VIEWS: 6 PAGES: 24 POSTED ON: 1/25/2011
17 Chapter The Assessment Stage A. INTRODUCTION Although almost all negotiations go through phases or stages that have relatively clear and identifiable characteristics, the experts cannot seem to agree on either the number of stages or the nomenclature to be applied to these stages. 1 We have nevertheless chosen the staging break- down of one of those experts2 because we believe it best captures the essential planning and implementation processes of lawyer negotiation. That expert asserts, and we agree, that negotiation consists of assessment, persuasion, and exchange phases. The remainder of this book analyzes each of these three stages in the negotiation process. Our examination includes commentary on both the planning and the action levels of bargaining. During our discussion of the three stages, we will distinguish between adversarial and problem-solving strategies when that is appropriate. 1. See, e.g., C. Craver, Effective Legal Negotiation and Settlement (1986) (information, com- petitive-distributive, and cooperative phases); D. Gifford, Legal Negotiation: Theory and Application (1989) (planning, orientation, initial proposals, information bargaining, narrowing of differences, and closure); B. Scott, The Skill of Negotiating (1981) (exploration, bidding, bar- gaining, settling, and ratifying); G. Williams, Effective Negotiation and Settlement (1981) (Stage One: Orientation and Positioning; Stage Two: Argumentation, Compromise, and Search for Alternative Solutions; and Stage Three: Crisis, Wrap-Up, or Deadlock); I. Zartman & W. Ber- man, The Practical Negotiator (1982) (diagnostic, formula, and detail phases). 2. R. Condlin, Cases on Both Sides: Patterns of Argument in Legal Dispute-Negotiation, 44 U. Md. L. Rev. 65, 67, 67n.6 (1985). 405 406 Part IV. Negotiating By identifying negotiation's stages and placing them in a specified order, we do not want to mislead you. While, generally, negotiations tend to proceed in the order given—that is, beginning with assessment, moving to persuasion, and concluding with exchange—the stages also tend to in- tertwine. Thus, during assessment, the negotiators may well be trying to persuade each other; while engaged in persuasion, negotiators may pro - pose an exchange of fungible or nonfungible items; and during an explicit exchange, the parties may be primarily engaged in an appraisal of the opponent's value structure. In sum, negotiation is fluid and negotiators should be flexible, prepared to follow the winding ways of bargaining. Before turning to the first of the three negotiation stages, we must remind you about the importance of planning and its relationship to implementation. In Chapter 1 we emphasized that to be successful as a lawyer in the use of interpersonal skills you must conscientiously prepare. That is certainly the case with negotiation. Identifying goals, probing for information gaps, developing reasons, and creating an acceptable exchange structure all require preparation in terms of time, detail, and thoroughness. We have found that if the groundwork for negotiation is adequate then implementation follows naturally. That is, effective technique is a by-product of sound planning based, in turn, on a solid conceptual foundation. Technique without theory and tactics without preparation are seldom successful. Therefore, our focus will be on negotiation preparation and, in that context, our position on various tactics will be obvious. B. ASSESSMENT: THE INFORMATION STAGE The study and observation of negotiations involving lawyers and other bargaining professionals suggest strongly that control of the critical infor- mation during the assessment stage is one of the keys to negotiation suc- cess. That should not surprise you. It seems obvious that the side that learns more about the opponent, communicates better the facts it wants known, and better prevents the opponent from learning about its own weaknesses is likely to have an outcome advantage at the end of the bar- gaining. Yet that measure of the importance of information to negotiat - ing success applies only to adversarial strategy; that is, the adversarial bargainer who controls information "more" and "better" gains an advan - tage in a zero-sum environment. Is information as important to a problem-solving negotiator? We believe mastery of the available information can dramatically affect outcomes obtained by problem -solving bargainers. While not necessarily the only or the most important factor, effective information exchange leads to the discovery and acceptance of integrative solutions, outcomes that are more likely to meet the needs of all of the parties.3 Both adversarial and problem-solving negotiators should concentrate on the information exchange process that forms the assessment stage. Dur- 3. D. Pruitt & S. Lewis, The Psychology of Integrative Bargaining, in Negotiations: Social-Psychological Perspectives 161, 170-171 (D. Druckman ed. 1977). Chapter 17. The Assessment Stage 407 ing this stage, the parties share information and assess each other. While giving and receiving information in what sometimes may appear to be only small talk or preliminary bargaining, the parties actually engage in a critical evaluation of one another. Professor Condlin describes the process in this way: In assessment a negotiator identifies the principal meaning of an adversary's communication, determines whether it accurately predicts what the adver - sary will do, and measures the importance the adversary attaches to the predicted behavior. Call these the questions of meaning, trustworthiness and valuation. Because these questions are about topics that have strategic importance, answers must be discovered indirectly [by the negotiators], on the basis of circumstantial evidence, and usually as an interpretive by-product of a discussion about the substance of the dispute [or the transaction].4 Thus, in the assessment stage, you evaluate the style and substance of your opponents' communications to decide what the opponents mean when they describe historical facts, assert legal positions, or comment on other matters important to the negotiation. Likewise, you evaluate opponents' communications to decide under what circumstances and with what caveats you will believe them. Finally, you evaluate opposing negotiators' declarations to decide what they and their clients value highly and not so highly. You must remember, of course, that while you are amassing circumstantial evidence to answer the questions of meaning, trustworthiness, and valuation, your opponent is conducting an identical examination of your communication style. This information interchange, which begins with the first contact between negotiators and continues through to settlement or deadlock, constitutes the first critical phase of bargaining, the assessment stage. C. THE MEANING, ROLE, AND MANAGEMENT OF INFORMATION It is impossible to catalog all that is included within the term "informa- tion" as it relates to legal negotiations. Simply stated, information in a particular negotiation is anything that relates in any conceivable way to the matter being bargained or to the parties to the bargaining, both principals and their legal representatives. Information, then, is negotiation-specific and must be understood in its broadest sense. In every negotiation, information must include all relevant historical facts relating to the matter being negotiated. Thus, depending on the case, information may include fin ancial data, business history, medical records, work experiences, past con duct, trade practices, economic studies, event chronologies, personal reputations, and family traditions. In addition to the retrospective focus of 4. Cases on Both Sides: Patterns of Argument in Legal Dispute-Negotiation, 44 U. Md. L. Rev. 65, 67-68 (1985). 408 Part IV. Negotiating historical evidence, negotiation information includes details of a prospec - tive and attitudinal nature. Thus, the negotiator must prepare for an infor- mation exchange covering the needs, goals, plans, resources, options, emotions, fears, strengths, and weaknesses of the principals and their lawyers. When the key element—information—of the first critical phase of ne- gotiation—the assessment stage—is defined so broadly as to be virtually measureless, how does a negotiator go about bringing the element under control? Is there a conceptual foundation on which you can base your plan- ning for the information exchange? Can the substance of the assessment stage be divided into segments so you can more easily work with it? With an understanding of the role it plays in the process, you can place negotiation information in manageable categories. Remember that, from a conceptual perspective, information in a negotiation is the subject of ex - plicit and implicit bargaining by the lawyers. Knowingly and unknowingly, they gather, give, and guard information relevant to the bargaining pro - cess. As they assess their respective bargaining power, the negotiating parties are constantly making critical decisions about the information they will share, the form in which it will be shared, and what information they will demand that others share in return. To prepare for the assessment stage and gain control over the information-bargaining process, you need to plan for each of the tasks of getting, giving, and guarding information. The first step in planning is to divide a paper into three columns. Label these columns as follows: Information We Need; Information We Must Protect; and Information We Want to Give. Next, using a broad and negotia- tion-specific definition of information, analyze and then place the data in the case into one of these three categories. All the information relevant to the case that you have or must obtain will fit into one of the three columns. To make the information fit properly, you will have to combine parts, sub- divide others, recategorize some, and prioritize all of it. But once you have positioned all of the relevant information into one of the columns, you will have your agenda for the assessment stage of the negotiation. PROBLEM 1 Creating the Information Agenda Set forth below is background information in the matter of Eugene Weber.5 Assume that you are the lawyer who wrote the following file memo and that you represent Weber in a forthcoming negotiation with Jones & 5. The Weber-Jones & Jones problem is based on a teaching videotape included in J. Harbaugh, Lawyer Negotiation Training Materials: The Basics of Negotiation Video (Practising Law Institute 1988), and available in an expanded version in J. Harbaugh, Basics of Negotiation (video, Practising Law Institute 1984). The problem is a particularly good example because it combines a dispute with a transaction and because it can be negotiated effectively using either an adversarial or a problem-solving strategy. Therefore, we will use this problem several times in the chapters on negotiation to illustrate the theories and concepts, and the tactics and techniques, of lawyer bargaining. You will want to refer back to the information contained in the following memo several times as you deal with aspects of the Weber-Jones & Jones problem. Chapter 17. The Assessment Stage 409 Jones, the firm that bought the WEBCo business from Weber two years ago. Based on the material contained in the memo, create an information agenda for the assessment stage. As you fill in the columns relating to get- ting, giving, and protecting information, prioritize the items in each category. MEMORANDUM To: Eugene Weber File FROM: Attorney We have agreed to represent Eugene Weber, age 57, in establishing a new business to be known as Executive Counseling Service. The usual business planning matters must be set aside until we can re- solve a potential dispute with Jones & Jones. Until two years ago, Weber was the president and principal stockholder in a closed corporation (Weber's wife was the other owner) known as WEBCo (Weber Employment Bureau Company), an employment agency that served clients in the five-county metro- politan area. After serving as personnel director for a large manufac- turer of appliances for six years, Weber began the WEBCo business 15 years ago. The business prospered as the area expanded its high-tech industries and Weber was able to capitalize on his experience and his contacts with the leaders of the commercial and corporate commu- nity. In the end, WEBCo handled a substantial portion of the employ- ment needs of virtually all of the area's major employers, particularly at the executive, professional, and technical levels. Jones & Jones is the largest nationwide employment placement firm with branches in most major population centers in 33 states. Jones often penetrates new geographical markets by acquiring exist- ing local employment agencies and converting them into operating units of the Jones organization. That is the pattern it followed with Weber, approaching him and reaching an agreement on a buy-out of WEBCo. Weber agreed to sell because his wife had encouraged him to retire early and enjoy life and because he feared that if he did not sell, Jones would enter the market in competition with him. Jones paid Weber $875,000 for the business, $115,000 of which was allocated to a noncompetition clause in the assets purchase agree- ment. That clause reads as follows: "Seller agrees that for a period of ten years he will not, directly or indirectly, engage in the business of or own, manage, invest in, be employed by, or participate in any other way in any business directly or indirectly engaging in employment placement within [thirteen named states]." Weber was represented at the closing by an attorney who has since died. Jones was and is represented by John Frank, a member of a large local firm. While our firm has had dealings with Frank's firm, none of us has dealt directly with Mr. Frank. 410 Part IV. Negotiating Weber says that although he negotiated with Jones about the ultimate price and some other matters, he doesn't recall how the allo- cation to the noncompetition clause was made except that it had some- thing to do with taxes. He believes that inclusion of a noncompetition clause itself was "standard" in all of Jones's acquisition agreements. Weber doesn't know why the thirteen states are listed because he never did business of any kind in half of those named. In fact, the only business he did in any jurisdiction other than our own was to advertise for executive, professional, and technical workers interested in relocating in the metropolitan area. Weber now wants to start Executive Counseling Services (ECS), a business that will advise, instruct, and retrain executive and profes- sional people who, because of layoffs or interests, want to take advan- tage of new jobs in a rapidly changing economy. Weber claims that the proposed new business is significantly different from WEBCo and, therefore, it shouldn't be covered by the noncompetition clause. He cites as distinguishing ECS features the fee involved (will be a sub- stantial flat fee up to $10,000, rather than a percentage of salary); the structure of the relationship (will represent individuals seeking a new job, not businesses looking for employees); the duration of the rela- tionship (will represent client up to five years after obtaining a new job, instead of short period until employee finds job); and the work involved (will include career and psychological counseling, resume drafting, interviewing style, and the like, but it will not include finding a job for the client). It has been difficult getting Weber to understand that Jones may not share his view on the nonapplicability of the clause to ECS. Jones may be particularly concerned about his plans because Weber reports there are rumors that Jones is thinking about experimenting with adjunct counseling centers attached to some of their placement offices. Another apparent distinction is that Weber claims he wants to start this business for his son, Bobby, age 28, who is about to graduate from an MBA program. The son has an undergraduate degree in in- dustrial psychology and worked as a personnel counselor for a large business before going back to school. Weber claims he has no inten- tion of being involved in the day-to-day operation of the new busi- ness, although he intends to advise and guide Bobby and give him the benefit of Weber's long-time business experience and contacts in the community. I must say I am skeptical about Weber's claim of noninvolvement with ECS. I believe Weber is bored with retirement and is just itching to get back in business. Perhaps more important, Weber apparently dissipated a significant portion of his nest egg through bad invest- ments and market fluctuations. I am convinced he needs to replenish his funds. That view is reinforced by our discussion of financing the new business and the amount he is willing to pay Jones for a buy-out from the noncompete clause. Research on the law of noncompetition clauses in our jurisdiction leads to the following conclusions. Because noncompetition clauses Chapter 17. The Assessment Stage 411 are a restraint on trade, our courts hold such a clause can extend only for the time and under the circumstances necessary to protect the buyer of the business. We apply a reasonableness rule as it relates to the scope, duration, and area encompassed in the clause. I am con- cerned we would not prevail in litigation because the courts also adopt the "blue pencil" approach. Under the "blue pencil" method, if the court finds the seller's new business is covered by the clause but the time is too long or the prohibited area too large, it will rewrite the con- tract provision to make it reasonable. Thus, if "executive counseling" is covered by the term "employment placement," a court could reduce the period to less than ten years or eliminate some of the thirteen states, but Weber would still be effectively precluded from operating his business. At a counseling session with Weber, we reviewed the above in- formation. Weber rejected filing a declaratory judgment action and beginning the business with the possibility Jones would seek an in- junction. He did so because we concluded a court action was too costly and too risky. Weber also rejected starting ECS outside the pro- hibited geographic area or beginning a totally unrelated venture. He did that because his business contacts are here, and neither he nor his son has expertise in any other field. In the end, Weber decided to ne- gotiate with Jones on beginning ECS and, if necessary, pay Jones for the privilege. He authorized me to spend not more than $28,000 for the buy-out. Although I believe that is an unrealistic figure, Weber claims that more than that amount will mean he does not have suffi- cient funds for start-up expenses. With your assessment agenda in the Weber problem in front of you, something we discussed earlier is now obvious. The game theorists' as- sumption of perfect information is manifestly a false premise. Even with all the preparation that has gone into the creation of your agenda, the best you have been able to achieve is what the bargaining theorists call "confident expectations." Because you do not have complete or perfect information about the other side's needs, fears, and the like, you cannot fully predict or anticipate the actions of your adversary representing Jones & Jones.6 Thus, no matter how effectiveyour pre-negotiation preparation is, there will al- ways be information you need to confirm or to contradict your planned bar- gaining strategy and tactics. That extensive pre-negotiation planning does not guarantee absolute control over the assessment stage does not reduce the importance of prepa- ration. It does mean, however, that the creation of the information agenda cannot close the book on the work in advance of assessment. Because you are subject to the opponent's maneuvering during negotiation, you 6. S. Bacharach & E. Lawlor, Bargaining 208 (1981). As the authors note, the absence of perfect information means that you are subject to manipulation by the opponent, including bluffs, deceptions, threats, and promises. 412 Part IV. Negotiating must devise detailed plans to implement the information agenda. Imple- mentation plans increase the likelihood that you will effectively acquire, give, and protect information, thereby reducing your opponent's ability to manipulate. D. OVERCOMING SOME NATURAL TENDENCIES Before we more thoroughly discuss how to plan to get, give, and block the information set out in your assessment agenda, a brief but relevant aside is in order. We have noticed two tendencies among lawyers that can interfere with two of these three information tasks. First, many attorneys do not like to ask certain questions. Second, most attorneys answer questions. Dr. Samuel Johnson once noted, "Questioning is not the mode of con- versation among gentlemen" (and, we add, gentlewomen). That observa - tion explains the many lawyers who are uncomfortable asking questions that seek sensitive information or that may cause another embarrassment. As a result, these attorneys either avoid such inquiries altogether or preface the question with an apology, thereby inviting an evasion or a refusal to answer. This tendency obviously hinders obtaining needed information from the other side. As a group, lawyers are high achievers. At a young age, these high achievers learned to give information in response to questioning. Many future lawyers could be seen in the primary grades waving their arms wildly in the hope of answering the teacher's question and receiving an ap- propriate commendation. Answering fully and honestly is a habit devel - oped early and nurtured throughout a lawyer's academic career. It is a habit, however, that can impede the protecting of sensitive information from the probes of an opponent. As you cultivate your negotiating skills, you should conduct a self-assessment to determine if you have developed these two tendencies. If so, try to repress them during the time you are bargaining on behalf of clients. Simultaneously, you should be conscious that your opponent may have acquired these habits, habits you may be able to exploit. E. PLANNING TO OBTAIN NEEDED INFORMATION As the Weber exercise indicated, every negotiation involves seeking in- formation from the opponent during bargaining. In transactional matters, the most intensive advance investigation will not be sufficient to answer all the questions you have concerning the other side. Even in litigation cases, where you can invoke the mandated discovery process, there will always be data that can be obtained only from the opponent. Usually, again as in the Weber problem, the missing information is crucial to the outcome of the Chapter 17. The Assessment Stage 413 bargaining. Unless you fill these information gaps, you cannot measure the accuracy of an opponent's statements; cannot know what arguments will persuade, what promises are valued, and what threats will be feared; can- not effectively determine the opponent's bargaining ranges and rationales; cannot know whether a potential solution meets the opponent's needs; and cannot decide when to accept an offer or press for more. Without all of the necessary information, you are effectively handcuffed, locked into your cli- ent's position, and unable to recognize the opponent's goals, needs, and concerns. You require two basic skills to obtain the data your pre-negotiation planning has identified as necessary and outstanding. Luckily, these are skills you already have studied and practiced. To get the negotiation infor- mation you need, you must be able to probe effectively and you must be an active listener. You should now reconsider earlier sections of the book deal- ing with the two competencies.7 As a supplement to that reconsideration, the following discussion alerts you to the primary fact-gathering pointers relating to negotiation. Except when a party on a pure fishing expedition gets very lucky, nar- row, directed, and leading questions do not produce a significant amount of information. Instead, as you learned from what we have said and from experiments of your own, inquiries of that sort only confirm the details al- ready in the possession of the questioner. To get the negotiation informa- tion you need, ask broad, nondirected, and nonleading questions. As in interviewing, the funnel technique ought to be used to identify a topic and to stimulate your opponent to talk about the subject in terms that are im- portant to the other side. Follow up your initial question slowly, moving without haste to the narrow portion of the funnel. As you receive the knowledge you need, you can use more directed questions to confirm what your opponent has said, as well as to fill in information gaps. Remember, you must avoid—even when using very open-ended probes to introduce a topic—unclear, ambiguous, compound, or otherwise deficient questions. Do not forget to use the appropriate probing techniques to follow up the early answers. Keep in mind that you have a choice between neutral and directed probes. Use the former earlier in the process; the latter have their greatest utility later in the assessment stage. Analyze the following questions by Weber's lawyer and the responses by the attorney from Jones & Jones. In your judgment, does the probing address an important information topic? Why or why not? Assuming the topic is important enough to pursue during negotiation, what would you do to make inquiry into Jones's business intentions in the counseling area more productive? Weber: Tell me about Jones's general business plans over the next few years. Jones: I'm not sure how those plans relate to this thing with Weber, but . . . well, I suspect they'll continue to expand. There are 17 states 7. On probing, see Chapter 7, Sections D through G. To review active listening, see Chapter 5, Section B. See also Chapter 3, Sections B and C, and Chapter 4, Sections D and E. 414 Part IV. Negotiating in which there are no Jones's outlets. We ought to try to move into most of those. And in the states we're in, we have to increase the number of outlets. I'm confident they'll follow the proven formula of ac - quiring ongoing employment agencies where they can. If not, they'll start up their own rather than see a good market go untapped. Actu - ally, I'd like them to continue the acquisitions practice because we expect to continue representing them and we've got these acquisition contracts down almost to a sci .. . Weber: Are they going to keep to the narrow line of employment place - ment or will they do what so many other service companies are doing, expanding horizontally and developing related and new areas? Jones: I've not been privy to all their discussions, but I kind of feel they're on a "steady as she goes" routine for a few years. There are some people making noises that if Jones does not take a bold step soon, the business will become stagnant and top heavy with management. Ex - cept for some related stuff, I think they'll .. . Weber: You know, Weber tells me that Jones & Jones is interested in the counseling business. Is that why they're so concerned about Weber coming back in? Jones: Look, I'd hardly call it an overwhelming concern, but they are ada - mant about protecting their contract rights. And I have to tell you I think they're absolutely correct because if they don't guard those con- tract provisions, they're going to get burned. You know, they've ac - quired about fifty businesses in the past year, more than forty of which have been totally reorganized and are now operating as functional Jones's outlets. If we don't watch those former owners, they'll be back in the business and challenging Jones during the vulnerable early years in a new locale. Oftentimes lawyers who have learned to be excellent active listeners in interviewing and counseling ignore that skill in negotiations. Instead of lis- tening well, these lawyers tend to talk more, dominating the communica - tion process where possible. By doing so, they disregard the lessons of active listening and act contrary to their informational interests. Remind yourself of the steps to effective active listening. Pay close at- tention to all the communication of the other side, not only the opponent's responses to your probes but to the information volunteered. Maintain good eye contact with the other lawyer, taking few notes, certainly no more than the occasional word to remind yourself of important information. Be keenly aware of both the precise language used by your adversary and all of the nonverbal cues that are emitted, including pace, pitch, tone, and volume.8 At bottom, active listening is about understanding, trying to deter - mine exactly what the other side means, wants, and values. Therefore, you should do as much as you can to comprehend the opponent's message and 8. Professor Charles Craver has a list of common nonverbal communicators that he has observed in negotiation settings. While we are leery of a rigid classification of nonverbal re - sponses, review of Craver's list may alert you to the meaning of your opponent's expressions. C. Craver, Effective Legal Negotiation and Settlement 19-30 (1986). Chapter 17. The Assessment Stage 415 to let opposing counsel know that you are serious about comprehending. To prove that you are paying attention, confirm often what the other side has said by restating it in your own words. Introductory phrases such as "As I understand it," "So that you mean," "Did you just say that," and "Let me see if I can explain what" should become part of your negotiation vo- cabulary. Being sure you understand an opponent does not mean you con- cede the validity of the fact asserted or the argument made. Indeed, the only concession involved in active listening is to let the other side know that it has been heard. On the other hand, you cannot allow opposing counsel to avoid con- tinuously your requests for information without abandoning your pre-negotiation plans. If the opponent fails to answer your question, you must analyze why. Is it possible the other lawyer does not understand what material you sought? If that is the case, it is your responsibility to restate the inquiry to ensure the opponent's understanding. It is also possible, however, that opposing counsel knows quite well what you were seeking but does not wish to provide an answer. In that case, a number of conclusions and options are open to you. You may want to seek immediate clarification and elaboration, wait until later and use retrospective probes,9 or abandon the area completely, content that you have identified a sensitive point. Evasion and dissembling signal you have touched a soft spot. But assume you clarify your question, then seek immediate elaboration, and later probe again, all to no avail. What do you do when the opponent refuses repeated requests for the data? If the information is not essential, you may certainly abandon the inquiry. If it is critical, you have at least two options. First, you can tell the opponent the information is pivotal and failure to supply the requested matter will cause a cessation of bargaining. Before taking such drastic action, however, you and your client must conclude that the information is crucial. A less extreme approach is to confront those on the other side with your awareness of their continued evasion and ask them why they refuse to cooperate. You could also explain their evasion has convinced you their situation must be very bleak indeed. Then paint the worst-case scenario for the opponent and announce you will proceed on the assumption the disaster you have conjured is reality. This may induce opposing counsel to assure you that things are not nearly so bad as you have painted them and to finally provide you with the requested information. PROBLEM 2 Evaluating the Acquisition of Information In the following excerpt from the Weber-Jones & Jones negotiation, evaluate the Jones lawyer's use of the funnel technique and active listening in getting needed information. 9. In Chapter 7 we discussed the use of probes, such as immediate and retrospective clarification and elaboration queries. However, our attention there was directed toward the client, not someone like opposing counsel whose goal it is to keep information from you. To prepare yourself for the follow-up questions of the negotiation opponent, review the material in Chapter 9 on witness interviewing (see especially pages 215-218). 416 Part IV. Negotiating Transcript of Negotiation Nonverbal Conduct Jones: I was surprised to receive your call. I re- Moderate pace, pitch, member Weber from the closing and he was tone, and volume. one of the sellers who was happiest to be Maintains very good eye getting out and retiring. contact. Weber: Oh no, you've misunderstood. Weber's Abrupt change in not coming back to the business. His plan is to pace, pitch, tone, and get Bobby started. See, the kid got his MBA volume; all faster, and has background in industrial psy- higher, and louder. chology. Weber really wants to get him Leans back in chair. Eye contact broken for going. first time in the negotiation. Jones: Do you mean that Weber isn't going to be involved in the daily operations? Weber: No, no, no, not at all. He has no plans Pace quickens, volume for coming out of retirement. Well. That increases at outset. doesn't mean he's, uh, going to have abso- Drops back and re- lutely no contact with the business. Weber sumes eye contact at has a good background, a lot of experience, "That doesn't mean." and he wants to pass that on to his son. Jones: What's he going to pass on to his son? Look of surprise. Weber: Huh? Oh, well, you know, experience Hesitation in voice, as and things like that. You know, how he suc- if searching for an ceeded and stuff. The usual. answer. Jones: How is he going to pass it on to his son? Weber: Oh, you know. The regular way. I'm not Hesitation still specifically sure. I'll get back to you on this. present. F. PLANNING TO PROTECT SENSITIVE INFORMATION In addition to getting information from their opponents, lawyer-nego- tiators need to prevent disclosure of damaging information to their oppo - nents. Certainly, the adversarial bargainers, those who are always trying to get a leg up on opposing counsel, must protect sensitive information. Unless adversarial negotiators are careful, such material could be used as leverage against them. But what about problem-solving negotiators? Surely, you may say, those that follow a "win-win" strategy do not hide information from their opponents. Although there may be a misunderstanding on the part of some that good problem-solving negotiators always respond openly and completely to the questions posed by an opponent, that is simply not the case. Problem solvers need to guard damaging data just as much as their adversarial colleagues do. But is it not the essence of the problem-solving strategy that the parties share needs and concerns honestly with each Chapter 17. The Assessment Stage 417 other? Can the open relationship required of problem-solving survive a damage control mentality? Fisher and Ury do not hesitate to instruct problem solvers that helpful information should be shared but that damaging information should be protected.10 They also make it clear that there is a substantial difference be- tween outright lying and a reluctance to share everything with an oppo- nent. "Less than full disclosure is not the same as deception . . . [and] good faith negotiation does not require total disclosure." 11 There is no need for problem solvers to bare their souls and expose their warts to maintain an open relationship with opponents. Because all negotiators need to protect sensitive matters from their ad- versaries, you must develop a response strategy to deal with inquiries on matters that could be damaging. Constructing such a response approach requires first an appreciation of your options 12 What types of answers can a negotiator give to the information-seeking probes of an opponent? There are, as it turns out, only three answers you can give to such questions by an adversary. First, you can give an honest answer; that is, you can totally dis- close the sensitive information, baring your soul and exposing your warts, as it were. Second, you can affirmatively misrepresent; that is, you can lie to the other side, a course of conduct that has significant ethical ramifications and major credibility risks. Third, you can block the probe of the other lawyer; that is, you leave an opponent with the impression that you have answered the question or you communicate a reason why you will not answer the question. These alternatives need to be examined a bit more. The honest response to a piercing probe by an opponent has neither the ethical nor the credibility risks of a lie, but it does mean sharing with an opponent information that might be used as leverage against you. For ex- ample, consider the following interchange between the Weber and Jones & Jones lawyers: Weber: The job placement business is booming. I understand that Jones & Jones has really expanded rapidly in the last few years, acquiring a large number of businesses very similar to WEBCo. Jones: Yes, that is the case. I think we're now the largest employment placement firm in the country. And we got to that point by buying out local competitors rather than going in and butting heads. 10. For example, these experts make it clear that disclosure of a problem-solving nego- tiator's BATNA (the best alternative to a negotiated agreement) depends on whether the alternative is favorable or unfavorable to the negotiator and how the other side would react. If the BATNA is favorable to the negotiator, Fisher and Ury urge disclosure. "However, if your best alternative to a negotiated agreement is wore for you than they think, disclosing it will weaken rather than strengthen your hand." R. Fisher & W. Ury, Getting to Yes 109 (1981). 11. Id. at 140. 12. Doing nothing is not one of the realistic options to dealing with touchy matters. Too often, we are afraid, lawyers follow the ostrich approach to the problem of sensitive informa- tion. "Oh, no," says the attorney, "if they learn about the raskin, they'll really have me over a barrel. I sure hope they don't ask about it!" Unfortunately, burying your head in the sand will not make the sensitive fact go away and hoping will not stop the opponent from inquiring about it. If you have identified something as being susceptible to exploitation, you always should assume that your opponent will ask about it. Proceeding in that manner will force you to consider the real choices you have when the question is popped. 418 Part IV. Negotiating Weber: Has your firm represented Jones in all these acquisitions all over the country? Jones: Not all, but a substantial number of them. I know we've handled all of them in our 16-state region and some even beyond that. Weber: Given all those ongoing acquisitions, you probably had to work up standard clauses in the purchase agreements for things like noncom- petition to protect yourselves from slipping up in any given buy-out. Jones: Yes, that was really the only efficient way. If not, we would have spent all our time drafting the contracts. I must say that I was sur- prised when you called. I remember Weber from the closing and .. . In this scene, the Jones attorney gave an honest answer to Weber's inquiry about standard contract clauses. By telling Weber that the noncompetition clause was boilerplate, Jones has given opposing counsel the leverage of what is known as the multiplier effect. Because all of the acquisition agree- ments contain the identical clause, any litigation over the WEBCo contract subjects Jones's other deals to a similar ruling. Thus, Jones, in fact, may be risking more than one contract if it litigates and loses the WEBCo matter. Could Jones have done anything other than give an honest answer to such a straightforward question? Consider the following replay of the earlier scene: Weber: The job placement business is booming. I understand that Jones & Jones has really expanded rapidly in the last few years, acquiring a large number of businesses very similar to WEBCo. Jones: Yes, that is the case. I think we're now the largest employment placement firm in the country. And we got to that point by buying out local competitors rather than going in and butting heads. Weber: Has your firm represented Jones in all these acquisitions all over the country? Jones: Not all, but a substantial number of them. I know we've handled all of them in our 16-state region and some even beyond that. Weber: Given all those ongoing acquisitions, you probably had to work up standard clauses in the purchase agreements for things like noncom-petition to protect yourselves from slipping up in any given buy-out. Jones: No, every clause is boringly different but unique. It would have been a heck of a lot more efficient to do boilerplate phrases but the client wouldn't have it. I can tell you that it seemed as if we were spending all of our time drafting these contracts. I must say that I was surprised when you called. I remember Weber from the clos ing and .. . A misrepresentation, such as the one above, in response to an oppo- nent's question is very, very dangerous. First, it may violate professional standards (not to mention general ethical principles). Rule 4.1 of the ABA Model Rules of Professional Conduct precludes the making of "a false statement of material fact or law to a third person." The Commentary to the rule makes it unmistakably clear the rule applies to legal negotiations. Chapter 17. The Assessment Stage 419 Thus, even though negotiation is an arm's-length relationship, material misrepresentations are ethically unacceptable. But then the Commentary opens the door to doubt by noting that "[u]nder generally accepted con- ventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact." The Comment then elaborates: "Estimates of price or value placed on the subject of a transaction and a party's intentions as to an acceptable settlement of a claim are in this category. . . " These caveats require further explanation. The specific exceptions as to price, value, and intention as they relate to an item being negotiated are quite understandable. If you could not "misrepresent" these items, negotiation as we know it could not exist. Pic- ture a negotiation between lawyers representing two beneficiaries of an es- tate. The two clients have been jointly left a very valuable diamond ring. One of the parties would like to keep the ring. The other party is solely interested in receiving 50 percent of the value of the jewelry. Both have had independent appraisals of the ring and both have instructed the lawyers as to their bottom lines on the dollar value. In this setting, one lawyer asks the other, "Look, let's not pussyfoot around. Your client can keep the ring so long as we get our fair share. Based on your valuation, what is the highest price you intend to offer for our half of the ring?" If the other attorney is required to answer that question "honestly," the negotiation is effectively concluded. Indeed, in all situations where value or price had to be placed on an item to be exchanged, the "negotiation" would turn into a race to see which lawyer could ask the other the "bottom line" question first. The model rule's approach is the only one that makes sense if we want to con- tinue the present process of discussion leading to agreement. Thus, the model rule stands for the proposition that a lawyer who receives informa- tion from an opponent on the price or value of the subject of the negotia- tion or on a party's intention to sell an item or settle a dispute is not normally entitled to take that as a material representation. Puffing and ma- nipulation are to be expected in bargaining. The Commentary's broad reference to "generally accepted conven- tions" is more troublesome because it is not so easily explained nor dealt with in practice. The rule suggests that certain types of lawyers or those in particular specialties or those practicing in certain localities speak in "codes" that others of the same group understand, but those outside the group probably would misinterpret. To use an "Alice in Wonderland" type of example, if in a specific group of attorneys "up" actually meant "down," it would not be an unethical misrepresentation to answer a question about the location of the sun with the response, "Why, it's down, of course!" On the other hand, a lawyer outside the group who asked the same question and received the same answer would conclude that a misrepresentation had been made. A problem exists when a lawyer from one group negotiates with an attorney from another group. Whose code governs? For example, most litigators would say an "I don't know" answer means just that—that the attorney has no knowledge of the subject of the question. Many corporate lawyers would say that the "I don't know" response was a code for "I know, but I don't want to tell you. Don't push me on it unless it's 420 Part IV. Negotiating critical to your case and you're prepared to get pushed in return." 13 Thus, when a litigator negotiates with a corporate lawyer, there is a distinct possi- bility of miscommunication that the former would label a lie. Other than making you aware of the existence of the "generally accepted conventions" exception to the material misrepresentation rule, there is little we can ad - vise except to learn if your opponent speaks in "codes" and to avoid mis- leading use of your own codes, especially when negotiating with someone from outside your own circle.14 A second problem with a false statement in negotiation is that it may expose you to legal liability. Of growing concern to lawyers is the danger of legal malpractice actions. Various legal theories support malpractice suits for misrepresentations in negotiation. For example, when you negotiate on behalf of a client you are acting as an agent. The law of agency may hold your principal liable for your misrepresentations to the other side. Then, in an action against you, the client may seek recompense for your allegedly unauthorized lies to the opponent.15 From a very pragmatic perspective, however, your decision to lie in a negotiation should not be based on a risk analysis of the chances of ethical or legal action being based on your material misrepresentations. Quite frankly, the chances of ethical or legal penalties being imposed for the ne- gotiation lie are not very great. The chances are much greater, however, of being "caught" in the lie at the time or later and losing credibility with your opponent. And that is but the beginning of the credibility ramifications of being trapped in a misrepresentation. Your reputation as a lawyer-negotiator will spread and your misrepresentation will become known to others that you will meet in the future. As either an adversarial or a problem-solving negotiator, your most important asset is your credibility. Unless the other side believes that what you say is true, you will be asked to prove everything, your arguments will be dismissed, and your promises will be discounted. If you lose your credibility, you lose not only the assess- ment stage of the negotiation, but very likely the entire bargain. Given the gloomy side effects of telling the truth and lying, luckily there is a third alternative available when opposing counsel asks that feared question about the existence of the "smoking gun." Instead of risk - ing leverage with an "honest" response or risking credibility with an un - truthful answer, you may choose to block your opponent's inquiry. As a form of evasion, an effective block leaves your opponent with the impres- sion the question has been answered. In alternative blocking technique, you give your opponent a satisfactory reason why you are unable to reply to the request. Blocks are not without risks, however. Continued evasion on a particular subject or the continuous use of the same evasive tactic dur- 13. For a discussion of this example, see Freund, Lying in Negotiation Process Can Be Perilous, Legal Times, June 3, 1985, at 18, 20. 14. For a complete and thoughtful discussion of this issue, see T. Guernsey, Truth - fulness in Negotiation, 17 U. Rich. L. Rev. 99 (1982). 15. In an article that you should consider, Professor Rex Perschbacher documents a number of cases based on a variety of theories where lawyers have been held liable for material misstatements during negotiation. R. Perschbacher, Regulating Lawyers' Negotiations, 27 Ariz. L. Rev. 75 (1985). Chapter 17. The Assessment Stage 421 ing a negotiation indicates to your opponent that a soft spot in your de- fenses has been located. The perception by an opponent that you are vulnerable in a particular area can be very damaging. Although not quite as dangerous as admitting the weakness or being caught in a lie, the discovered block is information that can be used as leverage by an attentive opponent. To reduce discovery and maximize the efficacy of your blocks, you should prepare them in advance of the negotiation. In that way, when you use them during the negotiation, you are less likely to stumble over your words, to give a series of "uh, uh" responses, to break eye contact, to fumble with your pen, or in some other nonverbal way signal that the op- ponent has touched a soft spot. In addition, preparing your blocks prior to the negotiation allows you to pick the best one under the circumstances and to vary them so that you do not fall into the natural habit of using the same type of block over and over again, thereby increasing the risk an opponent will identify your response as an evasion. Finally, and at least equally important, advance preparation allows you to craft your answer so that your block does not stretch over the misrepresentation line while it still camouflages the sensitive data. It is easy enough to say prepare your blocks in advance, but it is much harder to actually do it. Before we give you some suggested blocking for - mats, you should try to formulate some on your own. Listed below is some sensitive information identified by both sides in the Weber-Jones & Jones problem. Assume the role of counsel for Weber and then Jones and prepare one or two blocks for each piece of information. Assume further that in a forthcoming negotiation the opposing counsel will ask you about each item. Remember, from a conceptual perspective, you are striving to con - vince the opponent that you have answered the question or have given a good reason why you decline to do so. PROBLEM 3 Preparing Blocks for Weber and Jones Weber's Sensitive Information (1) Insufficient Funds. Because of bad investments, Weber does not have enough resources to accomplish all of the following: pay more than $45,000 for a buy-out of the noncompetition clause, including attorney's fees (or finance litigation to clear the way for ECS); invest at least $100,000 in the new business; and retain a retirement nest egg of at least $500,000. (2) Weber's Involvement with the New Business. Weber claims that he will not be involved in the operation of the new business. He doe s say, however, that he wants to help his son get started, giving the young man the benefit of his extensive experience. Counsel does not believe Weber. Instead, counsel believes Weber is projecting this position in the belief it will be easier to avoid the reach of the noncompetition clause if he, as the former owner of WEBCo, is not involved with ECS. Counsel is strength- 422 Part IV. Negotiating ened in the belief that Weber will be immersed in the new business because of two other facts. First, Weber's financial situation suggests that he needs to replenish his losses. Second, Weber appears to regret retiring at an early age and finding himself without something interesting to occupy his time. Jones's Sensitive Information (1) Boilerplate Noncompete Clause. The lawyer for Jones is very con- cerned that the standard noncompetition clause is vulnerable to a reason- ableness analysis by the courts. Counsel is worried that ten years is longer than Jones needs to become competitive; that states are included in the clause even though the prior owner did not operate there; and that the term "employment placement" may be overly broad. Even if the clause sur- vives a court challenge, it could be substantially modified to Jones's disad- vantage through "blue penciling." Counsel does not want Weber to know that litigation in this case could negatively affect dozens of other purchases of employment agencies where the same form was used. Counsel fears that if Weber knows there is a potential multiplier effect of litigation, his lawyer will find that option more attractive. (2) Jones's Counseling Plans. Jones is planning to launch a number of experimental executive counseling units in the next six months, including one in Weber's community. Counsel is concerned that Weber will use this information to argue that counseling and job placement are two entirely different functions. Certainly, if placement includes counseling, it is strange that Jones is considering the addition of the operation an "experiment." Moreover, if Jones is just now exploring this activity and planning to create new units in existing placement offices, it is strong evidence that the parties did not contemplate or intend to cover this specific business enterprise when they signed the assets purchase agreement two years ago. Now that you have tried your hand at preparing some information blocks, we will explain five forms of them that are commonly used in legal negotiations. After you read the explanation of each block and consider the example, review the blocks you developed to see if they fit into any of the categories. As you read about our blocks, you may question whether such simple devices can really work. But they do. They are effective because too many negotiators are not good listeners. Active listeners, on the other hand, can overcome even well-planned blocking attempts because they are working at understanding exactly what the opponent is (and is not) saying. We turn, then, to the five basic blocks: (1) Answer a Question with a Question. Asking another question, one of the most effective blocks, plays on the tendency of lawyers to respond to inquiries put to them. This technique works well because it is not merely a form of evasion. Asking another question also involves clarification or elab- Chapter 17. The Assessment Stage 423 oration, a legitimate negotiating goal. To be most convincing, you should plan for an initial and at least one follow-up question in response to an opponent's probe for sensitive information. Evaluate the following two questions by Weber's lawyer as answers to Jones's question about Weber's involvement in the new business: Jones: Is Gene Weber intending to have any involvement in the normal operation of this ECS business? Weber: Are you saying that it's important to Jones whether Weber is connected with the day-to-day management? Jones: Well, of course it's important. First of all, we paid a lot of money to Weber so that he wouldn't compete with us in this metropolitan area. Second, we assume he's a more formidable competitor than his son, Bobby, who has no track record. Weber: Does that mean that if we can demonstrate that Weber won't be involved with the everyday operation of ECS, that it'll only be Bobby running the show with his Dad rooting him on and shouting advice from the sidelines, that Jones & Jones will withdraw their objections? Jones: Oh no, our objections rest on our contract rights. Counseling is included in the noncompete clause because it's clearly related to placement and, therefore, covered. No, you're going to have to .. (2) Over- or tinder-Answer a Question. With this blocking technique, you try to give opposing counsel more information than has been asked for or you try to give information on only a small and nonsensitive part of the topic contained in the question. Thus, you can give every possible answer to the question or you can give the narrowest possible answer to the question. Another way of conceptualizing this block is to think about responding generally to a particular question and particularly to a general question. Watch how this block can be applied by Jones to Weber's question about standard clauses: Weber: The job placement business is booming. I understand that Jones & Jones has really expanded rapidly in the last few years, acquiring a large number of businesses very similar to WEBCo. Jones: Yes, that is the case. I think we're now the largest employment placement firm in the country. And we got to that point by buying out local competitors rather than going in and butting heads. Weber: Has your firm represented Jones in all these acquisitions all over the country? Jones: Not all, but a substantial number of them. I know we've handled all of them in our 16-state region and some even beyond that. Weber: Given all those ongoing acquisitions, you probably had to work up standard clauses in the purchase agreements for things like noncom- petition to protect yourselves from slipping up in any given buy -out. Jones: Well, as you know, every contract is unique. Weber is a unique per - son, his business was different from other ones we've bought, the price we paid was specific to his assets, the timing was special, his in- 424 Part IV. Negotiating ventory was distinct. Based on the dozens of deals that we've done, no two have been the same. You just can't grab a complete form contract these days and slap it down on the table and have everyone just en - dorse it. In this last answer, you will notice that the theme of Jones's block is a general answer to a particular question. Of course it is true that all con - tracts are unique. That truism does not, however, answer Weber's question about standard clauses, particularly noncompete clauses. Jones continues by over-answering, providing evidence of uniqueness as to a number of factors that were not specifically addressed in Weber's question. Jones ends his answer with two more generalities. All in all, Jones gave the appearance of answering but, on close analysis, never did face directly Weber's inquiry. (3) Answer Another Question. When the opponent has propounded a specific question, how do you create another one to answer? There are at least three ways to do so. First, you can explicitly reframe the pending question in a way that the answer will not be damaging to you. Introduc - tory comments such as the following signal a rephrased inquiry: "As I understand your question, you want to know . . . "; "I'd be pleased to tell you about . . . "; "If you're asking about . . . then I can tell you. . . . " A second method of developing another question to answer is simply to an- swer the question as if it had been asked. For this to work, the one you respond to must at least be in the same part of the ballpark as the question posed by the adversary. Finally, you can answer a question that was re - cently asked and answered. So long as you change your words and per- haps your focus, your response is not quite the same as what went before. Opposing lawyers who are distracted, fumbling around with papers, or making extensive notes are particularly vulnerable to this approach. Note how the answer to the following question by Jones about Weber's financial situation focuses on Weber's money, but it is about future rather than pres- ent cash flow: Jones: I realize, of course, that we paid Weber a lot of money for the WEBCo business only two years ago, but even so, does Weber have the money that it takes to get started in business today? Weber: This isn't going to be a mere money drop on the kid. Weber in - tends that Bobby will pay him back out of the proceeds of the business over a relatively short period. He has no intention of making a gift out of the start-up funds. There'll be none of this, "Here, kid, take the money and run." Of course, this isn't a capital intensive business to begin with, but, in any event, Weber intends that it's coming back his way. (4) Rule the Question Out of Bounds. The first three blocks involve at- tempts to get the opponent to believe that the question has been answered. The out-of-bounds block differs because you tell the other side that you will not answer the question. For the block to work, your reason for not an - swering must be reasonable. The most obvious out-of-bounds block for a Chapter 17. The Assessment Stage 425 lawyer is one that rests on the confidential nature of the attorney-client re- lationship. See how Jones tries to use the block on Weber's inquiry about Jones's plans for a counseling program: Weber: We hear rumors that Jones is about to go into the counseling business itself. Can you confirm that for us? Jones: Like any sophisticated business, Jones spends a lot of time and money on research and development, generating multi-year plans, analyzing where it's going, what activity it ought to be engaged in, and when it ought to do it. Jones's competitors would love to have access to its "what if" projections. That would make life for the other guys a whole lot easier. Jones has no intention of releasing information about its business plans until the appropriate time. Even if I were privy to information about the business options it's considering, I'm not in any position to share it with you or anyone else. I'm sure you understand why I can't answer your question. (5) Ignore the Question and Change the Topic. This is a favorite block among lawyers and among little children when asked if they have done something wrong. This form of evasion works because the listener gets so caught up in the information being provided that the original question is forgotten. When using this block, it is best to change to a topic in which the opponent is likely to have some real interest. See how the lawyer for Weber tries that ploy as he turns away from Jones's inquiry into Weber's involve- ment with ECS: Jones: Is Gene Weber intending to have any involvement in the normal operation of this ECS business? Weber: The most difficult issue confronting Weber as he figures out how ECS is going to operate is how to structure the financing. It's not cheap to get into business today and he's not in a position to just turn to Bobby and say, "Here, kid, I'm giving you a gift of so many thousands of dollars. Run off and play at being a businessman." On the other hand, Weber doesn't want to tie the kid's hands. He's got to have the flexibility to move if things develop and they can't spend weeks con- sidering every dime of financial implications. As you know, the most serious problem with a start-up business today is underfinancing. Everyone thinks he can get by on a shoestring. Well, Weber's not going to let that happen with ECS. It's not yet finalized, but he's .. . Now that you have worked through the five basic blocking techniques, go back to the problem dealing with Weber's and Jones's sensitive information. Try to develop new blocks for this data, using the models set out above. Compare these blocks with those you generated earlier. Are your earlier or later ones more likely to be successful in protecting your information? Why? You will not be surprised to learn that blocking is not a tactic reserved to lawyer-negotiators and the negotiating table. Quite often people prefer to evade rather than answer the questions put to them. Consciously or 426 Part IV. Negotiating unconsciously they apply blocks to avoid discomforting subjects. As you participate in ordinary conversations, listen to others as they evade by blocking. Sort the blocks you hear according to the preceding five catego- ries or by an arrangement of your own. You will find that this is an interesting and important negotiation exercise. A significant analytical process is subsumed when one identifies and classifies a complex thing. For example, when in a set of facts you are able to recognize res ipsa loquitor, or a life estate, or mens rea, or a third party beneficiary, it suggests that you under- stand the concept completely and are able to process the data almost instantaneously. It is very helpful to be able to analyze quickly the commu- nication tactics of your opponent. It allows you to look for patterns while still concentrating on the substance of counsel's statements. So use the con- versations of friends and associates as a practice field to test your blocking-recognition skills. Bear in mind a block is only the least unattractive choice among a poor set of alternatives for protecting sensitive information. Because they are a form of deception and evasion, blocks are dangerous. To the skillful oppo- nent, blocks can reveal a soft spot in your position. The good lawyer will hover in the vicinity of your block, developing additional information about your weakness. Because blocking is a hazardous negotiation prac- tice, be absolutely positive that the information you list in your Need t o Protect column is truly sensitive and cannot be revealed. Our experience is that attorneys tend to overreact, recording far too many items as sensitive topics. The more often a negotiator must develop and apply a block, the greater the chance that the pattern of blocking will be discovered by the opponent. Your Need to Protect list should be reviewed carefully, there - fore, to determine if some matters could be handled with an honest re - sponse and a persuasive explanation. That could be more advantageous and less dangerous than developing and applying a block. G. PLANNING TO GIVE INFORMATION Many litigation experts say direct examination is more important than cross-examination, that a party's case-in-chief influences the outcome far more than does destruction of the other side's case. A similar judgment ap- plies to negotiation. The information you present to the other side may well be more powerful in the long run than either the damage you do to its argu- ments or the information you so carefully protect. Unless you give informa- tion to your negotiation opponents that influences them in a positive way, you are unlikely to achieve your bargaining goals. While emphasizing the critical importance of giving information, we address it only briefly at this point. The next chapter, which covers the per- suasion stage of negotiation, thoroughly discusses how to organize and deliver convincing details to opposing counsel. Thus, we include this section here primarily to ensure both completeness and your awareness that when organizing information in advance of bargaining, isolating the information you need to give the opponent is an essential corollary to the getting and protecting of data. Chapter 17. The Assessment Stage 427 Although it is here at the giving-of-information phase that assessment blends with the persuasion stage, two points are worth making indepen - dent of this next step. First, you will have information to give your oppo - nent that would be difficult to include under argument, appeal, threat, or promise, the major categories you will consider under persuasion. The in- formation we refer to here is background in nature—the circumstances and conditions that surround the main bargaining event. These are the facts that, in the appropriate negotiation, create the business environment, ex- plain the emotional atmosphere, or untangle the family setting. This infor- mation is essential but may get lost in the planning unless you pay special attention to it. If this information is absent or poorly organized and pre- sented, you will detract from the power of your persuasion. The second comment deals with presenting the information you wish to give to the other side. When you make plans to communicate informa - tion to others, we suspect you think in terms of delivering the information directly. To continue the earlier analogy to the trial process, we believe you will plan to make something akin to an opening statement, a soliloquy of sorts during which you will tell opponents what you believe should infl u- ence them to do what you want them to do. If that is the approach you take to the task, you will find yourself in the company of most other lawyers. Yet use of an opening statement in a negotiation carries certain risks. First, the statement pressures you into trying to speak extensively and con- tinuously. When you are speaking, you are not listening to the other side. When you have a "statement" to deliver, you concentrate more on what you are saying than on what and how the opponent is hearing. Second, the longer you speak, the greater is the chance of leakage. Leakage is an uncon- scious undercutting of your arguments or your offers. Either through lack of preparation or because of a subconscious awareness of the flaws in your reasoning, you "leak" your shortcomings to the other side. Consider the following excerpt from a "statement" by the lawyer for Weber. See if you can detect the leakage. Weber: The work involved in placement, the activity covered by the clause, is simply finding a job for someone. Executive counseling, on the other hand, doesn't include the finding of a job, but does include a full range of supportive activities. The type of client, the fee arrange- ment, the length of the relationship, and the work done with the client make counseling entirely different from placement. Let me explain each of those differences in detail. [Lawyer explains alleged differences.] This situation is even more removed from the contract umbrella because Weber's not going to be involved in the business. His son, Bobby, will own and operate ECS. You should understand that Weber will only be advising his . . . [lawyer discusses business arrangements at length] . The law is quite clear that a noncompetition clause must be judged by its reasonableness. I'm sure you're aware of our Supreme Court's opinion in Voices, Inc. That set the legal standard at . . . [lawyer analyzes the legal implications of the reasonableness test]. At the very least, you will have to admit the courts will blue pencil this agreement. In light of the questionable length of time and geographic prohibitions that exceed where Weber operated, there is no question that the contract will b€ 428 Part IV. Negotiating modified. I suspect that the time period will be reduced to two or three years and the area cut back to the metropolitan region. You can see why the courts would be sympathetic to our argument that . . . [lawyer sets forth blue pencil position]. The negotiator would probably be interrupted during such a lengthy presentation of information. Nonetheless, preparing to give such an extensive statement encourages leakage such as that present above. The Weber lawyer leaked, of course, with the blue penciling argument. In classic fashion, the attorney undercut Weber's initial, and most beneficial, argument that the contemplated business fell completely beyond the contract provision. Because blue penciling occurs only when a noncompetition clause does cover the proposed enterprise (the contract is judicially reformed, not set aside), Weber's counsel demonstrated lack of faith in the most imp ortant argument in the case, the applicability of the contract clause. Leakage such as this allows an opponent to reevaluate the risks of deadlock in a way that weakens the negotiator's position. Fortunately, you have alternatives to presenting the information you want to give directly either in an indirect fashion and in opening statement form. Consider delivering a portion of the material you want to convey to the other side by responding to questions asked by the opponent. You can be sure opposing counsel will have a number of information requests for you. Indeed, in preparation for protecting sensitive information, you have anticipated some of those questions. Go the added step of predicting ques- tions beyond those that are touchy. Then plan how to insert background, favorable, and persuasive facts in your answers to the queries of opposing counsel. In addition to ameliorating the dangers of not listening and leak - age, you actually may enhance the influence your information will have on the other side. Some studies have revealed that indirectly presented infor- mation is more powerful than its counterpart because questioners are likely to give greater credibility to information they participated in obtaining. Of course, another means for getting across your background and es- sential material is to put it in a letter. Although you lose information by sacrificing your ability to observe the other side's spontaneous verbal and nonverbal responses to your statements, you more effectively organize your thoughts, present detailed data, and are able to tightly control your disclosures, thus preventing leakage.
Pages to are hidden for
"Chapter 17. The Assessment Stage"Please download to view full document