In this article I am providing the second installment of my review of William Ury’s book, Getting Past No: Negotiating in Difficult Situations.  In my previous article, I put the cart before the horse and talked about the five steps to a successful negotiation — here I am going to talk about the horse that pulls the cart: negotiation preparation.

We all operate under severe time constraints, but you can’t afford not to prepare.  So, you have studied the case file and know all your facts and legal arguments.  You feel very smug and are ready to go, right?  Wrong!  Knowing your legal case only equips you to begin negotiation preparation.  It’s like standing at the plate in a baseball game with a brand new bat in your hands.  If you don’t know how to hit, your baseball career is going to be very short.  A minimum of fifteen minutes of preparation time is critical, and a better rule of thumb is to engage in one minute of preparation for every minute of anticipated negotiation time.

Ury states that you must map out the way to an agreement by focusing on five important points: 1) interests; 2) options to satisfy those interests; 3) fair standards for resolving differences; 4) alternatives to negotiation; and 5) proposals for agreement.

1. Interests: Positions are the concrete things you say you want — dollars, terms, conditions, etc.  Interests are the intangible motivations underlying your position — needs, desires, fears, and aspirations. You must identify the interests underlying the positions of you and your opponent.  If you don’t know where you want to go, it’s unlikely that you are going to get there.

Rank and prioritize your interests so that you don’t accidentally give up something very important for something of lesser importance.  Moreover, unless you understand the perspective of the other party, you will have difficulty making a satisfactory deal: you must be able to put yourself into their shoes.  You can’t change their thinking if you don’t understand what it is!  The more you know about them, the better chance you have to successfully influence their behavior.

2. Options: Effective negotiators invent creative options to “expand the pie” and satisfy the “interests” of all parties, even when it’s not possible to obtain everyone’s “positions.”  Never focus on a single solution (often your original position) — brainstorm and invent options without judgment first, and then evaluate them in light of the interests of all the parties.

3. Standards: Once the pie is expanded it needs to be divided up.  Impasse is often created when the process turns into a contest of wills and egos tied to intractable positions.  Come to the negotiating table armed to persuade with fair standards to use as a measuring stick for a mutually satisfying solution that operates independent of the will of either side — examples include market rates, legal criteria, scientific criteria, technical measures, and generally accepted standards and precedents.  Do your homework!

4. Alternatives: The purpose of negotiation is not necessarily to reach an agreement, but to determine whether you can satisfy your interests better through agreement than by pursuing your Best Alternative To a Negotiated Agreement (“BATNA”).  Your BATNA is the key to your negotiating power: the better your alternative to negotiation, the more leverage you have in the process.  Put simply, a BATNA is your best course of action to satisfy your needs without the other side’s agreement.

You need to identify your BATNA, develop and boost it if possible, and use it as a tool to measure any proposal, determine whether to continue negotiations, or whether  to negotiate at all.  Note, however, it is easy to overestimate your BATNA due to your vested interest and personal bias.  Proceed with caution, and, as discussed above, look at the situation as objectively as you can and from the perspective of your opponent.

It is also critical to determine the BATNA of your opponent.  This knowledge will help to guide you through negotiations since you will have a sense of whether any proposals on the table are superior to your opponent’s BATNA.  Having this information allows you to pierce the facade of hard bargaining and posturing.

5.  Proposals: Once you have used this process to identify viable options, you are ready to develop a spectrum of proposals — possible agreements to which you are willing to commit.  Ury suggests developing at least three: one that you aspire to have, one that you would be content to have, and one that you could live with.

The proposal to which you aspire should be realistically high, i.e., the proposal should be within the bounds of fairness and just within your perception of your opponent’s BATNA so that there is at least a chance that they may agree to it.  The proposal with which you would be content should meet your basic interests.  Your third proposal — the one you can live with — should be directly tied to your BATNA: identify an agreement that would barely satisfy your needs only marginally better than your BATNA.  If you can’t obtain an agreement at least as good as your third proposal, you may want to seriously consider walking away from the negotiation table.

These are not rigid positions, but illustrative of the kinds of outcomes that could satisfy your needs.  There is no way to know for sure what the other side will do, and during the course of negotiations you may acquire different information that enables you to develop different options and related proposals.

It is helpful to prepare a worksheet identifying the interests of you and your opponent, the options and standards you have developed, the BATNA of both you and your opponent, and the three categories of proposals you have crafted.  Rehearse the negotiation with a colleague playing the role of your opponent, and elicit feedback regarding what worked and what did not work, and what you might want to try to do differently.  This will help you to anticipate the tactics the other side may try to use and prevent you from being surprised.

Prepare, prepare, prepare…  There is no way to shortcut the process.  But the potential dividends in terms of improving the potential outcome for you and your client are well worth the effort.

We are all familiar with the old cliché: Everyone hates lawyers until they need one. In truth, most attorney-client relationships fall into the love-hate category. Clashing egos, arrogant attitudes, fee misunderstandings, communication problems, unpredictable results – the list of pitfalls that can hinder or destroy the relationship is seemingly endless. I don’t have the secret key to solving these ongoing problems, but here are four things that should help to soothe the sore spots.

1. Attention

The attorney and client need to pay attention to each other. That means putting one’s mouth in park and listening. It means responding promptly to phone calls, emails, texts, or letters. Counsel need to try to really understand the nature of client issues and relate to them on a personal level, without presuming they know what clients need and feel. Clients need to do their best to cooperate with counsel, including the provision of requested information and documents in a timely manner.  Both parties need to make each other a priority!

2. Respect

The attorney and client need to respect each other. They need to work together as a team of equals. Counsel need to formulate plans designed to achieve client-centered goals, not plans that provide counsel with the most satisfaction – whether it’s ego, money, publicity, or something else. Clients need to listen to the advice of counsel. Clients must provide substantial input into any decisions that affect them. But clients need to check their egos at the door, and understand that although they may be intelligent and sophisticated, they don’t have an attorney’s experience and understanding of the law. Both parties need to respect what each of them brings to the table!

3. Honesty

The attorney and client need to be honest with each other. Counsel need to speak to clients in a simple, direct, and frank manner. Answer questions. Admit personal limitations. Point out trouble spots in the case. And if a mistake is made, don’t try to hide it or justify it – admit it, fix it as best you can, and apologize for it! As for clients, they need to tell counsel the whole truth, the good, the bad, and the ugly – in full technicolor detail, and as soon as possible. Attorneys can’t fully protect client interests without knowing what issues exist. The meeting with counsel is not a public relations event. Let all of the skeletons out of the closet so that they don’t haunt you later!

4. Fairness

The attorney and client need to be fair with each other. Counsel need to be acutely aware of their fees and the impact they will have on clients. That includes being careful to ensure that billed activities are not only performed efficiently, but also that they provide real value in a manner necessary to achieve client goals. Clients, however, need to be realistic – it’s unfair to expect to get quality representation for a bargain basement price. Similarly, it’s unfair to expect or demand that counsel perform miracles. A good lawyer can often make lemonade from lemons, but he or she will rarely be able to make a silk purse from a sow’s ear. Look, we all learned this in kindergarten – BE FAIR!

After reading this, I don’t presume that you will spend your weekends sipping a Bloody Mary by the pool with your favorite lawyer or client. Perhaps, however, you might have a keener awareness of some ideas to forge a better working relationship that will lead to better outcomes. You might even develop a mutual respect and admiration for each other…

[ This is Part III in a three-part series on how to hire a lawyer. In Parts I and II, I discussed the importance of interviewing your potential lawyer to make sure that he or she is right for you, particularly in terms of experience and costs. In today’s edition of the Opening Statement, we will look at some other things to think about before you make a final commitment to retain counsel. ]

The dreaded interview is over.  You managed to ask some important questions about your potential lawyer’s experience handling matters like yours, and how much you can expect to spend.  Maybe you even managed to negotiate a fair deal for yourself, and you are feeling good about that.  Now what?   Should you sign on the dotted line?  Maybe – but not just yet.  Read on….

Don’t Rush to Make a Final Decision

Unless your matter is extremely urgent, making a snap decision to hire your lawyer is not in your best interest, and many good lawyers will tell you to think it over for a day or two.   It is very rare for something to be so time sensitive that you must hire the attorney before you leave the office.  Beware if your lawyer pressures you to hire him or her immediately.

Instead, go home and reflect on how things went. Make sure that you don’t have any additional questions that you either forgot to ask, or that didn’t come to mind until after the initial meeting. Call the lawyer back and get your questions answered if you have them.

If you haven’t already done so before the meeting, ask around to see if anyone you know has used your potential attorney or his firm. Just make sure that you understand that a firm’s reputation may be stellar, but you are hiring an individual – not every lawyer in a great firm is the same. Google him or her and see what comes up. Check out your attorney on www.martindale.com, and on any number of other lawyer listing services that are now available to the public for free. In short, think it over and do a little homework. It’s a decision well worth at least some time and effort.

Don’t Ignore Your Instincts

Make sure that you are comfortable with the attorney – you may be working with him or her for a long time. You don’t necessarily need to like your counsel, but you need to respect him or her.  You must also be able to communicate with your counsel.  Last but not least, you must trust your counsel, or you will have many sleepless nights.  If any of these elements are missing, you should go elsewhere.

If you felt like your counsel was distracted or rushed and didn’t have time for you, or that he or she was evasive, rude, did not seem to connect with you, or otherwise did not  appear to be intelligent, organized, and attentive, those are red flags that warn of danger ahead. Follow your instincts just as you would when meeting any other person – if something doesn’t sit well, don’t ignore it. Identify the problem and decide if it warrants hiring someone else.

The Engagement Letter

Okay… You have cruised through the interview with flying colors. You have thought it over carefully, and have tentatively decided to hire the attorney.  Everything is done and you can just relax, right?  Wrong.  Not quite yet.

You have one more hurdle to clear:  You must carefully read and understand the engagement letter that you will likely be asked to sign. Read it all. Put it down and read it again. Ask your lawyer questions about anything you don’t understand, or that doesn’t match what you understood from your meeting with counsel. Don’t be timid. Don’t be afraid to negotiate. And don’t sign the letter until all your questions are answered, and all the issues are resolved.

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Congratulations – you signed the letter and officially have a lawyer. As with most things in life, there are no guarantees – but you have been diligent and can therefore be reasonably confident that you made the right decision. Relax, take a deep breath, and enjoy life as it unfolds!

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[ This is Part II of a three-part series on hiring a lawyer. Yesterday, you learned that just like a good pair of jeans, you need to “try your lawyer on” during the interview process to make sure he or she “fits.”  In this edition, I’ll give you some hints about what types of billing-related questions to ask so that you can be sure that your new wardrobe is affordable! ]

As we discussed yesterday, IT’S YOUR MONEY, and you need to ask polite but direct questions about the fees and costs  involved in your representation.  At the very least, and if your frozen brain can remember only one question, ask your attorney to give you a rough estimate of what you can expect to spend.

If you manage to keep some measure of composure while sitting across from your potential attorney, find out if you will be billed by the hour, on a contingency basis, on a flat rate, or some mixture of the above.  Today, we will focus on some of the questions to ask with regard to each of these common types of billing arrangements.

Hourly Billing Arrangements

Find out what the attorney’s hourly rate will be, and the time increments for which you will be charged (typically attorneys will bill for their time in 6 minute increments). Ask how your matter will be staffed, and whether there is a more junior lawyer with a lower billing rate that can handle the routine parts of the matter under the guidance of a more senior lawyer. You need to ensure, however, that this will actually help to save you money, and not just turn into a vehicle to get charged by multiple lawyers in a firm for overlapping work – an unfortunate phenomenon that is far too common.

Contingency Billing Arrangements

In a contingency matter, typically where you have suffered a personal injury, the attorney does not require you to pay a fee for his or her time. Instead, the attorney will take a percentage of any recovery you receive (usually 20 to 40 percent depending on whether the case is settled or goes to trial). The advantage for you in this type of arrangement is that you don’t pay fees for your lawyer’s time if you lose. Nonetheless, you need to ask some very important questions.

You need to know what percentage of your recovery that the attorney will take if the case settles without a trial, if the case goes to trial, and what happens if the case goes to trial and is appealed. It is also crucial to know how and when the attorney’s percentage of the settlement or verdict award is to be computed: will it be computed before or after costs are deducted? Costs include expenses such as filing fees, expert fees, court reporter charges, photocopying, postage, travel and lodging, etc. Obviously, it is to your advantage to have the attorney’s percentage computed after the deduction of costs. Moreover, you need to know if you are responsible for costs (as opposed to fees) if you lose the case. Costs can run many thousands of dollars. The fact that you don’t owe attorney’s fees if you lose provides little solace if you are handed a bill for $20,000 of costs. Try to keep the risk of loss on your counsel – not on you.

Flat Rate Billing

Sometimes an attorney will handle something based on a flat rate – a specific price for the handling of your matter. Often these are simple repetitive legal tasks such as preparing a simple will, or a power of attorney form that the attorney has done many times and that does not require extensive analysis or customization. Other times, you may be able to negotiate a flat rate for a matter if you have an ongoing relationship with the attorney in a number of other matters, particularly if you are a business owner.  In a tough economy, many attorneys are struggling and looking for clients – it never hurts to explore the possibility of using a flat rate for a matter, especially if you are on a tight budget.

Negotiate Your Deal

Without getting lost in the intricacies of legal billing, the point here is that you need to get details about your proposed billing arrangement during the interview, ask questions, and make sure that you understand the details of the arrangement. Don’t be afraid to negotiate your terms in a direct, and non-confrontational manner. Most hourly rates and billing arrangements are not set in stone, and lawyers seeking work will often be surprisingly flexible and creative in order to accommodate your budget. You are only hurting yourself by being silent.

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[ This is Part I of a three-part series on hiring a lawyer. Like most human relationships, one size does not fit all. You need to find a lawyer that meets your needs and expectations. I hope that this helps you to find a good fit! ]

I have been fascinated for many years with the behavior of potential clients who are seeking legal help. These otherwise intelligent, sensible people sit in front of their prospective counsel and transform into empty-headed drones. They mumble answers to direct questions with dry mouths, sweaty palms, and nervous stomachs, and will agree to anything if only the lawyer will represent them and then let them escape and go home as quickly as possible. If you are honest with yourself, you will see some truth in this description even if you have dealt with lawyers in the past.

So… You found yourself in need of legal counsel, and after weeding nervously through various recommendations from friends, relatives, and business associates, you somehow stumbled into an attorney’s office. Uh oh… Now what? Listen up – I think I can help.

Interview the Attorney

The attorney is seeking to provide a service to you. You are an employer seeking to hire an agent – an employee – to represent you. Your attorney will work for you – not vice versa. If you can remember nothing else when the time comes for you to hire counsel, seize onto this mind-set and you will be okay.

Interview your potential lawyer just as you would any other employee. Prepare questions relating to your particular issue before you meet with counsel. Most potential clients don’t ask even basic questions about the attorney’s experience handling similar matters, his or her hourly rates or other fee arrangements, how the matter will be staffed, anticipated costs, and the frequency and method of matter updates. Make sure you ask them!

Ask Your Lawyer About His or Her Experience

You need to find out exactly how much experience your lawyer has with your particular type of legal matter. Years of general experience with other types of legal matters may have equipped your lawyer with many tools for success, but it doesn’t make him or her an expert with your type of matter. If he or she doesn’t have much experience with your issue, it doesn’t necessarily mean that he or she can’t handle it competently. An experienced lawyer can often work outside his or her comfort zone and do a great job. Similarly, an inexperienced lawyer who is smart and motivated may also do a great job despite the fact that he or she is still a little green. But you have a right to know if either of these scenarios apply so that you can make an informed decision as to whether you believe that he or she can do a good job for you. Ask about specific relevant experience!

Discuss the Attorney’s Billing Arrangements

Potential clients rarely ask direct, detailed questions about the fees and costs of their representation, or related issues such as how their matter will be staffed. It’s the elephant in the room that everyone wants to ignore. Don’t ignore these issues – IT’S YOUR MONEY! If you don’t address billing, it only leads to headaches when the first legal invoice lands at your front door. Start by asking what should be an obvious question: ask your attorney to give you a rough estimate or range of what you can expect to spend.

Find out how you will be billed, and get the details of the arrangement up front. Find out if you will be billed by the hour, on a contingency basis, on a flat rate, or some mixture of the above. Ask whether you will be billed every month, or on a quarterly or other basis. Note that many law firms accept credit card payments – if you would like that convenience, ask about it.

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Most of us are familiar with the classic movie scene:  The menacing face hovers amid smoke and roaring flames that hiss with danger, while the booming voice proclaims that “I am the great and powerful Oz!” Dorothy and her companions cower in fear at the sight of the awesome figure before them.  That is, until Toto, Dorothy’s brave and loyal little mutt, pulls the curtain aside to reveal a kindly old professor desperate to perpetrate the fraud of his omnipotent power.  Until the curtain was pulled back, there was no hope that the forlorn foursome could each get the help they needed – a heart, a brain, courage, and a ticket home.

Regrettably, technology has enabled the façade of “The Wizard” to live and thrive in the practice of modern law and business.  Attorneys, clients, business persons, and others hide behind computer screens, mobile computers, smart mobile devices, and a multitude of other techno-gadgets.  They type, text, e-mail, and otherwise send out their messages with impunity.  Cyberspace makes them nearly invincible – they are smarter, meaner, more demanding, rude, unreasonable, and sometimes just plain unprofessional.  Meanwhile, the office telephone and conference room collect dust and spider webs.  After all, who wants to communicate with the curtain pulled aside?

I acknowledge some exaggeration.  I also recognize that technology has brought many conveniences to the legal profession as well as society in general.  But my point is that it is time to stop the madness.  It is time to refocus on the roots of the legal profession, as well as human interaction: direct communication with people.

True communication requires interaction in real time, or the ability to look someone in the eye.  It enables a personal connection that may eventually lead to positive results without wasting time.  It inherently minimizes the use of inflammatory remarks, or outrageous posturing – at least for most of us – because there is a real person on the other end of the line or in front of the speaker who will immediately react.  Both sides become surprisingly more professional and willing to negotiate when neither one can lob grenades from the safety of a cyber-bunker.

The next time you have a dispute or an issue with someone, pick up the telephone or, when appropriate, have a meeting!  Telephone calls are quick, easy, and direct.  Although logistically more difficult and time consuming, meetings can often provide resolutions or rewards where only the building of relationships can bridge the gap between the parties.  Why waste time crafting a one-sided nasty-gram that has no ability to resolve anything by itself?  You can always send a confirmatory writing in any form you choose after you talk.

Don’t be The Wizard of Oz.  Use technology as a tool of convenience, not as a façade. Let clients, adversaries, business associates, and others know who you are – talk to them.  You might be surprised by the results…

It’s a tough world out there.

People are sometimes careless or reckless. Sometimes they are selfish, inconsiderate, or rude. Sometimes they are just plain mean. Unfortunately, some will lie, cheat, steal, and worse.

Things often just don’t work out the way we expected for whatever reason – someone makes a mistake, the business deal goes south, the repairman screws up, or the event gets cancelled. Freak accidents happen, and things go wrong no matter what we do. Murphy’s Law sometimes seems to control our lives. And, we get into disputes with others – strangers, business associates, neighbors, and even friends and family. We get insulted. We get disappointed. We get delayed. We get frustrated, irritated, annoyed, and angry.

Sometimes we also get hurt in some way – physically, financially, or otherwise. The harm can range from minor annoyance to catastrophic disaster. Sometimes the severity of the harm resulting from an action or event defies logic. We all know of the person who walks away unscathed from the mangled car overturned on the highway, and conversely, the unfortunate soul that chokes to death on a peanut. We are all human, and our lives are brimming with unpredictability, including bumps, bruises, shattered hopes, faded dreams, broken hearts, and losses of every type imaginable.

I’m not critical of those that truly need legal help to rectify genuine harms that can’t be resolved except by turning to the courts. Rather, I seek to focus a spotlight on the “lawsuit mentality” that seems to have permeated our society. For example, there was a recent new story about a thin female airline passenger who sued an airline because she had to give up her standby seat to accommodate an overweight passenger that needed two seats. Without debating airline policy, my point is simply to ask what should be an obvious question: Did this incident really justify a lawsuit against the airline? Or was this incident just the type of annoyance that we all must suffer from time to time in an imperfect world?

Perhaps it is time for all of us to accept life’s roller coaster with the grace and common sense exhibited by our parents, grandparents, and ancestors. The next time something unpleasant happens, ask yourself if turning the matter into a legal issue is really necessary. Maybe you just need to work it out the best way possible. If you can’t, maybe you need to relax and take a deep breath, say a prayer, go for a long walk, or have a talk with a friend or family member. Perhaps you just need to acknowledge and accept the volatile nature of the existence we all share.

Do you really need a lawyer? Or do you just need to find the serenity that flows from accepting life’s imperfections. Only you can look in the mirror and make that decision.

You’ve got a legal problem. You’ve hired a lawyer. You’re busy. You have work pressures, family obligations, and friends to see.  So, you leave things in your lawyer’s hands, and don’t pay attention to the details of your case.  Besides, your lawyer came highly recommended, and has a sterling reputation – and you are paying him or her a lot of money to take care of the problem.  You don’t really understand all of that legal mumbo jumbo anyway.  Perhaps you should reconsider…

Attorneys are trained legal professionals.  It is important to listen to their advice regarding the legal issues in your case, and the procedural aspects of any matter involving the courts.  Experienced counsel will typically identify the best strategy and tactics to achieve your goals, and can usually present alternatives as well.  But you need to be the ultimate decision maker.  Always remember that your counsel works for you, you are in charge, and you need to be the one who ultimately calls the shots.  It’s your case, your money, and your life that are affected by the outcome.

Meet with your lawyer – it is shocking how many clients don’t do so.  Make time to understand all of the important legal issues, understand the game plan, understand the risks, and understand the tangible and intangible costs involved. Listen carefully.  Don’t be afraid to ask questions and take notes if you need to do so.  If it’s appropriate and the matter is complex, ask for a written summary of the points that were discussed.

Moreover, it is critical to politely and firmly ask for periodic status updates.  Important issues are bound to arise – both anticipated and unanticipated.  Make sure that your lawyer knows that you want to be consulted about them in a timely and detailed manner so that you can adjust your game plan and/or goals accordingly.  The best outcomes are achieved through active collaboration with your lawyer.  Stay on top of your case.

Most lawyers will not neglect your case if you aren’t paying attention and don’t seem to care.  Nonetheless, your case will most likely not be his or her highest priority.  Like most professionals, lawyers are often very busy. Make sure that your goals are being met in a timely and efficient manner.  Don’t allow your lawyer to sit idle in your garage, use all of his or her available horsepower to speed down the highway toward a successful outcome.

Don’t be a drowsy passenger riding your legal matter wherever it takes you. Drive the bus!