THOUGHTS ABOUT NEGOTIATION & SETTLEMENT

I have been a fan of Roger Dawson for many years. See:  http://www.rdawson.com I have read most of his books about sales and negotiation. I have attended his lectures. His ideas about communication, persuasion, sales and negotiation make a great deal of sense to me. Dawson was born in England and then became president of one of California’s largest real estate companies. Since 1982 he has been a full-time speaker and writer regarding sales issues. Here is a brief summary of some of his ideas regarding negotiation:

  1. Act dumb, not smart. When you do that it tends to defuse the competitive spirit of negotiation. You also have the advantage of learning more than if you act smarter than the other person.
  2. Always congratulate the other side. When you’re through negotiating always credit the other side with the  winning outcome. You want the other side you feel good about what happened. It avoids after settlement controversy and you are likely to encounter the same person again. You don’t want them in frame of mind where they are looking for a way to pay you back.
  3. Always get the other side to commit first. The reason is that their first offer may be better than you expect. It also gives you information about for you have to tell them anything.
  4. Never say yes to the first offer. For obvious reasons you need to explore the extent to which the other side is willing to go.
  5. Always act shocked at the offer. Good negotiation skills are like playing poker. You do not want to reveal your hand by the way in which react.
  6. Remember the tactic of higher authority. Always have a higher authority in negotiation  that you need to clear with before making a deal. It can be your client, your partner, or someone else, But you need to be able to say that before you can accept an offer you need to clear with someone in a position higher authority in order to be able to have our negotiation. The police have used “good guy – bad guy” tactics in interrogating. It’s a similar psychology where one person is friend and the other is the unreasonable one to ingratiate better attitudes.
  7. Project the reluctant buyer attitude. You will not get the best off when you demonstrate and over eager interest in offers or settlement.
  8. Never offer to split the difference.Splitting the difference doesn’t mean down the middle because you can do that more than once. Encourage the other person split the difference only when it is to your advantage.
  9. Time pressure is important in negotiation. It has been well established that in general 80% of the progress in the negotiation occurs within the last 20% of the time left for negotiation. That’s why you should have inflexible time limitations allowed for negotiation.
  10. Be on guard for nibbling. Nibbling is the tactic of adding terms after the deal has been made. We are most vulnerable when the negotiation appears to be over. We’re feeling good because the pressure and tension of negotiation is over. The defense lawyer waits until that time and says “of course we will want a confidentiality agreement.” That’s nibbling. You think to yourself: “oh no, I don’t want to reopen the negotiation again and risk losing the whole deal we just made.” So, you give in. Big mistake. guard against nibbling.

THE CONNECTION BETWEEN THEATER AND TRIAL LAWYERS

I’d  like you to consider the relationship between the theater and being a trial lawyer.  As  a trial lawyer you need to be a  script writer. Not in the sense of making  up facts, but in the sense of  deciding how to tell the story. The framing you select and the characters you decide to introduce from the actual facts of your case. You need to be the director. You have to decide h0w to present your client’s story and who the characters are  you will introduce plus the sequence of doing so. You need to be the main actor in your play. Not by pretending to be someone you are not or putting up a front, but in exactly the  opposite way. By being totally open and genuine at all times. To accept  the enormous power of telling the truth.  Just as an actor  must adopt the role of the character he or she is playing, you must full  step into the shoes of not only your client  but gain an understanding of every witness, the lawyers, the judge and the jury. Put yourself in their shoes. How do they view what you are presenting and how they present it.

Here are some thoughts about acting and  the theater  you may be able to apply to being a trial lawyer.

Oscar nominee, after William H Macy as said: “there is a popular notion that great actors have to be brave and willing to suffer. While that is true, strangely I find the harder thing is to be brave enough to be simple. To stop when you’ve done it. That’s more frightening than anything.”

Being Genuine:  In Fred Rochlin’s book Old Man in a Baseball Cap he writes: “the greatest gift we can give another is to share ourselves. To do that we must take the mask off and then take off the mask under that one. We reveal ourselves in stories we tell. Stories about ourselves and our experiences. Some are true and some we only think are true.”

Adversity teaches In the play The Teahouse of the August Moon Sakini, an interpreter for the American army, Begins to play by walking down to the footlights in introducing himself to the audience. He describes to them how Okinawa has been conquered many, many times. He says this is helped educate his people. Then he says: “not easy to learn. Sometimes painful. But pain makes man think. Thought makes man wise. Wisdom makes life in durable.”

Being heard  Rex Harrison’s book A Damned Serious Business talks about touring with a theater production. He says that it is an invaluable training ground because you are forced to hold the attention of a restless audience and keep them quiet. You learn to judge the back wall of most theaters and practice hitting the wall with your voice. You need to become experienced at “bouncing off the back wall.” He also discusses self-consciousness. The average human being, if stared at by a lot of other human beings, does get self-conscious. On the stage we  were constantly being stared at by people it auditoriums. The great trick in losing it is in thinking right. If you’re thinking that part right, you should be too occupied in your head to think about your own body.”

Here are some quotes about acting:

  • Talk low, talk slow, and don’t talk too much. – John Wayne
  • acting is the most minor of gifts and not a very high-class way to make a living. After all, Shirley Temple could do it at the age of four. – Katharine Hepburn
  • you can pick out actors by glazed look that comes into their eyes when the conversation wanders away from themselves. – Michael Wilding
  • acting is standing up naked and turning around very slowly. – Rosalind Russell
  • a lot of what acting is, is paying attention. – Nancy Reagan
  • actor is a guy who, if you ain’t talking about him, ain’t listening. – Marlon Brando
  • Tennessee Ernie Ford was a well-known singer who said: “don’t get bigger than the person buying the ticket.”
  • In the movie The Empire Strikes Back Yoda says to Luke Skywalker, “do or do not. There is no try.”
  • acting is happy agony. – Jean – Paul Sartre
  • I want to give the audience a hint of a scene. No more than that. Give them too much and they will contribute anything themselves. Give them just a suggestion  and you get them working with you. That’s what gives the theater meaning; when it becomes a social act. – Orson Welles
  • In Italy or three years, under the Borgias, they had warfare, terror, murder, bloodshed – they produced Michelangelo, Leonardo de Vinci and the Renaissance. In Switzerland they had brotherly love, 500 years of democracy and peace and what did that produce? The cuckoo clock. – Orson Welles
  • a hero is an ordinary individual who finds the strength to persevere and endure in spite of overwhelming obstacles. – Christopher Reeve
  • a true priest is aware of the presence of the altar during every moment that he is conducting a service. It is exactly the same way that a true artist should react to the stage all the time he is in the theater. An actor who is incapable of this feeling will never be a true artist. Konstantin Stanislavisky
  • we have all, at one time or another, been performers, and many of us still are – politicians, playboys, Cardinals and Kings. – Laurence Olivier
  • all the world’s a stage and all the men and women merely players. They have their exits and their entrances; and one man in his time plays many parts, is ask the seven ages. – Shakespeare
  • You’re only as good as your last picture. – Marie Dressler

The ability to paint a picture with words  The sports writer Bob Dolgan of the Cleveland Plain Dealer once wrote that when Indiana broadcaster Jack Graney was doing play-by-play, “you could smell the resin in the dugouts, feel the clean smack of the ball against the bat and and see the hawkers in the stands.”

Fear  Cus D’ Amato was a boxing trainer. He once said” fear is your best friend or your worst enemy. It’s like fire. If you can control it, it can cook for you; it can heat your house. If you can’t control, it will burn everything around you and destroy you.”

Being Nervous  The actor Donald Sutherland has said: “I have made 101 films and I still throw up at the beginning of every one.”

Attitude & self confidence  Howard Hawkes was a Hollywood movie director. He once said: “I have seen actors go along for years and are no better than satisfactory. Suddenly they become brilliant because they found confidence confidence brings poise, style and polish to an actor.”

First impressions  In a biography about the actor W. C. Fields, it was pointed out that he was a star when  to be successful in vaudeville you only had an act that was 12 to 18 minutes long. You have to follow other acts, grab attention of the audience, sell your show all in a very short time.

The story must make sense  In the Greek theater there was a phrase “God from a machine” to describe a solution by a director of a play where he could not think of a logical explanation. Instead they would lower a statue of one of the Greek who would ordain the outcome. This was considered very poor talent for a writer or director. Our trials have to have logical explanations to be acceptable to jurors.

Hard work  In the 1933 movie A League of Their Own Tom Hanks playing the role of the baseball manager says to Gleena Davis, playing the role of the star catcher on the team, when she tells him she plans to quit because it is just too hard: “it’s supposed to be hard. If it wasn’t hard everyone would be doing it. It’s the hard part that makes it great.”

 

SOME BRIEF THOUGHTS ABOUT CROSS EXAMINATION

Good cross examination usually begins, not at trial, but with discovery.   This is particularly true in connection with depositions. Much of our cross examination resource involves our depositions. The mistake most lawyers make is that they are not thinking about the jury when they are deposing a witness, they are thinking about motions and the witness. Lawyers tend to think that the witness is the audience but in fact the real audience is a jury which has not yet been selected and that’s where the focus should be.

Some good ideas came out of a 1984 Gerry Spence participation at an ABA  meeting about questioning an adverse witness. It involved a mock trial involving defamation. Unlike most lawyers who focus upon specific questions regarding individual issues, Gerry’s approach was to encourage the idea of freedom of press having a corresponding obligation of fair reporting. His approach involved a big picture story rather than a series of individual points. For example:

Q. You agree that no rights can exist without a corresponding duty? We have a right, to drive down the street but we have a duty not to drive carelessly?

Q. While we have a right to drive we also have a duty not to do so recklessly and injure someone? You would agree with that?

Q.  You would agree, that you have a duty to be fair about  you write?

If  you think about cross examination you probably would agree with these general points:

  1. Develop a theme and stick to it.
  2. Keep it simple
  3. listen to the witness
  4. keep an eye on the jury, the judge in your opponent
  5. Remember the rule: “don’t strike a cane unless you slay him” don’t attempt to “crush” a witness unless you can do it.
  6. Keep a poker face even when you shoot yourself in the foot. However don’t be afraid to laugh at yourself in front of the jury.
  7. Do not ask the judge for help
  8. he who angers you has conquered you.
  9. Have the courage to ask hard questions and be prepared to deal with answers.

As to anger, in October 1985 a newspaper reported that during a trial for armed robbery in Oklahoma City the defendant was acting as his own attorney. Apparently the defendant, Dennis Newton, age 47, did a fair job up to the time the manager of the store testified and identified him as the robber. In cross-examination Newton became so angry and upset that he suddenly blurted out: “I should have blown your (expletive) head off.” Suddenly realizing what he had done he quickly added “if I had been the one who was there.” The paper reported that it took the jury only 20 minutes to convict him of armed robbery.

Then there is the actual example about the importance of simplicity from a  transcript of a trial in Tallahassee Florida where a defendant was charged shooting another man in the groin. The direct exam by the prosecutor went like this:

Q. Ms. Brown you were in the bar having a drink with James?

A. Yes

Q. Tommy Lee entered the bar and came over to where you and James were sitting?

A yes sir, he did

Q he yelled something at James and hit James in the mouth?

A yes sir, that’s what happened.

Q James stood back up and hit Tommy Lee?

A yes

Q and then Tommy Lee pulled out his gun and shot James in the fracas?

The witness hesitated. She glanced up at the judge, look back at the district attorney and then said: “no sir. Just above it.”