Choosing Tactics

Strategic Choice Model  The lawyer should not necessarily stick with one model.  The idea that the negotiator has freedom to switch and choose between different models is called the Strategic Choice Model.  There are limitations of ones ability to change in a single negotiation.  I think it is easier to start out problem solving and move to competitive rather than vice versa.  Often, however, competitive negotiations get more problem solving orientated as time passes and some battles have taken place.

ISSUES TO CONSIDER WHEN CHOOSING MODELS AND TACTICS  Distributive or Integrative.  Goals of the Negotiation.  Relationship Between Clients.  Do You Have To Do Another Deal or Is It a One Time Situation?  How Will the Other Side React? (Reminder: The Law of Unintended Consequences)  Relationship with other Negotiator and History of Past Negotiations.  Other Sides Negotiation Strategy.

CHOOSING EFFECTIVE TACTICS  Probable negotiating strategy of opposition.  Does context have integrative potential?  Other factors:  Stage of negotiation.  Bargaining Power of the parties.  The need for ongoing relationships and concerns about honoring community norms.  Attitude of client.  Negotiator’s personality.

CHOOSING EFFECTICE NEGOTIATION TACTICS: A SUMMARY ISSUE INFLUENCING CHOICE OF TACTICS IF “YES”:If “NO” ANSWER Will other negotiator continue competitive tactics? CompetitiveEither Model Does negotiation offer integrative potential?Problem-solvingEither Is Negotiation in early phase?Often Competitive in litigation not so much in Deal Making (But, I will usually start out with Problem Solving) Moving down the road there is an Increasing Possibility of Problem-solving Does the other side posses superior bargaining power? Leans toward problem solving to be safer. Either Is there an ongoing relationship between the parties? Problem-solvingEither Do competitive tactics violate bargaining norms? Problem-solvingEither Does client’s input favor competitive display?CompetitiveEither Does negotiator’s own personality make her more comfortable with collaborative tactics? Problem-solvingEither

CHOOSING EFFECTICE NEGOTIATION TACTICS: A SUMMARY  In summary, negotiation theory- like theory in any discipline involving human behavior, and unlike mathematics or physics- is not perfect and must have an element of human experience.  Good Judgment - not cook book procedures- guides us through most of life’s demanding situations including negotiations: I lean toward de-escalation, not escalation. I lean toward cooperation, not always competition. Relationship building rather than relationship breaking.

Planning for Litigation Negotiation  Subject Matter Preparation  Negotiation Planning

The Client Relationship  The client makes the call – a successful negotiation is one that meets the client’s long term and short term interests.  They must be informed.  You are the agent – watch out for negotiating something that is in your interest (“I really don’t want to try the case”, “I don’t like my client”; “I don’t want to look like a jerk lawyer because my client is being unreasonable”).  Help the client evaluate the risks and rewards.. They don’t always know what they want.  Give them as many informed options as possible.

Meeting with the Client  Understand (and help the client define and prioritize) the client’s interests, needs, resources, and capabilities, and those of the other side.  Let the client tell their story showing empathy without necessarily agreeing.  Explain the legal process and help weigh opportunity and risk.  Evaluate and create options and identify the Client’s BATNA.

Meeting with the Client (cont.)  Explore value creating opportunities; discuss distributive problems.  Allocate roles and responsibilities.  Discuss the lawyers approach (problem solving, competitive) fees, professional issues and fees.  Come up with a plan, put it in writing and continue to update it.  Note: The old approach was to gather facts and explain whether or not there were the elements of a contract or breach, and explain the legal remedies. You will need to do this at some time, but your client wants more than a legal analysis… they want a solution.

Your BATNA in Litigation  Your alternative to settlement is your Expected Trial Result which includes Attorney Fees.  You have to give your client some idea of this: You have a strong case, you have a weak case…some lawyers actually give percentages.. Others do not.  You have to analyze the case and compare the potential results to the settlement offers and demands. This is not easy.

Your BATNA in Litigation  Understand your clients risk preferences.  Determine Expected Trial Results  Evaluate- Substance. Procedural issues and consequences. Transaction costs. Define your clients goals and bottom line.

Litgation Preperation 1. Learn all Relevant Facts: Review important documents, learn all possible facts. Complaint, Documents, Deposition Testimony, interview client and witnesses, perform discovery. 2. Plan for Information Give, Guard, Get.

Three Main Functions of Information Exchange  Establishing Rapport  Determining Interests, Issues, and Perceptions  Signaling Expectations and Leverage

Information Exchange  Ask About Interests (Ask, Ask Ask !!!!!)  Probe First – Disclose Later  Test for Understanding  Summarize  Explore Shared Priorities

The Law and the Standards and Norms 3. Research the Law and learn the rules, standards and norms that will apply to the negotiation. a. Research the Law. Know all the elements for the causes of action you have to prove if the case has to go to trial and determine whether the evidence fully supports your burden of proof. Learn the cross-claims and the affirmative defenses the other party may bring or has to prove if the case goes to trial and determine if the evidence fully supports their burdens of proof. Study reported jury verdicts and reported settlements in your particular jurisdiction. b. Research the Standards and Norms that apply to the case. Consult your client, experts and other lawyers. Don’t forget to analyze the strength and weakness of your legal position and the effect of the objective standards on your negotiation.

Preparation for Litigation Negotiation 4. List and prioritize your client’s interest’s needs and wants, their propensity for risk; also discuss ethical issues during this process. 5. Create potential options, solutions, goals and expectations. 6. Assess the viability of your client goals and expectations; Case Valuation and determine the Expected Trial result including all costs Decision Analysis and Assessment of Contingencies. Determine your Clients BATNA.

Preparation for Litigation Negotiation 7. Determine your Opening Point, Target Point and Reservation Point including important Settlement or Business Terms; Determine Zone of Possible Agreement; Develop a Concession Plan a. Reservation Point and Terms What is your Reservation Point? What is your Reasonable Expected Trial Result? At what point will you walk away from the negotiation and proceed to trial? b. Target Point and Terms? c. What is your Opening Point and Terms? d. Develop your concession plan that will move from your Opening Point to your Target Point? e. Where is the Zone of Agreement?

Preparation for Litigation Negotiation 8. Re-evaluate this Checklist from each other parties perspective in the case. 9. Prepare your client for the Negotiation. a. Discuss negotiation process for clear understanding. b. Prepare client for negotiation role. c. Discuss the role of other participants and the other parties’ potential roles. d. Confirm client’s understanding and agreement with the negotiation case strategy.

Preparation for Litigation Negotiation 10. Consider the Negotiation Agenda and Tactics. Prepare for Problem Solving Methods and Competitive Methods During Negotiations. a. Have you set an agenda and process with the other side? b. Prepare proposals and packages that can be used during negotiation. c. Is the other side a competitive, accommodating or avoiding negotiator? How will you deal with this? d. Will they be hard bargainers? List counter measures you will use to counter hard bargaining tactics. e. What leverage do you have and how will you use it? Continue to re-evaluate all these steps during the negotiation.