What Makes a Great Legal Negotiator?

good afternoon because of some voice issues this afternoon I am using speech assistive technology today we are privileged to have as our sister fifth anniversary distinguished scholar someone who is one of the world’s most renowned thinkers and teachers generally in the field of alternative dispute resolution also known as ADR and specifically under the subject of legal negotiations some of you may have been treated to has student negotiations workshop earlier today he has made presentations on ADR procedures and effective legal negotiation to over 85,000 individuals throughout the United States and in Canada Mexico Puerto Rico Austria England Turkey and the People’s Republic of China he has made presentations on ADR procedures and effective legal negotiation to over 85,000 individuals throughout the United States and in Canada Mexico Puerto Rico Austria England Turkey and the People’s Republic of China he has authored five books on negotiation and ADR eight books on the American labor movement and labor and employment law including employment discrimination collective bargaining and arbitration human resources and public sector collective bargaining currently taking center stage with states like Wisconsin and Ohio moving to drastically curtail if not eliminate collective bargaining in the public sector add to these substantial works close to 100 law review articles and numerous presentations on dispute resolution and labor and employment law and you can fully appreciate his influence on these fields his teaching awards from the Illinois Florida and George Washington law schools are evidence of what we can expect this afternoon so it is with great pleasure that I introduce to you professor Charles Craver the Freedom H aalverson professor of law at George Washington University Law School who will speak to us on the topic what makes a great legal negotiator thank you all very much and I thank Calvin for an unbelievable introduction the late Lyndon Johnson after an introduction like that used to say you wish his parents had been there because his spot his mother would have believed it and his father would have enjoyed it what we’re going to talk about today our negotiating skills lawyers negotiate constantly even when they don’t appreciate the fact they’re negotiated they negotiate within their own law firms they negotiate with their prospective clients their current clients and of course on behalf of those clients without side parties most lawyers have never had any training in negotiation it is amazing for years law schools didn’t offer these courses when I first went into teaching years ago I was already teaching a course in negotiations as an adjunct at Berkeley I was practicing in San Francisco and I was negotiating with my first Dean and I suggested a course on negotiate he quickly said there is no place for a course like that in a law school curriculum and I moved on two years later to another law school and went back to teaching it most law schools hate to teach skills courses now they’ve become more popular because the ABA has put more pressure and we are doing more of it and we now have a requirement and the ABA as opposed all upper-class students have to take a skills course for years I’ve been trying to figure out what it is it makes somebody good negotiator I teach a course a full semester course where they do a series of exercises we study various aspects we’ll talk a little bit about using in the old days I used Jim White’s book and Harry Edwards book and then now I have my own books but what’s interesting is they do a whole series of

exercises almost every week and the first five or six or four practice and then they do five or six in effect they’re great I rank where the results from high to low the exercises tell them exactly how much each issue is worth tells them exactly how they will be evaluated they reach an agreement exactly what happens if they don’t reach an agreement and they take the exercises very very seriously they can’t take the course pass/fail and the students who take the course pass/fail do substantially less well on the exercises so it’s the grade that makes them work I mean there’s just no question about it if there’s no grade they don’t work I teach a one credit hour course that’s an intensive course at the George Washington University and I also teach a Peter Braunstein negotiating Institute ease here at the University of Virginia and there I have 120 students it’s also one credit hour course and I can’t grade it so it’s all pass/fail they all blow off the exercises I mean they have a nice time but they don’t take them seriously my students take the course very very seriously and the reason that’s important is because I’ve done a lot of empirical studies that we’re going to talk about today trying to determine what makes a good negotiator I love empirical work because I haven’t have a degree in chemical engineering so I’m used to working with math and David Barnes a very good friend who’s a statistical expert and a law professor Jake as I know him Jake and I work together many many years these help me with the statistics first thing I wanted to find out our better students better negotiators and when I first studied this i hypothesized that better students would be why because we professors think they’re more intelligent more articulate and more articulate they work Carter etc no correlation and I’ve done a second study no correlation why because we’re measuring abstract reasoning skill instead of interpersonal skill so I’ve been wearing the dr. Allison psychologists we’ve been trying to find out is there a correlation with emotional intelligence Daniel Goldman says if it’s not IQ it must be EQ it’s neither there’s a very slight correlation with what’s called effective communication which means the ability to communicate feelings and understand feelings most emotional intelligence is to understand your own feelings to understand the feelings of other people to communicate about those feelings and we really saw I shouldn’t say it Alice and Abby thought there would be no correlation because the statistics in the past have shown no correlation I sought their mic you want but no correlation at all very very slight in the affective communication we haven’t been able to publish it for two reasons the psychology journals will not publish results that are not positive they will not publish results that come out they won’t they don’t like the results it’s shown nothing seemed to me they’re statistically significant I don’t care what shows a correlation or no correlation no correlation is significant so I would be happy to publish it the other problem is she lost her teaching job because she had a non tenure-track position and they’re just so many jobs that have gone in the last few years and so she had to take another job and has not been able to finish the whole study but I mean we had the results and we haven’t been able to publish it a few years ago in the Howard University Law Review is an article saying black athletes from out hire black agents and the clear implication was if you’re going to negotiate with the man meaning the white owner you had to have a white agent well I thought let’s see if there’s any correlation by race so I did the study it was very hard to do the study because there’s an old book written by Jeffrey Rubin and Burt Brown called the social psychology of bargaining that must be about forty some years old fifty years old there was a compendium of studies on different things affecting negotiating well race is no longer something that anyone’s allowed to study it simply isn’t acceptable so there were almost no studies over the last thirty years on race and so I had a hard time I mean I could look at things that said that blacks tend to speak more forcefully than whites to make less eye contact immense things like that you could talk about but there wasn’t much I could really talk about but then I did the statistics and what did I find no correlation and I wasn’t surprised that’s what I expected to find but Jayco is says to me what are you gonna do if you find a correlation that’s how to polish it I don’t care which way it goes that’s why I do studies it shows a correlation I published it if it shows no correlation I don’t publish it gender years ago senior partners used to say to me you think women can negotiate as well as men and this was when women were first really getting into the legal profession and all the questions were coming from old males and I will quickly say old white males in those days and what worried me is they were making decisions whom to hire and whom to promote to partner and if you’re asking that type of question you must have real doubts about the ability of a woman to negotiate so I had a big database I have probably the largest database this kind the country it’s been cited that way in books I have several thousand students have had over the year it’s have a huge statistically significant database and let’s look at some of the differences men and women when they talk men speak more than women except when they have an intimate relationship men talk about 60% of the time given Tony but 40% of the

time when it’s intimate it’s reversed and this is based on the work of Deborah Tannen a university professor at Georgetown she’s done a series of books you just don’t understand talking for nine to five gender and discourse that’s not what I mean she also has our own he says because I love you something that mother loves I haven’t read the other one mother loved me but you better than me I’ve met her I don’t know her personally and she’s a very very interesting person so when men and women in Iraq and they don’t have an intimate relationship men talk more than women and if women even approach 50% of the conversation they were labeled as domineering men interrupt more often than women men interrupt the change there’s something to the conversation women interrupt more to reinforce what was just said by the other person men are more direct if man is hungry says I’m hungry let’s get something to eat women are more likely to say are you hungry they’re more indirect and if you go past the next exit on the freeway after hearing that question you’re dead I have been married for over 40 years and my wife still says would you like to salt and I jokingly say Deborah would like to salt my wife’s Ava’s not Deborah it’s Katie because we do both no Deborah tan and and she knows exactly what I mean I get up and get the salt so when she says but you like the salt she knows I don’t use this all I know what that means she would like this all men over value their services women undervalue their services there there are a whole series of studies that two books I mentioned both by Linda Babcock and Sarah Lazar beard the first one came out about eight or nine years ago and now seven or eight years ago called women don’t ask me what it was about is the Carnegie Mellon Business School where Linda teaches 57 percent to the men who graduated negotiated their starting salaries seven percent of the women in the difference in starting salary was $4,000 Linda has a huge Institute now in negotiation and several years ago she published a follow-up book called ask for it in that year 2% more women negotiated their starting salaries and then when men and women negotiate for themselves men outperform women and that’s true statistically she has a whole series of studies in both these books on that women undervalue their services when men and women negotiate for third parties however the difference is gone and in all the studies I’ve done I’ve done three separate studies I have never found a correlation by gender the only statistically significant difference interestingly enough more women take my course pass/fail than men which is consistent with the literature that says women are less comfortable with overt competition than men and I don’t know block I have no sisters my wife and I have no children I don’t know how it is we raise sons and daughters men have a BS gene peggy mcintosh with Wellesley colleges published now a series of papers called feeling like a fraud where what she says is no matter how thoroughly unprepared men are they think they can wing it and get away with it no matter how thoroughly prepared women are they feel unprepared it’s amazing I can call on a man in my class and he can make a complete fool of himself because he’s not well prepared and thinks he got away with I can call a woman who performs perfectly and she’ll come up and apologize afterwards my wife was published five books he’s a librarian if you happen to have a PhD in library science but she’s a librarian at NASA Cathedral School in Washington and one book was on history and she won a National History Award from a group of professors of all things and she was asked to go to this conference to talk about her book and get in a war now if you said you’re gonna give me award I would have thought this is wonderful I can’t wait to go in to mount my book she hoped it would snow in the Midwest in the winter and I said what are you worried about she said well they were all history professors I said so what the most they did was read the book you wrote it trust me you know it better than they do women are better listeners in men and women are better readers of nonverbal communication so what I’ve discovered absolutely no statistically significant difference the only thing I tell my women’s students when they have to negotiate salaries and that sort of thing is I tell them what I have an out-of-body experience since women don’t feel as comfortable negotiating for themselves as men do I say what I want you to do is take your resume and pretend you’re negotiating on behalf of that person and it’s not you that’s what I mean by an out-of-body experience I really do mean that if you were representing that person in negotiating the starting terms of employment what would you seek for that person and at first they laugh and then they realize you know that actually makes some sense now let’s talk about the impact of negotiator styles and that’s what the one book I co-authored with Jerry Williams all about Jerry Williams and Andrea Schneider have done two very significant studies on lawyer negotiating styles in the two basic styles that you see the cooperative problem-solving style epitomized by getting das Fisheries book you move psychologically toward the other side to try to maximize the joint return you’re open you’re trusting your reason with the other side this is what they call win-win negotiating both sides are going to do well the competitive adversarial style move psychologically against your

opponent you try to maximize your own size return you start with more extreme opening position to seek more extreme results favoring yourself you’re less open you’re less trusting any more manipulative style is more prevalent which style is more it is more effective in terms of negotiating they didn’t ask lawyers to identify their own style they asked lawyers to identify the style of other attorneys with whom they’d recently interacted because we’re prejudiced about her own style they both found that about two-thirds of lawyers are considered cooperative problem solvers in somewhere between 25% and a third are considered competitive adversarial eleven percent of the people in derry study were not categorized so about two-thirds of lawyers are cooperative problem solvers and only about a third or even less are competitive adversarial they then ask which of these people are effective negotiators average negotiators ineffective negotiators 59 percent of the people who were cooperative ingeri study were considered effective versus only 25% of competitive adversarial 3 percent of the co-operative people were considered ineffective 33 percent of the competitive he were considered ineffective when Andrea replicated a study the percentage of effective cooperatives fell slightly from 59 percent to 54 percent and the percentage of ineffective cooperation up slightly from 3 percent to just under 4 percent but the biggest change the percentage of effective competitive adversaries fell from 25 percent down to 9 percent and the percentage of ineffective competitors went up from 33 percent to 53 percent why would 53 percent be considered ineffective because of what we teach children you get more with honey than you do with vinegar I actually have an arc on line with negotiator magazine.com entitled everything you need to know to be great negotiator you learned before kindergarten and you know what’s funny it’s true children learn to be intuitively manipulative negotiator board with very basic needs limited communication skills they learn to make sounds to be fed to be put down for a nap etc when their skills improve we teach them you get a lot with consistency they they will go after one power versus the other they will ask over and over again and they do learn you get more with honey than you do with vinegar and they realize one thing that most of those don’t appreciate there’s no such thing as bargaining power there’s only the perception of it parents think they have power the children ignore it and it’s gone two lawyers I know we’re negotiating when tight in the kitchen they both work together as lawyers spouses and they were getting ready for negotiation behalf of a client the next day the young Dory’s out was out in the kitchen they thought she wasn’t paying any attention and finally one said to the other we have to ask for more than we hope to get and this little boy said daddy is that like when I asked for three people to sleep over on Friday night when I really only want to bingo I said talk to your daughter so I’ll tell you how to negotiate you then spend a fortune to educate your children and they have to take a course like mine to learn what they learned before kindergarten so when you see rudeness what it really says is they don’t know how to negotiate because the least effective way to get me to say yes you is insult me that’s human nature I don’t care how much we try to pretend we’re objective and non-emotional we’re human beings if you insult me I will look for a way to get even with you when we negotiate that means screw you on the other hand if you treat me very very well I will feel guilty if I say no to you and that can be a very significant factor now when Jerry and Andrew did the study and almost everybody talks about these two classifications I finally convinced Jerry there’s a third category why because both in his study and an andrea study they asked the most effective negotiators from both the competitive camp and the co-operative camp what’s critical to you the number one goal for competitive adversarial people they want to maximize your own size return the quintessential definition of competitive the number two goal for the cooperative problem solvers who are considered effective they want to maximize your own size return not the joint return their own which says to us your number of wolves in sheep’s clothing a lot of people who are classified as cooperative problem solvers we now call competitive problem solvers in Ron’s rapira on mark and Kowski and Ron represented Cal Ripken throughout his career and they both did a lot of sports and they’ve run an institute in Baltimore what’s interesting in their book they call this win-win negotiating capital W capital i capital in on their side small w small i small on your thought and that’s really what it’s all about this is the most effective way to negotiate a recent study found that the best negotiators are considered by their opponents to be totally open and cooperative but they admit to being not totally open and not entirely cooperative but they do it so well they’re characterized as cooperative problem solvers when they’re really competitive problem solvers another recent study showed that if you divide people up and say your goal is to

maximize the joint return and half of them are told you want to do nothing but make sure you do the joint return and then you tell the others but you also want to get more for yourselves than you give to the other side the people who wanted more of themselves actually generated more efficient joint results than the people who are told simply to maximize the direct returns now in my class I’ll tell you why I found this to be true my students want to get good results because it affects their grade I will say I grade very very liberally I’m a very generous grader we have a small class curve at George Washington in a large class curve and I’m the only negotiation class over the small class curve it has it cut off the 35 people all the adjuncts have a limit of 20 people I’ll take 50 or 60 I mean I hate to kick people out so the first year this happened I went down to the Dean to say I would like permission to use a small class curve he’s all we have no exceptions of any kind I said that’s all right you kick 30 people out I won’t have to worry about let me know which 30 you’ve decided to throw out of the class he said maybe we can negotiate I now have permission to use a small class curve and I do I use a small class curve and I tell the students that most of students get a minus B plus some get A’s some get B’s but I mean almost no one gets below b-minus so they really do have an incentive to take it but they still want a good grade students are very grade conscious we all were when we’re students I don’t mean to say they’re any different from us but what they’ve learned is if you want to get a great deal for your side you want to make sure you create the largest pie you can to divide what the economists call the surplus I want to make sure we have a large surplus because the more we find to divide the more I can claim for myself I may want to get more of it than I give to you but if we leave a couple of hundred points of bargaining these on the bargaining floor we both lose and my students by the end of the semester learned to be incredibly efficient it’s amazing they rarely leave points in the bargaining table and they’re not allowed to discuss the points I mean that’s one of the rules of the court sets of violations of class rules they may not discuss how many points each item is worth they can say I want this more than that they could say this is twice as valuable but they can’t say this is where’s 100 points and that’s where it’s 50 points that they can’t do and they generate very very efficient agreements and the first thing I do at the end of every agreement I talked about how efficient they were I talked about what they should have agreed to to maximize the joint return what that means is the items you value a lot more than I do I should give to you in exchange for the items that I value more than you do now most lawyers don’t think of negotiations as structured they negotiate day after day after day and they almost never think about what it is they’re doing I mean literally they never think about when I was in practicing Morris and Forrester years ago in San Francisco I actually did because I had taken a course in law school with Jim white at Michigan who is one of the forerunners in clinical negotiating he and Neil Peck at the University of Washington where the first two professors to really do much in the area of clinical negotiating in Jim Gray the courts the same way and we took it seriously and I got into practice and I really thought a lot about negotiating I also said of masters degree in labor arbitration collective bargaining and so I studied also in graduate school really the book that was one of the best books ever written by Walton and the curse he called the behavior theory of labor negotiations a very erudite version really of getting to yes written in 1965 and it was a very academic book and how you want to make sure the Union gets what it wants it doesn’t affect the employer negatively the employer gets what it wants that the union is willing to give it and then they’re going to fight over the items that involve money and I laugh I mean when Cal talked about what’s going up in Wisconsin what’s going on here in Ohio my advice the governor is go to the damn bargaining table and negotiate I mean that seriously go to the table and bargain in Wisconsin the Union gave over a hundred million dollars in reductions they agreed to contribute more of their health care to their pension and what’d he do he took the 100 million that they gave him he gave a hundred million dollar tax cut to the rich I’m serious he gave one hundred million dollars in tax cut that’s how I want to balance the budget take it away from the Union give it to the rich and say oh we have a shortfall why didn’t you put the hundred and ten million dollars and give backs to the budget and the same thing in Ohio if you the reason the public sector unions have done so well and I would say they’ve abused their power I don’t mean that at all shamelessly I come from California where they really abused their power and they have tremendous benefits and for Jerry Brown’s having to deal with what Schwarzenegger was unable to deal with the fact that matter is politicians are godless and they take bribes and they’re not an all govern they’re not at all governed by profit motive they always put off things in the future so the CalPERS which is a Cal public employee retirement plan it’s going broke the University System is going broke I taught at Davis for five years and what they do they bought out all of my colleagues once they got in their 50s by

giving them all sorts of fictional years of retirement to get rid of them so they’d all retire when they could have taught another 10 or 15 years so that’s what they did they should have bargained so here’s the six stages that we’re talking about the preparation stage we really want to do all of your homework know what your opening position will be what your goals are going to be what your bottom line will come back to some of this the preliminary stage we establish relationship with a lawyer on the other side and a good negotiating environment the information stage which is value-creating you’re trying to find out what’s on the table to be divided between the parties involved the distributive stage which is valued claiming you’re claiming the surplus you’ve created during the information stage and I just published an article called the inherent tension between value creation and value claiming because I have to be fairly open during the information stage although not entirely for reasons we’ll talk about and then we get the disputed stage and we’re going to claim the value and I don’t want you to know how much you’re giving me I want you to think I’m getting no more than what I’m giving to you even if I’m in fact getting more than I’m giving to the closing stage where you solidify the deal near the end in the co-operative stage where you want to make sure you maximize the joint agreement now through our preparation really is critical and my students learn that in a hurry and when I was in practice I spent a long time on the facts the law the economic issues whatever they are because I don’t like to be surprised by the other side so I want to know what’s relevant to this interaction and I want the good in the bed I want to know if we have weaknesses I want to know if we have strengths if we have a weak case I’m gonna tell the client we have a weak clay okay so let’s try and settle it if you have a strong case you might well be willing to litigate will certainly go for a motion for summary judgment but I want to know what our situation is how good is it and then you want to ask the three questions that are critical here what’s your bottom line how high or lower you’re going to go what Fisher and your like to call your batting up your best alternative to negotiated agreement I simply call it my bottom line how high or low will I go before I go to trial I do business to somebody else I do whatever by non-settling alternatives are the second part of that question is equally critical what happens to my opponent if they don’t reach a deal with me then most lawyers never looked across the table when I give you a perfect example years ago a very good friend of mine representing a big corporation called me up he’s beside himself he was involved in a very difficult negotiation he laid it all out when he got done I said what happens to your company if you don’t settle he said we’re bankrupt I said how bad is that he said what do you mean how bad is that we’re bankrupt I said could you reorganize he thought about and said yes I said what happens the other company if they don’t reach an agreement with you he said I have no idea I said think about he said they’re bankrupt could they reorganize no we’re their main client without us they’re out of business he had the bargaining power once he looked across the table and realized the other company had to reach an agreement with his corporation he he got a good deal for his company they had to reach a deal he did that’s part new power how much do you have to reach a deal compared to how much I have to reach a deal if I have greater needs and you do you have bargaining power if you have greater needs than I do I of the bargaining power assuming I know how to use it it’s so you’ll want to determine your own bottom line and you want to put yourself in the shoes of the other side you want to establish realistic but elevated aspirations there is a direct correlation between aspirations and outcome people want better deals get better deals I do this my students every year I give them some early exercises or practice where I ask them how much do you hope to get how little do you hope to pay the people expect to get a lot get a lot the people don’t expect very much don’t get very much the people expect to pay a lot pay a lot the people don’t expect to pay a lot don’t pay a lot it’s amazing it’s trite it is to say that it’s amazing some people are so happy when they get everything they want and I always say one of the greatest myths of negotiation is I must be a great negotiator I always get what I want when I negotiate there’s only one way you can always get what you want when you negotiate don’t want anything simple is that you’ll be very happy until you take a course like mine then you’ll find out you’re not doing so well and I’m not joking that’s the one good thing about the course they really find out how they’re doing compared to others on the same exercises it’s also the bad part of the course it’s hard for their egos I have students in my office occasionally in tears they’re having trouble coming to the grip to the factor having trouble now I’m glad they come in because I start working with it that’s why I give them a series of practice exercises I can experiment with start talking about what it is it causes them to be not doing so well and the biggest thing is they normally aren’t reaching very high and they’re scared to death of an onset and I say don’t be afraid of a non-selling I mean normally don’t do so well if you have an ensemble but I take you see the other side wants one this

past semester I had about 54 people in my class and most were one-on-one says 27 negotiations per week they did I think 12 exercises I think of all those negotiations I had one or two non settlements the entire semester that’s it they almost never an on sale so I tell them for God’s sakes be willing to walk away and let the other side sweat so establish realistic aspirations and don’t make them so far away you don’t have any hope of getting them because if you do you’ll either end up with an impasse or you’ll fall to your bottom line so you have to establish goals that are at least attainable and that’s one of the hardest things to think about what’s your opening offer going to be some people say put a very reasonable offer on the table the other side will respond in kind need to have a very pleasant interaction a wonderful Syria but false empirically because of a phenomenon called anchoring when I start by giving you a very nice opening offer you actually move away from me psychologically you begin to think I’m gonna do much better than I ever anticipated and you try to take advantage of that opportunity you’re much better off starting with a lower offer a higher demand because now you begin to undermine my confidence and I start moving in your direction and this really has been proven I give my students a one-page description of a tort action where I say you’re the defense lawyer and I want you to answer two questions what’s your opening offer going to be how much do you think you’re gonna have to pay to settle this lawsuit every single student gets the identical information with one slight twist half of them are told the plaintiff has just demanded $100,000 after told the planet is just demanded $50,000 the people facing $100,000 demand planned a higher opening offer and expect to pay more than the people facing a $50,000 demand nothing else has changed chris guthrie is now the Dean at Vanderbilt Law School published an article a few years ago where he did this with magistrate judges who often mediate in federal cases where they are quite good giving you their advice where you should come out judicial magistrates tend to be much more direct than those of us who are private mediators and he asked them to value big federal cases and the only thing he varied was how much the plaintiff was demanding the higher the demand the higher the value of the case symbol is that the impact of anchoring so when in doubt start higher gain loss framing if I offer you assure gained in the possibly a greater gain or no gain you tend to be risk-averse and take the short gain if I offer you assure loss and the boss of the greater loss or no loss you tend to be a risk taker let’s do a quick study at the end of the today’s you’ve got that door Calvin will hand you a $100 bill if you got that door you get a sealed envelope four to five which which will be empty one out of five will contain five hundred dollars how many got this doing get your hundred dollar bill don’t be shy folks how many hope it’s your lucky day you’ll be the one in five all right get the names those people’s don’t trust it let’s change it slightly guard that door you have to pay Calvin $100 if you got that door four out of five don’t have to pay anything one out of five has to pay five hundred dollars I’m going to go out that door with your credit card in your hand I want to go out that door raise hips a locator applause but it really does sure gain people most people take the short game and they did a study I want to say was Ted Eisenberger because he does a lot of statistics um one at Cornell and I think he was one of the co-authors and what it was interesting there were actual cases that went to trial where they got the final offers of the plaintiffs in the defendant what they were trying to determine is who is more likely to either overestimate to like the outcome or underestimate to like the outcome and what they discovered is defendants were five times more likely to say they overestimated they underestimated a likely outcome by five times more than the plaintiffs overestimated to likely outcome five times why probably gain loss framing the plaintiffs and the plaintiffs lawyers are both facing a sure gain usually because it’s a contingent fee basis in so many cases so they’re not likely to go to trial if they think the offer is good but the defendants were looking at is sure lost sir more likely go to trial and the average result was the plaintiffs overestimated by about fifty thousand in each case and the defendants underestimated by about two hundred and fifty thousand it was an amazing difference confidence is a critical factor years ago I had a wonderful student and I would share his name but he’s asked for anonymity so I decided anonymously in my book he’s a senior partner in a firm on the west coast but he doesn’t want people to know how devious he is I don’t think this is devious it’s brilliant but he didn’t want people know how brilliant he is he wrote a paper where he said whatever he got an exercise he tried to determine the most he thought he possibly get for his side and then he added something

it seemed unreasonable he worked out all the arguments supporting that seemingly unfeasible position until he felt comfortable and then he walked in and negotiated with his opponents week after week he cleaned them out it was amazing it is the end of the term I always talk about the most successful to go chairs and I asked members of class what they do so well several people said to him he wasn’t really that good a negotiator it’s just that when he got down to the end he seems so sure he was right we thought we were wrong and I said in one sentence he defined the art of negotiating he developed such confidence in his position that they thought he was wrong the only time he didn’t get the best sell or about the best settle in the class was a very stranger but he had to negotiate against I think it was his roommate and a very close friend now I have an exception for people who are spouses or putative spouses where I will make sure they don’t oppose one another in my class because I say those relationships are more significant in this stupid course but if you’re just friend you don’t get excused so they’ve known each other over the years they went up to negotiate we had an in-class exercise where I said you have to have the results done by like four o’clock and if it’s late it’s a non settlement so they went off to negotiate four o’clock came everyone else came back to the moon with their agreements nothing from them about five after four he comes running in with what was the best settlement the class for his side and I said you can keep it it’s a non selling and he was so upset I mean he really wanted to tell you off he didn’t he was very professional so what he didn’t realize is I had nothing to do with it I know it happened his roommate knew he couldn’t beat him he waited till after four o’clock and came I know exactly what happened I never said that to him because I didn’t wanted to I didn’t want him to realize how devious his roommate was now in the preliminary stage you really do want to establish rapport and a positive mood when I get in and in this country we’re very casual culture I want to get on a first-name basis I want to personalize the interaction not in a negative way in a positive way I want it to be Charlie and Mary not miss so-and-so and Mister Craver I don’t want you to think of me as mr. Craver from this big law firm in this client I want you to think the two of us are negotiating and it’s harder to be nasty to someone you think of as a real person it really is so when we get on a first-name basis you might talk about where you went to law school or whether we like certain music or what about the weather every something is not terribly controversial we’ll get to know each other a little bit and that’s what this is all about and we want to establish a positive negotiating environment what studies show statistically is when people begin a negotiation and a positive mood they behave more cooperatively they reach more agreements and they reach more efficient agreements when they begin in a negative mood they reach fewer agreements they behave more adversarially and they reach less efficient agreements so I want to establish a positive mood and when you encounter someone who’s difficult there are two books by billiary I’ll recommend the old book from the mid-1990s called getting past know the subtext was dealing with difficult people and his more recent book that came out now about two years ago called the power of a positive note how to say no to somebody and keep the process going favorably and they’re both very very good books he’s a wonderful writer he’s written so many very very good things good negotiators are very very good communicating verbally and non-verbally they’re good readers they’re good listeners active listeners they hear more than most of us do they hear verbal leaks and where I say I can’t go higher as opposed to I don’t want to go are when I say I don’t want to go higher you know I will that’s what we call it verbally I’m not inclined to go hire another verbally you want to listen carefully for words that undermine what I seem to be saying this is my final offer I don’t have much more room that means I have so you want to listen very very carefully you want to ask a lot of questions we’ll talk about that in the information States but what questions you’re going to ask and a recent study showed that the most effective negotiators asked twice as many questions as you’re less efficient or less effective cohorts twice as many in at the beginning you want to ask broad open-ended questions get me talking because you’re going to get a lot of new information one mistake we often make when we negotiate we’re intimately familiar with our side and we think the other side knows what we know they don’t of course so when you get me talking I often give you a piece of information I assume you know but you don’t so you want to listen very carefully and you want to look for nonverbal signals and some of my students are very very good when it comes to these skills they really are it’s amazing others do all the talking and they get nothing they give all the information away they make concessions and in the end they normally don’t do very well good negotiators are patient and persistent one thing I do i mediate particularly employment discrimination cases because it’s one of my areas of specialization and the biggest thing I’ve learned I learned more about

negotiating when I mediate and when I negotiate I sort of laugh when I say it because the people say what you do when you mediate I negotiate what I do as a mediator of course I negotiate but what gives me bargaining power is the fact that I’m not interested in the dispute and spraining it up the back I have no power that’s what gives me power I’ve had parties saying I don’t want you to tell me what to do and I always say not only will I not tell you what to do I can’t tell you what to do in fact the first thing I say when I’m going over the rules of mediation is I have no power to tell you aside what to do that’s what gives me power they listen I assume I have power and they give it to me and I don’t mean to tell I never tell them what to do I do a lot by asking questions what I try to do is I try to get the plane to think they could lose what’s a chance you could lose then I try to get the defendant to think what’s the chance they could win the other side and how much might you lose if they win so I’m trying to get the plaintiff to focus on their downside risk I try to get the defendant to focus their upside risk sometimes I do it right in the same room with it together sometimes I do it separate caucus sessions but what I’ve learned over the years and Jerry Williams is really convinced me this because he’s a real believer and it really takes time for people to decide to lower their sights it really does don’t rush the process and that I really have learned tremendously over the last 10 years I had a case several years ago where the first day I thought I knew where they would settle I asked some questions to see if you decide to move in that direction they made it absolutely clear that was not acceptable they asked if we could have a continuance you kept going eight months later eight months and I was about to say no more continuance is they ended up exactly where I thought they would the first day exactly why did it take eight months because they weren’t willing to give up until then a lot of times they want to look backwards they want the criminais shion’s I always give them a lecture how if you wanna move forward and you want this to be a forward-looking process try to mediate and try to settle if you want to look back and spend your time deciding who’s right and wrong then you want to go to court but you’re not going to enjoy the process it’s not going to be fun for anybody but the lawyers and I mean I had a couple of clients at the end of a trial tell me if I’d known what hell this was going to be I would have settled they both won I enjoyed it but they didn’t the only people who tend to have fun in the courtroom are the lawyers we do we tend to have a lot of fun in the courtroom so give people the time they need to lower their sights and if you rush it they won’t it’s amazing that’s one reason a lot of judicial mediators have trouble they want so badly to tell us to settle I mean I teach a judicial conferences and they often say to me you know I’m not a good meteor because I’m just so used to telling the parties what to do I try never to tell them what to do I may push them but I try to do it more with questions what the Len Riskin who writes a lot on the mediator style calls the initiative style or the old term is the police facilitative style elicited meaning you ask a lot of questions as opposed to what they call either directive or evaluate it on the other hand every mediator I know we do evaluate I’m often asked my opinion now I’m very careful when I give it because I have no idea what a jury is going to do but I mean I’ve said to someone you’re not going to succeed in the motion for summary judgment we have a clear litigable issue of fact here it’s going to go to a jury other times I may say the plaintiff you’re going to have a hard time getting past a motion for summary judgment you don’t have much evidence so I will give my opinion somewhat that way but normally if they don’t ask for it I don’t it’s their case my wife Hoffman said do you care when they come out no I have no interest where they come out at all I hope they region agree it’s their dispute and some of them fascinating it’s sex harassment caters I’m amazed how often all the claimant wants is an apology from her employer not their harasser saying I’m sorry I didn’t move more swiftly to correct this and to a statement that she’s a valued worker because she thinks the reason the employer didn’t move more quickly is because the employer doesn’t value her either one with the PA to his department head years ago head of a big Department for the employer and I met with the head of the company and I said how good is she she’s the best I have can I tell her that no I was shocked I said why not she won’t work as hard for me this is Theory X and Theory Y but I said should work even harder nope he gave me a half-baked statement she’s a valued worker but not a great word I asked me to apologize I never apologized I got a half-baked apology and I can’t convey more in the other room that’s unethical all I can bait is what the party in the klarka session told me to convey I went in the other room I said you were evaluated we’re here the employer gave a half-baked apology and she dropped the entire lawsuit I’ll never forget I looked at her I said you’re still not satisfied re she said no I’m quitting on Monday I’ll never

forget I’m quitting on Monday because he doesn’t value my services I have none of this view again a department head and a corporate owner the company owner got a torx the company owner he said I will not talk to someone so until he apologizes he was so rude in our last discussion I won’t even talk to him good worker he’s the best I have and I tell him that yes I talked the department it you like working there yes but I won’t talk to the owner until he apologizes he was to me can I tell Melike working there yes we got to the joint session I said you’re the best department head of this company and you love working here and that was the end of the dispute into this state I have no idea what the dispute was about I don’t even remember it was done in ten minutes it was totally an emotional dispute he felt as if he wasn’t respected and the owner somehow felt he didn’t respect working there and once that was on the table that was the end of the dispute I have no idea what their dispute was about I mean they talked about a little bit very vaguely and to this day I don’t know what it about it was done it’s amazing how powerful an apology can be in the negotiation because so often the underlying issues are emotional sometimes you have to say I’m sorry I did something wrong that’s critical there are times when I have to admit I’ve done something wrong but other times I can say I’m sorry this has happened to you I’m not saying I’m liable I’m sorry it happened to you let’s see if we can rectify I’m sorry you feel the way you do I’m acknowledging your feelings it’s amazing how powerful that can be the University of Michigan hospital a number of other hospitals have discovered if I make a mistake medically what they should say to the patient is I’m sorry we made a mistake we’re going to correct it and lo and behold they’ve cut the number of malpractice cases way down why because the patient doesn’t want a lawsuit the patient wants to be healed and they want to hear someone say I’m sorry it’s amazing the power of an apology the cooperative stage you want to make sure you maximize the joint return during the prior discussions being over and understand the value of items with strategic purposes if I think you really value something I don’t protect me you want I will tell you we want it because I want you to think when I give it to you it’s a major concessions if there’s something we want a lot and I know you don’t value it I will simply say we would like to get it because I don’t want you to realize the size of the concession you’ve made to me now people say well isn’t this unethical and let me just mention model rule 4.1 a lawyer may not lie thou shalt not knowingly misrepresented law over here in fact when it’s a lie not a lie when it’s by a lawyer you read comment – comment – says in the negotiating context there are different expectations certain statements are not considered statements of material fact when you talk about your settlement intentions ie how hire a lawyer you’re willing to go non material information when you’re talking about how you value the items being exchanged non material information so I can puffin embellish to use the terms my professional responsibilities colleagues like to use I prefer to say I can lie through my teeth as long as it goes to my settlement tensions and my values I cannot misrepresent anything else at all and if you even sing about it you’re crazy I often tell my students I have never participated in a legal negotiation where both sides didn’t lock never is an advocate or is it mediators they always lie to me I’ve almost never encountered a lawyer I thought was dishonest why they never lie about what I have the right to know they don’t lie about the facts they don’t lie about the law they don’t lie about the economics they tell the truth they may not tell me but they don’t lie I have rarely encountered a lawyer I thought was dishonest if I did I would never trust that person again and I would tell everybody in my firm don’t you ever trust someone so you’re a liar he’d be dead in my class every now and then a student is accused of an ethical violation actually have the rules enforce there would be a formal trials they wanted to seek a sanction but they normally don’t I’ve never had a trial all the years I’ve taught my class what they do is they informally say someone so did this I’d like to know whether you think it was appropriate or inappropriate almost always the classes it popping don’t worry about it every now and then the class says that wasn’t popping that was inappropriate that students did they’re going to have a non settlement because their future opponents don’t trust them integrity is critical when we negotiate so in the co-operative stage we have under and overstate the value of items ethically but now we reach an agreement we’ve initialed everything this is where you want to make sure you maximize the joint recurrent I’m going to offer to trade items that I think may have ended up on the wrong side of the table to see if we can expand the pie and simultaneously improve our respective positions I hate leaving client satisfaction on the bargaining table it negotiation that is a terrible waste and so I want to maximize the joint return and this is why your reputation for integrity is critical think of how much

you do figuratively or literally with a handshake when I negotiate it in fact is that even now because I work with lawyers occasion i mediate regularly even though they puff and embellish I have almost never encountered a lawyer I thought has misrepresented the material information separate Barker says and often they’ll tell me things that they won’t let me tell on the other side which of course in a separate court you session everything confidential except what they water ëismí to disclose and I mean someone will say go on the other room demand five million dollars that I’m really willing to come down the one and a half million dollar range which helps me imagine with I’ll go on the other room and say they want five million dollars and the other side will say well I’m willing to offer him five hundred thousand I’m willing to go for seven hundred fifty thousand ow I know we’re only 250 and 400 thousand whatever it is apart I had one case where the party started twenty five million dollars apart was a big federal case and by the time we got done they settled that one took about ten months they settled so you can pump and embellish but you cannot lie because if you get caught you are dead I can even put you on the net and if you think that these things go away when you’re free just a home and type in poop girl I’m not joking poop girl you heard me right my colleague Dan solo has several books on the internet and privacy she is an Asian girl who had a dog on a public transport the dog pooped she did not pick up the poop the picture was taken she’s even in Wikipedia that was Holly 15 years ago and I’m not just typing poop girl and you’ll understand what I’m talking about pup it will come last thing i wanna talk about is how critical it is to maintain your negotiating skills most people in this room have not had a full semester course in negotiation in law school more and more do but even at my school we have a number of separate sections the sections still many of our students graduate with no training because we have 540 students in each class we just don’t have that many negotiation courses we do if we have 2,000 students at the law school counting our lms we have one of the biggest law schools in the country I think with a third largest law school in the country Georgetown Harvard GW the three largest law schools in the country and it really is amazing they graduate with minimal training and negotiation and that’s what they do every single day and when you’re in practice if you try a case at the end of the case what do you do you sit down do a post-mortem how do I present the case to have a good see read I presented witnesses well did I ask the right questions we really try to figure out what we could have done differently when was the last time you sat down at the end of a negotiation to what how did you do now I think you have in front of you or in those materials if not I have a thing here I don’t have oh it is they had they printed this today and I know if they have extra copies here it’s called beyond the bar it’s a toolkit for the beyond the bar program I know they have some and you can ask for them they had some this morning for the students this is a summary of everything we’ve talked about it is simply called a toolkit for effectively the negotiation because I teach beyond the bar programs were like West and the last page is a post negotiation assessment we really want to ask how did you do and at the end of the negotiations the two most basic questions what did you do that you wish you had not done meaning you made a mistake and you want to make sure you don’t do that in the future and we always make mistakes because no matter how thoroughly prepared we are it’s an extemporaneous exchange they’re going to do something I didn’t anticipate I react to it I think later oh I shouldn’t have done that I should have done something different but the more significant question is what did you not do that you wish you had done the first question you eliminate something you shouldn’t have done but the second question is really designed to think about what you will do differently in the future and there are studies that show the best way to improve your negotiation skills not every time because you literally negotiate the whole day I’m not joking when I say that after your more significant negotiation ask yourselves how did you do and what you would have done differently in the future it’s amazing how much you learn every now and then pick up a book on negotiating just go to Amazon type in negotiation you’re publishing books almost every month and I mean I get paid to read and write as Calvin was talking about I have four books on negotiating I mean I get paid to read and write because I often jokingly say I have this very hectic schedule I work five hours a week 26 weeks out of the year and I don’t know how I’m able to maintain this schedule right now I’m finishing three book revisions and we’re almost done thank God but I mean I’m only teaching one course this semester okay I have an easy semester you have clients you have billable hours you can’t read where I get paid to read but every now and then pick up a good book on negotiation several to come out in the last couple of years by people that Harvard Business School locks it’s a Benyus book called 3d negotiation lack steve gibson Benyus teaches at the business school and have a big negotiating consulting firm they run together and the other is Deepak Malik culture and Max bazerman also the Harvard Business School called negotiation genius – very very good book

the business schools are much more advanced than the law schools are in this regard now the one last thing I will say here about ethics is something that I don’t have on the machine and that has to do with electronic metadata when you create a word or WordPerfect file every single keystroke you make in that file is recorded electronically every single keystroke every change addition deletion everything and when you send that file to me you think I’m going to look at what you have on the screen I can set my software so I can see every single change you have made in that file I can it’s called the mining the metadata I can set my software so I will call up the metadata and you may have written a demand letter where you initially demand at 750,000 then you decide to make it eight fifty or six seventy five I can see the change you’ve made you made one significant legal argument decide to delete that and place it with another one I can figure out why you deleted the first one that gives me tremendous knowledge now the ABA says you can mine the metadata because everybody knows it’s there and most people particularly with great hair look at me as if what the hell is you talking about they don’t know it’s there it is there I think the ABA is wrong a number of states have agreed with the ABA New York Maine Alabama and a couple other states have disagreed with the ABA and I happen to admit I share their view if you knew the metadata were there you wouldn’t send it to me but they all agree on one thing under Rule 1.6 governing client confidentiality you have a duty not to include electronic metadata the file you send to the opposing lawyer how do you do it three simple ways talk to your computer people and get scrubbing software scrub the word file or the WordPerfect file before you send it so scrub the file it simply eliminates the electronic metadata simply call it scrubbing software number two create a brand new file give it a new name and insert the old file into the new file so insert the old file into a brand new file that too eliminates the electronic metadata the third thing you can do is publish to PDF and send me a PDF file that eliminates the metadata but don’t send me the file I know a couple of lawyers that I’ve been in their office says it let’s see what the file says and it comes right on the screen every single word you put in that file from the minute you created it now I have check if you simply send email it doesn’t contain electronic metadata I checked if someone just this week to make sure that was still true so if you send me an email message I can’t see the changes you made in it’s only when you create a word or WordPerfect file or something similar to that any questions that anyone might have yes thanks again for coming up with the information stage I was just wondering if you have any suggestions on techniques if both sides realize that they want to get the other side talking I mean they’re both going to ask a lot of questions they are and and basically you can’t refuse to give me information because then we’re going to have no negotiation now we’re both going to be coy particular talking about I didn’t talk here blocking techniques for your boy dancing the whole question answer part of the question you misinterpret the question that sort of thing but the fact that matter is if we want to have an efficient negotiation you still have to tell me what the items on the table are so I still have to be willing to tell you maybe not at the beginning as we go through the negotiation I have to tell you the items I value now I may over understate the value of prestiging purposes but if I don’t put the value of the if I don’t put the item on the table we won’t know how to negotiate we may have 50 things to negotiate I’ve been in collective bargain where you negotiate a four or five hundred page document I mean not every term although if it’s a new agreement a new relationship you may be negotiating a huge number of terms but what happens there is when I ask you question you’re going to slowly tell me what it is you want and I’m going to have to give you some of the same information at the beginning we’re both going to be very very coy unless we really if you really know each other and we’re normally quite open we’ll be quite open I’ll give you a perfect example about what four or five years ago that huge strike and lock out in the West Coast grocery industry went on for a long time and they lost several billions of dollars because of that they can’t in the biggest issue with health care health care is a huge issue a collective re right now they came to the East and the two main lawyers involved it was again multi-party negotiation knew each other well and the union said we can’t agree to pay premiums that’s not acceptable to members and one thing I always tell my labor law students please remember union officials are political they have to get reelected just like politicians so listen to them so what they say how can we lower the cost raise the deductibles raise the copay we’ll agree to that in a minute and they didn’t they cut the cost and the fact the matter is and as the Union people said when someone has to pay a 100 $150 a month premium they get damn angry when they get sick and they have to pay a high deductible and a high copay they’re so glad they have coverage they don’t complain and it’s true and that’s really politically what they have to do and that was a perfect example of getting to yes solve the

problem so figure out what the underlying issue is in the air it was cost medical cost how can we reduce the cost and whether it’s politically acceptable and another thing on politics the new me corporation out in Fremont California that was formed a bridge with Toyota General Motors and what happened is General Motors pulled out a couple of years ago when they had to get the federal bailout so Toyota was left in the UAW is their UAW had banned about 22 to 25 percent wage cuts to General Motors and Chrysler and Toyota went in said we need wage cuts at NUMMI and the UAW pounded its chest and said we can’t do that and Toyota closed the plant like that they load off 2,500 unity workers and about another two thousand non-union workers they closed the plant what the UAW didn’t understand is that’s not how the Japanese negotiate you don’t pound your chest and play that game because it’s a loss of face and what the Japanese didn’t appreciate is the UAW had to put on a show for the members before they cut the wages thank you yeah any other question I do want to thank Cal for a skivvy here it is an unbelievable privilege to be in this position because I look at the people who’ve been here before and you have had literally a virtual who’s who of people and I think Bob Manuka to carry mango meadow and in a shell from Penn and who else I have in there I’m leaving out the Russ Croft and Busey lace and this unbelievably top people in the field and it’s been an absolute privilege to be here and I thank you very very much thank you so much and thank you so much doubt for having