Category Archives: Books

When All You Hear Is “No”

gtreHave you ever found yourself negotiating with a brick wall? Maybe not a wall, but an opponent, coworker, spouse or five-year old so entrenched in her position that it seems to take a herculean effort to procure even the slightest movement?

I’ve previously quoted from the slim but powerful text about negotiation strategy, Getting To Yes. One of the authors of that landmark, William Ury, subsequently wrote Getting Past No: Negotiating With Difficult People. I don’t know about you, but anyone who doesn’t go along with my program is clearly difficult.

Ury developed a five-step strategy for making progress with these . . . er . . . difficult people. The first step is to take your own emotions out of the equation; this will help prevent you from reacting without thinking, which can immediately stall or even end productive negotiations. Ury calls this Going to the Balcony. He describes it thusly:

“When you find yourself facing a difficult negotiation, you need to step back, collect your wits, and see the situation objectively. Imagine you are negotiating on a stage and then imagine yourself climbing onto a balcony overlooking the stage. The ‘balcony’ is a metaphor for a mental attitude made of detachment. From the balcony you can calmly evaluate the conflict, almost as if you were a third-party. You can think constructively for both sides and look for a mutually satisfactory way to resolve the problem.” (Getting Past No (Bantam 1991), p.17.)

Step two is to Disarm Your Opponent. Here, I picture Jason Bourne using some slick Krav Maga move to take and use his opponent’s own weapon against him. Sadly, Ury’s tactic is not so sexy. But it’s easier. The goal is to step to your opponent’s side. This requires active listening, which gives your opponent an opportunity to articulate her position, then paraphrasing it back to her. Ury writes, “It is not enough for you to listen . . . [h]e needs to know that you’ve heard what he has said.” (Id. at 39.) Once you both agree that you understand your opponent’s position, the second part of this step is to create a favorable climate for negotiation. This can result from one or a combination of efforts, which can include  acknowledging our opponent’s feelings and agreeing wherever you can, which can help you “accumulate yeses.” Ury summarizes this step as follows:

“[T]he hurdles you face are your opponent’s suspicion and hostility, his closed ears, and his lack of respect. Your best strategy is to step to his side. It is harder to be hostile toward someone who hears you out and acknowledges what you say and how you feel. It is easier to listen to someone who has listened to you. And respect breeds respect.” (Id. at 54.)

Ury’s third step is to reframe the dispute. “Reframing means recasting what your opponent says in a form that directs attention back to the problem of satisfying both sides’ interests. . . You act as he were trying to solve the problem, and thus draw him into the new game.” (Id. at 61.) This is tough to explain without an example; fortunately Ury provides one. He cites the 1979 SALT II arms talks with Soviet leadership. The US sent a very junior senator, Joe Biden, Jr., to Moscow to negotiate with (read: against) Soviet Foreign Minister Andrei Gromyko. Regardless how you feel about Joe Biden today, he certainly held his own on this early mission.

Gromyko quickly articulated the Soviet’s unequivocal nyet (no) to the US proposal. When it came time for Biden’s turn, here’s what happened:

“Instead of arguing with Gromyko and taking a counterposition, he slowly and gravely said, ‘Mr. Gromyko, you make a very persuasive case. I agree with much of what you’ve said. When I go back to my colleagues in the Senate, however, and report what you’ve just told me, some of them–like Senator Goldwater or Senator Helms–will not be persuaded, and I’m afraid their concerns will carry weight with others.’ Biden went on to explain their worries. ‘You have more experience in these arms-control matters than anyone else alive. How would you advise me to respond to my colleagues’ concerns?’

Gromyko could not resist the temptation to offer advice to the inexperienced young American. He started coaching him on what he should tell the skeptical senators. One by one, Biden raised the arguments that would need to be dealt with, and Gromyko grappled with each of them. In the end, appreciating perhaps for the first time how the amendment would help win wavering votes, Gromyko reversed himself and gave his consent.” (Id. at 61-62.)

See what Biden did? “He reframed the conversation as a constructive discussion about how to meet the senators’ concerns and win ratification of the treaty.” (Id. at 62.) When trying to reframe, Ury suggests posing questions to your opponent. Ask why, why not, what if, and, as Biden demonstrates, how would you do it. This turns your opponent into a collaborator.

Step 4 of Ury’s strategy is to make it easy for your opponent to say yes. He calls this building them “a golden bridge.”  This strikes me as connected in a fundamental way with Ury’s third step, reframing the issue. When Biden solicited Gromyko’s advice, he was, in effect, building him a golden bridge to see the issue from Biden’s (and, therefore, the US) perspective and cross the golden bridge by reversing his entrenched position.

According to Ury, what’s important is to resist the temptation to tell your opponent anything. Telling, aka “pushing may actually make it more difficult for your counterpart to agree. It underscores the fact that the proposal is your idea, not his.” (Id. at 90.) If you can persuade your opponent–overtly or covertly–that your proposal or goal is actually her idea, this builds a golden bridge making it very easy for her to adopt your position. Ury makes several suggestions, including helping your opponent save face, offering her choices and help writing her victory speech back to her superiors or contingent.

Step 5 is when you crush your opponent–bring her to her knees, right? Actually, no. In the final step of Ury’s strategy, while you make it hard for them to say no, this is done by bringing them to their senses, not their knees. Unlike the “power game” which we might instinctively resort to, which involves making threats if your opponent doesn’t agree to your terms, Ury urges instead that we think in terms of educating your opponent of what the alternative is if an agreement is not reached. Again, the better way to educate is not by telling your opponent what you’re going to do, or telling her what will happen, but instead to ask reality-testing questions. Here are three reality-testing questions Ury likes:

  1. “What do you think will happen if we don’t agree?”
  2. “What do you think I will do?”
  3. “What will you do?”

Ury acknowledges that this won’t always work. He reminds us of one of the most important concepts from Getting To Yes, formulating your own Best Alternative To A Negotiated Agreement (BATNA). Before you resort to actually implementing your BATNA, Ury suggests “you should let your opponent know what you intend to do. You want to give him a chance to reconsider his refusal to negotiate.” (Id. at 117.)

The book obviously covers these strategies better and in greater detail. I recommend Getting Past No to anyone who spends a good part of her career–or life–negotiating with difficult people. Then again, don’t we all?


If A Literary God Wrote An Appellate Brief . . .

wallaceWhat would his sentences be like? Would they read like his prose, if the prose that he wrote read like this?

“It was this look on the face that (slowly) turned left to look at her from the ambulance–a face that in the very most enuretic and disturbing way both was and was not the face of the husband she loved — that galvanized Jeni Roberts awake and prompted her to gather every bit of her nerve together and make the frantic humiliating call to the man she had once thought very seriously of marrying, an associate sales manager and probationary Rotarian whose own facial asymmetry — he had suffered a serious childhood accident that subsequently caused the left half of his face to develop differently from the right side of his face; his left nostril was unusually large, and gaped, and his left eye, which appeared to be almost all iris, was surrounded by concentric rings and bags of slack flesh that constantly twitched and throbbed as irreversibly damaged nerves randomly fired — was what, Jeni decided after their relationship foundered, had helped fuel her uncontrollable suspicion that he had a secret, impenetrable part to his character that fantasized about lovemaking with other women even while his healthy, perfectly symmetrical, and seemingly uninjurable thingie was inside her.” (Brief Interviews With Hideous Men, “Adult World (I),” p.153.)

Scary? Sure, if you’re the appellate justice’s long-suffering clerk. You might wonder, then, why legal writing guru Bryan Garner took the time to interview said Literary God–David Foster Wallace–about persuasive legal writing, before the LG’s untimely death by suicide in 2008.

Well, wonder no longer. As highlighted in a recent article by Garner himself in the ABA Journal, it turns out that, although his fiction is often . . . er . . . challenging, DFW has something to say about persuasive writing, not only from the perspective of an innovative novelist, but also as both an essayist and an academic. Among the things he said:

“So when I teach nonfiction classes, I spend a disproportionate amount of my time teaching the students how to write transitions, even as simple ones as however and moreover between sentences. Because part of their belief that the reader can somehow read their mind is their failure to see that the reader needs help understanding how two sentences are connected to each other—and also transitions between paragraphs.

I’m thinking of the argumentative things that I like the best, and because of this situation the one that pops into my mind is Orwell’s “Politics and the English Language.” If you look at how that’s put together, there’s a transition in almost every single paragraph. Like: “Moreover, not only is this offense common, but it is harmful in this way.” You know where he is in the argument, but you never get the sense that he’s ticking off items on a checklist; it’s part of an organic whole. My guess would be, if I were an argumentative writer, that I would spend one draft on just the freaking argument, ticking it off like a checklist, and then the real writing part would be weaving it and making the transitions between the parts of the argument—and probably never abandoning the opening, never letting the reader forget what the stakes are here. Right? Never letting the reader think that I’ve lapsed into argument for argument’s sake, but that there’s always a larger, overriding purpose.”

I’m looking forward to the book that contains the fruits of this interview, Quack This Way: David Foster Wallace & Bryan A. Garner Talk Language and Writing. Royalties from the book will apparently support the David Foster Wallace literary archive housed at the Harry Ransom Center at the University of Texas at Austin.


American Lawyer, Eastern Mindset

MarbleandtheSculptorcover-683x1024I have long found much to admire about Keith Lee’s writing in his well-regarded Associate’s Mind blog. His voice is intelligent, but accessible. His tone is informed, but not condescending. His consistent message about the state of our profession is tough, but not without optimism.

I was pleased to find all of these qualities and more in his recently published first book, The Marble And The Sculptor.

What I particularly appreciate about Lee’s thoughts, as expressed in his words, is how they are often infused with precious pearls of Eastern wisdom. It is refreshing, at a time when the business of law threatens to eclipse what was once regarded as a noble profession, to encounter a fellow lawyer who strives to penetrate deeper into what it means to undertake a legal education, to prepare for and pass the bar examination and, finally, to carve out one’s own place within our profession. The decision to commit to this profession is a serious one, and Lee invariably addresses these issues with unflinching candor.

As an undergraduate student of Western philosophy, I occasionally flirted in a superficial way with Eastern thinking on issues of metaphysics, epistemology and religion. But I never let my guard down or did the work necessary to really grasp the Eastern mind. Again, when my wife and I traveled throughout Asia during our sabbatical, I was confronted and tried to learn about the Eastern religions, the teachings of the Buddha, the Hindu belief system and others, including radical Jainism. But regardless of my immersion, those teachings remained essentially foreign to my Western-bred mind.

Lee forces me to revisit the Eastern mind, but to apply that way of thinking to my own chosen profession as a lawyer attempting to practice here, in America. As the rapidly growing blawgosphere demonstrates, pretty much anybody can write about law. The difference in reading Lee is not only that he has something to say, but what he says carries a much larger, often universal import. His how-to manual for newly-minted lawyers would not require much revision to serve as a how-to manual for success in any career, or even in life. I believe it is his Eastern mindset that gives Lee’s words their added wisdom, their depth.

Much of Lee’s advice for succeeding both as a law student and a lawyer comes down to one quality: discipline. It’s not an accident that Lee came to law school, as he puts it, “a bit later in life” at twenty-seven. After college, he spent a year as a runner/project assistant/gopher at a large law firm. Yet, even after this experience cemented his certainty that he wanted to be a lawyer, he did not enter law school right away, but instead moved to Canada to train as an ichi deshi to a shihan (master) for nearly a year. He briefly describes this experience as

” . . . crazy and awesome and painful and beautiful — one of the best and most difficult experiences in my life. It’s the sort of thing that’s hard to encapsulate in words. Sleeping in a storage closet under the stairs in the basement of the dojo on a thin mat. Subsisting primarily on rice, vegetables and PB&Js (okay, and beer on occasion). Training five to eight hours a day, five to six days a week. Bleeding toes and cracked ribs. Scrubbing toilets and washing mats. Friendships gained and lost. Intense spiritual moments of training and camaraderie, intense times of loneliness and introspection. No TV, no movies, no cellphone.” (Id. at 97-98.)

Not exactly Club Med. But perfect training for the mental discipline needed to become a successful professional. Describing the training during this period, Lee writes:

“After the lecture there would be an hour or so breakdown on one technique, perhaps one movement. A pivot or a shift of hips or moving into position against your partner. A single movement could be repeated hundreds of times. Occasionally I would be told the movement was correct. Mostly I would be told that the movement was wrong.

It was aggravating. It was boring. It was difficult. Deliberate, long, tiresome, and trying. After the tenth repetition of a movement I would grow bored. At the thirtieth, my mind started to wander. At the sixtieth I was barely concentrating. At the hundredth, my mind had become still and there was only the movement.” (Id. at 98.)

This focus on discipline as the key to growth as a lawyer is echoed throughout The Marble And The Sculptor. From one’s selection of law school electives, to developing key relationships, to balancing the competing demands of family and law school and, later, law practice, he returns again and again to the notion of discipline. Lee writes:

“Every lawyer, every person you meet, was once young, naive, and ignorant as you are. It is now your personal responsibility–no one else’s–to mature and develop into a competent lawyer who is fit to be trustworthy of a client’s problems.” (Id. at 21.)

Another vein that travels throughout the book is the notion of humility, which I believe also finds its genesis in his Eastern studies. There is a tendency, after you’ve devoted years of your life and a small fortune to finish law school, excelled on law review or moot court or whatever, to take yourself pretty seriously as a brand new lawyer. Lee gently reminds readers that, as new lawyers, you don’t know shit.

But his purpose isn’t to cut baby lawyers down. Rather, Lee is interested in teaching the kind of humility that is found in Eastern thought and easily seen in the martial arts, in the interest of helping you on your path to becoming a professional. He writes:

“After obtaining my black belt, did I consider myself a master? When I received my JD and passed the Bar, did I consider myself an expert lawyer? Of course not. They’re ridiculous propositions.

Traditionally, a black belt has only meant one thing: you were now considered a serious student. Everything before was playtime. Training wheels. Getting a black belt only signifies that you have mastered the basics and are ready to begin dedicated study. The same is true with a JD. Having a JD doesn’t indicate mastery of the law. It’s merely a signifier that you are probably ready to step onto the playing field. What follows is up to you.” (Id. at 102-03 (emphasis in original).)

Readers of Lee’s blog, as well as his new book, quickly learn that his choice of title for the blog, Associate’s Mind, was no accident, but reflects this essentially Eastern attitude of humility toward our profession. He writes:

“So, during my final year of law school, I started a legal blog titled Associate’s Mind, a play on words of a concept in Zen known as shoshin, or ‘beginner’s mind.’ A ‘beginner’s mind’ refers to having an attitude of openness, eagerness, and lack of preconceptions when studying a subject, even when studying at an advanced level, just as a beginner in that subject would.

I wanted to adopt this mindset in my practice of law. The idea that an associate should be flexible and open to new ideas and processes, while being mindful of the guidance of those who have tread the road before them. ” (Id. at xii.)

I encourage you to read Lee’s new book, and to subscribe and follow Associate’s Mind. You will find there pearls of the kind of wisdom our profession desperately needs at this difficult time.


Learn To Give “Value-In-Advance”

qw22113Much of my approach to marketing my law practice derives from the two years I had one-on-one business development coaching sessions with Bob Kohn of Kohn Communications. First and foremost, he helped me get past the discomfort I had with asking for business (though I’ll confess this is still tough for me). In particular, he helped me appreciate that offering my services as a lawyer is quite different from trying to recruit a friend into Amway.

Even if one-on-one business development coaching is beyond your means, you can still benefit from the Kohn Communications model, since Bob and his brother Larry distilled their approach into a fine book, Selling in Your Comfort Zone (ABA 2009). One of the strategies Bob taught me, which he discusses in the book is giving “value-in-advance.” To do it justice, I’m going to skip my own description of this concept and simply quote the Kohns:

“‘Value-in-advance’ is the strategy of offering something for free as a way of allowing your targets to experience a sample of the benefits that you offer. If you were selling a product, then ‘value-in-advance’ might be a sample of the product.” (Id. at 71.)

According to the Kohns, value-in-advance serves multiple purposes. Among these–and why it is especially useful for me–is that it creates a reason/opportunity to reach out to one’s targets that is, at its best, positive and, at worst, neutral. In other words, by trying to offer something valuable in advance, you are taking an uncomfortable, potentially negative experience, and making it a hopefully positive one for both you and your target. Even if the “value” you offer in advance is not ultimately useful to your target, the exchange will likely be viewed at worst as neutral.

The Kohns point to how Gillette sent free Mach III razors to potential customers as a simple example of value-in-advance. Because I sell information, advice, strategy and representation rather than razor blades, I prefer to provide information, advice and strategy in advance, whether it is by an alert, a speech/presentation or providing counseling without charging for my time. Further, since I practice in an area–employment law–which experiences almost constant changes in the law, I truly believe that the information I provide for free brings value to my audience, or targets.

Many people I consider business development “targets” are not really potential clients. Rather, they are often folks whom I believe are, or will be, positioned to refer potential clients to me at some point in the future. For some reason I don’t completely understand, I find it much easier to “sell” myself to referral sources than to prospective clients. In any event, another type of value-in-advance which the Kohns discuss, and which I find both easy and valuable, is to bring together–through introductions–people whom I believe will benefit in some meaningful way from knowing one another. One example could be introducing a lawyer or accountant who specializes in the entertainment industry with a contact in the entertainment industry who could benefit from their services.

The Kohns discuss this kind of giving value-in-advance as follows:

“Introducing quality people to each other communicates compatibility and capability. It demonstrates that you know quality people. And, as those people interact with each other, it strengthens their emotional connection to you.” (Id. at 73.)

One would be naive to ignore the potential risks of making introductions, and I don’t make them blindly. The Kohns acknowledge these risks. They say:

“Many people are afraid to make introductions because of the possibility that the people you introduce may not get along. Or worse, they may do a deal that goes badly. It is important that when you make an introduction, you are proud of the people you are introducing. Also, you don’t need to make warranties. Rather, you should state that you are introducing people with the understanding that they get to know each other and decide for themselves if they feel comfortable working together.” (Id. at 75.)

Venture capitalist Mark Suster, who is not only a friend, but also someone I’ve come to view as a kind of “success mentor,” creates an even stronger argument for being “judicious” in deciding whether and to whom to make introductions. In his blog, Both Sides of the Table, he writes:

“Intros. They’re the lifeblood of networking – the currency of mavens. They are your route to angel money. Your entrée to sales meetings.

We couldn’t live without them.

But when misused, overused or abused they can diminish your personal brand, consume your valuable time and waste time of the relationships you value the most.

* * *

[H]ere’s the thing – every time you send an introduction you’re obligating people. At a minimum you’re obligating them to ignore the email and feel like an arse for not responding to your introduction. More likely they either end up finding an excuse not to meet, delaying a meeting indefinitely or in most cases actually taking a meeting.

Over-introducers also consume a lot of personal time in making intros. It is very time consuming doing intros the right way. Ask yourself the tough question about how you might spend that time more productively getting your job done well.”

Suster’s post has some useful thoughts and guidelines on when to make (or not make) introductions, and I recommend it.

The real takeaway here is that giving value-in-advance, whether through free razor blades, alerts about employment law developments or making quality introductions, can be a terrific way to market your product or practice without overtly marketing your product or practice. Check out the Kohns’ book for other ideas.


David Foster Wallace: Avoid Noxious Puff-Words

huyI confess that I dream of having the kind of following that if I said, “Read David Foster Wallace or you’re dead to me!” there would be a subtle, but statistically significant, uptick in sales of Infinite Jest the following week. Sadly, I do not have that kind of following, and cannot afford to tell readers they’re “dead to me” in any event.

But that won’t prevent me from quoting one of his “Twenty-Four Word Notes” from another favorite, Both Flesh And Not. Specifically, discussing the term utilize, he writes:

Utilize  A noxious puff-word. Since it does nothing that good old use doesn’t do, its extra letters and syllables don’t make a writer seem smarter; rather, using utilize makes you seem either like a pompous twit or like someone so insecure that she’ll use pointlessly big words in an attempt to look sophisticated. The same is true for the noun utilization, for vehicle as used for car, for residence as used for house, for presently, at present, at this time, and at the present time as used for now, and so on. What’s worth remembering about puff-words is something that good writing teachers spend a lot of time drumming into undergrads: ‘formal writing’ does not mean gratuitously fancy writing; it means clean, clear, maximally considerate writing.” (p.261)

While not targeted toward an audience of lawyers, this is excellent advice to any writer, including lawyers. Avoid puff-words. They’re just noxious.

And no, the irony is not lost on me that this writer, who here urges “maximally considerate writing,” foisted upon us, his readers, arguably the most frustrating, wonderful, puzzling, brilliant, maddening and challenging novel since Joyce penned Ulysses. Infinite Jest spans 1,079 pages and includes 388 separately numbered endnotes (some of which have footnotes of their own). Nope, I love irony.


Five Rules of the Rules of the Road

frie-rulesRoad_lgA couple of posts back, I tried to address the difficulty of getting jurors to apply commonly used, but inherently ambiguous, legal terms and principles, such as “reasonable” to the facts of a particular case. For example, when the jury is instructed that a defendant is liable if he/she/it acted “unreasonably” under a set of circumstances, what are jurors supposed to do with that term?

A solution proposed by Rick Friedman and Patrick Malone, in their popular book, Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability,† involved developing a set of rules or principles or standards which, when applied to the evidence of what occurred in the case, yield the conclusion that the defendant did not act reasonably (or indeed acted reasonably, depending on whether you represent the plaintiff or the defendant). In that post, I promised to follow up with some guidelines, or rules of the rules of the road. Here we go.

Rule No. 1: A rule of the road should be a requirement that the defendant do, or not do something. (22) The authors describe the basic structure as follows:

“A [type of defendant] should (or should not . . .) do [fill in relevant conduct sought to be enforced by plaintiff].” (23)

Here’s an example: “A surgeon should carefully identify what it is he/she is supposed to be cutting before commencing surgery.” Or, “An insurance claims examiner should fully, fairly and promptly evaluate and adjust a claim for coverage.”

Rule No. 2: A rule of the road should be easy for the jury to understand. (22) After all, the whole point of having rules of the road is to aid the jury in understanding an already ambiguous word or concept in a way that is favorable to your client. To illustrate this point, the authors suggest that, in the context of a physician’s alleged failure to diagnose a disease, a rule of the road can be gleaned from an internal-medicine textbook. However, the language from the textbook may be unnecessarily arcane, and a principle that jurors can easily understand may need to be refined into more accessible wording. (I realize my own wording is often inaccessible and arcane and my blog posts should probably be re-written to be easier for readers to understand. Blame all those philosophy books I read in college.)

Rule No. 3: A rule of the road should be a requirement that the defendant (or, if your client is the defendant, then the plaintiff) cannot credibly dispute. (22) Your opponent may not easily buy into the rule but, as the authors point out, “[d]isagreeing with the Rule should hurt the defense as much as or more than agreeing with it. If a doctor endorses a text as authoritative . . . he is going to look bad disagreeing with a simple, straightforward principle stated in that text.” (25-26)

Rule No. 4: A rule of the road should be a requirement the defendant has violated (or, if you represent the defendant, one he has not violated). (22) Otherwise, why would that principle or standard matter?

Rule No. 5: A rule of the road should be important enough in the context of the case that proof of its violation will significantly increase the chance of a favorable verdict. (22) “This is not like issue-spotting in law school. Your case does not get better in proportion to the number of Rules you add to your list.” (30)

The Rules of the Road approach offers a strategy to bridge the chasm that inevitably exists between broad, ambiguous legal terms and principles and the concrete evidence received by the jury during trial. As the authors note, “[w]e cannot let jurors make up their own definitions.” (15) And you certainly shouldn’t let your opponent do the defining. Developing a set of rules that adheres to the requirements above should help you avoid getting broadsided at trial.

†Citations are to the second edition.


Defining Unreasonably Indefinite Words, Like “Reasonable”

ooppOne of my great pleasures in raising my daughter is watching her encounter and struggle to make sense of the inherent ambiguities of our language. Puns are a particular favorite. She first learns to draw a picture. Then her mother suggests she’s going to draw her a bath. She gets into bed and draws up the covers. We have yet to draw a conclusion, but that’s coming. Whenever we encounter a word with multiple meanings, it is a simple matter to draw her attention back (pun intended) to the d-word.

I am not a poet, but I do delight in the elusive, liquid ambiguity inherent in language. Except, that is, when drafting (and hoping a jury will understand and follow) jury instructions. Then the indeterminate nature of our language can become an obstacle. An obstacle to understanding. An obstacle to winning.

A great example occurs when we ask jurors to apply a “reasonableness” standard. Was a driver’s operation of his vehicle reasonable? Did the doctor act reasonably when he did not order a particular diagnostic procedure? Was it reasonable for the insurance carrier to deny coverage based on the information available to it?

Whatever issues scholars raise about the “reasonableness” standard, I’m speaking now only about the difficulty in getting jurors to understand and apply such a term in deciding the outcome of my client’s case. And, because I am, yes, a lawyer, by “understand” I mean to know and use the term in a way that guarantees a verdict in my client’s favor.†

Rick Friedman and Patrick Malone, have dealt with precisely this challenge in their popular book, Rules of the Road. Of course they describe the problem far better than I do:

“For the jury, we need to define ‘reasonably prudent doctor’ and ‘reasonable basis’  . . . and all other ‘reasonables’ . . . too. We cannot let jurors make up their own definitions.” (p.15)*

But, without guidance, we know jurors will absolutely make up their own definitions. And, as Messrs. Friedman and Malone point out, they’re not likely to get this guidance from the judge or other jury instructions. It’s up to the trial lawyers to teach the jury about the meaning of reasonableness, so they’re prepared to apply the otherwise nebulous standard to the evidence of the case.

How to do this? As you can imagine from a book subtitled, “A Plaintiff Lawyer’s Guide to Proving Liability,” their methodology is presented 100% from the plaintiff’s perspective. But that doesn’t dilute the quality of their solution to the problem for a lawyer representing either a plaintiff or a defendant. Essentially, the lawyer formulates a set of “rules of the road” which are guiding principles for the conduct of a reasonable actor (i.e., doctor, insurance company, driver). By developing these “rules,” and then establishing that the defendant did not do some or all of them, it becomes possible to educate and persuade the jury to find in the plaintiff’s favor on the ultimate question whether the defendant was unreasonable and, thus, liable.

As the authors point out, the “rules of the road” for a particular case can derive from several sources, including statutes, case-law, textbooks, industry standards, articles, expert opinion and contract provisions. The most comprehensive example given in the book of a set of “rules of the road” involves the standards and principles an insurance company should adhere to when handling a claim. Here are some they list:

“4. Company must conduct a full, fair, and prompt investigation of the claim at its own expense.

5. Company must fully, fairly, and promptly evaluate and adjust the claim.

* * *

7. Company may not deny a claim or any part of a claim based upon insufficient information, speculation or biased information.

* * *

11. Company must give claimant written update on status of claim every thirty days, including a description of what is needed to finalize the claim.” (pp.16-17)

During opening statement and expert testimony, the jury learns that these principles are valid and accepted standards for an insurance company to follow when handling a claim presented by an insured. The evidence is then framed so that it is easy for jurors to see how the standards were not met. (Conversely, for the defendant, that the standard was met.) If, for example, a claims adjuster is not prompt in evaluating a claim, and does not provide regularly written updates on the status of the claim, he has violated two of the “rules of the road” for insurance claims handling. If the evidence establishes the insurer did not have sufficient information on which to base its denial of coverage, there’s another rule broken.

In closing argument, in discussing the ultimate question, i.e., whether the insurance carrier was reasonable in its handling of the plaintiff’s claim, it becomes much easier to educate the jury how, given the accepted claims handling standards they’ve heard so much about, the carrier was most certainly not reasonable and a verdict in plaintiff’s favor against the company is appropriate.

I recognize this is unfairly reductive. It is not reasonable or even possible in a 900 word blog post to do justice to a 300+ page book. But this is the goal of the book, providing a framework for trial lawyers to break down complex or undefined terms, like “reasonable” into concepts that readily guide a trier of fact into returning a favorable verdict. I plan to do a follow-up post in the future which discusses the authors’ criteria for developing “rules of the road” which apply to a particular defendant or case. Until then, stay in your lane!

†Yes, I do know there are no guarantees.

*All citations are to the second edition.


Knowing The Score Before You Open Your Mouth

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Legal blogging rock star and client service guru Dan Hull recently recommended an interesting book, Lawyering: A Realistic Approach to Legal Practice, by James C. Freund. Trusting Dan’s judgment, I promptly ordered up a dog-eared copy of the tome from AbeBooks.

Turning first to the chapter entitled “Handling Clients,” I found some interesting and sage advice right away. Freund asks what do you do when a client calls and wants to be counseled whether her company can legally do something. In the simplest terms, if a client asks you the sum of 2 + 2, do you automatically say 4? Or should we be concerned with what the client wants to hear? Would she prefer to hear 5?

Recognizing this sounds like ethical blasphemy, Freund rushes to explain himself:

“Now before you round up a posse to haul me before the bar association, let me hasten to add that the reason for desiring this knowledge is not . . . that it can or should affect the substance of your answer or reaction, where a legal issue or some other objective manifestation of your views is concerned. You’re not worth your salt as a lawyer if you provide phony answers to please a client. You have to call ‘em as you see ‘em, no matter what the consequences: it may be painful at the time, but in the long run your client will respect you for this and value your advice all the more.

On the other hand, knowing how the client wants to come out can be very important to you in deciding on the manner in which you reply–the style, as contrasted with the substance–and on shaping any practical advice you might offer.” (151-152)

Freund offers a couple of good illustrations, hypos if you will, to make his point. In the first, you are called by a client CEO who immediately announces you are on speaker phone and in the room with him is an “Employee.” CEO wants to know whether the company can issue the Employee shares of stock which the Employee will pay for with promissory notes.

While the law either allows or doesn’t allow the company to issue shares to an Employee to be paid for with promissory notes (I have no friggin’ clue), Freund points out that “the way that you handle the question can be influenced significantly by whether . . . (CEO) actually wants to issue . . . (Employee) some stock for notes, or whether . . . (he)’s just going through a charade–using you as a whipping boy–for the benefit of . . . (Employee).” (152)

What do you do? Freund suggests you try to ascertain what client CEO really wants to hear before you begin providing advice (assuming, unlike me, you could answer this query on the fly). Freund concedes it may not be easy to determine CEO’s angle:

“By the way, ascertaining . . . (CEO)’s real interest here may not be so easy–and tomorrow, you should let him know what an uncomfortable position he put you in, with a warning against future repetitions. For openers, don’t answer right away. Get . . . (CEO) talking; he’s likely to drop a clue (such as, ‘I told (Employee) this was a very difficult thing for a public company to do . . .’), which you can then pick up on.” (152)

Another way to get an idea what the client is looking for is to “test the water. Say: ‘And what did you tell him when he made that suggestion?’ The client’s reply should give you a fair indication of the direction in which he’s heading.” (153)

But why do you want to know? Again, it’s not about conjuring a phony answer, but about subtly strengthening your relationship with the client and bringing greater value. For example:

“If you determine that  . . . (CEO) isn’t really interested in issuing the stock, you can emphasize the legal difficulties which do exist under the applicable state law when you use notes to pay for par value shares–to say nothing of the unfriendly scrutiny such a transaction would receive from stockholders, other employees, and so on. All of this is good, sound counsel; you’re not deceiving anyone . . . On the other hand, if you sense that . . . (CEO) very much wants to issue the shares, then your litany of difficulties would be somewhat more muted, with a smooth transition into a constructive analysis of how the transaction can be accomplished–by securing the note, charging bona fide interest, and so on.” (152)

Again, as Freund says, the object of this preliminary fact-finding isn’t to cause you to change the substance of your advice to match the client’s desires, but instead to influence how you present the advice. The closer we get to the justifiably coveted status of “trusted advisor,” the more these subtleties matter. We’re not legal research “machines,” hired to churn out one-dimensional answers to legal questions without regard to how our advice impacts the client. Our role is not just to protect, but to advance the client’s interests, and the route to this goal is not always obvious or easy.


On the Beauty of Process: The E-Myth Attorney

Like many business books, the Attorney entry into Michael Gerber’s E-Myth series is substantively less revolutionary than it sounds.  But, it contains advice which, if followed, can be transformative. 

What is an E-Myth Attorney? “In short, the E-Myth says that most attorneys don’t own a true business–most own a job disguised as a legal practice.  They’re doing it, doing it, doing it, hoping like hell to get some time off, but never figuring out how to get their business to run without them.  And if your business doesn’t run well without you, what happens when you can’t be in two places at once?  Ultimately, your practice will fail.” (From the Preface, xvii.)

The book is largely about transforming lawyers’ approach to their practices, so they think more like entrepreneurs.  There seems to be a cherished, romantic view that professionals, like doctors and lawyers, should somehow be above treating their practice as a business.  As if being called to the priesthood, one is called to the practice of law, and lawyers should avoid transforming this calling into a profitable enterprise.  I read blog posts and commentary that frown upon the notion that lawyers should build their law practice like a business.  That thinking is noble and all, until it comes time to pay off student loans or put a child through college.  Though we constantly confront media reports to the contrary, I’ve argued that there’s nothing mutually exclusive  about being a highly ethical professional, but also thinking like a business person.  This is exactly the premise of The E-Myth Attorney.

How should a lawyer think more like an entrepreneur?  The E-Myth authors focus heavily on the development of systems, ultimately a “system of systems.”  It’s not complicated.  Using the fantastic success of McDonald’s as a case study, the book discusses how that company “needed to turn pimply-faced, ADD, teenaged kids into productive workers in charge of multimillion dollar franchises.”  (64)  How did they do it? By developing a system for performing every task of the business which is imparted through meticulous training to every “pimply-faced, ADD” employee.  Figure out how to make the perfect hamburger or french fry, and train every employee to do it that way every time.  Starbucks uses the same philosophy, so I know a Grande nonfat latte in Toledo, Ohio or Montecito will taste just like it does in downtown Los Angeles.

Of course lawyers don’t make burgers, fries or lattes.  But much of the nuts and bolts of what we do–at least those parts that do not require our active thinking and involvement–are not too dissimilar from making burgers and fries in the sense of repeatability.  For example, a law practice that caters to individual clients, such as estate planning or family law, should develop a system for client intake, information and file management, calendaring and billing.  These aspects are required for every client, every case.  Most intelligent law practices already have systematic procedures for these tasks.  But there are other aspects of the practice that are capable of systematization, but which we tend to shun or put off systematizing.  Not only should we develop and use form files (they benefit attorneys and clients), but forms should be organized in a way that provides instantaneous access.   A practice which sees the same or similar claims or defenses over and over should have form discovery which goes out in every such case and which can be quickly tailored to fit unique or individual facts or claims.  Systematizing the familiar and repeatable parts of our practice frees us to direct our minds and attention away from the mundane, and toward that for which each of us are uniquely, and expensively, trained. 

The book encourages attorneys to develop a manual about every element of the practice which can be given to a new employee.  Without this, the authors argue, the departure of a staff member becomes the kind of catastrophic event from which it takes months to recover.  And, the authors touch upon other points, including the notion of being selective in accepting clients, alternative billing arrangements, managing time and alternative marketing strategies. 

But, for me, the E-Myth is ultimately about appreciating process.  I would argue that actively utilizing process and developing systems won’t just make our law practices more profitable and tolerable (what, take a vacation?!?), but it can help us do a better job as advocates.  I’ve seen the beauty of process first-hand, as my long time mentor is nearly obsessed with developing repeatable procedures for everything from answering an email from a client (must be the same day even if a substantive response is not immediately possible), to maintaining discovery notebooks for every case into which are gathered discovery, responses, correspondence about discovery and matrices of document productions in a single place.  I’ll confess that, after nearly two decades of trying to follow these procedures, it’s only now that I recognize that attention to process should appeal to everyone, not just the anal-retentive members of our profession.  It will make our practice better and our life easier.


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