This post is written by guest blogger and NITA faculty member: Victoria Pynchon.
I play squash.
I learned to play the game while living in New York, and continued to play at U.C. Davis (Law School) which had both regulation courts and racquets to lend.
At a time when racquetball courts were being constructed with the speed of social media sites, I continued playing squash for pretty much one reason: I’m a woman and just about any (mostly male) colleague I played with could beat me out of sheer physical strength. Though both games require strength, squash requires more finesse and strategy.
How did I get my legal colleagues off the racquetball court and into my game of squash? Simple. I told them I had no chance of beating them in their game (flattery, ingratiation, a “contentious” dispute resolution tactic) but that I was confident I could beat them at mine (challenge or “threat,” also a “contentious” tactic).
So what do I mean when I say you have to “win” your litigation before you can settle it? I mean you need to get your adversary playing on your court and actually win a few rounds. You can shake your stick and fulminate and threaten, but unless you’re capable of actually winning, your adversary’s Best Alternative to a Negotiated Agreement (his BATNA) is beating the pants off you at trial or watching you fold like a lawn chair on the courthouse steps.
In most litigation, the first chance you have to prove your trial skills is in a deposition. Yes, you want to obtain information and that’s pretty easily done so long as you remember to ask reporter questions (who, what why, when, where and how). You shouldn’t, however, stop there. Show opposing counsel that you can also theory test and undermine his witness’ credibility on a few points, without giving away your entire game plan.
Whether you win by smashing the ball deep into your adversary’s court or by aiming it oh so close to the “tell,” letting it softly roll to the floor while your adversary is panting by the back wall, you must win on strength, skill, or finesse (whichever you’re best at) before you’re entitled to “win” by way of settlement.
That being the case, I give you the first of a three-part series on how to lose the game at deposition, a challenge to get you thinking about “winning” it there.
From Illinois Trial Practice:
15 Ways to Ruin a Deposition (Part 1 of 3)
- Deposing someone who doesn’t need to be deposed at all. Unnecessary depositions are a waste of time and money. See this post: “Not Every Witness Need to Be Deposed.”
- Failing to investigate the witness online. Just a few minutes of Internet research can turn up lots of things about a witness you didn’t know before. Here’s a post about that: “Deposition Tip: In Preparing for a Witness, Always Check the Web.”
- Trying to wing it. Maybe you’re so good that your only preparation is getting to the deposition on time. Sound foolish? It is. See this post: ”The Dangers of Winging It in Depositions.”
- Neglecting the preliminary questions. Those cookie-cutter questions lawyers ask at the beginning of a deposition have a purpose. Don’t skip the “you know you’re under oath”-type questions, but don’t turn them into a speech either. Here are two posts that make these points: ”Those Preliminary Deposition Questions: What’s Their Purpose?” and “Those Preliminary Deposition Questions: Don’t Make a Speech.”
- Assuming the witness is telling you the truth. As human beings, we’re conditioned to believe what people say. I feel like I am, at least. That’s why I’m constantly making this mistake, even though I wrote this post: “Practice Tip: “Assume Your Deposition Witness Is Lying.”
Victoria Pynchon, Esq.
Victoria has served as a faculty member at Deposition Skills: Southern California and California Coast programs as well as Building Trial Skills: Southern California.
Trial skills will enhance your ADR skill-set. During the month of January we have focused on bridging the gap of disconnect between the two practices, and we have shown how developing great trial skills can make you better in mediation, arbitration, and negotiation.
For the final post in our Alternative Dispute Resolution series, Karen M. Lockwood, NITA’s Executive Director joined me in studio71 to answer a few final questions on the correlation between the ADR skill-set and the Trial skill-set. Karen has over 30 years of experience in the legal industry. Her specialties include construction litigation, commercial disputes, large disaster cases, antitrust, trademark and copyright, and ADR. She has been on the American Arbitration Association Commercial Panel since 2004. Karen was an Adjunct Associate Professor of Law in ADR at the American University of Washington College of Law as well as a faculty member and program director at multiple NITA trail skills programs.
We hope that this five-part series has helped you bridge the gap between trial skills and ADR, and that you have learned that trial-skills are in fact very important in the practice of ADR. We also hope that this series has helped you be less afraid of trial.
Previous January ADR Series Posts
- Part 1 - Can ADR practitioners excel without honing their trial skills?
- Part 2 - Mediation and endless curiosity
- Part 3 - Negotiation and the insecurities over losing control
- Part 4 - Arbitration and the Art of Witness Examination
Thank you for reading and weighing in on ADR this month. Next month we will be focusing on Diversity in the Courtroom in honor of National Black History Month.
This post is written by guest bloggers Bill Jack and Behka Sitterly.
The ultimate challenge for the Spiritual Warrior is relinquishing control. – Book of Runes
Face it. Trial lawyers go to law school in large part because they are competitive control freaks. They dream of being warriors ready to do battle in courtrooms all over the country, aggressive, lightening-quick on their feet, brandishing sheafs of victory verdicts as testaments to their raw power.
Except that few graduates ever go to trial or see the inside of a courtroom, and instead become “Get Ready for Trial” lawyers buried in deposition conference rooms and discovery disputes. 95%+ of civil cases settle short of trial, thus requiring a much different set of skills that does not depend on a competitive negotiation style.
A spiritual warrior, referred to in the Book of Runes, develops a set of skills based on relinquishing control that—counter-intuitively—fosters focus and strength. These are the kinds of skills a successful negotiator needs to master.
Here are some thoughts:
- Every successful negotiator has to have the confidence and courage to know they can go to trial, acquit themselves well, and take a verdict. In this age of disappearing jury trials, that means using NITA trial advocacy programs or trying to find trial experience any place they can.
- To be successful at negotiation, the lawyer needs to be prepared to relinquish control over information sought by the other side, sometimes over the client (especially in a mediation setting), and, worst of all, over having to listen to (and hear) the other side’s viewpoints. A primary goal of negotiation is to gather information, and that requires ceding control to the other side—or at least to the mediator.
- Relinquishing control also requires moving from a competitive, aggressive style to a more collaborative, problem-solving strategy, working together with the opposition and/or the mediator to find a mutually advantageous result. Almost by definition, that cannot be done if the lawyer’s only speed is turbo Rambo. Rats. Whatever happened to win at all costs?
- The really good negotiator spends time not on the question of whether to relinquish control but when and how to do it to their client’s advantage. That is the true art of negotiation.
- Finally, the ultimate relinquishment of control in the ADR setting is realizing that a successful resolution of a dispute is not about “winning” or “losing”, it is about finding a path to resolution—making today’s lawyer a different breed of warrior, but one that is no less powerful.
Read previous posts in this series here:
- Post 1 - Introducing ADR month! written by Travis Caldwell
- Post 2 - Mediation and Endless Curiosity written by Shahrad Milanfar
Come back for the last two posts in this series:
- Post 4 - Arbitration and the Art of Witness Examination, written by Christina Habas, scheduled to be published on January, 23rd.
- Post 5 - ADR in studio71: An Interview with Karen M. Lockwood, scheduled to be published on January, 30th.
With the dawn of 2013, we inaugurate a new blog feature: themed discussions on topics that help you think about your practice and your skill set. Throughout 2013, you will find multiple posts from guest writers that consider and develop a monthly topic.
January is ADR month! Our question is this: Can ADR practitioners excel without honing their trial skills?
We pose this question as the reverse of the usual comparison between trial and ADR practice. It is often observed that a trial lawyer entering an ADR proceeding without training in ADR will miss opportunities that an ADR practitioner could create for the client. True enough.
Thinking more deeply, however, the key point is whether an ADR practitioner is prepared to be an advocate in the strongest sense, using well-developed witness examination and argument skills learned and practiced in a more formal environment. The talented practitioner uses those skills effectively and adapts them appropriately to the ADR process. How are well-prepared practitioners preparing?
Let’s start this series with a definitional review of ADR, or alternative dispute resolution (that is, alternatives to trial processes). The origin of these ADR models in the early 1900′s, advancing the values of speed and cost economy, met with resistance on the grounds that constitutional due process and justice guaranteed jury trials. When Congress passed the Federal Arbitration Act in 1925, those due process grounds for resistance ended and ADR processes have multiplied, particularly in the last 20 years. The most well-established types of ADR are negotiation, mediation and arbitration. Among those three, there have evolved various hybrid processes.
Negotiation simply refers to each of two or more parties (the self and the “other”) trying to persuade the other of its position and ultimately coming together with an agreed solution to a mutual problem. Negotiation can be as informal as deciding where to go to lunch with your spouse. Counsel are typically involved for disputes or deals that are more complicated, or specialized, or of a value critical to at least one party.
Negotiation and mediation are distinguished from trial as a method of resolution in that they lie completely in the control of the parties to the dispute. No third party makes the decision – rather the parties address the facets of their differences and attempt to reach an agreement that resolves some or all of the differences at hand. Negotiation thus forms a building block for many other forms of ADR.
In mediation, the parties enlist a neutral facilitator to assist them in what remains basically a negotiated resolution. The well-trained mediator helps the parties understand the problem, the interests of each party, and possible options for resolving the disputes. Mediation from outward appearances bears little resemblance to litigation. Formal evidence and witnesses are rarely examined on a record. The agreement is confidential and is reached by the parties involved, not the mediator, who has no decision making power. Further, mediation as a mandatory court rule governing the pre-trial process may look very different from a mediation launched by the private will of the parties, which itself requires their agreement to meet and discuss their disputes.
Arbitration is the most commonly used formal ADR process. An arbitrator, unlike a mediator, is typically given the power to decide the dispute. The process is more trial-like than mediation but still less so than a traditional trial. The smart, prepared lawyer, in handling an arbitration, will use the best skills of a trial lawyer when they are called on, and yet move fluidly among the ADR processes and goals with comfortable familiarity.
All of these ADR forms require that the lawyer involved is savvy, and ready with multiple skills, not the least of which is the readiness to use strong advocacy when needed. How best to learn the tools of the strongest persuasive skills? Some reflections on this answer are exchanged in this blog throughout January – stay tuned and join the conversation.
Upcoming posts on this topic will include:
- Part 2 – Mediation and endless curiosity
- Part 3 – Negotiation and the insecurities over losing control
- Part 4 – Arbitration and the art of witness examination
- Part 5 – The ADR practitioner and the trial skill set
You can comment below or join in the conversation on today’s topic in the NITA LinkedIn Group. And be sure to check back every Wednesday to follow the ongoing conversation!
Opportunity: send us your idea of topics for a future monthly bog series!
Opportunity: let us know if you are interested in posting as a Guest Writer!