Notes on Negotiation: Dealing With Too Much Commitment

Notes on Negotiations
By Marty Latz, Latz Negotiation Institute

“I feel so committed to my client that I have a really hard time being objective and analytical in my negotiations on their behalf,” a lawyer told me recently. “I really take things personally. What should I do?”

This issue, which can also impact those negotiating for themselves and is a reason some hire agents to negotiate for them, is a double-edged sword.

On the one hand, it’s effective to empathize and deeply understand your clients’ needs and concerns. This level of commitment helps you communicate the depth of your clients’ interests. And your strong personal belief in these interests increases the likelihood your counterparts will accept them as true and sincere.

On the other hand, it can be harmful to the extent it prevents you from objectively analyzing the negotiation and clouds your judgment. It can also make it difficult to truly step into your counterparts’ shoes and fully appreciate their interests.

What should you do?

1: Develop a written strategic plan
While regular readers of my column will recognize this strategy – which I recommend in all significant negotiations – it’s especially crucial here. Why? Because writing down your strategies and tactics, and regularly reviewing them, helps keep you focused and limits the extent that you will get distracted by the depth of your personal feelings.

Assume you and your client evaluate your Plan B (or best alternative to a deal) as investing in a new plant and technology – which your expert estimates will put your client’s company at a value of $25 million. This would be instead of your client’s selling, your Plan A. And you write down your Plan B, a major element of your leverage, as part of your plan.

But you and your client get more and more emotionally committed to a sale the longer the negotiation lasts with a private equity group, to the point that your client seriously considers settling for $20 million. Reviewing your plan with your client would remind you of your leverage and counsel you to recommend that your client wait or push back and ask for more.

2: Take regular breaks
I recently attended a conference for academics in the conflict management field and spoke with an expert in how emotion impacts negotiations. He suggested that taking regular breaks during an in person negotiation – and reassessing your strategies then – is an effective way to address this challenge. I agree.

You might even take a walk during those breaks. A change of scenery and getting your blood flowing can help give you needed perspective.

3: Focus on standards
Finally, focusing on independent standards like a deal’s expected profitability, an expert’s market value assessment, or what your counterpart has included in similar deals (precedent) can ground your feelings and help you be more objective.

Such standards also depersonalize the negotiation environment and give you and your client a principled basis for your moves.

Internationally known social psychologist Robert Cialdini, the bestselling author of Influence: Science and Practice, concisely synthesized this in a recent conversation with me when he advised that you should pay particular attention to these standards and your written plan during your breaks.

Latz’s Lesson: The depth of your personal feelings in a negotiation can help or hurt you – so write down your critical strategies and take regular breaks to review them.

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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

Marty will be Live In-Person here at the ICLEF Conference Facility, November 13. To learn more about Gain the Edge: Negotiation Strategies for Lawyers or to register, Click Here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Negotiation/Mediation Blog0 Comments

Post-Secondary Educational Expenses is NOT Limited to Undergraduate Education

Case: In Re the Marriage of: David P. Allen v. Kimberly W. Allen (mem. dec.)
by Mike Kohlhaas, Bingham Greenebaum Doll

This is an unreported, memorandum decision. It is notable, however, because this panel of the Court of Appeals concluded that the statutory authority of a trial court to enter an order for “post-secondary educational expenses” is NOT limited to an undergraduate education. Specifically, here, the Court of Appeals rejected a mother’s argument that the trial court had no authority to issue an order for payment of the child’s graduate dental school expenses. In a footnote, the opinion suggests that an order for graduate school expenses should not be “routinely entered,” and that this case was unusual due to the significant net worth of the parents.

To view the text of this opinion in its entirety, click here: In Re the Marriage of: David P. Allen v. Kimberly W. Allen (mem. dec.)

 

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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.

Posted in Family Law Case Review0 Comments

Amateur Life Coach Answers, “How do I Prepare for Trial?”

Amateur Life Coach Answers, “How do I Prepare for Trial?”

James J. Bell, ICLEF's Amateur Life Coach

The Amateur Life Coach (also known as attorney James J. Bell of Bingham Greenebaum Doll) is back to dispense his unique thoughts, advice and wisdom to his real and imagined viewers…

This week our question comes from Neurotic in New Albany….

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Dear Lifecoach:

My first jury trial is coming up and I’m freaking out! What can I do to calm my nerves?

Sincerely,
Neurotic in New Albany

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Dear Neurotic:

Slow down, take a deep breath and follow these simple steps.

Step #1: Find the Root Cause of Your Anxiety
You may be feeling pressure because the Wise Old Attorney (WOA) just told you it’s your job to win the jury trial. Well, as shown below, it’s not.

And you shouldn’t listen to the WOA anyway. He desperately wants the world to view him as some sort of gladiator, so he hung a quote from General Patton on his office wall that says: “Battle is the most magnificent competition in which a human can indulge. It brings out all that is best.” He constantly corners associates to spin various yarns about his trial battles. (For example, we’ve all heard on multiple occasions about the time when he caused a wee Irish geologist to admit on the stand that his blue diamonds were really just marshmallows. A Perry Mason moment indeed!)

There’s a reason they call war stories “stories” and there’s a really good reason the WOA ends his stories before he tells you about the jury’s verdict. And when was the last time you saw this supposed gladiator “gladiate?” Or step into a courtroom? Or even leave his office?

So disregard anything the WOA says on this topic. If the WOA wasn’t so interested in inter-firm marketing his “warrior” image, he would’ve put the second part of that Patton quote on the wall which says “All men are afraid in battle. The coward is the one who lets his fear overcome his sense of duty.”

So a little case of the nerves is natural and some extra adrenaline may be necessary, but “freaking out” helps no one. After all, there’s so much to figure out: opening statement, the direct examination of your client and the proper pronunciation of “voir dire.” So get out of the fetal position and get down to business.

Remember: you don’t deliver verdicts. Only judges and juries do. Your job is to put your client in the best position to obtain a verdict.

Step #2: Take Care of Things At Home Before You Prepare
Before you begin your final trial preparation, go ahead and apologize to your family. “Trial mode” is a little like Bill Bixbey turning into a muscular green monster and you shouldn’t wait until after you’ve gone all “Christian Bale” or “Bob Knight” or “Christian Bale as Bob Knight as The Dark Knight in Celebrity Meltdown” to apologize to your significant other or children. Give your loved ones a preemptive “I’m sorry” now and a gift that costs the same as three of your billable hours (per Martha Stewart).

Also, you need to get out of your house and down to the office. You might think it’ll be good for your family life if you work from home here and there over the course of the weekend. Wrong. The opposite is true. If you stay at home and try to play Uno with your 4 year old while you’re obsessing over what could go wrong at trial, your daughter will feel you’re ignoring her, have her feelings hurt and worst of all, you’ll forget to say “Uno” when you have one card left. It could cost you the game.

So leaving the house will help your family life. It will prevent you from ignoring your kids or growling at your spouse. It will be addition by subtraction and your family will thank you later.

Step #3: Prepare
Write out your closing argument first and then make sure that there is a piece of evidence that supports every argument. You probably think you know what you want to say in your closing, but until you put it on paper (or a computer screen) and look at what you are doing, your thoughts will not be succinct. You won’t be able to evaluate your arguments and see which ones really work. Bad arguments kill credibility. Discarding bad arguments (and therefore dropping the corresponding meaningless evidence) will help you become the organized, knowledgeable and therefore, credible lawyer you need to be at trial.

Once you get your argument written down, the rest is easy. (Well, easier.) Your voir dire and opening statement themes will be contained in the closing argument. And so will every question you wish to ask of a witness. If one of the other side’s witnesses testifies and it does not affect your closing argument, maybe this is a time to simply stand before the jury and show them that you’re not there to waste their time and say “no questions.”

And this is more tedious than it sounds. You’re going to have to review that entire file and pull your client’s story out of those dusty documents. This means wading through those dictionary-sized depositions you conducted a year ago and getting over the fact that you say “um” a lot.

Beware that as you study these depositions, you’ll realize that you’re not perfect and that you didn’t ask every deposition question perfectly. There will be small holes in your preparation. Don’t take this opportunity to freak out.

Fine. Go ahead and freak out. But just a little. This is a marathon, not a sprint. After three minutes of freaking out, get back to work.

Step #4: Exercise and Eat Right.
These are two things you must not do during trial. Your body may be a temple, but you’re in a court of law. That means you have to eat, drink, and (not) sleep this trial. Let the adrenaline course through your veins for the next five days and then rot inside your body for a month afterward, all in the name of justice. (Editor’s Note: The ALC is a juris doctor, not a medical doctor. Please consult with your primary care physician before eating or drinking a trial or letting anything rot inside your body.)

Step #5: Maintain Good Karma
Sometimes jury verdicts come down to something we can’t explain. I’ll just call it karma. Could the result of your case come down to karma? For your sake, let’s hope not. But it’s never too late to stop parking in the handicap parking space. Maybe you should leave a big tip for housekeeping at the hotel or make a donation to the SPCA so Sarah McLachlan will stop singing that song. That’s a win-win-win.

Step #6: Worry About Preparation, Not the Result.
The WOA once said that the three secrets to winning a trial were “Preparation! Preparation! And most importantly, Preparation!” That’s the only time the WOA got it right.

Trials are unpredictable. You can do everything right and still come up empty. Just remember that you didn’t pick the judge, you didn’t create the facts and you didn’t choose the jury. Well, you sort of did choose the jury, but you didn’t write the law. So stop sweating the many things at trial you can’t control.

And before you leave to the office to go to court, walk past the WOA’s office and enter Milk Toast Mary’s office. She has a quote on the wall from Mahatma Gandhi that says “Satisfaction lies in the effort, not in the attainment, full effort is full victory.” Milk Toast Mary may not be the best marketer, but she is smart.

You know your case, you have given “full effort” and you‘re ready to obtain “full victory.” Go get your evidence in, and make your best arguments. Trials can be fun, so don’t let self-doubt be the wet blanket that ruins the party.

I’m the Amateur Lifecoach and I hope this helps.

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Now, you can also “like” the Amateur Life Coach at Facebook!  Visit his facebook account today and catch up on his day-to-day activities.

Questions for the Amateur Life Coach?  Email them to scottking@iclef.org or @JamesJBell on Twitter.

Written and performed by James J. Bell. Produced by the Indiana Continuing Legal Education Forum.
This video is for informational purposes only and should not be used as a substitute for professional advice.

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James focuses his practice in the areas of criminal defense; attorney discipline defense and health care law. As a Marion County Public Defender, he represented clients in numerous jury and bench trials. James also represents clients in juvenile delinquency, appeals and post-conviction proceedings. James is a frequent ICLEF speaker on ethics, trial practice and criminal procedure. James just completed his first semester as an adjunct professor at the Indiana University Robert H. McKinney School of Law where he teaches a course on professional responsibility. To date, no student has yet stood on their desk and shouted “Oh captain, my captain!” Follow James on Twitter @jamesjbell

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Amateur Life Coach, Sale/Featured Items0 Comments

Family Law Case Review: Putative Father’s Intervention was Timely

Case: In re the Matter of: I.J., Child, T.M. v. L.D. and J.D.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: In adoption proceedings, trial court erred when it denied putative father’s motion to intervene and contest an adoption. Putative father’s intervention was timely because he registered with the putative father registry within 30 days after Child’s birth.

FACTS AND PROCEDURAL HISTORY:
Child was born to Mother on March 21, 2004. At the time of the birth, Mother was married to Husband. However, Mother promptly gave Child to Adoptive Parents who, on March 24, filed a petition to adopt Child. Mother and Husband both consented to the adoption.

On April 3, Putative Father advised the trial court that he believed he was Child’s father, and he filed with the putative father registry on April 15. The trial court appointed counsel for Putative Father, and he filed a motion to contest the adoption, followed by a motion for genetic testing. Adoptive Parents objected.

The trial court denied Putative Father’s motions on the basis that he had failed to register with the putative father registry in a timely manner. Putative Father appealed.

The Court of Appeals reviewed the applicable registry statute.  Ind. Code 31-19-5-12 sets a deadline for a putative father to register in order to be entitled to contest an adoption. However, in this case, that deadline was the later of: (a) the filing of the adoption petition; and (b) 30 days after the child’s birth. Here, while Putative Father registered after the adoption petition was filed, it was still before Child was 30 days old. Thus, Putative Father registered timely and was entitled to the related procedural rights and safeguards.

The trial court’s order was reversed and remanded.

To view the text of this opinion in its entirety, click here: In re the Matter of: I.J., Child, T.M. v. L.D. and J.D.

 

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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.

Posted in Family Law Case Review0 Comments

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