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 its 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 he 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.

I’m Dave Doto, and this is my Opening Statement. – November 23, 2011

Happy Thanksgiving!

]]> http://theopeningstatement.wordpress.com/2011/11/23/preparing-to-negotiate-going-beyond-the-case-file-to-achieve-success/feed/ 0 d2law http://theopeningstatement.wordpress.com/2011/11/23/the-five-steps-to-successful-negotiation/ http://theopeningstatement.wordpress.com/2011/11/23/the-five-steps-to-successful-negotiation/#comments Wed, 23 Nov 2011 18:13:42 +0000 David M. Doto http://theopeningstatement.wordpress.com/?p=171 ]]>             Would you like to take simple steps to vastly improve your negotiation outcomes?  In his best-selling book, Getting Past No: Negotiating in Difficult Situations, distinguished negotiation expert William Ury identifies “Five Steps to Breakthrough Negotiation.”

            Of course, as Ury points out, before you can effectively use these five simple steps in a negotiation, you must engage in extensive planning.  But I’m impatient, I love to read the ending of a book first, and, true to form, I am “putting the cart before the horse” in this article.  Truth be told, however, I would lose interest faster than Pavlov’s dogs salivated at the sight of a biscuit if I were to read an article on negotiation planning without first having a concrete understanding of what one is planning for and why.  I would like to reduce the chances that any of my columns end up draped over your nose while you sleep!

             In my next article, I will talk about negotiation planning.  I hope that you will gain a framework to comprehend and apply such planning after reading this article.  So, without further ado, here are the five steps to “breakthrough negotiation”:

             1.         Go the Balcony (Your reaction):  The first step to a successful negotiation outcome is to control your own emotions – Ury calls it “going to the balcony” and viewing the negotiation from above.  In other words, don’t react to the other party by getting angry, seeking retribution, or by counter-attacking.  Instead, focus on your own goals and interests, and reflect upon your best alternative to a negotiated agreement (or “BATNA”) as a framework within which to determine whether and perhaps how to continue the negotiation.

             2.         Step to Their Side (Their emotion):   Create a positive atmosphere by defusing strong emotion from  the other party such as anger and hostility.  Don’t attack or resist, but listen to them and agree wherever you can — acknowledge their competence.

             3.         Reframe (Their Position): Change the game.  In response to hard ball tactics, turn what the say into problem solving questions — “why is it that you want that”?  Let the underlying problems rise to the surface and guide them.  Don’t try to meet their attack head on — use verbal jujitsu to deflect their momentum into interest-based problem solving.

             4.         Build a Golden Bridge (Their Dissatisfaction): Do not push the other party to negotiate, draw them in.  Make it easy for them to say yes by identifying and incorporating their needs and interests into your proposals wherever possible, and help them to save face such that the outcome appears to be a victory for them.

             5.         Use Power to Educate (Their Power): Don’t escalate conflict if a party continues to resist negotiating in a cooperative manner.  Educate them about the cost of no agreement: exercise restraint and ask reality testing questions, warn without threatening, demonstrate your BATNA, and reassure them that your goal is a mutual “win-win” agreement, and not victory.

             I would encourage anyone that wants further information, analysis, and/or examples regarding any or all of these negotiation steps to pick up a paperback copy of Getting Past No.  It is a $17.00 dollar investment that will prove invaluable to you time and again.

I’m Dave Doto, and this is my Opening Statement. -November 23, 2011

]]> http://theopeningstatement.wordpress.com/2011/11/23/the-five-steps-to-successful-negotiation/feed/ 0 d2law http://theopeningstatement.wordpress.com/2011/09/01/getting-the-most-out-of-mediation-part-ii/ http://theopeningstatement.wordpress.com/2011/09/01/getting-the-most-out-of-mediation-part-ii/#comments Thu, 01 Sep 2011 20:13:34 +0000 David M. Doto http://theopeningstatement.wordpress.com/?p=156 ]]> In Part I of this article, I discussed part of a chapter in Dwight Golann’s book, “Mediating Legal Disputes,” in which Golann addresses the importance of an advocate’s use of a mediator to “manage and structure the flow of information” and “influence the bargaining process.”  Part II of this article will outline Golann’s thoughts regarding the tactics an advocate can use to help the mediator break impasse, and concurrently attain a favorable settlement “closure” to the bargaining process.

1. Bargain with the mediator about impasse-breaking techniques that will be most effective in increasing your client’s share of the settlement pie.

A mediator has a long list of methods to help parties get past impasse ranging from less intrusive methods of getting positional bargaining re-started (e.g., “what if” or hypothetical bargaining) to intrusive methods such as a mediator’s proposal for settlement.  As an advocate,  you have the ability to ask the mediator to avoid specific tactics, or to influence the mediator about the specific tactics that are proposed or used. For example if the mediator wants to use hypothetical bargaining (“what if I could get the other side to go to $150,000″), you can suggest a favorable number or probe the mediator about how likely it is that the other side will agree to move.  If the mediator employs range bargaining, you can bargain with him or her about the endpoints to be used with the underlying knowledge that settlement is likely to occur near the midpoint of the range (“if they will drop to $400,000, we will go up to $200,000, but not if they stay at $500,000″).

Take control and actively intervene in mediator proposals for settlement if you decide that it is in your client’s best interest to entertain one.  Take the initiative to negotiate with the mediator and define what your client is willing to do in order to settle (“if you make a proposal in the range of $200,000, I will recommend it to my client”).  If you know that your mediator will continue negotiating even if his or her proposal is rejected, you may want to consider allowing the mediator to make a proposal that you intend to reject, and then counter with a new offer so as to force the other side to make a mental adjustment toward your position.

Listing the extensive array of tactics you can employ as an advocate in mediation is beyond the scope of this article.  In general, however, always consider what option is likely to achieve the best results for your client at any given point in the process, and press the mediator to use it.  Moreover, always consider how your actions, and reactions to any technique, will affect bargaining later in the process.

2. Use the mediator to educate an unrealistic opponent or client.

 Ask the mediator to give an evaluation if you think your opponent or your client is not being realistic.  This helps to manage your client’s expectations and at the same time preserve your client’s confidence in your loyalty and zealousness, particularly when “bad news” about your client’s case needs to be delivered.  Experienced mediators will allow you to use them as a scapegoat so that you can avoid client criticism (“once the mediator estimated damages at $250,000, it was impossible to get the defense to go any higher”).

Your request for a mediator’s evaluation needs to be tempered with some caution.  Ensure that impasse is being caused by a disagreement about legal merits or some related obstacle an evaluation can address.  If there is some other impediment to resolution such as an emotional or psychological issue, an evaluation will not help.  If you are not confident that an evaluation will be helpful, ask to speak with the mediator privately about it before it is given.

It may be helpful to avoid a “global” evaluation of the entire case, and instead focus on a specific issue that could re-start negotiations.  Carefully consider what issue or issues you want evaluated.  Focus on what issue is causing impasse, and avoid having an evaluation performed regarding an issue that you may have raised for reasons other than its legal merit (such as an argument you proffered to humor your client).

Finally, tell the mediator what you want.  Identify the emphasis and level of specificity you think your client needs – greater or lesser detail, more or less explanation, or an evaluation that is diplomatic or more direct and hard hitting.  To get the best evaluation possible, direct and guide the mediator to key evidence, highlight important language in documents, and where possible, have him or her meet or talk to key witnesses.

3. Continue to use the mediator’s power even if mediation initially fails.

If your case does not settle during the initial mediation session but you believe that your client will benefit from an additional session, prod the mediator to follow up and try to re-start the negotiation process.  Even if settlement is not possible, consider using the mediator to work out an efficient way to proceed with litigation.  You may wish to consider using the mediator as an arbitrator to render a binding or non-binding decision, to help the parties agree on a process to select a different arbitrator from a panel of neutrals, or to help the parties agree on another method by which to adjudicate the dispute in an expeditious manner.  Or perhaps the mediator can help the parties to negotiate a discovery plan or some other procedural element of the litigation.  The list of possibilities is as long as your imagination and creativity.

As noted in Part I of this article, by pro-actively engaging the mediator, you can harness the mediator’s power to achieve a better negotiated resolution for your client!

I’m Dave Doto, and this is my Opening Statement. – August 31, 2011

Nor is mediation the time to come focused on “doing battle” for your client.  Indeed, adopting this mind-set may hinder the process.  Your client may lose the opportunity to attain a relatively inexpensive resolution where the matter remains both private and under the control of the parties, rather than rolling the dice and having it placed in the hands of a judge or unpredictable jury.

Understanding the mediation process and how to use it allows you to modify and apply your advocacy skills to get the best possible outcome for your client outside the traditional litigation arena.  In his book, “Mediating Legal Disputes,” Dwight Golann addresses this issue in depth, and the importance of “using” the mediator to “manage and structure the flow of information,” “influence the bargaining process,” and assist with achieving settlement “closure.”

The following is a summary of what I believe are Golann’s key points regarding theflow of information and the bargaining process to help you get the most out of mediation for your client.  Part II of this article will outline the tactics an advocate can use to help the mediator break impasse and get a favorable closure to the mediation process.

1.         Discuss the structure of the mediation with the mediator and set the agenda you want to discuss. 

A mediation can be structured in a myriad of ways depending on what you think maywork best (and the mediator may help you to determine the best format).  For example, you can suggest that at some point only a sub-group of the parties meet together — principals only, experts only, or lawyers only.

Moreover, tell the mediator what you would like to discuss in joint session or what points you want to emphasize with the other party.  Perhaps you want to focus on a key issue, or initially avoid a delicate issue or claim that may shut down the negotiation.

Finally, harness the mediator’s power to gather information from the opponent .   Have the mediator probe the merits of your opponent’s  claims.   Talk to the mediator about the opponent’s emotional state, decision-making process (i.e., the interactions, relationship, and hierarchy among the decision makers on the other side), and/or reaction to a potential deal.

2.         Use the mediator to influence the bargaining process.

Think of the mediator as a “bargaining consultant” — he or she typically spends hours speaking privately to your opponent and will have insight into the opponent’s bargaining style and priorities.  The mediator’s views may help you to persuade a recalcitrant client, and/or help you to decide how to best formulate and present your bargaining positions for maximal effect.

You can also use the mediator to enhance your offers by either taking ownership of it, or by endorsing it as reasonable.   This tactic avoids the phenomenon known as “reactive devaluation” — the same offer may be given consideration if it comes from the mediator, but viewed with suspicion if it comes from you.

Another critical tactic that you can employ is to use the mediator to cushion the blow of hard positional bargaining.  You can essentially play “bad cop,” and perhaps lay a foundation for later bargaining by anchoring your offers very aggressively in a favorable settlement range, knowing that the mediator will work to smooth over any emotional rancor it causes in your opponent.

Finally, take advantage of the mediator’s ability to be flexible, to explore hidden issues and options, and to be the “scapegoat” for a difficult compromise so as to preserve your relationship with your client.  For example, you can simultaneously focus on a money-based deal, while having the mediator explore more interest- based approaches such as business, personal, and non-legal issues that may be involved in the case, as well as “imaginative” solutions that are outside the box.  Make the mediator aware of any hidden issues or missing decision makers that may need to be present for a settlement to be attained.  Essentially, the sky is the limit here — a mediator is free to do almost anything that is legal and ethical in order to get a settlement.

Good lawyers know that a mediator can help them to negotiate the resolution of a claim more effectively so as to achieve better results for their clients.  Don’t be passive, or focus solely on the merits of your claim and the numbers at issue!    Engage the mediator pro-actively, with an understanding of the mediation process and how you can affect it, as well as the ability you have to use the mediator’s power for your client’s benefit.

I’m Dave Doto, and this is my Opening Statement.  -August 14, 2011

Distributive Negotiation: Distributive or “competitive” negotiation assumes a relatively fixed pie, and the parties “compete” to distribute that pie among themselves. It is a “zero-sum exchange” in that the parties assume that whatever one side gains, the other loses. It is inherently “position” focused, and the parties move from one proposed resolution to another. Positions are changed and agreement is sought through a series of concessions or compromises. Agreement is typically reached at about the mid-point between to the first “reasonable” offers made by each side, i.e., offers that are outside the zone of agreement but perceived as setting an acceptable bargaining parameter. Note that “reasonable” offers are distinct from “credible” or “insulting” offers – both of which are viewed as “unreasonable” by the other side and will not set any bargaining parameters, though insulting offers are often viewed as so unreasonable that they may cause one party to terminate negotiations.

This distributive negotiation process is often referred to as the “negotiation dance,” and is generally predictable: each concession tends to be about half the size of the concession that preceded it, and takes about twice as long to be made. The “dance” usually should not be short circuited by the mediator. In most circumstances – unless the parties know and understand each other – an early move by the mediator to suggest an offer near the mid-point too early in the process may simply encourage one of the parties to re-define the value to be distributed and claim more for him or her self, thereby preventing or unduly delaying resolution.

Distributive negotiation tends to limit potential options for dispute resolution. Moreover, this type of bargaining tends to create aggressive strategies that often rely upon concealing information to preserve the “pie”, and other tactics beyond the scope of this article aimed at overpowering the opposing party. As a result, the mediator must be aware that there is a considerable danger of permanent damage to the parties’ relationship, and he or she must work to avert such consequences by infusing the process with integrative or “cooperative” bargaining principles and techniques.

When to transition into joint problem solving is an art and not a science, and is based on close observation of trust-based conduct and communications exhibited by the parties. Initially, the mediator must build trust with the parties through his or her introduction, demeanor, and even-handed approach to the process. Equally important, the mediator must help the parties establish at least a minimal level of trust among themselves if any sort of collaborative problem solving is to take place.

Facilitating Distributive Negotiation: There are a number of steps a mediator can take to help the parties through the distributive bargaining process:

1. Discourage Offensive Opening Offers. Encourage realistic offers in caucus, and emphasize the danger of an insulting offer that could shut down negotiations. Ask each party how he or she would react to receiving their own proposed offer.

2. Normalize the Dance. Educate the parties about the “negotiation dance,” and manage negative reactions to extreme positions and offers by framing them as a need to ventilate emotion.

3. Extract Concessions. Emphasize the need for concessions and compromise, while helping the parties’ evaluate whether a proposed concession will accomplish its goal.

4. Encourage parties to use signals such as concession size and timing.

5. Help the Parties Maintain Credibility and Save Face. Reframe offers in a constructive manner. Studies have shown that saving face is often more important than the rational basis of an offer.

6. Keep the Process Moving. Broker offers, and propose hypothetical offers and reveal proposed acceptances thereof if all parties agree to do so.

Integrative Negotiation: Integrative or cooperative negotiation uses a problem solving approach that assumes an expandable pie for the mutual benefit of the parties. There is no “fixed” value to be distributed between the parties through bargaining. The parties seek to achieve their goals with as little cost as possible. The mediator’s focus is to help the parties identify elements of value in a dispute that may not at first be obvious. To do so, the mediator must direct the parties’ attention to their respective interests that drive the conflict, thereby going below the line of the parties’ overt issues and their respective positions.

These interests are abstract needs that are very real to the parties even if less tangible and measurable than issues and positions. These interests must be satisfied to have a successful bargaining session, and include process interests (procedural issues typically centered on perceived fairness), substantive interests (needs underlying the parties’ positions which may not have been articulated), relationship interests (dealings between the parties in the future), and principle interests (belief systems that affect agreements parties are willing to make).

Integrative negotiation has many advantages over the distributive model. First, it is more efficient – it avoids the time consuming negotiation dance and related intense decision making inherent in distributive bargaining. By focusing on interests and creative problem solving instead of positions, integrative negotiation minimizes posturing and gamesmanship. Second, it results in better agreements focused on creativity and meeting the parties’ needs, and avoids the problem of “locked in” frames of reference and the fear of losing face through concessions created by defending positions. Third, it tends to preserve relationships by using a cooperative approach instead of competitive argument. Finally, it reduces the danger of agreement repudiation because the process fosters the likelihood that both parties will view it in a positive light.

Facilitating Integrative Negotiation: Steps to facilitate the integrative bargaining process include the following:

1. Encourage Collaboration. Reframe positions and offers in a positive manner, and try to create an environment that values and promotes dignity through your own conduct and demeanor. Be hard on the substance of the dispute but easy on the people – separate people from the problem, and confirm interpretations before acting on them. Help each party to understand the dispute from the perspective of the other. 

2. Explore Party Interests. This requires that the mediator recognize, acknowledge, identify, and respect emotions, and uncover any non-legal issues, interests, and needs. Educate the parties about the difference between issues and interests. The mediator must actively seek the reasons underlying positions, and ask “what” and “how” questions that seek such information. Active listening is imperative to gain understanding of what the parties say – and don’t say. Look for mutual or compatible goals and interests.

3. Encourage Creativity. Ask how each party might be willing to meet the needs of the other. Brainstorm potential solutions by following a process that does not allow for the criticism or evaluation of potential dispute “satisfiers.” The parties must feel safe to make suggestions. Take these ideas and develop several packages that contain satisfiers of each parties’ interests. Next, help the parties to evaluate the advantages and disadvantages of each package, and list them if appropriate. The more the parties can evaluate the solutions from each other’s frame of reference, the more likely a workable solution will be found. The mediator should be aware that solutions that expand the pie and meet the concerns of both parties will more likely be accepted than those that more narrowly meet the needs of only one party. Accordingly, the mediator should gently emphasize and explore options that contain the most satisfiers for all parties.

Recognizing and understanding the difference between the distributive and integrative negotiation process, how to facilitate each process, and when and how to transition the focus to collaborative problem solving allows a mediator to effectively help parties form lasting resolutions to their disputes.

I’m Dave Doto, and this is my Opening Statement. – March 13, 2011

On the other hand, I have at times voted for non-Republican candidates running for various political offices in both local and national elections when I believed that he or she was the best person for the job. I personally look for character and integrity in any candidate for political office. These traits are the cornerstones for true leadership. And leadership – not policy or ideology – is the single biggest factor that will define the success of any political official.

I am concerned about the increasing emphasis that our “leaders” appear to place on opinion polls in formulating short and long term policy. I understand and acknowledge that local and national leaders need to maintain a connection with the persons whom they represent. But leadership evaporates when steadfast ideological conviction is supplanted with popular opinion. When that happens, all that remains are aimless policies that shift like sand blowing on the beach. We lose direction. Faith and hope are destroyed. Businesses crumble and the economy falters. Jobs are lost. In short, we become a divided Nation in disarray. Sound familiar?

I am waiting for leaders to once again stand tall with character and integrity. I am waiting for leaders who truly have vision and conviction. I am waiting for leaders that express their opinions about ethics, morality, and local, national, and world events because its what they believe – even if I personally disagree with them. I am waiting for leaders that don’t allow “tolerance” to wipe our Nations’s founding beliefs out of existence. I would prefer a Calvin Coolidge or Ronald Reagan, but would also rejoice for another John Kennedy.

You see, this isn’t about politics anymore. Its about leadership. We need it desperately.

I’m Dave Doto, and this is my Opening Statement. -August 23, 2010

The internet has at times been a vehicle for liars, bigots, hate mongers, radicals, idiots, and those who are just plain insane. It has promoted and accelerated the proliferation of misinformation, as well as harmful rumor and innuendo. It has exposed our children to pornography and perverts. As Bob Schieffer pointed out on Face the Nation during his broadcast on August 22, 2010, it is the only news service without editors or source verification.

My message today? Just as you wouldn’t (or shouldn’t) dive into the ocean without exercising some caution, perhaps we all need to “surf” the web with a little more care. Let’s remember that just because something is in writing, and “magically” appears on our computer screens in response to a Google search, it isn’t necessarily true or accurate. And the cyberspace author of the message may not be someone whom you should trust, or with whom you would like to associate. In fact, that person may be misinformed, crazy, or even dangerous.

I love the Web. It can be a great source of information and entertainment. But we should all use it with care, and in a responsible and discerning manner.

I’m Dave Doto, and this is my Opening Statement. -August 22, 2010

1.  Dress

I will not try to outline the current dressing standards for “professional” or “business casual,” nor will I attempt to give an itemized list of what and what not to wear.  Rather, this simple message has remained unchanged since it was coined many years ago: “Dress for Success.”  I’m not a fashion maven, and it isn’t necessary to be one.  You should develop your own style of dress based on the requirements of your work environment and what is best for you.   How you dress for your personal time is your business, but how you dress for work or work-related matters becomes the business of others!

Use common sense, err on the side of being slightly conservative, and “over-dress” if you are not sure of what is expected of you. You may endure some light-hearted teasing for being slightly over-dressed at a casual event, but I assure you that if you show up under-dressed, you are likely to create negative and lasting impressions in the minds of others.  The positive aura you project when well dressed goes a long way toward improving how others will remember and respond to you. 

2.  Diction

A business discussion is not the time to use slang, improper grammar, incomplete sentences, or to curse.  Being “cool” and/or offensive will put you on the road to nowhere.  It remains surprising to me that so many of us – including myself – violate this rule, especially when around co-workers whom we consider “friends.”  Most co-workers are more properly characterized as work acquaintances, not true friends. Talking to, with, or around co-workers is generally not the time to speak with complete freedom, especially in light of the myriad of lawsuits arising out of the work-place today.

Speak with proper pacing, clear enunciation, and with a level of projection in your voice that is appropriate for the audience, the level of any background noise that must be overcome, and the size of the room.  I will never forget an experience I had some years ago while in a conference with a judge and two other attorneys in the judge’s small private chambers. Opposing counsel spoke to the Judge as if we were in a large courtroom.  Although the judge was polite, he quickly began to frown and lean back in his chair in the face of the booming attorney sitting only several feet away.  My issue was won before I ever opened my mouth.

You don’t need to need to be a master orator to create a good impression. When you converse with others in the business context, just be acutely aware of what you are saying and how you say it!

3.  Demeanor

Of the “3 Ds,” demeanor is the most important. If you want respect, you must carry yourself in a manner that demands it.  Walk and speak with purpose. Stand or sit up straight, control your emotions, give firm handshakes, and look people in the eye when you greet or speak to them.  Believe in yourself, and others will believe in you too.

The board or meeting room is not the place to swagger or slouch.  Be alert but not nervous, confident but not over-bearing, quiet and attentive but not shy.  Listen to others and don’t try talk over them.  Be direct without being rude or insensitive.  And avoid hot topic issues such as politics or religion. Be firm, be fair, and be courteous.

Be real with people – everyone can spot a “phoney” a mile away – but don’t bare your soul.  This is not the time to confess your sins, share your pain, or tell your secrets. The best analogy I have ever come across is to imagine that your business associates are visiting your home. You would entertain them in your living room or den, not in personal spaces like your private bath or bedroom. Make connections, but this is not the time or place for intimacy at any level.

If you exude professionalism, you will be perceived as confident, intelligent, and competent.

It is surprisingly helpful to occasionally spend some time thinking about the “3 Ds” – dress, diction, and demeanor – and to take a quick mental inventory of your compliance with them.  It is advice that I received – albeit with reluctance – many years ago and it has always guided me in the right direction.  Try it – good things will happen….

 I’m Dave Doto, and this is my Opening Statement. -August 11, 2010

Being a good lawyer or a good business person does not require anyone to be a fire-breathing hellion. Intimidation is not an efficient and reliable method to achieve long-term strategic goals for a client, any more than it works to build stable relationships with co-workers and subordinates. It may work in the short term. But I firmly believe that being patently offensive comes with a high price - distrust and disrespect, and ultimately, the inability to build lasting productive relationships.

Courtesy is a mind-set to be adopted and applied to every interaction you have during the day.  It requires that you to seek to build relationships with people as individuals, not just try to use them as a means by which to achieve your goals. It starts with genuine greetings in which you take a moment to find out how the other person is doing at that particular time. It includes saying please and thank you. In a dispute, it requires that you listen to the other person’s view in a calm manner, and apply a problem solving approach to attempt to resolve the issue without personalizing it, or getting emotional.

Being courteous does not require that you be naive, weak, subservient, or to otherwise compromise your position or beliefs. It simply serves as a starting point of respect – rather than of immediate disregard – for your professional adversaries, business associates, and others. Courtesy enables you to retain an optimistic posture, communicate your thoughts, and attempt to resolve disputes while maintaining positive relationships with people.

Courtesy is humbly rooted in what we all learned in Kindergarten: Be Nice!

I’m Dave Doto, and this is my Opening Statement. -August 5, 2010

I had “old school” litigation mentors. They were smart, tough, and accomplished trial lawyers that ate raw meat for breakfast.  They never wanted to appear “weak” to their adversaries. Mentioning settlement to the “other” side was a sign of weakness.  As Plaintiffs, they fearlessly drove cases forward and kept demands high all the way to the court-house steps and sometimes beyond before making any reasonable concessions at the last minute.  As Defendants, they never used the limits of their authority to settle, and responded to settlement demands with more discovery requests, depositions, or motions to dismiss the case.

It is therefore no surprise that for many years I practiced and upheld these “old school” traditions.  But times have changed.  The cost of such gamesmanship is too high today, and based on some of my personal experiences, I question whether any of the bravado was ever really effective, or got results that could not have been achieved in a more economical manner.

The Phoenix Business Journal reported that in a survey conducted by the U.S. Department of Justice in 2004, it was found that 97% of all civil cases settle.  This finding is consistent with my personal experience – the overwhelming majority of my cases settled.  The hard reality is that your case is most likely never going to get to trial.

It isn’t a matter of “if” your case will settle – the question is “when” it will settle.  This truth, together with the sky-rocketing costs of litigation, the uncertainty of putting a dispute in the hands of a judge or jury, and the explosion of alternative dispute resolution resources now available, leads to the conclusion that achieving a favorable settlement should be the primary goal in the litigation plan of any legal dispute.

A good trial attorney should be familiar with mediation and arbitration, and should  at least have some formal negotiation training and experience. He or she should discuss settlement goals and how to achieve them with every client.  As a client, you should bring settlement to the fore-front of your lawyer’s attention.  Spend your money wisely!

It is occasionally necessary to practice “gunboat diplomacy.”  Sometimes you will have no choice but to press your adversary from a legal standpoint and take a hard line – written discovery requests, depositions, and motions are often needed to bring a recalcitrant opponent to the negotiating table.  But litigation wrangling as an end in and of itself should never happen.

Attorneys should not go on autopilot, immediately go on the war path, and start churning the file with expensive discovery and trial preparation just because its what they do best. Clients need to be realistic and accept that a negotiated settlement will likely be their most economical alternative with the highest probability of achieving a successful outcome.  Try to resolve the case, or at least as many of the disputed issues as possible, instead of immediately adopting a costly “scorched earth” approach.

Your day in court probably isn’t going to happen, so check your ego, swallow your pride, and develop a settlement-centered litigation plan.  In the end, it is likely to be your best alternative…

I’m Dave Doto, and this is my Opening Statement. -August 4, 2010