority along with the statute gives trial courts the authority to grant petitions for change of gender as long as the petition is filed in good faith and not for a fraudulent or unlawful purpose, and an adequate showing has been made in support of the petition. The court order must provide the individual’s name, date, place of birth, a statement telling the ISDH to change the original gender of the individual on the person’s birth certificate before the state department may make any additions to or corrections in a certificate of birth.

[1] The Social Security Administration’s (SSA) new policy for individuals seeking to change their gender designation in their Social Security records allows individuals to submit, among other things, an amended birth certificate with the new sex, a court order directing legal recognition of the change of sex, or a physician’s verified statement that “the individual has had appropriate clinical treatment for gender transition.”

Prepared by Alexandra Miller and Richard A. Mann of Richard A. Mann, P.C. Attorneys at Law.

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Richard A. Mann has been practicing Family Law for more than 36 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Richard A. Mann, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition for 2009, 2010, 2011, 2012, 2013, 2014, 2015 & 2016.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

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