Law School Resources

Case Briefs, Hypos, Class Notes, Outlines, & Analysis

















Law School Resources

Negotiations

It is about winning

It is about power

It is about money

Law is the dirtiest and nastiest of businesses because of the power and money at stake.

Know the rules.

Know also that the rules are generally not followed.

Bluff when:

1. There is no alternative

2. You got the winning hand

I. Negotiation Styles

1st Axiom: One side always wants something a little more than the other side.

If you can walk away, truly walk away, you have the advantage.

5 Foundations of Negotiations

1. Leverage

2. Timing

3. Knowledge

4. Preparation

5. Determination

5 Constraints on Negotiations

1. Illegal conduct

2. Ethical codes

3. Professional Reputation

4. Effectiveness

5.Constraints are not uniform (e.g. Attorney versus non Attorney)

The client is NOT interested in negotiations

Leverage is an advantage real or perceived that shifts from time to time over time.

Calculation of Your Leverage Position

1. Lost opportunity-real estate market-the time may never be better.

2. "Or else" alternative-may benefit both parties favorably or both lose.

3. Litigation-all cases have weaknesses and strengths. DO NOT take unless youíre ready to go to trial.

4 Levers to Maximize your Position

1. Uncertainty-to disrupt your opponents focus and flow-throw the game off. To protect yourself, build your knowledge base to insulate yourself.

2. Timing-for everything there is a season-turn turn.

3. Opportunity-there is an opportune time for everything.

4. Sanctions-a threat-give us what we want or weíll sue. Remember to

a. Select a sanction that will move the other party

b. You must communicate the sanction

c. Canít bluff-you must be ready to carry it out

d. Go forward

NEGOTIATION OUTCOMES

1. All negotiations always result in either

a. Win/Lose or

b. Win/Win

2. Look at it from the other sideís point? What does the opponent want? Ask?

3. Donít assume you canít cooperate with the other side.

REMEMBER NO IS ONLY AN OPENING POSITION

NEGOTIATING STYLES (only 2)

1. Co-operative

2. Competitive

JUSTICE

Remember everybody has a different concept of justice.

4 NOTIONS OF JUSTICE

1. Absolute-no compromise-let the chips fall where they may

2. Conciliatory-reward 2 good faith positions of opposite positions

3. Compassionate-caters to the position of the weaker side

4. Power-distributes according to who has the power position.

USING LEVERAGE

1. Recognize it

2. Use it

1. Level of self confidence-develops slowly

2. Assessment of weaknesses (self)

a. be honest

b. develop knowledge of the subject

c. maximize strengths

d. minimize weakness

3 Styles (use all 3 as situations require)

1. Hard Ball (winner/loser)-confrontational style.

Downside

1..Results in polarization

2. Reputation

Respond with firmness and fairness

HARD BALL

+ -

1. Tends to produce one sided 1. One sided agreements often broken

agreements advantageous if or not enthusiastically performed

performed by party who has little incentive to

perform

2. Elicits more concessions 2. Creates anger & alienation

3. Exerts more anxiety and pressure 3. Polarizes parties/positions

4. Substantiates deadline demands 4. Causes over reaction

5. Creates hard nosed image/rep 5. Causes havoc with personal relationships

6. Displays strength to client 6. Damages future relations with other attorneys

7. Results in higher settlements 7. Hard nosed image is tough to shed

& attainment of objectives

SOFT BALL

1. Avoids confrontation 1. Too many concessions

2. Uses emotional aspect to convince 2. Deadline threats are meaningless

3. Allows for changes in tactics 3. Creates a weak reputation

4. Maintains personal relationships 4. Appears as weak to client

5. Decisions are made w/o anger 5. Can result in poor outcomes and

or overreaction and failed objectives

2. Softball -cooperation and conciliation and fair play.

Downside-may be viewed as wimpy

Know the opposition

3. Give to get -share the victory and both get mutual consideration.

GIVE TO GET

1. Tends to produce mutually agreed 2. Sacrifices total victory for joint

acceptable results solution

2. Encourages concessions from all 2. Difficult if other side refuses to

parties Cooperate

3. Tends to build relationships 3. Difficult to use when in a weak

position

4. Displays reasonable person side 4. Difficult in absence of trust/dislike

5. Forces anger control 5. Time consuming

HARD BALL SOFTBALL GIVE TO GET

1. Aggressive nature Friendly Friendly but firm

2. Angers easily Never angers Controls anger

3. Intimidates Talks too much Talks just right/open minded

4.Abrupt/short Never threatens Open communication

5. Limited Communication Malleable Likes to deal

6. Hurried Concedes easily Creative settlements

7. Rejects suggestions Analyzes suggestions

8. Negotiation by ultimatum

9. No concessions until ultimatum

PREPARATION

Knowledge gives leverage

Set goals:

1.. Short Term

a. Find out what the client wants

b. Categorize clientís objectives

c. If you could get everything you want, what would that be

d. If every goes wrong, what is the minimum youíll accept

e. Determine 3 Key Points

i. Deal Points-deal breakers

ii. Secondary-important but not deal breakers

iii. Trade Points-nice but not essential. Give it up and make your opponent believe itís a deal point

2. Long Term

a. Size up opponent

b. Listen to change or refine your points

c. Work your plan

PEOPLE SKILLS

1.. First Impressions count

2. Dress (N.E. Conservative Mode of Dress)

3. Donít let appearance detract

4. Prepare for your clients

5. Let everything suggest a wise decision in selecting you

a. Take charge at first meeting

b. Be objective

c. Be skeptical b/4 confirming things for yourself

Effective communication

1.. Be precise

2. Keep it simple

3. Be an active listener

4. Be effective in word choice

Donít Be Held Hostage to a Mistake-NO DEAL IS BETTER THAN A BAD DEAL

II. Opening Moves

Donít get sucker punched

Determine objectives

Exercise restraint, do not act hastily and get ever piece of information you can get to forestall giveaways.

Make a plan after getting the information.

Do not take calls unless you are prepared to deal and have all the preparation done and at hand.

Traps to Avoid

1.. Over reaction

2. Saying too much

3. Failure to verify important info

4. Acting on insufficient info

5. Failing to follow procedure

6. In adequate preparation

7. Revealing leverage positions

8. Tipping future moves

9. Revealing confidential info

Opening Moves to Do

1.. Gather info

2. Build rapport

3. Balance perceptions

a. Credibility

b. Confident and firm

c. Complete knowledge of facts

d. Complete knowledge of law

4. Define parameters of negotiation

5. Make use of initial leverage gambit

6. Avoid predictability

7. Avoid falling into make me an offer gambit

a. Talk ranges

b. Ask opponent for an offer

...more