Municipal Law Update, May 18

 Public Finance & Economic Development
Public Purchasing & Bidding


Open Door Law & Access to Public Records

Land Use Issues – including discussion of digital signs & billboards, cell phone tower regulation, & other recent developments

Code Enforcement

Employment Law Issues

Public Safety & Public Employment Litigation

Ethics Matters In Municipal Law

Sue A. Beesley – Chair
Bingham Greenebaum Doll LLP, Indianapolis

Michael A. Blickman
Ice Miller LLP, Indianapolis

Luke H. Britt
Indiana Public Access Counselor, Indianapolis

Brenda K. DeVries
Bingham Greenebaum Doll LLP, Indianapolis

Bruce D. Donaldson
Barnes & Thornburg LLP, Indianapolis

Patrick R. Hess
Beckman Lawson, LLP, Fort Wayne

Kevin P. McGoff
Bingham Greenebaum Doll LLP, Indianapolis

Richard S. Pitts
Arlington / Roe & Co., Indianapolis

Liberty L. Roberts
Church Church Hittle & Antrim, Noblesville

Craig W. Wiley
Jackson Lewis LLP, Indianapolis

6 CLE / 1 E – Wednesday, May 18
9:00 A.M. – 4:30 P.M.


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Relationship Value in Negotiations

Notes on Negotiations
By Marty Latz, Latz Negotiation Institute

It’s been a tough month. I lost a close friend to a 2-year battle with pancreatic cancer. My 85-year-old Dad went in for emergency surgery (which was successful). And I just saw a cousin who last year lost his 34-year-old son (my cousin, too, obviously) in a tragic accident.

What does this have to do with negotiations? Everything. Business, personal and legal-oriented negotiations often revolve around past, current and/or future relationships. Whether and how much we value those relationships – and the extent our counterparts value them too – can make or break a negotiation.

So how should we evaluate and incorporate relationships into our negotiation strategies?

Determine its value relative to your goal
Does your short or long-term negotiation success involve seeing or working with the other party in the future in any context? How much and to what extent? And how much do you really care?

This is crucial. It’s easy to say you care. Here’s the question to ask, at the beginning of the negotiation, to test your real feelings. Would you be willing to accept less or give up more to preserve and/or strengthen the relationship?

Then quantify this. Put a dollar sign next to it. This will help you truly evaluate how much you care.

Of course, it’s also crucial to evaluate how much your counterpart cares, too. Would they take less or give up more to preserve and strengthen the relationship with you? If so, great. If not, do their feelings impact your feelings?

The higher the mutual value – the more you problem solve
I recently met a highly successful patent litigation attorney at a large national firm. Some of the largest companies in the world hire him to protect their patents and intellectual property – which often form the lifeblood of their success.

I asked him to share one of his most successful negotiation strategies in settling these huge, often called “bet the company,” cases. While he is a highly successful and aggressive litigator who has had significant courtroom success, his approach to the negotiations takes a very different tack.

In his experience, he said, at the appropriate point in many cases it’s often in all the parties’ interests to problem-solve by exploring possible partnership options and cross-licensing opportunities. It’s only in this way that the parties can find a solution, which often involves working together in mutually profitable ways.

What specific tactics does he use? One, he engages in some information sharing about his client’s goals and interests – and insists this sharing is mutual. By doing this, the parties often begin to recognize the overlap in their interests. This is the sweet spot in their negotiations and often becomes the fundamental basis for their deals.

And two, he urges everyone to focus on standards that can form the benchmarks of such deals (like similar previous deals, market rate elements, cost savings opportunities, etc.).

Bottom line – he helps his clients solve their problems and create and/or repair their relationships.

Recognize no relationship situations
Not all deals involve possible future relationships between the parties. Or one party might care about the relationship and the other doesn’t. Many of these matters require a more competitive approach.

If so, hold your cards close to your vest, more forcefully exercise your leverage, and make aggressive offers where appropriate.

Of course, never be unprofessional or unethical. That would harm your relationship and reputation – with them and likely others too.

Latz’s Lesson: Relationships can possess almost incalculable value. Recognize and incorporate this into your negotiation strategy.


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

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: A Professional’s Advice on Clarity, Compassion & Confidence in the Courtroom, Part 2: Managing Your Voice

Juries listen to ideas, not individual words…The human connection happens between the words, so respect that with your phrasing…

I’m pleased to have David Mann, our storytelling for litigators coach, returning to Law Tips with more advice on the three principles of persuasive power: clarity, compassion and confidence. If you’d like to reread last week’s tips on effective communication with the jury, you’ll find that article at the bottom of this page.

During Mr. Mann’s training he advises: “There are many areas where a lawyer’s persuasive power will increase by managing the two tools of rhetorical delivery: voice and body.” Could you use a brush up on vocal communication? David offers these pointers:

Voice is the actor’s primary expressive tool. Study of vocal technique for actors can take many years, but the three essential ingredients are very simple:

  • TONE- the pitch and emotional quality of the voice
  • PACE- the rate of speech and the use of silence
  • VOLUME- the energy of the voice

Use natural phrasing. Juries listen to ideas, not individual words. So make sure to speak in clusters of thought and place your pauses naturally between the ideas. Pauses can be used for effect, but only very sparingly. People catch on to that technique quickly and can become numb to it. The jury needs to get the sense that you are communicating a series of concepts that add up to a story. Unnatural phrasing can have a negative impact, cause confusion, and cost you valuable relationship currency with the jury.

Emphasize antithesis. Facts, of course, become much clearer when contrasted with opposing facts. Simply stating that contrast isn’t enough, however- it has to be emphasized with your voice. In order to make a lasting impression on the jury, it’s important to paint the picture with your inflection: “right” and “wrong” must sound different. “Mrs. Smith” and “that corporation” must have two distinct inflections that communicate your subtext.

Slow down and let the words live.The human connection happens between the words, so respect that with your phrasing. When used sparingly, pauses can be a chance to build a sense of trust between you and the jury. Speaking slowly and confidently gives the jury a chance to process what you’re saying as you say it. Of course there’s a limit- speaking too slow isn’t good either. So think of your rate of speech in walking terms as a stroll- not a jog and not a crawl. Maintain energy to end of line.

Question like you mean it.Very easy to forget, especially after rehearsing for a long time. Questions (especially questions you already know the answer to) can become rote and disengaged. But remembering to question in an interested tone can make an enormous difference in the answer. Witnesses need to be encouraged to elaborate (if that’s what you want), so question like you truly care about the answer. It can create a conversation out of what would otherwise be an interrogation.

Eliminate verbal filler. Cluttering your speech with “OK, and … “ or “you know” or “like” or a lot of “um, ah, er” will only make it look like you don’t trust yourself, which makes it virtually impossible for the jury to trust you. This is why it’s vital that you know your words cold and practice your material. By the time you’re in the courtroom, it’s too late to tell yourself to stop adding filler.

Practice out loud. There is no substitute for this. You can feel confident and think confidently, but unless you practice it you’ll never appear confident to a jury. You can know what you’re going to say and have it written out very clearly, but speaking it in a large room under intense scrutiny is a very different matter. In preparing for a trial, your voice needs as much practice as your mind. Only making a cursory effort at practice (doing it quickly in a whisper, paraphrasing to save time, rehearsing “in your head” but not out loud) will result in you giving the impression that you’re not prepared or confident- even if you are.

Avoid the Clarity Killers. There are a few tonal habits speakers adopt accidentally, and they can have a negative impact on how you are perceived. “The Chop” is the habit of turning a normal sentence into a series of short statements. It’s usually intended to sound dramatic and important (think political stump speech) but it only serves to confuse the listener. “The Nose Dive” is the habit of beginning each sentence with energy and letting it dissipate to a whisper by the end. The next sentence has exactly the same downward-inflected sound, and eventually the listener gets put to sleep. “Question Speak” is the habit of upward-inflecting every few words as if to say “know what I mean?” It’s a pattern associated with teenagers, and if it accidentally creeps into a lawyer’s speech it will instantly diminish credibility.

I thank David Mann for providing his tested insights into the value of honing verbal skills. Fortunately, there’s more of his expertise to come. Have you been thinking of people you know who capture the courtroom or notable speeches in history that illustrate David’s points above? You’ll want to check back in with Law Tips next week for his examples of successful rhetoric techniques used over time by great orators.


About our Law Tips faculty participant:
David Mann is a speaker, trainer, and professional actor/director. He has a specialized focus on persuasive presentation for lawyers, and he is on the faculty of NITA (National Institute for Trial Advocacy) and Loyola School of Law.  A professional theater artist for over two decades, David has performed or directed for many recognized theatre companies.  He has written and performed five critically acclaimed one-man shows, and he is a recipient of a Bush Artist Fellowship for Storytelling.  David is a graduate of Northwestern University, and the London Academy of Music and Dramatic Art.  If you have questions for David or would like to inquire about his coaching, contact him at For speaking engagements go to the Professional Education Group at


ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Avoid the Problem of Unintended Representation

By Cynthia Sharp, The Sharper Lawyer

Attorney client relationships are still by and large developed in the traditional manner – in person and in an attorney’s office. However, prospective client relationships and the accompanying obligations set forth in Indiana Rule of Professional Conduct 1.18 also may now arise via e-mail, websites and other electronic means. An attorney’s duty to a prospective client includes maintaining confidentiality, avoiding conflicts and pursuing the case.

In recognition of the potential that an attorney/client relationship may be formed without an in person meeting, the ABA House of Delegates amended Model Rule of Professional Conduct (MRPC) 1.18 (a) in August of 2012 to provide:   “A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.”

Comment 2 outlines the factors to consider in determining whether a communication (electronic, oral, written, in person or otherwise) constitutes a consultation and gives rise to ethical duties:

  • Whether the lawyer encouraged or solicited inquiries about a proposed representation (as opposed to just posting general information on the website);
  • Whether the person encountered any warnings or cautionary statements that were intended to limit, condition, waive or disclaim the lawyer’s obligations;
  • Whether those warnings or cautionary statements were clear and reasonably understandable
  • Whether the lawyer acted or communicated in a manner that was contrary to the warnings or cautionary statements

Attorney websites inviting inquiries from potential clients need to have a disclaimer posted adjacent to the inquiry form; otherwise, the problem of unintended representation may arise. As a matter of curiosity, I randomly reviewed websites of 5 Indiana law firms and found 4 of them to be deficient in this regard. (Don’t despair – it seems that the majority of smaller firms nationwide haven’t yet posted protective language.) Take a look at your inquiry form and if it does not have a disclaimer, feel free to use the following language:

Sample Disclaimer for Inquiry Forms on Websites:

“The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.”


If you found this information to be useful in your practice, you won’t want to miss the upcoming CLE seminars presented by Cynthia Sharp on March 30 & 31 in Merrillville and Indianapolis!

Join us March 30th in Merrillville for Strategies for Taking Charge of Your Law Practice & Client Relationship Mastery.

Cynthia will also be presenting Strategies for Taking Charge of Your Law Practice & Client Relationship Mastery in Indianapolis at the ICLEF Conference Facility March 31st!


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