Legal Negotiation in a Nutshell
Author:
Teply, Larry L.
Edition:
3rd
Copyright Date:
2016
14 chapters
have results for legal negotiation in a nutshell
Chapter 4. Opening the Negotiation, Bargaining, Information Exchange, Tactics, and Persuasion 314 results (showing 5 best matches)
- Many commentators suggest that the best approach to making arguments in a legal negotiation is to present “evidence” in support of a position or view. By presenting evidence and reasons, a legal negotiator’s position takes on increased credibility. For example, in an adversarial negotiation, a negotiator may present evidence of the value of the case, the lack of time pressure, or the inability to make further concessions.
- In a legal negotiation, several types of audiences are possible. First, the audience may be directly affected by the outcome, such as a defendant in plea bargaining or the employees in a labor-management negotiation. Second, the audience may have an indirect interest in achieving a settlement, but not in the particular outcome. For example, the judge before whom the lawsuit is pending has an interest in getting the case off the docket, but not necessarily an interest in what the specific terms are. Third, the audience may not have any vested interest in the outcome or in achieving a settlement—most often the press or other media.
- Legal negotiation inherently involves “surveillance” by various “audiences”—persons or groups who directly observe a legal negotiation or who will learn of a negotiator’s conduct and performance. That audience often can reward or punish the negotiator based on the performance and outcome.
- In a more typical legal context, the choice is ordinarily between negotiating at one’s own office (or that of the lawyer’s client), the other negotiator’s office (or that of the opposing party), or some neutral location, such as the judge’s chambers or other neutral office space. In considering the location of a legal negotiation, there are widely recognized advantages and disadvantages to negotiating at one’s own office or the other negotiator’s office.
- Lawyers routinely face issues of truthfulness (and partial truthfulness) in legal negotiation. In an adversarial negotiation, an important aspect of being tough is not letting oneself be duped or fooled. Professor Williams found that some cooperatives have a tendency to believe what is asserted at face value—particularly if they are under stress. Professor Williams points out that opponents may be trying to characterize the case in a light favorable to their side. They will not always be discussing the case in an objective, fair manner.
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Chapter 2. “Effective” and “Ineffective” Legal Negotiators, Legal Negotiating “Styles” and “Strategies,” and the “Stages” of Legal Negotiations 184 results (showing 5 best matches)
- An essential part of being an effective legal negotiator is the ability to recognize and understand the basic negotiating “styles” that legal negotiators typically adopt and the basic “strategies” that are possible in legal negotiation. In addition, it is essential to know the characteristics that make legal negotiators “effective” regardless of the style or strategy adopted. Furthermore, in light of this knowledge, it is critically important for legal negotiators to be able to consciously adopt a style and strategy appropriate to the situation. This chapter focuses primarily on basic strategic choices available in legal negotiations as well as basic elements and dynamics of legal negotiating styles.
- No matter how the combination of styles and strategies are described, however, the best mix of styles and strategies should always reflect the basic type of legal negotiation involved—civil disputes, contractual transactions, labor-management negotiations, criminal cases, divorce and domestic relations problems, and international legal negotiations. As discussed in Chapter 1(D), above, each of these types of legal negotiations reflects a specialized kind of negotiation involving different customs, practices, and peculiarities.
- In this regard, a good legal negotiator carefully takes into account two critical factors: (1) the extent to which the parties perceive the existence of a continuing relationship for themselves and (2) the extent to which the negotiation involves voluntary exchanges as opposed to civil disputes in which the parties have enforceable legal rights and remedies in court if the parties do not reach a mutually satisfactory agreement outside of court.
- In 2002, Professor Andrea Kupfer Schneider published the results of a study entitled
- Professor Donald Gifford in his article,
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Chapter 1. Negotiation in Law Practice 221 results (showing 5 best matches)
- As discussed in detail in the next section, negotiating skills are a significant part of representing a client well. In extreme circumstances, poor negotiating skills may give rise to a legal malpractice claim. Negotiating skills are also an important element in a lawyer’s reputation. Because of the significant role of negotiation in law practice and the difficulties and challenges legal negotiators face, a high priority on learning and perfecting legal negotiation skills is justified.
- Most of the discussion in this text is directed (unless otherwise stated) toward negotiating civil disputes. This type of negotiation permits a broad range of permissible behavior. However, it does not raise (1) the complicated issues of fairness, ethics, and public policy involved in criminal and domestic relations cases; (2) the group dynamics issues raised by labor negotiations; nor (3) the cross-cultural and political problems arising in an international context. Nonetheless, much of what is stated about negotiating civil disputes applies to criminal cases, labor-management negotiations, divorce negotiations, and international legal negotiations.
- Everyone brings a set of ideas, attitudes, and probable approaches to legal negotiations. These elements were formed from prior legal negotiating experiences, if any; from the many nonlegal negotiating experiences in life; and from one’s general approach to life. In legal negotiations, lawyers engage in identifiable patterns of behavior, approaches, and attitudes. Recognizing and understanding them will help you become a more effective legal negotiator.
- One category of legal negotiations lawyers conduct relates to transactions between parties. This type of negotiation arises in a wide array of settings—including sales of goods, securities, real property, services, and operating businesses. From a legal perspective, the hallmark of this kind of negotiation is a voluntary exchange on the part of the parties. Written contracts often, but not always, memorialize the exchange. The agreements regulating these transactions are essentially legislative in nature: they are directed primarily at the future conduct of the parties and the parties’ respective rights.
- Negotiation is an integral part of the lives of many professionals, especially lawyers. In fact, negotiation is often described as a lawyer’s principal occupation. Lawyers use negotiation
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Preface 9 results (showing 5 best matches)
- Legal negotiation has become widely recognized as a subject of great importance in the practice of law. This work is designed to present a succinct treatment of legal negotiation to the reader. Because of size and format limitations of this series, difficult questions of exclusion and depth of treatment have constantly been presented in the preparation of this work. I have tried to balance the competing considerations and believe that the most important material has been included. This third edition, , substantially adds discussion of several new topics and incorporates recent research on legal negotiation.
- Toward Another View of Legal Negotiation: The Structure of Problem Solving
- I want to acknowledge continuing permissions granted in conjunction with the first edition of this work. First and foremost, I want to thank Professor Gerald R. Williams and West Academic Publishing for their permission to make extensive use of copyrighted material from Professor Williams’
- Because of the absence of footnoting in this series, I have not been able to provide full references to specific sources. Nonetheless, major sources have been indicated. By consulting the “Table of Cases,” the “Table of Statutory, Procedural, Ethical, and Restatement Provisions,” and the “References and Resources,” the reader can follow up on the ideas, suggestions, and quoted material presented in the text. In addition to these directly acknowledged sources, I want to acknowledge ideas from numerous other sources that I have absorbed over years of teaching legal negotiation, but I have not been able to attribute directly their origin.
- I also want to recognize the path-breaking contributions of Chester Karrass’ series of books to both theoretical and practical body of knowledge of negotiation skills. His books cited in the “References and Resources” section are highly recommended. Likewise, attending one of his seminars was a profitable experience for me and is also highly recommended.
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Chapter 3. Planning, Preparation, and Working with the Client 186 results (showing 5 best matches)
- Others recommend a more comprehensive approach to organize the preparation for a negotiation and to record its progression. For example, in the essential legal skills book, Negotiation, Diana Tribe recommends creating a “negotiation notebook”—a
- The Synthesis of Legal Counseling and Negotiation Models: Preserving Client-Centered Advocacy in the Negotiation Context
- Furthermore, by opting for the positive nonlegal consequences of one choice, a client may have to forgo positive nonlegal consequences of alternative options. Thus, a client may have to balance goals in light of a variety of factors or choose between solutions that require the client to trade one set of negative consequences for another. It will also provide better guidance to how the legal negotiator can best serve the client’s interests and achieve the client’s objectives in a legal negotiation.
- In the course of identifying the parties’ needs and objectives and preparing for negotiation, a legal negotiator should focus on what weight or value gives to each of the variety of interests. In particular, lawyers should be careful not to substitute their own calculus of what solution or negotiating stance to adopt for that of their clients. Valuing nonlegal concerns especially falls within the client’s domain. Binder, Bergman, Tremblay, and Weinstein point out that nonlegal concerns often outweigh legal ones. Even desired solutions ordinarily entail negative nonlegal consequences.
- In , James Freund suggests that leverage can be visualized in terms of a “playing field.” Freund notes that the playing field in a negotiation is often not “level.” One party usually wants the agreement more than the other or one party is participating in the negotiation “less voluntarily” than the other. Thus, “[w]hen the playing field is unlevel for whatever reason, it creates leverage.”
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Chapter 5. Reaching Agreement or “Final Breakdown,” Wrapping up the Details, Drafting the Agreement, Interpreting the Settlement, Fairness, and Defects in Settlements 117 results (showing 5 best matches)
- You have also seen that there are basic strategy and style choices. Good legal negotiators make those choices consciously. So when you are involved in legal negotiation, start with thorough preparation. Decide on a strategy and style, but be flexible. This preparation leads to confidence.
- Self-Test 4 in Chapter 1(H) raised basic questions about how unfairness in negotiation results should be handled. In addressing questions of fairness, lawyers must take into account more than personal predilections. As professionals, lawyers are bound by the current ethical rules and the law itself. To what extent do these sources impose an obligation to be fair and to take into account broader social, judicial, and economic interests in legal negotiation? Can lawyers depend on professional ethical norms to impose an obligation to be “fair”?
- Time pressures have several sources. Sometimes, time pressure relates to the nature of the work week. For instance, many negotiations are concluded late on Friday afternoons or just before the start of holidays. In other instances, they are closely related to contract obligations. For example, a widely recognized aspect of collective bargaining between management and labor is the “eleventh hour” effect in which agreements are reached shortly before contract expiration. In lawsuit negotiation, the time pressure arises from the approach of trial—which is closely associated with Stage Three of legal negotiation (emergence and crisis).
- Be keenly observant of what is happening during a legal negotiation. Analyze from the beginning what strategy and style the other side is using. Maintain a high standard of ethical behavior. Be trustworthy and honest. Comply with the informal customs and usages of the bar as they are practiced in the particular geographic area and among legal specialized members of the bar. Use questions. Be creative, versatile, and adaptable. Reevaluate your client’s priorities and needs as the negotiation process progresses over time. Use new information to reassess your client’s BATNA. During all this time, work with your client. Remember, as Ury says in , it takes two to tangle, but it takes only one to begin to untangle a knotty situation. Above all, be self-reflective and learn from your experience.
- One way to learn from negotiating experiences is to engage in a post-negotiation “self-analysis.” In
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Copyright Page 4 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- © 2016 LEG, Inc. d/b/a West Academic
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References and Resources 79 results (showing 5 best matches)
- The Synthesis of Legal Counseling and Negotiation Models: Preserving Client-Centered Advocacy in the Negotiation Context,
- “Cases on Both Sides”: Patterns of Argument in Legal Dispute-Negotiation,
- Understanding and Dealing with Deception in Legal Negotiation
- A Positive Theory of Legal Negotiation
- Toward Another View of Legal Negotiation: The Structure of Problem Solving
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Outline 59 results (showing 5 best matches)
- 1. Professional and Legal Safeguards Against Dishonesty in Legal Negotiations
- Chapter 2. “Effective” and “Ineffective” Legal Negotiators, Legal Negotiating “Styles” and “Strategies,” and the “Stages” of Legal Negotiations
- C. Representing Clients in Legal Negotiations
- G. Truth in Legal Negotiations
- D. Basic Types of Legal Negotiations
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Index Page 232 results (showing 5 best matches)
Title Page 2 results
Half Title 2 results
Table of Cases 3 results
- Publication Date: December 22nd, 2015
- ISBN: 9781634597623
- Subject: Dispute Resolution
- Series: Nutshells
- Type: Overviews
- Description: Follows the entire process from opening negotiations to settlement. Text first introduces negotiation in law practice and representing a client in legal negotiation. Covers the basic types of legal negotiations, case evaluation, and preparation. Also addresses the types of legal disputes that should not be negotiated. Examines negotiating styles and strategies, as well as the stages of legal negotiation.
