In his own uniquely modest way, President-elect Trump has said: “Our country needs a truly great leader, and we need a truly great leader now. We need a leader that wrote The Art of the Deal” which, of course was a book he wrote.  In fact his 1987 book has sold over 1 million copies. He says that his style of deal making is simple and straightforward: “I aim very high, and then I just keep pushing and pushing to get what I’m after.” And, in his book he outlines eleven negotiation tactics that are at the heart of the message in his book. Let’s look at them to see if we can benefit from the advice in our professional negotiations.

Think Big.  He says that he likes thinking big. “To me it’s very simple: if you’re going to be thinking anyway you might as well think big.” He writes that if you’re satisfied knowing that you can comfortably make a deal that doesn’t require much effort, then you’re not thinking big enough. He claims most people think small  because most people are afraid of success, afraid of making decisions and afraid of winning.

I couldn’t agree more based upon my observations of a lot of plaintiff negotiations. Too often plaintiff lawyers take the easy and comfortable deal because they are motivated by recovery of  their costs and earning a fee or afraid of the challenge of trial instead of being primarily motivated by what’s best for the client. Instead we should be courageous and think big.

Protect the downside and the upside will take care of itself. He says: “I always go into the deal anticipating the worst. If you plan for the worst – if you could live with the worst – the goodwill will always take care of itself.” He recommends to get into deals that you can afford to recover from if things go poorly and know when the cost for making a small deal is lower than had you not made a deal at all.

Certainly we must know the pros and cons of our cases and settlement  before negotiation. We need to be  prepared to walk away from the negotiation when it is non productive and to be prepared  to try the case if we have to. We also need to be prepared for failure of negotiation which may require more than one attempt or even a settlement on the courthouse steps. We need to be mentally ready when things  don’t go well in our negotiations for the consequences and never negotiation out of desperation.

Maximize your options He says you have to be flexible. He writes “I never get too attached to one deal or one approach. For starters, I keep a lot of balls in the air, because most deals fall out, no matter how promising they seem at first. In addition, once I’ve made a deal, I always come up with at least half a dozen approaches to making it work, because anything can happen, even to the best laid plans.”

There is a real skill  to seeing other ways to make settlements in negotiation. It’s an art which, like playing  chess, requires you to see  all the consequences of an innovative settlement agreement. Personally, I was always very reluctant to make any deal that wasn’t totally simple. My basic demand was money for a release without any contingencies. I was particularly against high – low arrangements, partial settlements or settlements with conditional provisions. My position was the Jesuits quote  “In God we trust. Everyone else cash” By doing so I avoided a lot of problems of complicated settlement provisions.

Know your market He says that he likes to rely on his own research rather than that of the work of consultants, statisticians or critics. He says he made it a habit to collect himself as many opinions as possible about a potential deal.

I think experienced lawyers do need to “trust their  gut” but I also think there is benefit in consultant advice. Well conducted focus studies, for  example, are valuable assists as are surveys of the potential jurors.

Use your leverage He says “the worst thing you can possibly do in a deal is seem desperate to make it. That makes the other guy smell blood, and then you’re dead.” He argues that the only way you’re going to make a deal you want is if you are coming from a position of strength and can convince the other side that you have something they need.

This applies our plaintiff work. Being too quick to adjust demands, demonstrating being anxious to settle and showing doubt are deadly in negotiation. Clearly the art of negotiation involves knowing your strengths and weaknesses.  In negotiation we promote our strengths and frame our weaknesses  in the best possible light. Being confident and showing a strong position is important in our negotiation.

Enhance your location He claims that the adage that location is everything in real estate isn’t true. Instead he argues: “you can take a mediocre location and turn it into something considerably better just by attracting the right people. His point is that rather than overpay for something that’s already established, you should consider cheaper alternatives that have the potential to be molded to your taste.

I’m not sure I can apply this principle to our professional work except to putting our cases  in the best possible light. I think you can also enhance your weaker cases by strong witnesses, good experts and persuasive exhibits.

Get the word out He says: “one thing I’ve learned about the press is that they’re always hungry for a good story and the more sensational the better. The point is that if you are a little different, a little outrageous or if you do things that are bold or controversial, the press is going to write about you.” Therefore he argues that once you’ve made a deal, the only way it’s going to be worth anything is to attract customers and creating a public persona helps you get the most out of your deals. He says that he’s always embraced a healthy dose of sensationalism and controversy to create media interest. He argues that a little hyperbole never hurts because people want to believe “that something is the biggest and the greatest in the most spectacular.”

Clearly he is right about sensationalism and controversy creating media interest. But, often our cases have issues or involve people with media interest.  When we use the media to enhance our position we also strengthen our negotiation position. However, we need to be very cautious that in doing that, press releases and the like, we do not cross the ethical line. Doing so can result in discipline or even change of venue. Having  handled my share of high profile media cases I’ve found the right kind of media  coverage is always helpful in negotiating settlement. The fear of exposure in the media of corporate or other wrongdoing is always a powerful motivator.

Fight back Trump claims that “in most cases I’m very easy to get along with. I’m very good to people who are good to me. But when people treat me badly or unfairly or try to take advantage of me, my general attitude, all my life, has been to fight back very hard.” He says that he prefers to be cooperative and positive but sometimes it’s necessary to be confrontational when the other side is being unfair or try to take advantage. He argues that: “the risk is that you will make a bad situation worse and I certainly don’t recommend this approach to everyone. But, my experience is that if you’re fighting for something you believe in – even if it means alienating some people along the way – things usually work out for the best in the end.”

Trump is clearly a counter  puncher which is an effective boxing technique and has  application in  our plaintiff’s work as well. While I believe the biblical directive of turning the other cheek, I confess that in my plaintiff’s work, I practiced the advice of Prince Machiavelli “It is much safer to be feared  than loved…fear preserves you by a dread of punishment which never fails.” Not only that, I remembered who my enemies were following the adage “bury the hatchet but leave the handle sticking up.” I tried to make sure there were punishments  for defense misconduct in dealing with me.  Another important  lesson Trump is right about is that it is not our role, in representing our clients, to be  loved. It’s not our role to be friends with defense counsel or judges in representing our clients. Our duty is to be determined and courageous in standing up for them. I never  strove to be loved by my opponents or judges while representing plaintiffs, only feared and hopefully respected for ethical conduct.

Deliver the goods He points out that: “you can’t con people at least not for long. You can create excitement, you can do wonderful promotion and get all kinds of press and you can throw in a little hyperbole. But, if you can’t deliver the goods, people will eventually catch on.”

This has obvious application to us our professional work. You can’t fool defense counsel, clients and juries for  very long. Success enhances  power in negotiations. We need to “deliver the goods.”

Contain the costs Trump says that his father taught him to never pay a penny more than you should for something since pennies can easily turn into dollars. He points out that he’s found that throwing money at a project is never the path to success if it was shoddily planned.

I see this advice as applying to our case management. Too many plaintiff lawyers don’t consider the potential value of the case and the odds  of success in governing their costs or time invested. Too many times I’ve seen lawyers spend costs which substantially exceeded the probable value of the case or  spend excessive time on cases. We are obligated to our clients to avoid doing this and it is in our bests interests as well.

Have fun He believes that successful deal making should be about the thrill of winning and accomplishing something, not sorely for making money. “Money was never a big motivation for me, except as a way to keep score. The real excitement is playing the game.”

Certainly, if we don’t enjoy what we are doing we need to find something else to do. Winning in order to accomplish good for clients and others  should be our goal, but not just winning for winning sake. For our clients their cases are not a game for lawyers  to play. The case is their life and we are responsible for it.  Remembering our client at all times is our duty.

Well, that’s my summary of the book. Perhaps I’ve saved  you the price of buying it!

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The December 2016 issue of The Jury Expert  features an article by Andrew Luttrell: “Making it Moral: How Morality can Harden Attitudes and Make Them More Influential.” The article brought to mind the writings of Professor George Lakoff.

Professor of cognitive science, George Lakoff at the University of California in Berkeley wrote the well-known book  The Political Mind. In it he argues that politics “is about moral values.” He notes that every successful political leader presents their ideas on the basis that they are “right,” that is that their idea or position is morally correct. He extends this belief to the idea that trials need to be about moral values, ethics and doing the right thing. The appeal must be to the unconscious value system of the jurors and not an approach relying  upon rational logic. He notes that people vote against their own self-interests when they believe they are voting in conformity with their strongly held moral values. This has direct application to how we  approach the trial of our cases to jurors.

This article  expands the professor’s ideas by addressing the significance of moral belief by jurors during trial. Mr. Luttrell  notes that people can have an opinion which in social psychology are known as “attitudes.” Attitude, of course, is a person’s positive or negative evaluation of something. We know from research that attitudes can generally predict a person’s decisions or behavior. For example, a person with a favorable attitude towards the police, would be more likely to vote in favor of law enforcement then someone with a negative attitude.

This article discusses the impact on conduct depending upon whether one’s attitude has a moral  basis. The author observes that an abundance of research indicates that the more a person thinks that his or her attitude has a moral foundation, the more likely it is that person’s behavior will follow the attitude and the less likely that person is to change even in the face of pressure to do so. A perceived basis of morality for the attitude therefore is a strong indicator of that person making decisions in conformity with the attitude.

One of the examples relevant to our recent election is a study done in 2008 which found that the more people thought that their choice for the president involved their moral beliefs, the more likely they were to vote in the election. We know that strongly held values and beliefs of morality will drive a decision even when it is not in the best personal interest of the individual. People will vote for a candidate who may not advocate policies in their best interest when they believe that the candidate positions reflect their moral beliefs. A person is much more likely to vote for a candidate whose position on abortion, same sex marriage or other strongly held moral beliefs conforms to their own even when they don’t like the candidate or when the candidate holds other positions which conflict with the voters personal interests.

The research further indicates that people are less likely to revise their opinion if they see their held opinion as a matter of morality. As the article points out, people are constantly faced with pressures to change their opinions by what they read, their experiences and the opinions of friends and others. In one study, contrived social pressure was brought on participants to rethink their opinion regarding torture to get information. The results showed that the more the participants thought that their initial opinions were a matter of morality, the less likely they were to change even in the face of group social pressure. Therefore the more people believe they have a moral basis for their attitude, the more their behavior will align with that attitude and the less likely they are to change it even under pressure or in the face of evidence.

Previous studies, according to the article, have established that people will act according to their attitudes more when they have taken considerable time to think about and form that attitude. The new evidence, according to the article, shows that when people merely believe that they have thought carefully about a topic – whether it’s true or not – the more likely they are to act in accordance with that attitude. In trial, learning how long the person has held an attitude or the way in which it was  formed would be helpful information.

These findings about moral beliefs have implications for us in trial for obvious reasons. We need to learn what we can about people’s strongly held beliefs and their  moral values  as it applies to the issues or people in your case. These factors will unconsciously drive the verdict irrespective of the evidence. They are strong predictors about how  people will vote. Research has indicated that one can learn about core moral principles, to some extent, by simply asking about it in jury selection. We can ask jurors whether their attitudes towards a particular person, group or issue are based upon their core moral beliefs and convictions. The strength of their belief in that regard will indicate how important it is to them.

We can also characterize the issue in our case or the persons or groups involved in the light of important moral principles. By telling a jury, for example, that their reactions in their verdict are a reflection of their core moral principles, would tend  to harden their beliefs and attitudes, hardening them against later information or arguments to the contrary.

We can ask indirect questions about what they believe are important characteristics to teach a child or persons they admire or similar questions that reflect a person’s moral beliefs. Knowing this can help us in our jury selection and trial presentation.

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One year ago, in January 2016, I wrote about correctly conducting focus groups. I recommended an article from Trial Magazine by attorneys Philip H Miller and Paul J sculptor. Over my fifty years as a trial lawyer I have been involved in many dozens  of focus  studies. I also have  observed focus studies done by others and read articles about focus studies. My experience was a feeling they were not qualified and the writing often inaccurate. When I read the  article, however, I was struck by the accuracy and quality of their observations so I strongly recommended reading it. Coincidentally, in the January 2017 issue of Trial, the same two lawyers have once again published an article entitled “Five Rules for Effective Focus Groups” which I believe should be required reading for lawyers who want to know how to run a focus group the right way.

My experience has been that the lawyers conducting focus studies and even some consultants have the wrong objective. Rather than having a goal of discovery of initial impression feedback regarding issues, exhibits or other aspects of the case, their goal appears to be testing their ability to convince the group of their position. The authors point out that “focus groups can add ambiguity to the case and suggest misleading answers to case critical issues.” They recommend spending time analyzing what is needed in advance of the study, doing multiple studies and doing them early enough to allow for adjusting discovery before trial. Otherwise, they point out it is a situation of “garbage in, garbage out.”

Here are some other observations they make. They suggest that you consider the following questions from a focus juror perspective  before the study: (1) why is this case important? (2) how can we know we aren’t being scammed or defrauded by this evidence? (3) has this happened before? (4) are there any rules or laws we can use to decide this case and (5) is there a message that needs to be sent?

One of the suggestions they make is that instead of the study being a general explanation of issues, it should test the strengths and weaknesses of the case. They next recommend that in order to get valuable and reliable information, that one uses multiple focus groups, provide a balanced presentation and utilize a question outline they provide in a list. Their list is a comprehensive checklist of items to be covered in the focus group. It includes such things as suggestions like “ask “why?” A lot. Avoid assuming the first response is everything you need to know. Ask “what else?” They recommend a technique which is helpful where the group is asked to “fill in the blank” for such questions such as: the defendant should have…. the person I most want to hear from is…., the evidence that was most important to me was….,and this would never have happened if…”

I’ve written about the problem of “confirmation bias” on many previous occasions. The authors discuss this and point out that all people are affected by this mental process, regardless of education level, social standing or worldview. As they point out “we all hear what we want to hear and see what we want or expect to see. When testimony or evidence in the case contradicts what we already believe our first response is to minimize it by assuming our witness expert or of her evidence has more persuasive weight and when we look at a photograph we see what we want to see and minimize the rest.” Confirmation bias is at its strongest when dealing with emotionally charged issues or deeply entrenched beliefs. Focus groups are a way in which we as trial lawyers can deal with our own confirmation bias problems.

Another source of helpful focus group and communication information is from Frank Luntz. Frank Luntz is unquestionably one of the most experienced experts in communication. He has a website Luntz His book Words That Work, is an excellent source of information about communication. His premise is: “it’s not what you say. It’s what they hear.” His advice is that we understand our audience, the opinions, attitudes and emotions that make them tune in or tune off. His service to the Republican Party has been to pinpoint language that garners support and inspires action by delivering a message that resonates and drives results. The TV program 60 Minutes featured Luntz conducting a focus study following a presidential debate. I recommend reviewing the short video not for the results of the focus study, but to watch how he conducted it. Most notably you will see that more than 90% of the talk comes from the members of the focus study and not Luntz. One of the primary faults of lawyers conducting focus studies is that they reverse that percentage and then some. They do all the talking and even argue with the responses. The other characteristic to note is that his questions are cryptic, short  and call for impressions. Most lawyers conducting focus studies make the same mistake they make in court conducting witness examination. They make their questions too long, too complicated and distracting.

Luntz on the other hand, did things such as saying  to the group “on the count of three yell out which candidate you thought won the debate.” He then measured the respective volume of responses and decided it was evenly balanced. The significant thing is that he asked them to yell it out. Quick, spontaneous and all impression response. He also said “describe in one word what you thought of her performance.” The result was pretty amazing because people had one descriptive word that was very revealing as to their inner feelings. A much better technique than asking for long explanations. He used the the helpful question: “how do you feel about?” a lot. Significantly he never commented about the responses he received, but only moved on to another person. At one point he played a video clip from the debate and said to them: “did he show the temperament you are looking for in a president? Why? He asked questions like: “how many have overall positive opinions about the election? How many have an overall negative opinion about the election?” And, he asked “does this election make you feel more optimistic or pessimistic, raise your hand.” All short and simple questions which produce gut level responses.

For me the significant fact was that this was not an ego trip for Luntz conducting the study. He made sure to minimize himself, ask questions that were simple and short and otherwise facilitate audience response without inhibition by him. My feeling is that lawyers have a over simplistic idea about conducting focus studies and are often wrong about their conclusions. Lawyers generally think they know more than anybody else, but in the case of focus studies my experiences they are badly in need of experienced and competent consultants if they don’t want to have garbage in and garbage out.

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