A few months ago the lawyers at DrinkerBiddle did just that — they asked.  The firm invited a few of us with real experience as clients to the firm’s partner retreat to share our perspectives on client service.  They got what they asked for.

The Question Outside Counsel Don’t Ask Often Enough

As soon as we began our talk it became clear that I wasn’t the only one who had thought about the law firm/client relationship before we got there.  One of my co-panelists, P.H. Glatfelter Company’s GC Thom Jackson, started by sharing a simple question that outside counsel apparently don’t ask him often enough: 

What is an acceptable outcome in this matter?

I have shared Thom’s insight with a few lawyers, both in-house and outside, and I’ve only gotten two responses.  Outside counsel tell me “I always ask that question,” and their clients tell me “[m]y lawyers rarely ask that question.”  Like it or not, there’s a disconnect here.  How can we avoid it?  As Thom’s question reminds us, and as we discussed in Settlement Advice: Avoid the Assembly Line, the best way to learn what your clients want is to ask.

10 More Questions Outside Counsel Should Ask (But Don’t)

Apparently an overachiever, Thom came to Philadelphia with a written list of 10 more questions outside counsel should ask the GCs they work with.  Thom’s questions are quoted below, with his permission:

1. Can you help me better understand your Company’s budgeting process, its timing, and the Legal cost center?
2. Are you a fan of alternative fee arrangements, blended or discounted rates — all of which introduce some degree of expense predictability and risk sharing — or are you more concerned with a lawyer’s demonstrated ability to be efficient and knowledgeable and provide added value?
3. In the case of an RFP, what would cause the Company to solicit an RFP? What value does the Company realize in that process?
4. If the client is a public company, what has the Company reserved for this matter and what is the rationale for that reserve amount? Does the Company reserve for legal fees? For SEC reporting purposes, what amount is considered “material” for the Company?
5. Give me some feedback on whether our firm has done a good job for the Company. Are we thought of as a true business partner to the Company?
6. When was the last time you brought outside counsel in to brief the Board or senior management on a risk management, loss exposure or legal compliance issue? How was that received?
7. In which areas do you expect to spend the greatest portion of your outside legal spend over the next 12 to 18 months?
8. In the case of a litigated matter, on the continuum between winning and losing, what is considered acceptable? Is there a possibility for success short of complete victory? Prevailing without success? Not prevailing but not losing?
9. What can the firm do to help the Company and [its General Counsel] be successful? What are the Company’s and your aspirations?
10. What do you see as the “next big issue” that your industry and your company will face? What risks or opportunities might that create for us both?

To be clear, this blog isn’t necessarily about customer service — Patrick J. Lamb at In Search of Perfect Client Service and Dan Hull at What About Paris? have that more than covered.  But when I saw Thom’s questions, I wanted to make sure that more lawyers than just DrinkerBiddle got the opportunity to ask them.  While only a few tie directly to the settlement process, don’t discount the rest.  They’ll all give you great insight into your client and what it needs — and that can help you in your next negotiation and beyond.

If you’re an outside counsel, ask your next client a few of these questions.  You’ll be glad you did.

With advance warning from Mitch Joel, I eagerly awaited my copy of the Heath brothers’ new book, Switch: How to Change Things When Change Is Hard. Like Made to Stick, Switch ostensibly has nothing to do with negotiation, but like its predecessor Switch backs into a settlement insight important to all of us.

The Identity Model of Decision Making

As with most concepts, Switch defines the identity model of decision making early on:

In the identity model of decision making, we essentially ask ourselves three questions when we have a decision to make: Who am I? What kind of situation is this? What would someone like me do in this situation? Notice what’s missing: any calculation of costs and benefits.

According to the Heath brothers, “we adopt identities throughout our lives” that help explain economically irrational behavior — we consider ourselves a patriotic citizen or a devout Catholic or a good mother, and these adopted identities drive decisions beyond superficial self interest. A Silicon Valley millionaire might vote against a Republican who would cut her taxes, or an auto worker might vote against a Democrat who would provide him health insurance.

Identities Drive Settlement Decisions

In our last post we discussed how important kitchen table talking points are to the settlement process, but the identity model insight Chip and Dan Heath provide is just as important. I have had cases that wouldn’t settle despite favorable economic terms because the plaintiff inexplicably wanted her “day in court.”  It seemed a bit self-righteous at the time, and I didn’t get why a few more dollars couldn’t get the deal done.  But I now see the need that a few more dollars didn’t address; in effect our lawsuit opponents may be asking themselves questions like:

• What would a whistleblower do here?
• How can I help stop lawsuit abuse with this settlement? or
  
• How would Ralph Nader react to the defendant’s proposal?

We often wonder what’s driving the other side to hold out in settlement talks, and we have often known it’s more than money, but Switch puts our finger on it. The ordinary citizen becomes a safety advocate in a rollover lawsuit, or an everyday cardholder becomes a consumer advocate when he realizes everyone’s interest was calculated that way.

What You Can Do

I once had a grizzled old defense lawyer tell me:

They say it’s not about the money. That’s BS — it’s always about the money. Eventually you pay a little more and all of a sudden that other stuff they were talking about goes away.

In some cases he may be right, but in every case your opponent’s conduct is driven at least in part by who they think they are.  You can either ignore that fact, and pay more if you’re going to settle at all, or you can approach the settlement talks with the other side’s identity in mind. To take it back to Switch, that auto worker isn’t going to change his vote just to get health insurance, but he might support a Democrat for other reasons.  In your settlement talks:

• If the other side thinks she is a whistleblower, put some additional compliance measures in your settlement to satisfy her concerns;
• If the other side considers himself a tough negotiator, plan to endure more $2,000 moves today than usual; or
• If the other side wants to “make sure this never happens again,” consider implementing a reasonable process that will ensure “this” actually won’t happen again — and tell the other side at the mediation you’re willing to do so.

The idea here isn’t to come up with a new set of unnecessary concessions. The point here is to consider who the other side thinks he is, and factor that into your overall settlement approach. You’ll be glad you did.

Why won’t the other side capitulate? The answer isn’t in the conference room, and it’s not in the documents. The reason your case won’t settle — at least not just yet — may be at a table far away.

The Smartest Guy at His Table That Night

I have given a lot of thought lately to a cluster of closely related negotiation concepts, each of which ultimately leads to the kitchen table:

• managing expectations;
• acceptance time;
• saving face; and
• the irrevocable offer.

Years ago a senior trial lawyer I really admire told me a story about how he positions technology cases for the jury. It went something like:

Tonight that guy on the front row is going to be the smartest person at his dinner table. No matter what else went on with his family today, he will explain to them — in great detail — how a telephone number is called up in a database or what happens behind the scenes when you swipe your credit card at the Wal-Mart or what “just in time” inventory management means to the local bookstore.

Everyone in your case, from the opposing party to her lawyer to the judge, is a real person who talks to someone — a husband, a friend, her dad — about her day when it’s over. The discussion at her dinner table matters.

“What will she tell her husband?”

When was the last time you admitted you had a bad case at home? No one wants to, and it’s especially true in litigation. Someone was mad enough about how they were treated to file a lawsuit, and they aren’t going to drop it without a good story and the time to tell it. That’s why your surprise attack on the merits at mediation can’t succeed — it’s often better, psychologically if not financially, for the other side to lose in court and blame it on the lawyers than admit defeat at home.

Instead, if you want to settle today, ask yourself what your opponent will tell her husband, her friend, or her dad about her settlement and how she got there — because she won’t settle without dinnertime talking points. A few ways you might get there include:

1. Advance notice of your position through a credible mediation brief, a clear pleading, or a phone call to her lawyer so your opponent has time to manage expectations at home;
2. An irrevocable offer, such as a Rule 68 offer, so she has time to carefully discuss the offer with her family before it expires;
3. An offer to settle halfway, discussed here and here and here, settling much of the case while moving forward on a few issues so she gets her (limited) day in court; or
4. A settlement that allows her to save face, like a donation to charity or a payment for some disputed severance time that she can talk about when she gets home.

At your next mediation, think about your opponent’s dinner conversation and the talking points you’re helping her write. You’ll be glad you did.

This post is a quick welcome to Gary Kitchen to the mediation world — not unlike what Vickie Pynchon and Diane Levin did for me when Settlement Perspectives got its start.

A Patent Mediator with Business Experience

As you can imagine from the title of this blog, on any deal I’m curious about the perspectives of those involved, and Gary’s is tailor-made for patent mediation on a national level. I’ll skip the “former Fortune 50 business executive” blurb from his bio and give you a snippet from a story he told over lunch last week:

I remember when I led a team at SBC [which is now AT&T] responsible for a major, multi-year project in Latin America. It was getting awfully close to the deadline when . . ..

That day I learned something I didn’t know when Gary and I worked together back in the day — Gary has been responsible for projects, P&Ls, teams, and results outside the context of disputes. Perhaps that’s why he works so well with clients — clients who have been responsible for projects, P&Ls, teams, and results outside the context of disputes.

A National Mediator with East Texas Trial Experience

To me, trial experience serves the same purpose as a final exam — not only does it help everyone keep score, but it provides clarity for the process to that point. I know more about Hegel’s dialectic theory because I had to write out my thoughts under pressure for Professor Allen, and I know more about what an auditor is (and isn’t) because I had to cross-examine an expert on it in Judge Rhea’s courtroom. Given the importance I put on trial experience, it should come as no surprise that I tend to look for mediators who have actually been to trial when trial perspective is important.

Back at our lunch, I learned a bit more about what it has been like on patent litigation’s front lines. Gary represented defendants and plaintiffs in trial after trial from McKool Smith’s Marshall office. One of his stories from his time there began:

It wasn’t that long ago when we went to trial on behalf of a defendant seeking to invalidate a patent. Before the jury came back with its verdict, we . . ..

And while it takes more than a few minutes to get the (favorable) verdict out of him, Gary focuses us on how they got there and why trial was the right answer in that case. In the Eastern District of Texas, credibility is built, and maintained, over the long term. Knowledge of the facts, relentless preparation, and civility are rewarded — in trial and in settlement. No wonder Gary has succeeded.

If you get a chance, put Gary’s business, trial and settlement experience to work for you in your next patent dispute. You’ll be glad you did.

It’s been almost 20 years since my first mediation, and I still remember the rehearsed opening sessions from those days. Mediation after mediation began at 9:35 with a map of the day from the mediator’s manual:  This is a creative new process; mediation is confidential; today we’ll explore “win-win” approaches to settling your case; there’s a lunch menu on the credenza; don’t leave until I tell you today’s session is over. There were a few more, but you get the point.

Since those early days I haven’t given much thought to why the mediator — rather than the parties — gets to end the session. But in a recent mediation headed for impasse the lawyer on the other side almost ended the day with “I guess there’s no reason to keep talking, is there?” in a late afternoon joint session, and I understood.

Who Will Be the First to Send a Message?

Mediation is admittedly a bit awkward, if not unnatural. For its success the process requires parties and their paid advocates to stop fighting long enough to work toward a compromise acceptable to all. A series of concessions, conditioned on reaching a settlement, ends in a deal or a return to conflict.

If settlement can’t be reached, most parties and advocates immediately look for a way to turn up the heat on the other side — to send a message reinforcing the consequences of not settling. While I have said before that a “failed” mediation is a perfect time to settle halfway, the traditional response is to remind everyone that conflict has resumed as quickly and convincingly as possible.

Don’t Jump the Gun

In my recent mediation, our second meeting was no more successful than the first. By late afternoon we were still stuck.  Everyone was ready to head for the airport again, but I thought there might be one last big move left on each side. Our mediator gathered a few of us together to see if we could reach common ground.

A few minutes into our afternoon joint session — a risky move in itself — one of the lawyers saw impasse coming and understandably began the notebook closedown process, highlighting his return to advocacy with something like: “It looks like we just see the case differently,” followed by “[a]pparently we don’t have much more to talk about.” Fortunately our mediator quickly intervened, surprising us all with a reminder that he, rather than the parties, would tell us when it’s over.

Once our mediator refocused us on why the case should settle and how we could get there, we began to make progress that afternoon — enough progress that the mediator was able to formulate a mediator’s proposal that got the deal done shortly thereafter.

Lesson Learned

The lawyer on the other side of my case was, and is, a good lawyer who did what most of us would have done. He began to remind us that the concessions would end as the conflict resumed. But the settlement achieved serves as a reminder of what’s been in the mediation manual for over 20 years: Don’t leave until the mediator tells you today’s session is over.

You’ll be glad you didn’t.

As I prepared to discuss the mediator’s proposal with our executive team and the COO the next day I realized my client might have painted himself into a corner — after a good night’s sleep I was confident he would want to change his mind, but sometimes it’s not that easy.

Only Two Ways to Get the Case Settled

I debated how to settle the case that day, and there were only two ways to get it done: with my COO or without him. I could gather the facts and work to persuade the executive team over his objection, or I could get the COO to revisit his decision before the call began. The fact that I recommended the deal would carry a lot of weight with the team, but my client’s COO was his boss’s right hand for a reason. And even if I “won” this one, we had an ongoing relationship to preserve. The choice was easy.

The COO wasn’t irrational and he wasn’t a stranger to big disputes, but he had said “no” rather emphatically. While I suspected he’d want to change his mind, clear, public statements are hard to retract. I have written about the decisionmaker’s need to save face before, and the concept as articulated by Fisher and Ury certainly applied here:

Often in a negotiation people will continue to hold out not because the proposal on the table is inherently unacceptable, but simply because they want to avoid the feeling or the appearance of backing down to the other side.

My decisionmaker would want to avoid any appearance of backing down to his lawyers, to the mediator, and to his executive team. I needed to give my COO a way to change his mind.

Saving Face With New Information

There had to be a reason we disagreed the day before. As I looked through my notes to retrace our steps, I realized my COO had based his decision in part on a “fact” we learned at mediation. As he had flown home the night our mediation ended, the rest of my team had dissected the day and realized that this important “fact” couldn’t be true — an idea we had explored late in the day to keep the parties’ relationship alive just wouldn’t work.

We had found the key to get the deal done.

I called the COO in advance of the broader executive team conference call, and it was clear he was preparing for a fight. Immediately he began to justify rejecting the mediator’s proposal. At that point — before he dug in too deep — I gave him the new information the rest of the team had realized the night before. In a few short minutes we had agreed to jointly support the mediator’s proposal. A settlement of one of the company’s biggest cases ever came that afternoon.

Use a little new information the next time someone on your team needs to save face. You’ll be glad you did.

Godin has written more than a few books already, but his recent Zen Unicorn is a great idea.  It simply rolls up some of the best posts from his blog over the past 3 years and presents them in a click-free, Kindle-only ebook.  Four of those posts, and why they’re relevant to mediators, include:

Make something happen

“The best time to plant an oak tree is 20 years ago, and the second best time is now.” I don’t know who said it, but it certainly applies to marketing.  In Make something happen Godin tells us to “make something happen today, before you go home,” and it’s great advice.  Today is the day.  Write a guest post, propose an article, begin to manage your digital footprint, hire a web designer, get listed on Mediate.com, or whatever.  But make something happen today.

This must be hard

As a mediator, do you follow up with your mediation clients after they leave your conference room?  Godin asks a great question more mediators should think about in This must be hard:

The fancy restaurant knows my phone number. Why not have the owner call me the next day just to ask [how my dinner was]?

The day after your next mediation, try an experiment.  Call the counsel who were involved.  If they settled, ask about something they care about.  Are the final documents are getting signed?  Is the press release ready?  Or whatever it takes.  And if the case didn’t settle, maybe your call will reveal the nonsettlers’ remorse I mentioned here.  Stay with the case and push until it’s done.  I assure you this will set you apart from other mediators.

The most important rule

How do we judge mediator success?  In The most important rule Godin tells us:

By a factor of three, what you do is not nearly as important as how it makes people feel.

Settling cases is hard, and you can’t succeed in the mediation business if you’re not good at it.  But assuming you’re good at what you do, what keeps people coming back?  It’s a feeling — the feeling of intense loyalty we get when the mediator does the things they don’t teach you in mediator school.  A few suggestions:

• Mediation briefs. The parties have been living with this dispute for a long time.  Carefully read — and understand — the mediation briefs in advance so everyone understands from moment one that you care about their case.  You’d be surprised how often this step is skipped.
• The participants. Do an Internet search so you understand who will be in your conference room before they get there.
• The parties. Understand a little about each party before the mediation starts.  15 minutes with Metacrawler or a Google Advanced Search is all you need.
• The process. Look at your own website from the perspective of a party who got the link to your bio from her lawyer last week.  Does your site help her prepare for mediation day?
• You. I once heard that, if given the choice between two mediators who have the potential to settle their case, the parties and their lawyers will pick the mediator they like better.  I can’t disagree.

Discovery

In Discovery, Godin touches on a lesson more veteran mediators could use: “Every person who encounters your organization for the first time comes with a beginner’s mind.”  Your newest client might have seen your bio, but she doesn’t know about the big case you settled last week or the hundreds or thousands that came before her — and she might not know much about mediation, either.

Today is the day many of the people in your conference room will discover you.  Think about the other Godin insights in this post and on his blog — your new client might not have met a mediator that follows up after mediation day, your new client might not have met a mediator who cares how they actually feel, or your new client might not have met a mediator that walks them through the mediation process on their website.  What will you do to help her discover something different?

Make something happen today.  You’ll be glad you did.

(For those of you who like Seth’s Perspective, note that his newest book, Linchpin:  Are You Indipsensable? will be available later this month.)

While that first post of 2009 seems like only yesterday, a lot has happened since then.  Through it all many of you have subscribed to, commented on and forwarded the posts you have seen here, and for that I cannot thank you enough.

In addition to the active readership we have at Settlement Perspectives, several prominent bloggers and publications have linked to our posts.  Following up on a great idea I saw earlier this week on the Loree Reinsurance and Arbitration Law Forum, I take this opportunity to highlight many of those blogs and publications as a way to say “thank you”.

Decision Tree Analysis And More

Early in the year we did a series on decision trees and how to use them more effectively in mediation and litigation.  The series generated some interesting discussions, including:

• The National Law Journal’s “Corporate Warfare Has to Make Business Sense These Days”, written by Michael Cavendish — a business litigator who knows what questions to ask and who understands where the practice of law is headed;
• Litigation Accounting for In-House Counsel at the IP ADR Blog, now Commercial ADR – Commercial Solutions to Justice Problems, which is a new initiative from talented trainer and mediator Victoria Pynchon;
• Diane Levin’s post A round-up of must-read articles for professional mediators, which highlighted Decision Tree Analysis in Litigation:  The Basics at her ever-insightful Mediation Channel blog;
• The Strategic Mediator’s article Mediation Preparation – Don’t Forget Your Decision Tree, which focused on Settlement Perspectives’ two-part interview with Marc B. Victor, who pioneered the application of Decision Tree Analysis to litigation in the 1970s; and
• Strategic Legal Technology’s The Inhouse Perspective on Litigation Risk Analysis and Decision Trees, which also highlighted our discussion of mediation mind maps.

Early Case Assessment

ECAs are always a popular topic, and this year was no exception.  Notable discussions included:

• Clearwell Systems’ article How to Reduce Electronic Discovery Costs Part III:  Early Case Assessment, which underscores the point that “early case assessment is a different approach to litigation”;
• Settle It Now’s article Best Early Case Assessment Practices;
• Don Philbin’s new ADR Highlight Reel, which recently linked to our latest post on the ECA Toolkit; and
• John Lassey’s interesting post on Impasse at Mediation Stuff.

Blogging and Web 2.0

I may be a bit behind the curve on Web 2.0, but it’s clear we’re all learning together.  The conversation has recently included:

• InsideCounsel’s “Using Web 2.0 to Advance Your Career”, which we followed up with In-House Legal Blogs, Social Media and Web 2.0:  Can They Advance Your Career?;
• Settle It Now’s Developing Your Business Without Spending a Dime — which includes marketing tips from one of the best in the business;
• Diane Levin’s Recommended reading:  24 alternative dispute resolution blogs to follow, which kindly listed Settlement Perspectives among some great ADR blogs out there, as well as Only Connect:  The Impact of Blogging on ADR in the ABA’s Dispute Resolution Magazine and Diane’s World Directory of ADR Blogs, which is a longstanding public service to the ADR community;
• The Strategic Mediator’s Blogging – Have You Gone There Yet? by Sandra Upchurch, whose “soccer mom” post on competing perspectives highlights how everyday lessons can be used effectively in mediation; and
• Strong Connections, a post on the Settlement Perspectives Newsletter by my friends at Unit Interactive.

Insurance Coverage

Late in the year we joined the discussion on insurance coverage from the policyholder’s perspective.  Follow-up included:

• Stephen Goldberg’s impressive Catastrophic Insruance Coverage Blog and “Common Sense Sometimes Wins the Day”;
• Victoria Pynchon’s  Commercial ADR – Commercial Solutions to Justice Problems, which cited Insurance Coverage: 4 Rules and 10 Tips for Policyholders in her post An insurance coverage negotiation case story; and
• Philip J. Loree, Jr.’s recent post Some Helpful Rules and Tips for Policyholders and Cedents Courtesy of Settlement Perspectives at Loree Reinsurance and Arbitration Law Forum.

Other Topics and Sites

• Our friends at Mediate.com continue to list and promote Settlement Perspectives on their Featured Blogs Page — with an area dedicated to our posts here;
• Jeffrey Krivis and Mariam Zadeh at First Mediation did a great post on The Confidential Listener Technique, which expanded on the blind bidding enhancement concept we discussed early in the year;
• Christopher Annunziata at CKA Mediation & Arbitration wrote Exchange Your Bottom Line Blindly? in an effort to further explore the blind bidding enhancement concept;
• Settle It Now furthered the conversation about mediator’s proposals in Mediator’s Proposals:  the Good, the Bad and the Ugly;
• Legal OnRamp continues to feature Settlement Perspectives and other legal blogs;
• Keith Jones’ article The “Judicial Hellhole” Label and Managing Expectations at Mediating Certainty elaborated on managing expectations in an important context;
• Our friends at the Commercial and Industry Arbitration and Mediation Group on LinkedIn, and
• Philip J. Loree, Jr.’s post with the great idea for this one — Acknowledging Some Kind Mentions from Our Fellow Bloggers — deserves a second mention.

As 2009 comes to an end, I will close as we began.  Thank you, and Happy New Year.

When the big case comes in, will you be ready for it?  As you work to better understand your story, lock down your documents, and brace for the PR impact, what else do you need to worry about?  Unfortunately insurance coverage is often way down the list — a mistake most don’t realize until it’s too late.

Recently the ACC Docket featured a piece that Wendy Toolin Breau and I coauthored on managing insurance relationships in the midst of significant litigation, entitled “‘Bet the Company’ Litigation from a Policyholder’s Perspective”.  Although you may want to read the entire article when your next big case comes in, the 4 rules and 10 tips we discuss appear below.

Preserving Insurance Coverage:  4 Rules

Insurance is a practice area unto itself, and there are few rules that apply in all situations.  But I have never seen an exception to these four:

1. Always act like a reasonably prudent insured. When confronted with a decision, what would you do if you were not insured?
2. Never try to outsmart yourself. Never rely on colluding with the plaintiff to secure coverage, force an argument, or characterize one claim as something it’s not.
3. An insured cannot sue for bad faith without acting in good faith. How will your actions look with hindsight when the urgency has passed and emotions have ebbed?
4. Insurers hate surprises. Communication is key.
   

Apparently I’m not the only one who thinks this way.  As I discussed these rules with Philip J. Loree Jr. at the Loree Reinsurance and Arbitration Law Forum the other day, I learned that they don’t only apply to policyholders –  apparently insurers must live by these same rules to collect from their reinsurers:

You would be surprised how frequently reinsurers contend that the carrier colluded with the policyholder in direct insurance coverage litigation. If the reinsurer can establish collusion concerning the fact, amount or allocation of coverage, or if the reinsurer otherwise shows that the carrier acted in bad faith, then the reinsurer will usually be relieved of liability for the claim. Like policyholders making direct insurance claims, carriers making reinsurance claims need to avoid even the appearance of collusion or bad faith, and following rules analogous to yours helps them do that.

With these 4 rules in mind, there are a few more tips to guide your relationship with your carriers in major litigation.

10 Tips for “Bet the Company” Litigation

1. Know Your Policies and Your Carriers before a Crisis Arises. Knowing the policies — including where they are — is critical, but having a personal relationship with my carriers is yet another Secret the Two Million Miler Club Taught Me.
   
2. Know Your Case.  And Know It Early. Yet another reason we have an entire series on Early Case Assessments.
   
3. Once Disaster Hits:  Notice, Notice, Notice. No insured can afford to have a “foot fault” when notifying its carriers, but it happens all the time.
   
4. Know Your Coverage Issues before the Case Progresses. Coverage is neither easy nor intuitive — for me, coverage counsel is often the best option.
   
5. Know Your Team. How often have you taken a few months to get to meet everyone on your team — defense counsel, coverage counsel, internal witnesses, experts and more?  Wouldn’t they have worked better together had they met early in the case?
6. Overcommunicate.  Early and Often. Establish a regular communication protocol, comply with it, and go beyond it.
7. Agree.  Or Agree to Disagree. Sometimes you have to litigate your case while the coverage discussion proceeds, but avoid it if you can.  If you can’t resolve your coverage issue early, follow these 4 rules and 10 tips and it’ll make your life much easier.
8. Settlement:  It’s Never as Easy as You’d Think. Remember that your carrier will have rules and protocols about how settlements can be approved, and in what amounts — and it’s never a quick process.
9. Simultaneous Settlement Talks and Coverage Negotiations:  It Can Be Done. This isn’t for the faint of heart, but you can solve for more than one variable at one time.  If you plan to mediate both disputes simultaneously, a mediator experienced with complex insurance issues — who can also address the merits of the underlying case — is a must.
10. Resume Your Relationship with Your Carriers and the Insurance Markets When Your Case is Done. This just reinforces tip #1, above.

When your next big case comes in, think about these 4 rules and 10 tips, and take a look at our article for more detail.  You’ll be glad you did.

Last week we discussed why a small group is usually a better audience for bad news in Delivering Bad News:  How Big Is Your Conference Room? Yet if small group delivery is not an option, what else can you do to get a difficult message across?  Three tactics come to mind.

Manage Expectations

Long Before the Mediation Starts. Last year I wrote Managing Expectations:  An Unexpected Lesson on the Bus to Hertz, and the lesson holds true in conference rooms, too.  Not so long ago I had a case against an online retailer whose CEO enjoyed an irrational confidence in his case. With our mediation just a month away, I knew we had to move the CEO much closer to reality to get the case settled.  Rather than surprise him at mediation with documents and bad facts he hadn’t yet seen — like the guys in my post last week did to me — I spent a great deal of time assembling a letter to the other side that carefully walked the CEO through the evidence in advance.  While it took a lot more than a letter to settle our case, the CEO’s ability to see the dispute from my perspective was an essential first step.

Why Manage Expectations in the First Place? We have discussed why managing expectations is so important here and here, and Phyllis Pollack has a a great post on it, too, but to sum it up you should manage the other side’s expectations when you can so your opponents will be able to:

• warn others with a stake in the outcome early – their shareholders, their bosses, their insurers, their spouses and more;
• decide whether the amount of time, money and effort to be spent on the case needs to be adjusted; and
• get used to the idea themselves.

The last of these bullets leads us to the concept of acceptance time.

Build in Acceptance Time

You’ve heard it before when bad news arrives:  “He’ll get over it,” or “Time heals all wounds.”  That’s because bad news takes time to process — acceptance time, according to Chester Karrass on Negotiation Space:

In any negotiation both parties walk into the negotiation with what may be somewhat unrealistic goals. Each party might have misconceptions and bad assumptions. During the process of negotiation . . . we discover that some of our expectations may not be met. Some of our wishes go away and some things may be impossible at this point in time.  . . .

Can we as negotiators expect the other party to adjust and accept new and undesired realities immediately? Of course not. Resistance to change is universal. It takes time to get used to ideas that are foreign or unpleasant.

While you can find our earlier discussion on acceptance time here, the ultimate point is this: Since it takes time to get accustomed to bad news, consider delivering your bad news in advance of your negotiation session.

Allow the Other Party’s Negotiator to Save Face

Saving Face:  The Concept. The negotiator’s need to save face is simple, yet it remains one of the most underestimated factors in negotiation:

Often in a negotiation people will continue to hold out not because the proposal on the table is inherently unacceptable, but simply because they want to avoid the feeling or the appearance of backing down to the other side.

Fisher and Ury’s words — and the rest of Getting to Yes — are almost 30 years old, but many still hope to embarrass the other side with a big reveal of bad news as the parties get together.  Their efforts would be better spent helping the other side save face than lose it.

How? The best way to help the other side avoid losing face is to manage expectations and build in acceptance time, discussed above.  But there will be times when the parties are across the table and bad news has to be delivered on the fly.  If you can, ask for a break and walk down the hall with the other side’s negotiator to tell her the news while everyone else scrambles for the conference room cookies — this built-in break will itself allow her to manage her own team’s expectations, as well.

If you must deliver bad news real time . . .. If you must deliver bad news to the other side in real time, think about how you deliver it.  In a recent post, Negotiation Space gives us suggestions on phrases that can help the other negotiator save face.  While I like theirs, the following are a few I have used — with sincerity — in the past:

• “We’re all working real time here, but you should know that I just learned . . ..”
• “That’s what I thought at first, but we were able to interview Ms. [Smith], and she tells us . . ..”
• “My math was a little different.  If I can walk you through how I got there maybe we can figure out where the discrepancies are.”
• “I see where you are coming from, but when we looked at it we saw . . ..”

As always, this is a nonexhaustive list, but there’s a theme here:  The other side’s negotiator gets a pass for not knowing what you’re about to say — so her team will work with her to solve the problem rather than spend time wondering why she didn’t know the bad facts before now.

Find a way to deliver your bad news more effectively.  You’ll be glad you did.

The conference table had 40 chairs, and my client’s team filled almost half of them.  We had been asked to show up with the folks needed to get a deal done, and the backchannel weekend chatter had all been positive.  As the meeting began, our optimism crashed as the other side went on the attack, denying my client’s most important request and questioning why it had ever been included.

People usually need to hear the truth whether it’s convenient or not, but there’s more than one one way to convey a difficult message.  How often have you seen someone delight in dropping bad news onto the conference table as the meeting begins?  The adrenaline rush might satisfy some, but does this approach do any good?

Thank You for Your Interest

The lawyer who delivered the bad news to my team that day prided himself in his aggressive persona, and his performance was true to his reputation.  Unfortunately his glee was short-lived; my team and I worked night and day to avoid a deal with him, and we succeeded.  I wonder if he’ll ever realize what a disservice he did his client.

Public Praise, Private Reprimand

Negotiation is tough, and bad news is inevitable.  Sometimes the answer is “no,” the facts aren’t always convenient, and any deal to be reached has to account for it all.  But think before you fire back with uncomfortable facts — as Nancy Hudgins has explained in posts here and here, bullying gets no one closer to closure.  As you respond to the other side, you may want to keep the words of Vince Lombardi in mind:

Praise in public; criticize in private.

Lombardi’s advice might not have been directed at negotiators, but his approach works here — I’ll modify his message to say that a small group is usually a better audience for bad news.  “Success has many fathers, while failure is an orphan” is a proverb for a reason — people want to be associated with success, and they don’t want to be tied to failure.  At the moment you deliver bad news — whether you reject the other side’s offer or reveal evidence that undermines their position — a large group across the table will become more defensive than productive.

So Who Needs to Be in the Room?

Other than your need to have people with dealmaking authority in the room, why do you care who the other side plans to bring to a settlement meeting, a mediation, or a deal negotiation?  You don’t have to subscribe to the butterfly effect to realize that every person at the table impacts the negotiation in some way — I have watched individual plaintiffs overreact to bad news because their spouses are present, I have seen lawyers bristle at minor inconvenient facts in front of their clients, and I even noticed one witness unable to deal with bad facts when an attractive law clerk appeared at his deposition.  Think about that as you demand the other side bring a second insurance adjuster, two more folks from the home office, and the CEO to the mediation.

Are there occasions where a big group needs to hear bad news?  Absolutely, but almost never when a deal needs to get done quickly.  Think of first grade:  When Miss Haskins wanted to tell you how bad your handwriting was, did she reveal your Big Chief tablet to the entire class, or did she chat with you about your (terrible) penmanship when no one was around?

The next time you have bad news to reveal, get a smaller conference room.  You’ll be glad you did.

“In 60 days . . . you will know 80 percent of what you will ever know about a case.”  PD Villareal’s quote was critical to our efforts to define Early Case Assessment in 2008 as we started our series on ECA, and we’re always happy to hear more from him.   Fortunately, an interview with Villareal in this month’s Metropolitan Corproate Counsel gives us just that.

CPR’s Early Case Assessment Guidelines Revisited

In CPR’s ECA Toolkit – A Great Contribution to Controlling Litigation Costs, Villareal discusses CPR’s new ECA guidlines and Early Case Assessments on a broader level.  Villareal jumps right in to tell us how ECA differs from the status quo:

The thing about lawyers is that by mindset and by training, they will want to collect facts and analyze them forever because every additional piece of information adds to their understanding of the situation and to their assessment of the case.

Early case assessment imposes the discipline of cutting that process short. Experience teaches us that if you conduct a very good early case assessment . . . you will know 80 percent of all you will ever know about this case. Is that perfect knowledge? Well by definition “no,” but it is adequate and sufficient knowledge upon which to make decisions about the direction in which you want to go to resolve most controversies.

The Costs of ECA and More

In the interview, Villareal also responds to those who think ECA is too expensive (”ECA . . . represents expenditures that would have to be made later in any event”), and he walks through the elements of his Early Case Assessments at a high level (an “assessment of the facts,” “what’s at stake for the company,” and more), and he discusses CPR’s ECA Toolkit — all of which make the entire interview worth a read.  (And many thanks to Rees Morrison for highlighting Villareal’s interview at the Law Department Management Blog.)

Take a look at Villareal’s interview in Metropolitan Corporate Counsel.  You’ll be glad you did.

I don’t stray off topic often, but occasionally I do — with a warning.  This is one of those rare occasions where we won’t talk about negotiation, mediation or settlement strategy; feel free to scroll to the next post if that’s why you’re here.

This month InsideCounsel magazine published an article from the always interesting Mike Evers with a title that — for some reason — caught my eye:  Using Web 2.0 to Advance Your Career.  Although Mike admittedly says some nice things about Settlement Perspectives, he also gives us a rare recruiter’s-eye view of why in-house counsel might want to join the online conversation.

Why Manage Your Digital Footprint?

With the popularity of Legal OnRamp and LinkedIn and more, the opportunities to manage your digital footprint expand every day.  But many in-house lawyers aren’t convinced.  Isn’t there safety in anonymity?  Mike’s response is simple and direct:

For readers with privacy concerns, get over it.  Embrace the fact that your professional life is public.

And Mike is right.  I did an Internet search for a fellow in-house lawyer the other day and found only one hit.  Unfortunately, it was the court’s opinion in a case where he was a witness.  I sifted through the opinion and ultimately determined that he has nothing to hide, but it took time — time that would have been better spent reading his profile, articles he’d written, and other content he created.

While online anonymity might not be a choice any more, Mike gives us a few reasons to want to manage our online presence:

The point here is that Web 2.0 presents seemingly limitless opportunities to offer value, demonstrate expertise and cut across barriers that make new connections.  In short, you are no longer bound by the four corners of a traditional resume or directory listing.

Managing Your Digital Footprint — Where Do You Start?

I wrote about my experience with Settlement Perspectives over a year ago in Come on in, the Water’s Fine, and I’m still happy I took the plunge.  But you don’t have to start a blog to manage your digital footprint.  As Mike explains, a simple first step is to get comfortable with LinkedIn, which LawyerCasting has made easier with LinkedIn for Lawyers 101.  Next, you’ll want to find a place where you can add your thoughts and expertise — perhaps a comment on the ACC’s blog, In-House ACCess, Patrick J. Lamb’s In Search of Perfect Client Service, or Rees Morrison’s Law Department Management Blog.

But there’s more.

Your Online Image — Get It Right with Mitch Joel’s 8 Easy Steps

Until last week Web 2.0 was a matter of happenstance to most of us.  We got an invitation to Plaxo and filled it out, and we joined a LinkedIn group or two.  But last week I listened to Mich Joel’s audiobook Six Pixels of Separation, which highlights how any of us can proactively manage our online footprint.  While I can’t recommend the book highly enough, Mitch gives us a taste in How to Build Your Digital Footprint in 8 Easy Steps, posted earlier this year at Six Pixels of Separation – The Blog.

Mitch starts with “Create a Strategy,” because “your overall strategy . . . will become your lighthouse,” and he follows with 7 more steps any of us can track — steps that will become crucial as we all venture further into the online world we already inhabit.

So set your strategy, manage your online presence, and have fun.  You’ll be glad you did.

]]> http://www.settlementperspectives.com/2009/11/in-house-legal-blogs-social-media-and-web-2-0-can-they-advance-your-career/feed/ 4 http://www.settlementperspectives.com/2009/08/cpr-publishes-early-case-assessment-guidelines/ http://www.settlementperspectives.com/2009/08/cpr-publishes-early-case-assessment-guidelines/#comments Mon, 17 Aug 2009 03:01:27 +0000 John DeGroote http://www.settlementperspectives.com/?p=2133

You can’t settle your case before you know what it’s worth — or at least you shouldn’t — so we discussed why it’s best to value your dispute before settlement discussions start a few months ago.  This fact has driven an entire series on Early Case Assessments here on Settlement Perspectives, and it’s clear I’m not the only in-house ECA fan out there.

The International Institute for Conflict Prevention & Resolution, known also as the CPR Institute, has recently published CPR’s Early Case Assessment “ECA” Guidelines (2009), which are designed to “set forth a process designed to help businesses decide early on how to manage disputes, including identifying key business concerns, assessing risks and costs, and making an informed choice or recommendation on how to handle the dispute.”  They certainly meet their objectives.

CPR’s Early Case Assessment Guidelines

The guidelines themselves are divided into five sections, each of which deserves a read:

1. CPR’s Definition of ECA;
2. Benefits of Utilizing Early Case Assessment;
3. CPR Rationale for Developing the ECA Guidelines;
4. Setting the Stage for Successful Early Case Assessment; and
5. Utilizing the CPR ECA Guidelines.

Additional ECA Materials from CPR

Importantly, CPR’s Guidelines are backed by truly helpful resources in .pdf format, including:

• An Executive Summary that can serve as the template for your case overview;
• An ECA Flow Chart, which provides a succinct overview of the Early Case Assessment process;
  
• An ECA Detailed Analysis (”Long Form”) — a great resource that can be used alongside Settlement Perspectives’ Early Case Assessment Checklist;
• The entire package, under CPR Early Case Assessment “ECA” Guidelines;
• An article by John Lande, entitled “The Movement Toward Early Case Handling in Courts and Private Dispute Resolution”; and
• A DVD on Early Case Assessment.

Recent Press on CPR’s Early Case Assessment Efforts

CPR Institute President and CEO Kathy Bryan has followed up on these guidelines and CPR’s other efforts to make sure ECA stays at the top of the in-house agenda with a recent Metropolitan Corporate Counsel article.  Bryan provides us with a quote not unlike one you might have seen here on Settlement Perspectives before:

We think that the sooner early case assessment can be done – and it can be done 30 to 60 days after a complaint is filed – the greater the likelihood of an early resolution at minimum cost.

We couldn’t agree more.

Stop by the CPR website at http://cpradr.org/ when you can. You’ll be glad you did.

There’s something exciting about a war room as the big case turns toward trial, and ours was no different — witness notebooks, research files, box after box of “hot” documents, and a whiteboard with the latest graphic to explain it all.  After days in that war room we began to wonder:  Why won’t the other side settle?  How could they not understand how bad their case was?

A Fresh Perspective from Down the Hall

One of the firm’s senior lawyers wandered by the conference room and asked a few questions to break up the evening.  He listened to our quick pitch on the case, and sat down to probe a bit more.  Our stories were followed by one of his own — an old case whose plaintiff sounded more like our plaintiff than not.  The more we talked the better we understood where our opponent was headed.  If we didn’t do something quickly, we’d be in for a long summer.

This site has explored why you might want to manage the other side’s expectations before, and that’s what we did here.  We worked up the case we had originally intended to prepare, but we also focused the plaintiff on what his case wasn’t — now that we knew where he was going.  It worked.

Get Different Perspectives with a Partner Focus Group

No matter how confident you are in your case, is the other side asking themselves the same thing you’re asking about them:  “How could they not understand what a bad case they have?  Where are they headed?” In other words, is there a silver bullet you‘ve missed?

If you and the other side value the case differently, at least one of you is wrong. How can you make sure it isn’t you? In significant disputes, whether at the Early Case Assessment stage or later, the best way to find out is to ask someone who might see the world like the other side does — or a few such someones.  I have talked before about how companies might want to hire plaintiffs’ lawyers as their lead defense counsel under the right circumstances, but you don’t need to go that far.  In major litigation I supplement my own opinions with additional perspectives on my dispute from experienced trial lawyers who have no reason to filter their comments.

The Elements of a Partner Focus Group

We’re not looking for a formal focus group here; we’re asking a few partners for the “visceral, personal, unscientific reaction[s]” described by Seth Godin — uncut insights into your case, from trial themes to settlement strategies to great questions to ask in deposition.  In the past I have gotten there with a meeting that looks something like a very small focus group session, with these elements:

• 3 trial partners with varied backgrounds. Include a former trial judge if you can. In-court experience is a must, and real-world experience in front of your jury pool or an analogous fact finder will be a big help; subject matter expertise, such as experience with reinsurance disputes or technology cases, may be relevant in your case, as well; and experience on the side opposite yours is also a plus.
• Firms not connected to my case, either now or in the future. Law firms compete with one another, and your trial counsel may be worried she could lose this case to a member of the group you plan to convene; an explicit agreement that removes this possibility will encourage a more open discussion.
• A presentation on both sides of the case by my counsel. I have handled this the same way some jury research providers handle pretrial focus groups, including a one-hour(ish) presentation from the plaintiff’s side, a one-hour presentation from the defendant’s side, and a quick rebuttal from the plaintiff’s side, with all presentations supplemented by a handful of critical documents and other important evidence.
• Discussion of the case with me and someone else from my team. I’d like to have a cup of coffee, 1 on 1, with each of the lawyers serving on my focus group to get their immediate, uncut reactions to the presentation before we discuss it as a group — and there’s more time for individualized follow-up later, if needed.
• A joint brainstorming session about the case with all 3 partners and my trial counsel. Whiteboards, a round table and open discussion in front of your trial counsel on the underlying case can — will — generate the fresh perspective you need on your dispute.  Have a promising associate there to take lots of notes.

I searched the Internet for “partner focus group” and found one of my own presentations and little else that’s helpful, so I have no links to add to this list of things that have worked for me.  This can’t be new, so if you have formalized the process I’d like to hear about it.

Does It Really Work?

Does The Partner Focus Group really work?  I think so, but I asked Peter S. Vogel, author of the Internet, Information Technology & E-Discovery Blog and veteran of a significant focus group session of mine a few years ago, for his perspective on the process.  He responded:

I couldn’t have said it better myself.

To close, remember: This whole exercise is about differing perspectives. Use a Partner Focus Group to make sure your perspective isn’t off-base.  You’ll be glad you did.