NEGOTIATION. NANCY SOONPAA Texas Tech University School of Law 1802 Hartford Avenue Lubbock, TX

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1 NEGOTIATION NANCY SOONPAA Texas Tech University School of Law 1802 Hartford Avenue Lubbock, TX State Bar of Texas STATE BAR COLLEGE SPRING TRAINING 2007 WINNING BEFORE TRIAL March 29, 2007 Dallas CHAPTER 11

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3 NANCY J. SOONPAA Texas Tech University School of Law / 1802 Hartford Avenue / Lubbock, TX phone: 806/ x 357 / nancy.soonpaa@ttu.edu EDUCATION: Master of Arts / Counseling May 1990 Juris Doctor May 1987 Bachelor of Arts / Latin, Journalism December 1983 University of North Dakota, Grand Forks, ND LEGAL EXPERIENCE: Professor of Law; Director, Legal Practice Program; and Associate Dean for Student Affairs, Texas Tech University School of Law, Lubbock, TX Faculty Member; Associate Director, Lawyering Program, Albany Law School, Albany, NY Law Clerk, United States District Court for the Eastern District of Texas, Corpus Christi, TX Legal Writing Instructor, University of Puget Sound [now Seattle University] School of Law, Tacoma, WA Law Clerk, Ninth Judicial District, Crookston, MN Law Clerk, North Dakota Supreme Court, Bismarck, ND PROFESSIONAL ACTIVITIES: Team Coach, Albany Law School and Texas Tech University School of Law, ABA Negotiation Competition and International Negotiation Competition (won INC in 2005) American Bar Association Section on Legal Education and Admissions to the Bar Communication Skills Committee Law Student Division Competitions Committee, Negotiation Competition Subcommittee Association of Legal Writing Directors AALS Section on Academic Support Chair, Law Professors Blog Network, Blog Editor, Legal Writing Prof Blog, November 2005 to present PUBLICATIONS AND PRESENTATIONS: 17 articles in a wide range of newsletters, journals, and law reviews, plus 3 book chapters Association of American Law Schools Annual Meeting: 5 presentations Legal Writing Institute Biennial Conference, Association of Legal Writing Directors Conference, and regional legal writing conferences: 21 presentations CLE s and PSW s: approximately 100 hours in New York State between October 1997 and December 2001 Other legal education conferences and invited presentations: 5

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5 Negotiation Chapter 11 NEGOTIATION I. OPPORTUNITIES TO NEGOTIATE. A. Consider the following: *type of claim/dispute *which side you represent *pressure to settle *competitive and cooperative strategies The pressures and need to maintain a relationship with opposing counsel are different for, e.g., a plaintiff s attorney negotiating a settlement in a personal injury case and a public defender negotiating a plea bargain with the local prosecutor. Those pressures can and should affect the choice of strategy when the opportunity to negotiate arises. See Donald G. Gifford, A Context-based Theory of Strategy Selection in Legal Negotiation, 46 Ohio State L.J. 41, (1985). B. Be intentional, yet flexible, about timing. Never negotiate before you are fully prepared, yet be open to any opportunity created by the other party s need to settle. Consider the implications of being the party that initiates settlement discussions, but recognize that someone has to start and that doing so is a disadvantage only if you allow opposing counsel to convince you that it signals weakness in your case. C. Every dispute has the potential to settle through negotiation. Even in those situations where settlement seems unlikely, however, assess the potential value of attempting the process. Enter into settlement discussions with an open mind and with a sense of the potential value of information to be acquired, unspoken messages to be conveyed, and possibilities not previously identified. II. ELEVENTH-HOUR SETTLEMENTS A. Time pressure can lead to unsatisfactory outcomes. Even if it s the eleventh hour, there s no harm in making it the eleventh hour plus a couple of minutes. Be sure that you have the information you need, that you ve reviewed your client s authorization and any relevant notes/materials, that you have a clear strategy, and that you re ready to manage the agenda. There s no benefit to seizing the moment if you fumble it moments later. See Marty Latz, The Five Golden Rules of Negotiation for Lawyers, 77 Wisc. Lawyer 27 (November 2004). B. Psychological pressure can also lead to unsatisfactory outcomes. Are you anxious about settling because it is the eleventh hour? Remember that it is the eleventh hour for the other party as well. Remember that any psychological pressure that you feel is probably reflected in corresponding pressure across the table. Resist thinking that you are the only one after all, it does take two to negotiate. That said, there are situations involving asymmetrical time pressure. Using eleventh-hour offers to enhance the external pressure on the time-pressed party can result in a more favorable settlement for the less-time-pressed party. See Ted A. Donner, Deadlines, Attorney s Practice Guide to Negotiations 5:9 (2006). C. Negotiating effectively under a deadline requires analyzing the nature of the deadline. First, consider whether it a firm or flexible deadline and whether it is known by the other side. A client s need to sell by Wednesday is different from a court hearing scheduled for Wednesday. Second, consider whether one or both parties have any control over the deadline. Third, understand the consequences for both parties of not meeting the deadline. Is one side disadvantaged more or differently by not settling by the deadline? See Alain B. Burrese, Negotiation Theory and Practice: Deadlines, 31 Montana Lawyer 22 (April 2006). III. TIMING: NEGOTIATE BEFORE OR AFTER DISCOVERY? Deciding whether to negotiate before or after discovery (or during it) is, in one sense, a simple determination: Do you have the information that you need? If not, can you get it from the negotiation process itself? There is no predictable or standard point before, after, or during discovery that signals the appropriate time to negotiate; it s wholly a case-by-case determination. If cost is an issue to your client and discovery is draining the budget, you need to decide whether the potential value of as-yet undiscovered information outweighs the value of settling the case now. IV. TIPS, TRAPS, STRATEGIES. A. Recognize the most important skill set of an effective negotiator. The ability to listen well and to use words intentionally and precisely are key to being an effective negotiator. B. Distinguish between positions and interests. C. Plan and prepare. Talk with and advise your client. Identify what information you have and what information you need to acquire. Consider how you will conduct the negotiation, including strategy, offers, concession pattern, and information release. Assess what you know about the other party and opposing counsel. 1

6 Negotiation Chapter 11 D. Understand the relationship between strategy and style. Strategy a negotiator s overall game plan is influenced by style the personality and emotional approach used by the negotiator. E. Recognize and understand some basic tactics. See Alvin L. Arnold, Eight Negotiating Techniques: Ploys and Counterploys, 1 Real Estate Transactions: Structure and Analysis with Forms 11A:11 (2006). F. Know your limits--both personal limits and client authorization. G. Create bargaining chips. H. Know yourself. See Melissa L. Nelken, Psychological Aspects of Negotiation, Understanding Negotiation (2003). Understand how you react to conflict, how you react to outside factors, and how you react to emotional button-pushing. Understanding how you react allows you to then develop ways to control those reactions. I. Maintain your integrity. For a thorough analysis of lying in negotiations, see Gerald B. Wetlaufer, The Ethics of Lying in Negotiations, 75 Iowa L. Rev (1990). J. Recap and clarify. It is better to know what both sides agreed upon than merely to think that you know. 2