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I confess that I dream of having the kind of following that if I said, “Read David Foster Wallace or you’re dead to me!” there would be a subtle, but statistically significant, uptick in sales of Infinite Jest the following week. Sadly, I do not have that kind of following, and cannot afford to tell readers they’re “dead to me” in any event.

But that won’t prevent me from quoting one of his “Twenty-Four Word Notes” from another favorite, Both Flesh And Not. Specifically, discussing the term utilize, he writes:

“Utilize  A noxious puff-word. Since it does nothing that good old use doesn’t do, its extra letters and syllables don’t make a writer seem smarter; rather, using utilize makes you seem either like a pompous twit or like someone so insecure that she’ll use pointlessly big words in an attempt to look sophisticated. The same is true for the noun utilization, for vehicle as used for car, for residence as used for house, for presently, at present, at this time, and at the present time as used for now, and so on. What’s worth remembering about puff-words is something that good writing teachers spend a lot of time drumming into undergrads: ‘formal writing’ does not mean gratuitously fancy writing; it means clean, clear, maximally considerate writing.” (p.261)

While not targeted toward an audience of lawyers, this is excellent advice to any writer, including lawyers. Avoid puff-words. They’re just noxious.

And no, the irony is not lost on me that this writer, who here urges “maximally considerate writing,” foisted upon us, his readers, arguably the most frustrating, wonderful, puzzling, brilliant, maddening and challenging novel since Joyce penned Ulysses. Infinite Jest spans 1,079 pages and includes 388 separately numbered endnotes (some of which have footnotes of their own). Nope, I love irony.

This post could be alternatively titled: “Beware The Interloper With The Pen,” or “Why I’m Not A Great Team Player At The Writing Table.” In a recent article in the ABA Journal,”Why Lawyers Can’t Write, legal writing pro Bryan Garner discusses why lawyers often think they’re far better writers than they really are. The article is perceptive. He attributes our collective blindness to our inadequacy on a phenomenon termed the Dunning-Kruger effect. Here’s what he says:

“In 1999, two Cornell psychologists—David Dunning and Justin Kruger—conducted a series of studies showing that unskillful or unknowledgeable people (1) often think they are quite skillful or knowledgeable, (2) can’t recognize genuine skill in others, (3) uniformly fail to recognize the extremity of their own inadequacy, and (4) can recognize and acknowledge their own previous unskillfulness only after highly effective training in the skill.”

I agree with Garner that lawyers often suck as writers (my term, not his). There are exceptions. Most appellate specialists I know are pretty handy with a pen (yes, Ben Shatz, I mean you). But I would say most legal documents, briefs, letters, agreements that come across my desk are worth about a “C.” Considering what these lawyer-writers are paid for “C”-quality writing, they’ve really earned an “F.”

One point Garner makes that rings true concerns collaborative writing. Almost any lawyer who works at a law firm, large or small, has to contend at some point with another lawyer who insists that certain edits be incorporated into the final product. Even solo practitioners are not immune, as clients can rightfully insist on edits. Garner makes this point about this kind of “forced” collaboration:

“Sometimes, I’m told, a brilliant legal writer will be asked to incorporate a sentence or two, unchanged, written by an inept one. It’s a bad feeling. How would the pianist Vladimir Horowitz feel about inserting a 30-second sound clip into one of his recordings? A sound clip played by a pianist who had hardly progressed beyond “Chopsticks”? It must feel awful.”

Lest you get confused, let me say here that (1) I don’t consider myself a “brilliant legal writer,” and (2) I don’t equate my skills (in anything) with Vladimir Horowitz. But Garner’s point is well-taken, even for a middling writer like me. My mentor about whom I often speak is actually a really great writer, so his input is almost always an improvement. But over the years I’ve been forced to incorporate some real dreck into briefs or letters.

If you’re a junior lawyer and the edits come from a senior partner, or your client has suggestions, you may be powerless to argue. Don’t sacrifice your future over an awkward and unnecessary edit.

But you can also learn from the forced-edit experience, because it affords an opportunity to evaluate why you write as you do, and why you don’t think an edit improves the product. One lawyer with whom I worked for several years was only a couple of years senior to me, but I really admired his legal reasoning skills. He also had a tremendous grasp of the case-law surrounding the issues with which we routinely dealt (automotive product liability). But his writing was vomit. It was not that he couldn’t write–it was that he didn’t know how or when to stop writing. He was verbose and insisted on including every possible quote, from every possible case, to illustrate his point, without any regard for the judge and clerks. Fortunately, while he was senior to me, he was not so senior that I was powerless to re-edit his edits, which I did without hesitation. The final product benefited from his big brain, but I trimmed off much of the unnecessary excess. Evaluating his edits forced me to confront the question how much is enough and how much is too much.

Litigating any case is stressful business. But I had a real nail-biter some time back. It was a product liability case and my client was a small mom-and-pop outfit that supplied a component which had been materially altered, mis-installed, and ultimately caused a rather horrendous accident.

Legally, it should not have been a difficult case to defend. The problem I found myself having was grasping exactly how the alteration and mis-installation had ultimately impacted my client’s component. Any product liability lawyer will tell you this was crucial to the defense. The technical issues were pretty complex, at least for me (a philosophy major, not an electrical engineer), and no matter how hard I tried to understand, no matter how much I thought I’d finally “got it,” I would struggle anytime I tried to explain how the alteration and mis-installation had fouled up my client’s product.

In any other case, I would have relied on our technical liability experts to teach me all of the technical details I need to know. The problem here was that my client was defending the case on a shoestring budget. If we weren’t careful, this case would bankrupt his company. He insisted that he would serve as the primary expert, since he was an engineer who’d invented the component in the first place and nobody knew the technology better. The obvious issue with this was he has no cloak of independence. His testimony would be viewed by the jury as completely self-serving; his opinions suspect as such. The less obvious issue that I had with this plan was the fact that, while my client was undoubtedly a first-rate engineer, his teaching skills were less than stellar. If he couldn’t teach me, how could I expect him to educate the jury? Meanwhile, my opponent was retaining expensive, experienced testifying experts from Exponent, etc.

I typically wouldn’t hire anyone as an expert who couldn’t help me understand, since (1) my comprehension of the technical details is absolutely crucial to my ability to confront the plaintiff and her experts, both in discovery and at trial; and (2) our expert’s ability to educate someone of less-than-genius-level intelligence (i.e., me) is going to be needed in order to help the jury understand why my client can’t be liable. The importance of an expert’s ability to educate the trial lawyer, as well as the lawyer’s responsibility to conduct his/her own outside learning, is discussed by Professor McElhaney, in Litigation. He says:

“The first job for the [expert] witness is to explain everything to you [the trial lawyer]. You have to keep asking questions and demanding answers until you are satisfied. Do not just rely on the witness, either. Read as much additional literature as you have time for; it is not just background information. Learned treatises that support the witness are admissible under Rule 803(18) of the Federal Rules of Evidence.” (p.62)

Our case ultimately settled, and I breathed a deep sigh of relief, but not before spending several near-sleepless nights worrying how I was going to overcome the challenges of sufficiently understanding the technology to deal with both the plaintiff’s and defense liability experts. It was a learning experience in several ways. I learned to quickly recognize when I’m having difficulty grasping the complex technical concepts necessary to effectively defend (or build) a case. I learned that, regardless of budget constraints, it will not suffice to rely on testifying experts who, though knowledgeable in the subject matter, cannot effectively teach it to a complete novice. I learned that selection of experts is not a discussion to put off having with a client until the time for expert retention, but should be addressed at the outset, to ensure the client has an opportunity to think about how an appropriate, qualified expert can be identified and compensated, even with severe budget constraints.

A strong editorial in the Wall Street Journal today by SNR Denton lawyer Matthew Lifflander discusses the economic impacts of lying, with a particular emphasis on perjury in court. I’m sure that, like any ethical issue, we all have different views on the importance of telling the truth and what would constitute a just and deterrent punishment for perjury.

I vividly recall being on vacation in Rome with a politically conservative close friend when the Republicans were all in a lather over the Clinton-Lewinsky scandal. I found it amusing that he was so indignant that our President would be caught blatantly red-handed lying about a blow job. On the other hand, what can we tell our children about the oath of perjury if our leader, our President, ignores it  with impunity?

As the title of his piece suggests, Mr. Lifflander comes at the issue of perjury from an economic, cost-benefit (what benefit? and to whom?) analysis. It’s no surprise to any litigator that the practice of committing perjury is alive and well in our system, whether the liars are alleged criminals, greedy plaintiffs or callous corporations and their executives.

What I like about the piece, however, is not the shift from a purely ethical to a hard-line economic analysis of lying. Mr. Lifflander does offer some compelling statistics about the cost of dishonesty. For example, he cites that, “[i]n 2011 NY City  paid $550 million in personal-injury and property-damage tort settlements and judgments . . . City lawyers have previously said that up to 10% of the claims . . . involve fraud or misrepresentation.” But, while compelling, these numbers don’t move me. I suspect this is because I’m still naive enough to believe one adheres to a policy of truth both (1) because any deviance from this policy threatens a reputation for honesty that I consider sacrosanct (I prefer not to do business with dishonest people), and (2) because it’s just the right thing to do.

Rather, what I like is that Mr. Lifflander offers suggestions on how to curb this rampant abuse. He endorses (1) creating a fund to pay for prosecution of perjurers (to be funded by small taxes on large personal injury judgments), (2) establishing a statutory civil tort to redress those who can prove they were victimized by perjury; and (3) a change to the law to authorize civil trial judges to punish perjurers through fines, sanctions or reductions in judgment.

I would throw out the first two suggestions. I abhor new “taxes” of any kind, and I’m not clear why successful personal injury litigants should be taxed to pay for prosecution of perjurers. If a tax is needed to raise the funds, it should be levied on everyone–not just successful litigants. Establishment of another tort is not the answer, either. Must new lawsuits be spawned off of the wrongs perpetrated during other lawsuits? Do we really need litigation-about-litigation, meta-litigation?

I do, however, endorse Mr. Lifflander’s third proposal: to make it easier for a trial judge to punish instances in which perjury has obviously occurred. There is nothing more frustrating that showing a judge clear and convincing evidence that a litigant has blatantly lied to the court, only to have it ignored. I remember my frustration during one evidentiary hearing in which I held up a real estate document in which it was obvious that the defendant had forged my client’s initials on an arbitration provision (obvious because, next to it, I had a version of the document obtained by subpoena that did not contain her initials), and the judge glossed over the issue. Are you kidding me? I thought. What kind of judge are(n’t) you?

The problem I see, though, is not that judges lack the authority to punish liars, but that many (most?) judges can’t be bothered to do it. The solution is probably not more legislation, but a change in the way judges–those in whom we place our trust to enforce the laws against perjury–view the crime. I doubt much will change on this front, however, until the public takes the crime of perjury and its consequences, ethical or economic, more seriously.

A couple of posts back, I tried to address the difficulty of getting jurors to apply commonly used, but inherently ambiguous, legal terms and principles, such as “reasonable” to the facts of a particular case. For example, when the jury is instructed that a defendant is liable if he/she/it acted “unreasonably” under a set of circumstances, what are jurors supposed to do with that term?

A solution proposed by Rick Friedman and Patrick Malone, in their popular book, Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability,† involved developing a set of rules or principles or standards which, when applied to the evidence of what occurred in the case, yield the conclusion that the defendant did not act reasonably (or indeed acted reasonably, depending on whether you represent the plaintiff or the defendant). In that post, I promised to follow up with some guidelines, or rules of the rules of the road. Here we go.

Rule No. 1: A rule of the road should be a requirement that the defendant do, or not do something. (22) The authors describe the basic structure as follows:

“A [type of defendant] should (or should not . . .) do [fill in relevant conduct sought to be enforced by plaintiff].” (23)

Here’s an example: “A surgeon should carefully identify what it is he/she is supposed to be cutting before commencing surgery.” Or, “An insurance claims examiner should fully, fairly and promptly evaluate and adjust a claim for coverage.”

Rule No. 2: A rule of the road should be easy for the jury to understand. (22) After all, the whole point of having rules of the road is to aid the jury in understanding an already ambiguous word or concept in a way that is favorable to your client. To illustrate this point, the authors suggest that, in the context of a physician’s alleged failure to diagnose a disease, a rule of the road can be gleaned from an internal-medicine textbook. However, the language from the textbook may be unnecessarily arcane, and a principle that jurors can easily understand may need to be refined into more accessible wording. (I realize my own wording is often inaccessible and arcane and my blog posts should probably be re-written to be easier for readers to understand. Blame all those philosophy books I read in college.)

Rule No. 3: A rule of the road should be a requirement that the defendant (or, if your client is the defendant, then the plaintiff) cannot credibly dispute. (22) Your opponent may not easily buy into the rule but, as the authors point out, “[d]isagreeing with the Rule should hurt the defense as much as or more than agreeing with it. If a doctor endorses a text as authoritative . . . he is going to look bad disagreeing with a simple, straightforward principle stated in that text.” (25-26)

Rule No. 4: A rule of the road should be a requirement the defendant has violated (or, if you represent the defendant, one he has not violated). (22) Otherwise, why would that principle or standard matter?

Rule No. 5: A rule of the road should be important enough in the context of the case that proof of its violation will significantly increase the chance of a favorable verdict. (22) “This is not like issue-spotting in law school. Your case does not get better in proportion to the number of Rules you add to your list.” (30)

The Rules of the Road approach offers a strategy to bridge the chasm that inevitably exists between broad, ambiguous legal terms and principles and the concrete evidence received by the jury during trial. As the authors note, “[w]e cannot let jurors make up their own definitions.” (15) And you certainly shouldn’t let your opponent do the defining. Developing a set of rules that adheres to the requirements above should help you avoid getting broadsided at trial.

†Citations are to the second edition.

The path from the first day of law school to an aspiring lawyer’s first job is an increasingly precarious journey, with a shrinking margin for error. I like to think others can learn from my mistakes, which is why I am going to describe the dumbest thing I did when I was in law school. (I also continue to be inspired by Jordan Rushie’s brutally honest post on the Philly Law Blog specifically on the topic of hubris.)

Like every law school, Loyola (Los Angeles), where I attended, offered classes in Trial Advocacy. Believing I wanted to be a litigator, I took “Trial Ad,”  and had a fabulous adjunct professor (John McNicholas), who is a gifted trial lawyer and extremely successful fellow Loyola alum. I received a great education about how to try a case. The only problem is that the nuts and bolts training I received was not done in an actual courtroom, but in a posh new classroom constructed (at students’ and alumni expense) to look like a courtroom. Other members of the class served as judge and jury.

While I learned how to introduce evidence, lay a foundation, examine and cross-examine witnesses, object, respond to objections, etc., there was none of the extreme pressure, i.e., fear factor, that comes with trying to introduce evidence, examine a witness, etc. in a real court of law, in front of a real judge, with real facts, real victims, real defendants and real consequences. Plus, even though I “tried” a theoretical case during class, there were no bragging rights that came with completing my Trial Ad class; I couldn’t tell prospective employers in an interview that I had any real courtroom experience because, like most law students, I had no real courtroom experience. But imagine how impressive I could sound during an interview if I could say I’d cross-examined a witness in a preliminary hearing!

As it happens, one of the professors at Loyola (at least at that time) had created a special program in conjunction with his connections at the LA City Attorney’s office. Instead of one semester, this trial advocacy class was a full year, the first semester being classroom training much like I received, and during the second semester students would spend a day or two (I can’t remember which) “embedded” in a City Attorney’s office and acting as a prosecutor for criminal preliminary hearings. The cases weren’t all that sexy or complicated–drug possession, perhaps prostitution–but this was the perfect training ground for a future civil litigator or criminal lawyer to develop crucial skills, only with real victims, defendants, witnesses and judges. Even better, while the professor would determine students’ grades for the first semester of classroom training, it would fall to the Deputy City Attorneys to propose a participant’s grade for the second semester. (I never heard about anyone getting below a B, and As were the norm.)

The catch? Of course the program was only open to a limited number of students, and a student who wanted in had to interview for a spot. You know the rest of the story, right? You’re thinking I signed up, totally choked on the interview and didn’t get invited. Or that I missed the deadline to sign up. Or I got in but was kicked out for some ghastly reason or another.

Nope. It was none of these. Instead, even though I recognized it was a great opportunity, I purposely let the time come and go to sign up and interview. Why? Because I was insulted by the fact I was required to interview. I thought it was ridiculous–a needless imposition. It seemed to me that, if I was paying the same tuition as everybody else, I should automatically be allowed to take the class.

In other words, I let some lame, unrealistic expectation stand between me and an opportunity I knew even then was a golden one. Of course my law school girlfriend signed up, interviewed and got in. And she loved it. Learned a lot and had a blast. And she got an A both semesters.

Hear this: I made this mistake so you don’t have to. Don’t do it. Whether it was immaturity, hubris, unconscious fear of rejection (or fear of success)–whatever the reason–don’t let something stupid hang you up and prevent you from seizing a golden opportunity. Don’t disappoint me; I’m watching.

When Alec Baldwin retires we’ll look back over his career, appreciate his different “periods,” and argue over when he shined most brightly. I’ll be torn between the current Alec Baldwin, a mischevious clown with serious acting and comedy chops, and an earlier, completely different Baldwin, handsome, hardened, narcissistic–kind of an asshole, really–that we see in Glengarry Glen Ross, The Juror, and Malice, from which this clip is pulled. I personally find his monologue in the opening minutes of Glengarry Glen Ross to be the most compelling (“Coffee is for closers!”), though he’s damn funny on 30 Rock.

This excerpt, though, is useful because it illustrates two points when defending a witness at deposition. First, if you can’t control your client sufficiently to prevent him or her from saying “I am God” at the wrong time, then look into another line of work. More technically, though, the clip illustrates the importance of securing a stipulation among all counsel to go “off the record,” meaning that the stenographer will no longer record testimony or colloquy. In the movie, one of the lawyers tells the reporter to stop reporting, and that seems sufficient. And I’ve found it usually is sufficient for one of the attorneys to say “off the record” or something similar. But, technically, an actual stipulation is required. See, Schwarzer, Tashima & Wagstaffe, Cal. Prac. Guid: Fed. Civ. Pro. Before Trial (The Rutter Group 2013), §11:1567, p.11-208. If you think you’re off the record, make sure the reporter’s hands aren’t moving, or your client’s declaration of divinity, or other gaffe, could become a bone of contention in the case.

One of my great pleasures in raising my daughter is watching her encounter and struggle to make sense of the inherent ambiguities of our language. Puns are a particular favorite. She first learns to draw a picture. Then her mother suggests she’s going to draw her a bath. She gets into bed and draws up the covers. We have yet to draw a conclusion, but that’s coming. Whenever we encounter a word with multiple meanings, it is a simple matter to draw her attention back (pun intended) to the d-word.

I am not a poet, but I do delight in the elusive, liquid ambiguity inherent in language. Except, that is, when drafting (and hoping a jury will understand and follow) jury instructions. Then the indeterminate nature of our language can become an obstacle. An obstacle to understanding. An obstacle to winning.

A great example occurs when we ask jurors to apply a “reasonableness” standard. Was a driver’s operation of his vehicle reasonable? Did the doctor act reasonably when he did not order a particular diagnostic procedure? Was it reasonable for the insurance carrier to deny coverage based on the information available to it?

Whatever issues scholars raise about the “reasonableness” standard, I’m speaking now only about the difficulty in getting jurors to understand and apply such a term in deciding the outcome of my client’s case. And, because I am, yes, a lawyer, by “understand” I mean to know and use the term in a way that guarantees a verdict in my client’s favor.†

Rick Friedman and Patrick Malone, have dealt with precisely this challenge in their popular book, Rules of the Road. Of course they describe the problem far better than I do:

“For the jury, we need to define ‘reasonably prudent doctor’ and ‘reasonable basis’  . . . and all other ‘reasonables’ . . . too. We cannot let jurors make up their own definitions.” (p.15)*

But, without guidance, we know jurors will absolutely make up their own definitions. And, as Messrs. Friedman and Malone point out, they’re not likely to get this guidance from the judge or other jury instructions. It’s up to the trial lawyers to teach the jury about the meaning of reasonableness, so they’re prepared to apply the otherwise nebulous standard to the evidence of the case.

How to do this? As you can imagine from a book subtitled, “A Plaintiff Lawyer’s Guide to Proving Liability,” their methodology is presented 100% from the plaintiff’s perspective. But that doesn’t dilute the quality of their solution to the problem for a lawyer representing either a plaintiff or a defendant. Essentially, the lawyer formulates a set of “rules of the road” which are guiding principles for the conduct of a reasonable actor (i.e., doctor, insurance company, driver). By developing these “rules,” and then establishing that the defendant did not do some or all of them, it becomes possible to educate and persuade the jury to find in the plaintiff’s favor on the ultimate question whether the defendant was unreasonable and, thus, liable.

As the authors point out, the “rules of the road” for a particular case can derive from several sources, including statutes, case-law, textbooks, industry standards, articles, expert opinion and contract provisions. The most comprehensive example given in the book of a set of “rules of the road” involves the standards and principles an insurance company should adhere to when handling a claim. Here are some they list:

“4. Company must conduct a full, fair, and prompt investigation of the claim at its own expense.

5. Company must fully, fairly, and promptly evaluate and adjust the claim.

* * *

7. Company may not deny a claim or any part of a claim based upon insufficient information, speculation or biased information.

* * *

11. Company must give claimant written update on status of claim every thirty days, including a description of what is needed to finalize the claim.” (pp.16-17)

During opening statement and expert testimony, the jury learns that these principles are valid and accepted standards for an insurance company to follow when handling a claim presented by an insured. The evidence is then framed so that it is easy for jurors to see how the standards were not met. (Conversely, for the defendant, that the standard was met.) If, for example, a claims adjuster is not prompt in evaluating a claim, and does not provide regularly written updates on the status of the claim, he has violated two of the “rules of the road” for insurance claims handling. If the evidence establishes the insurer did not have sufficient information on which to base its denial of coverage, there’s another rule broken.

In closing argument, in discussing the ultimate question, i.e., whether the insurance carrier was reasonable in its handling of the plaintiff’s claim, it becomes much easier to educate the jury how, given the accepted claims handling standards they’ve heard so much about, the carrier was most certainly not reasonable and a verdict in plaintiff’s favor against the company is appropriate.

I recognize this is unfairly reductive. It is not reasonable or even possible in a 900 word blog post to do justice to a 300+ page book. But this is the goal of the book, providing a framework for trial lawyers to break down complex or undefined terms, like “reasonable” into concepts that readily guide a trier of fact into returning a favorable verdict. I plan to do a follow-up post in the future which discusses the authors’ criteria for developing “rules of the road” which apply to a particular defendant or case. Until then, stay in your lane!

†Yes, I do know there are no guarantees.

*All citations are to the second edition.

So much in our lives, both professional and personal, lies outside our control. Focusing on the professional, most lawyers will never be fortunate enough to be able to limit our practice to only perfect clients who march into our office carrying a perfect set of facts which, when presented to a judge and jury, are virtually guaranteed to yield an excellent outcome.

A less pessimistic view is to recognize that what makes our practice so interesting and challenging (on those occasions when it is interesting and challenging) is the fact that we are forced to take a set of imperfect facts, involving a group of imperfect actors, and turn water into wine, capitalize on the positive, downplay the negative and procure the very best result for our clients. Sometimes this means pulling a rabbit out of a hat.

Given that so much is beyond our control, it would seem to me to make all the sense in the world, at least professionally, to take steps wherever we can, flex our muscles, to influence an outcome to the greatest extent possible. In the interest of progressing beyond the general to the particular, I’m referring once again to the issue of preparation.

This time, though, my focus is on preparation for settlement discussions. I’m thinking specifically about a recent settlement conference I attended in an employment discrimination case. The case was nearing trial and this settlement conference was the parties’ one last chance to talk turkey. Because this case was pending in federal district court, there had been a pretty decent interval of time, a few months, between completion of discovery and the settlement conference (in state court, by contrast, at least in California, the parties may not complete discovery until a month or less before trial). I made the assumption that because I was immersed waist-deep in writing motions in limine and formulating trial strategy, that my opponent–an older, more seasoned lawyer–was surely equally immersed and conversant in the facts and theories of the case.

Eh . . . Not so much. While we were sequestered during the first part of the conference, the judge ultimately decided to bring all the lawyers together because he figured we might make more progress debating the merits mano a mano. It then became abundantly clear that my opponent didn’t know his case. (In hindsight, I might have been tipped off to this by the fact that he had just days before served 17 motions in limine, several of which had nothing to do–literally nothing at all to do–with the facts of our case.) Worse, not only did he not know his case, he was haughty, bombastic and steadfastly indignant about the absolute, unquestionably unquestionable merit of his client’s discrimination claims, only he had no evidentiary basis to back them up. It was kind of ridiculous, really.*

What kind of message does it send for a lawyer to be out of touch with the key facts of his client’s case so close to trial? I can tell you what kind of message it doesn’t send. It doesn’t inspire fear or grave concern. It doesn’t, and didn’t, make us rush to write a check. The case did ultimately settle, but it was a “cost of defense” settlement in the purest sense. Actually, it was a-little-less-than-half-the-cost-of-defense settlement. In other words, great outcome for my client, not such a good outcome for my opponent.

In fairness, the plaintiff didn’t have a kick ass case to start with. In fact her case sucked. And we knew it. So this story might not be the most potent example of how preparation can make a difference in settlement negotiations. But it is a cautionary tale, because counsel was so out of touch with the facts that, even if his client had had a really good case, we still wouldn’t have paid much. His lack of preparedness made his client’s case weak, regardless of the facts or evidence.

*For example: the plaintiff’s employment was governed by a collective bargaining agreement. This was no secret. The agreement had been produced and referenced repeatedly in discovery, and the fact that plaintiff’s employment was so governed constituted a major component of our defense. When given his turn during the joint session of the settlement conference to articulate his client’s position, however, almost the first words out of my opponent’s mouth was a suggestion that “this was the first he’d ever heard” about any collective bargaining agreement. Just ridiculous.

I recently participated in a conference about negotiation. I left with a list of negotiation “pointers,” short strategies to help keep your eyes on the prize when negotiating. I’ll share five good ones here.

1. Set your goals ahead of time and come prepared with alternatives. You (should) know you will be making concessions in the negotiation process; try to think of what concessions are acceptable and where you’ll need to draw the line. In this planning, also anticipate your opponent’s points and develop responses.

2. Make sure the other side feels heard and understood. Then make sure they hear and understand you. If either party to a negotiation is not being heard, it’s not really a negotiation.

3. Don’t be dragged into an emotional response. Condescension, rudeness or bullying should be firmly met. Don’t back down–remind them that you came prepared to make a deal and that you thought they did too, then transition back to the points you want to discuss. Once your opponent realizes their tactics are not intimidating you, they will likely stop.

4. “Horse trade” when making concessions. Try to make concessions conditional on an equal or greater concession by them. Also, before making a concession, try to find out what additional concessions they will ask for before signing an agreement.

5. Don’t be afraid to invoke a “cooling off period.” If you reach an impasse, or are not sure what move to make next, consider asking your opponent to give you 24 hours to consider their last move. A corollary is not to be so eager to make a deal that you make concessions you will later regret.

And, remember, we’re all counting on you.