Teaching Litigators (And Claims Teaching Litigators (And Claims Professionals) How To Negotiate: The Professionals) How To Negotiate: The

Swift Resolution of a Professional Swift Resolution of a Professional Liability ActionLiability Action

Presented by Steven Joseph,

Western World Insurance Group

and

Don Jacobson,

Mediator

PLUS International Conference

November 11, 2003

This Presentation Will Accomplish the This Presentation Will Accomplish the Following:Following:

Provide you all with greater insight into human nature.

Shape you all into becoming better human beings.

Make you all better negotiators.

WARNING!!!WARNING!!!

Material that is being presented today had been previously presented to group of litigators, some of whom found the material too difficult to understand.

I asked the same questions you may I asked the same questions you may be asking right now. be asking right now.

Is this the kind of topic litigators would understand?

Would the material simply float over their heads?

Would it appear that I am speaking in a foreign tongue?

Encarta World English DictionaryEncarta World English Dictionary

Litigation (n) Act or process of bringing about or contesting a lawsuit. Litigious (adj) quarrelsome, inclined to quarrel or argue.

Antonym: Negotiation (n)

Survey Given To LitigatorsSurvey Given To Litigators

Question Asked: How Do You Rate Yourself As A Negotiator?

Response of Litigators to Response of Litigators to Negotiation SurveyNegotiation Survey

90% of those who responded gave the answer: BRILLIANT.

20% of those who responded gave the answer: PRETTY DARN GOOD.

Negotiation AssignmentNegotiation Assignment

Negotiation Problem:

I’m mad at you for what you did or did not do (to me).

Required Resolution to Negotiation Required Resolution to Negotiation AssignmentAssignment

You (or third person) are not mad at me anymore for whatever I did or did not do, or for whatever it was in the first place, you were mad at me for.

Surveyed Litigators’ Response To Surveyed Litigators’ Response To AssignmentAssignment

You’re mad at me? …..I am the one who should be mad at you!!!

Survey Response # 2Survey Response # 2

I have good reasons why I did what I did.

Survey Response # 3Survey Response # 3

Sure, I messed up, but I have done a lot of other good things!!

Other Survey ResponsesOther Survey Responses

I messed up, but you knew I was going to mess up!

I messed up, but I didn’t understand what I was supposed to do in the first place.

I messed up, but you mess up too!!

I messed up, but I’ll fix it.

Problems with Survey ResponsesProblems with Survey Responses

All Are Forms of Ear Shutting Behavior:– Any conduct which causes the other side to

stop listening to you.

Ear Shutting BehaviorsEar Shutting Behaviors

Judgmental Statements– “That’s just stupid!”

Dismissive Statements– “We attribute NO value to . . .”

Smirks, Grimaces, Waves– The “Phil” mannerism

Any conduct Perceived as Arrogant– “Well, everyone knows. . . .”

Why Are Ear Shutting Why Are Ear Shutting Behaviors Behaviors

Counterproductive?Counterproductive?One who feels that he is not heard tends

not to listen.In a malpractice setting, these things

exacerbate the very emotions that sent the plaintiff to a lawyer in the first place.

Words of Wisdom From Senior Federal Words of Wisdom From Senior Federal Court JudgeCourt Judge

“Principles Are A Nice Thing To Have Until It Gets In The Way Of Reason.”

Words of Wisdom From My WifeWords of Wisdom From My Wife

“Without Principles, There Is No Reason!!”

Problem-Solving QuestionsProblem-Solving Questions

Who is this about?What are you trying to achieve?

Reframe the DebateReframe the Debate

In Terms of the Promises You Can Make!

Greed for Profit Bank v. Greed for Profit Bank v. Jacobson Appraisal Jacobson Appraisal

CompanyCompanyOpening Statement

First Important Red FlagFirst Important Red Flag

Income Level Must Exceed Amount of Debt Service of Loan in the First Year of Loan.

Appraisal indicated that income level Did Not Exceed Debt Service of Loan in First Year.

Second Important Red FlagSecond Important Red Flag

Appraisal Indicated that Income of Shady Hotel Had Not Been Verified.

Loan Officer was Required to Verify Income.

How Do We Know These How Do We Know These Are Important Red Flags?Are Important Red Flags?

Loan Officer Was Fired as a Result of Approving This Particular Loan!

Don’t’ be a Moishe Groyce Don’t’ be a Moishe Groyce with Zserissena Gatkaswith Zserissena Gatkas

Don’t Be the Great Moses Don’t Be the Great Moses with Torn Underwear!!!with Torn Underwear!!!

First Rule of NegotiationFirst Rule of Negotiation

You will not get a deal if you are only arguing why it is your best deal.

You will only get a deal if you can effectively make arguments why it is the other side’s best deal.

Making It PersonalMaking It Personal

And Maintaining a United Front!

Speak with Hearable Speak with Hearable MessagesMessages

Objective Statements about the SpeakerVerifiable Statements about the CaseNon-accusatory Non-threatening

Put the Negotiation in your Put the Negotiation in your Own Ball Park Own Ball Park

The Trial RollercoasterThe Reasonable Home RunThe StrikeoutGrand Slam or Baseball Hall of Fame

NumberNo Intentional Home Runs Allowed!!

Rhythm, Lunge and Rhythm, Lunge and Squeeze Method of Squeeze Method of

NegotiationNegotiationDecreasing Proportionate IncrementsJustification Provided for IncrementsLunge – Increase the IncrementSqueeze – Send the message you are

going above and beyond

Negotiate Your NumberNegotiate Your Number

Without Compromising Your Negotiation Position

Effective Trial Lawyer TraitsEffective Trial Lawyer Traits

Fact GatheringDetermination of LawApplication of Law to FactsAnalysis of Factors Affecting Likely

Outcomes

Effective Trial Lawyer Traits, Effective Trial Lawyer Traits, Part IIPart II

Evaluation of Options, Costs, OutcomesGoal SettingDetermination of Strategy & TacticsAbility to Marshall Assets and Employ

them to Achieve GoalsDesire to Win

Your Marching OrdersYour Marching Orders

Plan!Persuade!Prevail!