Tag Archives: litigator

Learn To Negotiate Like A Transactional Lawyer

negotiationI recently had lunch with  Mark Fingerman, a Los Angeles lawyer who has successfully transitioned from being a litigator to a full-time mediator. As I often do, when I get an opportunity to talk shop with mediators, I asked Mark some of his tips for successful negotiation. To my surprise, although Mark had been a litigator his entire career, his advice was to go a different direction entirely. “Litigators can increase the likelihood of success at mediation,” he said, “by acting more like transactional lawyers.”

This notion immediately made a lot of sense. After all, while it’s the mission of a transactional lawyer to get the best possible deal and terms for his client, their negotiations should very rarely result, as it so frequently does in the litigation context, in a stalemate. While a party to a lawsuit will sometimes view proceeding to trial as the best alternative to a negotiated agreement (aka “BATNA”), the job of transactional lawyer is generally to reach agreement and get the deal done.

While Mark’s advice made a lot of sense to me in the abstract, I started thinking what does this mean? What does it mean to negotiate less like a litigator and more like a transactional lawyer?

I followed up with Mark after our lunch, and suggested this might be fertile ground for a blog post. He was pleased for the opportunity to explain his statement in more detail, and also suggested that this very topic is one that he covers extensively in a CLE program he offers to law firms and bar associations called Mediation: Prepare to Succeed.† Here’s what Mark said:

“This involves, among other things: preparing for the mediation as a negotiation, including identifying the interests of the parties, settlement ballpark and necessary deal points; focusing at the mediation on reality and problem solving instead of advocacy and pressure; using the mediator to gain and communicate information useful to making a deal rather than trying to turn the mediator into a super advocate.” 

A major difference I see in Mark’s approach from the approach we typically take is his shunning of our common tendency to try to leverage the mediator to apply pressure on our opponent that we cannot otherwise apply. This is indeed a departure.

After all, we often draft extensive mediation briefs, with cites to specific exhibits, that are little different from the brief we might submit if the neutral were sitting as an arbitrator who would issue an award, and not a mediator engaged to facilitate settlement. In an earlier era, it was common to do a mini-presentation of the arguments and evidence we expect to present at trial. In sum, we attempt to persuade the mediator of the merits of our case, with the hope she will step into the next room, caucus with our opponent, and, acting as our “super advocate,” pound them into submission.

So, if there’s no pounding, what should go on? Just as Mark points out, the mediation becomes less about applying pressure and more about “focusing . . . on reality and problem solving.”

This is all good. But I still found myself wondering more about how transactional lawyers approach negotiations. So I consulted a book about lawyering from the perspective of a career transactional lawyer. In Lawyering: A Realistic Approach to Legal Practice, M&A specialist James C. Freund says this in his introduction to the discussion of negotiating a deal:

“Most of what takes place in the course of negotiations can be characterized as either attempting to get a leg up on your adversary or striking a compromise between your respective positions. I firmly believe that the key to effective negotiating lies in achieving a functional balance between these two seemingly inconsistent aspects. If all your efforts are directed toward gaining advantages over your adversary, you will undoubtedly come on too strong; and where the parties possess relatively equal bargaining power, with freedom to consummate the transaction or not, you may cause your client irreparable harm–such as losing the deal.” (Id. at 188 (emphasis added).)

Again, from a transactional lawyer’s perspective, the goal is not to pound the other side into submission or walk away with no deal. Instead, in the interest of getting the deal done, Freund counsels that we strive to achieve a balance between getting a leg up on our opponent and striking a compromise. Makes sense, doesn’t it?

†Mark Fingerman encourages anyone interested in this presentation to reach him by email at: mfingerman@adrservices.org.


Five Ways You Can Help Your Appellate Lawyer Help You

jjhhyygHopefully I won’t ruffle too many feathers with the following pronouncement: appellate law practice is a distinctly different animal from trial or lower court practice and it requires specialized training or experience to do it well.

I know that many litigators advertise to their clients and the world that they can ably handle a writ or appeal. Some can. If you’ve handled appeals in your career, whether through budgetary or logistical necessity, and you’ve had success, perhaps you’ll prove me wrong. But, assuming your client is willing, assuming she can afford it, and assuming you can work effectively, efficiently and cooperatively with an appellate specialist, I want to suggest that your client’s odds of prevailing on appeal will be vastly improved by at least involving an appellate specialist whenever possible.

The remainder of this post proceeds from the premise that it is fiscally and logistically possible to involve an appellate lawyer. A lingering problem arises from the impossibility of knowing, at the outset of a dispute, whether it will result in an appeal and a specialist will ultimately get involved. Certainly some cases are unlikely ever to lead to an appeal; I’m thinking here of disputes which are destined by contract to be decided through binding arbitration. Other cases, by virtue of their issues or parties, are virtually guaranteed to see an appeal–or many; here I’m thinking of a case like Apple v. Samsung. There’s just too much at stake for either party to go gentle into that good night without first exhausting every avenue of appellate review.

I call this a “lingering problem,” but it’s really more of a dilemma. Specifically, what can a litigator do, when it’s unclear if an appellate court will ever be asked to disturb a trial court’s ruling, to improve her client’s chances of success if an appellate issue does later arise?

In answering this dilemma, I solicited input from a true expert. Ben Shatz is a partner at the Manatt firm in Los Angeles, a certified appellate specialist from the state of California, a fellow blogger, a prolific writer and, most importantly, a good guy. What follows is our list of five ways that lower court litigators can make it more likely, if their case ultimately requires appellate review, that their clients will gain the most from hiring an appellate specialist.

1. Involve an appellate lawyer sooner than later. You probably saw this coming, but it’s worth stating. If it is economically feasible, Ben suggests an appellate specialist should become involved early “to help review theories, address key motions, spot potential writ issues, pre-cog anticipated appellate issues, review jury instructions and verdict forms (which are fertile areas for appellate review), and help with post-trial motions (which often preview appellate issues).”

2. Preserve that record. Again, obvious. But in the heat of the battle, my focus as a trial lawyer is almost always on convincing the single robed judge before me, not a panel of appellate justices. Ben suggests that “appellate kibitzing can help make sure points are properly raised and not waived.” So don’t forget to kibitz. And try not to let an impatient trial court judge prevent you from saying all you need to say to make a good record; this sometimes takes fancy footwork, particularly if the judge senses you’re just making a record to use later in seeking to overturn his ruling. (See my earlier post on judges playing games with the record.)

3. Don’t waive notice. Ben reminds us that, “too often, after losing a motion (or anything), trial counsel will meekly waive notice. But formal written notice is very useful in figuring out what happened and when, later down the road. Also, written notice often is the trigger for writ review, so it’s good to have a clear starting date for calendaring.”

4. When in doubt go ahead and order a transcript. This is actually two separate points. First, if you’re in a state like California with a struggling judicial budget, be sure to make sure there’s going to be a court reporter taking down the proceedings at any hearing in which there is even the slightest chance a writ or other review may be sought. This requires both ordering and paying for a court reporter.

The second point comes from Ben: “if you just lost a motion and are thinking about a writ, order a transcript right then; take steps to get a written order; don’t waive notice; ask immediately for a stay (or extension to file a writ, if allowed by the relevant statute).” As you’re probably starting to understand, this fourth point requires you to think about the possibility of appellate review before you actually appear for the hearing. Remembering on the morning of the hearing that you needed to order a reporter will be probably be too late.

5. Maintain clean, organized files. Finally Ben reminds us that “It’s not useful if I’m given papers that are annotated by hand (and thus can’t be used in an appendix).” Remember, too, that your client is hiring an appellate specialist for his or her highly specialized knowledge and skills. These do not include conducting “discovery” through your file to find key documents or exhibits.

So keep these suggestions in mind, even when it’s not yet clear there’s going to be an appeal. And, if there is an appeal, think about calling Ben or another appellate specialist, to assist you in getting it done right.


Can’t We All Just Get Along?

fdreDo you fight over discovery? Admit it. It’s ok, we’re all friends here, no?

Apparently lawyers still wage discovery battles. I won’t pretend that I’m immune. I still mix it up with the best of them. But I came across an article in the November, 2013 issue of Practical Law which attempts to make a compelling case why we might serve our clients better by adopting a spirit of cooperation.

In their article, “Learning to Cooperate,” Jonathan Redgrave and Peter Hennigan talk about The Cooperation Proclamation originally published by The Sedona Conference in 2008. They say:

“At the time of its release, The Cooperation Proclamation provided attorneys with a practical, if aspirational, framework to understand cooperation. Today, there is really no longer any question of whether or not counsel should cooperate in discovery. Cooperation is required by the current and proposed rules, expected by the courts and consistent with attorneys’ ethical obligations. Perhaps most important, cooperation is also what the clients want.” (Id. at 27.)

Well hold on now. Isn’t litigation an adversarial process? What about zealous advocacy? We’re talking about opposing parties and opposing counsel here, right?

Merriam-Webster defines “cooperation”–which, in case you wondered, is pronounced \(ˌ)kō-ˌä-pə-ˈrā-shən\–as “1 : the action of cooperating: common effort; 2 : association of persons for common benefit.”

“Common effort?” “Common benefit?” What!?! Your guy sued my guy, right? You’re demanding some ridiculous sum of money and, because my client won’t just pay you, you’ve prepared and filed a civil complaint, dragging my client into court, isn’t that right? Why on God’s green earth would my client want to make any common effort to do anything for your client’s benefit?

Before we get our dandruff up,† let’s stop for a second and find out what “cooperation” is supposed to mean in this context. Are we supposed to just give in? Roll over? Do our opponent’s job for them? The authors claim the answer is no.  Citing the Proclamation, Redgrave and Hennigan say:

“The Sedona Conference explicitly states that cooperation:

  •  Is not capitulation.

  • Is not an abdication of appropriate and vigorous advocacy.

  • Does not require volunteering legal theories to opposing counsel or suggesting paths along which discovery might take place.” (Id.citing The Case for Cooperation, 10 Sedona Conf. J., 339, 340, 359 (2009).)

What’s left? Here, the authors offer some “ABCs of Cooperation.” A few of these make a lot of sense:

  • “Be flexible. Like any negotiation, counsel may have to compromise or use alternative means to get the discovery or relief that the client needs.

  • Consider what discovery is truly needed, and not just desired.

  • Document the agreements reached with opposing counsel, as well as any areas of dispute, and try to obtain resolution without the court’s intervention where possible.” (Id. at 29.)

I can go along with these. But I think it needs to be said that the rationale underlying this spirit of cooperation should properly be that it ultimately benefits our clients. If done properly, cooperation in litigation and discovery saves our clients money. It makes their lives easier. As the authors point out:

“The best argument in favor of cooperation is that clients want it. Clients are beginning to realize that a scorched-earth approach to discovery, and the wasteful and time-consuming discovery disputes such an approach invites, rarely (if ever) serves their interests. Moreover, clients want cooperation because they recognize that being cooperative enhances their attorneys’ credibility with the court.” (Id.)

Where I part ways with the authors is their appeal to some other, ethereal motive for cooperation. They spend a lot of time citing various courts and model rules, etc. and harp on about “duties to the tribunal, the judicial system, opposing counsel and opposing parties.” (Id.) Blah, blah, blah. Save it! What matters at the end of the day–at least for those of us in the trenches–is getting the best possible outcome for our clients. If the straightest road to that result is through cooperation, I’m all for it. But let’s not forget it’s our client–not opposing counsel or opposing parties–who keeps the lights burning.  

†The earliest known citation for this strange saying was in the April, 1853 Wisconsin Tribune, wherein someone apparently wrote: “‘Well, gosh-all Jerusalem, what of it?’ now yelled the downeaster, getting his dandruff up.”


What Kind Of Opposing Counsel Are You?

tumblr_md2rdeSCJS1re7db0o1_500In all but the rarest instances, I come away from a lawsuit with a clearer memory of my opponent’s lawyer than of the opponent. When I get involved in a new case, I’ll often do some research to see who I’m up against. Is she a solo or a member of a firm? Have my colleagues dealt with her in prior cases, or do I know anything about her by reputation (which, as we know, can be grossly inaccurate). As we wind through the case, I form or refine my impression of her. Generally, by the end of a case, we part ways either as friends or at least as professionals. Even in those instances in which I’ve had to be aggressive, I try not to let it get too personal.

That’s not to say I always finish a case feeling “respect” for my opponent. Let’s face it, some lawyers just don’t deserve it. And, while I don’t like to generalize, I can identify four categories of opposing counsel for whom I don’t usually feel respect at the end of the day. Are you one of these?

The Overt Asshole

This post (the entire blog, for that matter) is built on the assumption that lawyers are not per se assholes. If you hold the opposite view, then I’m not writing for you–go back to playing Farmville on Facebook.

It’s not hard to gain entry into this category, at least in my book. Refuse courtesy extensions, yell at me or my client during a deposition, make threats you know you could never carry out, insult my client, my ethics or my skills, talk down to me . . . You get the picture. What’s surprising is how seldom I’ve finished a case and branded my opponent an Overt Asshole. Perhaps the bigger surprise is that I can think of more lawyers representing co-defendants who qualified for this title than lawyers representing parties who sued my clients.

The Liar

Ah, the truth-challenged. Even nations at war are expected to adhere to a code of ethics. There’s a special circle in hell for those that don’t, and the same is true for lawyers. Telling lies is just dirty pool and should never be rewarded. Even on those instances in which it could be harmless, it degrades our profession. I’m not talking here about Bill Clinton-style fibbing under oath (though that sucks, too, but for different reasons). I’m referring to making blatant misrepresentations to the court orally or in papers. I’ve found there is often an overlap between The Liar and the Overt Asshole.

The BFF

Some lawyers think it’s strategically advantageous to be your Bestie from the get-go. This isn’t to say a genuine friendship can’t grow out of litigating a case together. I can count a handful of former opposing counsel whom I consider true friends. But when there’s an obvious strategic motive behind playing the role of best friend while litigating a case–and it’s usually possible to tell if that’s what’s going on–then the BFF is really little different from The Liar, right?

The Legend-In-His-Own-Mind

This is the guy who needs a 7-series BMW with extra trunk room for his ego. This is the guy who did pretty good in a trial once and will force his opponents to re-live those moments of glory in Technicolor. This is the guy who boasts to his opponents during deposition that he’s “a different breed.” (True story!) You don’t want to see him in action in front of the jury in this case! You know the type, right? If you don’t, you’ll encounter him some day. There are crossover possibilities here with the Overt Asshole, as well.

Do any of these describe you? In the interest of full disclosure, I’ll admit to being a little bit of each–except The Liar–at one point or another during the last 20 years. But I guarantee those weren’t my finest moments.


When The Deposition Party Is Over . . .

rfdeEvery once in a while I get a glimpse into the way another lawyer or firm practices their craft and I have something like an epiphany. I realize there’s a vastly better way to do something, and it makes me want to kick myself because I didn’t realize it sooner. I was privy this week to some work product from a lawyer representing a co-defendant and I had one of these moments.

By way of background, I have long despised the practice of summarizing depositions. When I finish taking a deposition, the last thing I want to immediately do is revisit the details. I’m not sure why, but I usually just want to get on with my life. Then, the next day–which is the very latest possible time that you should try to summarize a deposition from notes and memory–I’m even less interested in summarizing a depo. Not only do I just hate doing it, I’ve actually given the issue a bit of thought and concluded that, in most instances, it does not bring a lot of value to have someone bill several hundred dollars an hour to “summarize” anything, deposition testimony included. That’s why when I am engaged by a client that does not require a summary, I usually keep the reporting of the event to two sentences or less. Later, as we near trial, I find a sensibly written* page/line index is useful if there is a 5% or greater chance the witness will be called to testify. But a summary of what I just heard has always seemed like a painful waste of time.

Well, like I said, I’ve had an epiphany and changed my mind. The summaries I learned to write as a young associate were these kind of narratives: what kind of witness did they make and what did they say. The summary that made me change my tune had 3 distinguishing characteristics.

First, the “summary” part was in bullet, not narrative, form. It wasn’t a long, time-consuming rumination about what kind of witness the deponent will likely make at trial because she has excessive facial hair, or tends to drool, or whatever. Instead, it was punchy and to-the-point. Something like: “Retired nurse. Late 60s. Smart. Detail-oriented.” The information conveyed by the deponent was described this way, too. It probably took the lawyer 10-15 minutes to lay out these details, maybe less if he dictated it.

The second component was how to deal with the witness if she testifies at trial. In this instance, it was a witness of whom we are theoretically afraid. So the lawyer laid out 2-3 points that distinguishes what she said from the facts of our case, and an additional point about how some of what she said is subject to exclusion as hearsay. The real genius of this approach is that it might trigger follow-up that could be missed otherwise. For example, if the witness went out on a limb about something that could easily be proven wrong by a photograph or a subpoenaed record, you should note this and go ahead and assign the follow-up (at least in a perfect world).

Finally, the third component of the summary was a short opinion about the impact of the testimony. It could be as brief as “Problematic for our defense because . . . .” Or something more detailed, if time and inclination permits. The point is that it’s something that could be dictated or written in a half hour or less at the end of the day before you tuck yourself into that first 12 oz. vodka martini.

Because this format is shorter, tighter and more user-friendly, the recipient of the summary will probably be grateful, too. I can tell you my best writing never found its way into a deposition summary–I save that for you, my loyal readers.

And while we’re on the topic of what to do when you’ve completed the deposition, another is to immediately draft written follow-up discovery, or at least make a to-do list of the additional work that needs doing. Most of the time a witness–at least an important one–will open a door that you hadn’t really considered before. Follow up here is critical and, like the details of a dream, easily forgotten if not at least noted right away.

*A sensibly written page/line deposition index is something I might cover in another post, if I run out of marginally interesting things to write about. I know I’m pushing the envelope with this post about deposition summaries, which is why I included the racy picture.


“I Am Shiva!”

Michael Clayton was an under-appreciated legal thriller. I will admit it took me multiple viewings to fully appreciate it. But I’ve really come around. Tom Wilkinson, George Clooney and, especially, Tilda Swinton do a fine job, and it’s written and directed by Tony Gilroy. If you work in BigLaw, or you represent giant corporate clients, or, like me, people often mistake you for George Clooney, parts of the film will definitely ring true.


Learn One Thing From Every Lawyer You Meet

llkkExperienced lawyers speak about trying to learn something from every case you handle. This is valuable advice, and something most of us probably do without really thinking about it. But I’ve found it more valuable and interesting to try to learn at least one thing each from at least most lawyers I come across in the course of my practice. In many ways our professional education only begins in earnest after we finish law school, pass the bar and start plying our trade. I was fortunate to have a great mentor during these formative first years, but I recognize the reality that not every new lawyer is going to bond with a mentor.

In an odd way, however, every lawyer we encounter in our practice can act as a mentor of sorts and, if we’re perceptive, can open our eyes and help shape us into better lawyers. Let me offer a couple of illustrations. Let’s first take a positive example. Some years back, my partner and I defended a catastrophic product liability case against an older aviation lawyer. This guy, who is now retired, was quite literally a trial legend. He was sharper in his early 80s than most of us at our peak. Our case together resolved pretty early on, but I still had an opportunity to share an almost empty courtroom with him one morning while we waited for our judge to rule in chambers on an ex parte application.

What did I take away from the experience? Probably more than I realize, but what struck me at the time, and has stuck with me since, was the way in which he interacted with the courtroom clerk and bailiff. We’ve all seen how lawyers parade into courts and treat the courtroom staff with . . . let’s call it indifference, or sometimes worse. We litigators often see clerks and bailiffs as impediments to what we’re trying to accomplish. I know at my worst moments I’ve done it. But I saw how my opponent’s manner was different. When he spoke with the clerk and bailiff he engaged them. From his attention and questions, it was obvious he had a genuine interest in their backgrounds, their interests and families. It wasn’t a stretch to imagine he would take a similar interest during voir dire in the prospective jurors who would decide his client’s case.

We all know people who are have this kind interpersonal curiosity—they’re often very successful, as politicians, leaders—or trial lawyers. Why are they so successful? Because being interested—genuinely interested—is the first step in creating a bond, which involves trust. And the ability to garner trust can be among a trial lawyer’s greatest strengths.

Not every lawyer we encounter is worthy of emulation, and that can be a valuable learning experience, too. And we don’t learn only from seasoned lawyers, newbies who have a trait or style can help shape us, if we’re paying attention. In particular I’m thinking of a young associate I came up against a while back. I previously wrote about this guy. On the surface, he had a lot going for him. He seemed intelligent, charming and had scored a job working for an LA-based “Nader Raider” automotive product liability lawyer who boasted a string of six and seven-figure trial verdicts.

It wasn’t too long, however, before it became clear to everyone on our side of the fence that this associate had something of a . . . reckless relationship with the truth. Not only did he make calculated and blatant misrepresentations to our judge, but every telephone call or conversation with him was followed by a letter purportedly “confirming” several things that were either not discussed or never agreed upon. From this lawyer I learned how precious is a lawyer’s reputation for honesty. It is an undeserved gift; one that we must never squander.

Sometimes the way an opponent practices forces us to confront our intuitions about whether something is ethical or appropriate. We learn from this, too. For example, I am presently litigating a civil case against a pretty seasoned lawyer who spent the first half of his 35+ years practicing criminal law. There are numerous “independent” witnesses in our case—witnesses who would not be expected to have any inherent bias in favor of one side or the other. We’ve just wrapped up a long string of depositions, including several such independent witnesses. During these depositions, it has become clear that my opponent has gone out and met in person with every single witness in anticipation of their deposition. In some cases he literally spent hours with them preparing for their deposition.

Undoubtedly, readers will have different views on whether this is appropriate. There is another party in our case and its lawyers are adamant that our opponent’s behavior is the worst kind of slimy. And I’ll admit that my initial reaction was not positive. But after serious reflection, I’ve come around to think it’s not necessarily inappropriate, and could in fact be a prudent thing to do in some circumstances. It obviously leaves the witnesses somewhat vulnerable to cross-examination (“Now, how long did you spend with Mr. So & So preparing for your deposition today?”). On the other hand, my opponent knew before we went on the record what the witness was planning to say, and he could tailor his examination to capitalize on positive aspects, while anticipating and diffusing negative testimony.

I realized, too, that while this kind of interaction with independent witnesses might seem unusual in civil litigation (it is more common to interview witnesses through the medium of a third-party investigator), it is the most natural thing in the world in criminal law, where my opponent cut his teeth. After all, depositions and other prior testimony are rarely available in criminal trials; an interview is often the only way to know what a witness will say before he/she takes the stand. So, while I try to learn something (or a bunch of things) from every case, I also make it a point to try to keep my eyes open and learn something from every lawyer I’m up against.


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