I recently had lunch with  Mark Fingerman, a Los Angeles lawyer who has successfully transitioned from being a litigator to a full-time mediator. As I often do, when I get an opportunity to talk shop with mediators, I asked Mark some of his tips for successful negotiation. To my surprise, although Mark had been a litigator his entire career, his advice was to go a different direction entirely. “Litigators can increase the likelihood of success at mediation,” he said, “by acting more like transactional lawyers.”

This notion immediately made a lot of sense. After all, while it’s the mission of a transactional lawyer to get the best possible deal and terms for his client, their negotiations should very rarely result, as it so frequently does in the litigation context, in a stalemate. While a party to a lawsuit will sometimes view proceeding to trial as the best alternative to a negotiated agreement (aka “BATNA”), the job of transactional lawyer is generally to reach agreement and get the deal done.

While Mark’s advice made a lot of sense to me in the abstract, I started thinking what does this mean? What does it mean to negotiate less like a litigator and more like a transactional lawyer?

I followed up with Mark after our lunch, and suggested this might be fertile ground for a blog post. He was pleased for the opportunity to explain his statement in more detail, and also suggested that this very topic is one that he covers extensively in a CLE program he offers to law firms and bar associations called Mediation: Prepare to Succeed.† Here’s what Mark said:

“This involves, among other things: preparing for the mediation as a negotiation, including identifying the interests of the parties, settlement ballpark and necessary deal points; focusing at the mediation on reality and problem solving instead of advocacy and pressure; using the mediator to gain and communicate information useful to making a deal rather than trying to turn the mediator into a super advocate.” 

A major difference I see in Mark’s approach from the approach we typically take is his shunning of our common tendency to try to leverage the mediator to apply pressure on our opponent that we cannot otherwise apply. This is indeed a departure.

After all, we often draft extensive mediation briefs, with cites to specific exhibits, that are little different from the brief we might submit if the neutral were sitting as an arbitrator who would issue an award, and not a mediator engaged to facilitate settlement. In an earlier era, it was common to do a mini-presentation of the arguments and evidence we expect to present at trial. In sum, we attempt to persuade the mediator of the merits of our case, with the hope she will step into the next room, caucus with our opponent, and, acting as our “super advocate,” pound them into submission.

So, if there’s no pounding, what should go on? Just as Mark points out, the mediation becomes less about applying pressure and more about “focusing . . . on reality and problem solving.”

This is all good. But I still found myself wondering more about how transactional lawyers approach negotiations. So I consulted a book about lawyering from the perspective of a career transactional lawyer. In Lawyering: A Realistic Approach to Legal Practice, M&A specialist James C. Freund says this in his introduction to the discussion of negotiating a deal:

“Most of what takes place in the course of negotiations can be characterized as either attempting to get a leg up on your adversary or striking a compromise between your respective positions. I firmly believe that the key to effective negotiating lies in achieving a functional balance between these two seemingly inconsistent aspects. If all your efforts are directed toward gaining advantages over your adversary, you will undoubtedly come on too strong; and where the parties possess relatively equal bargaining power, with freedom to consummate the transaction or not, you may cause your client irreparable harm–such as losing the deal.” (Id. at 188 (emphasis added).)

Again, from a transactional lawyer’s perspective, the goal is not to pound the other side into submission or walk away with no deal. Instead, in the interest of getting the deal done, Freund counsels that we strive to achieve a balance between getting a leg up on our opponent and striking a compromise. Makes sense, doesn’t it?

†Mark Fingerman encourages anyone interested in this presentation to reach him by email at: [email protected].

When we write to a court or to opposing counsel our goal is typically to persuade. When we write to a client, an expert or to a colleague, our aim is primarily to convey information. Is there any room here for style? Is style something we should even bother with, considering many of us are on the clock and a client is paying for our time? After all, do we hire the cab that will take the most scenic route? Who’s going to hire a lawyer because they speak on paper with the eloquence of Shakespeare?

Thankfully for many of us who came to the profession with some interest or background in literature or writing, the answer is yes, style does matter in legal writing. In The Elements of Legal Style, writing guru Bryan Garner reminds us why. He says,

“Legal writers must recognize what other inhabitants of the literary world already know: A good style powerfully improves substance. Good legal style consists mostly in figuring out the substance precisely and accurately, then stating it clearly. Too many of us equate artful writing, or ‘style,’ with the warrior’s cumbersome headdress, pleasing to the eye but irrelevant (perhaps even a hindrance) to the conquest. Music provides the better analogy: Does anyone fail to recognize that a Beethoven symphony becomes a different piece when played by an ensemble of kazoos instead of a major symphony orchestra? The medium is the music. Why should we find it difficult to accept the parallel truth in writing?” (p.4)

In Lawyering, James Freund offers a different take why style should not be an afterthought. He writes,

“It’s not telling any tales out of school to observe that most writing on legal subjects by lawyers–the style, as contrasted with the substance–tends to be extremely dull. There is a pre-packaged, monochromatic quality to the prose that dulls the edges of even the most fascinating issues. It’s almost as if the author were seeking the Somber Seal of Approval, fearful that any injection of sprightliness or creativity into the writing will stamp him as a lightweight thinker or lacking in total dedication to a ponderous profession. And then too, most lawyers are so concerned with the substance of what they’re saying . . . that once having achieved precision, they give little or no thought to style. . . . Whatever merit total sobriety may  have in formal legal documents . . . it strikes me as altogether unnecessary in less formal (and formidable) writings such as letters or memos, where you are attempting to educate or persuade–particularly when your reader is not a lawyer. You may have succeeded in rendering your document clear and concise, but if it’s dry and monotonous the reader may experience difficulty keeping his mind on the subject at hand.” (pp.54-55)

While these may offer compelling arguments in favor of attention to style in legal writing, questions remain, including (1) what exactly does “style” mean in this context, and (2) can too much of it be a bad thing? Because this post was not intended to be book-length, I’ll turn back to Bryan Garner for some brief, but telling, responses. First, he writes this about “style,”

“What is style? We can hardly improve on Jonathan Swift’s formulation, ‘proper words in proper places.’ That focuses on the right level of detail, but it begs questions or propriety. What are proper words, and how do you know when they have been put in proper places?

In judging words and their placement, remember that the character of the writer determines the character of the prose. . . What you say and how you say it reveals your habits of mind. In trying to write your best, you may strive to proportion one part to another and to the whole, to cut out what is useless, to accent what matters most, and to preserve a uniform tone throughout.” (p.5)

Can style be overdone? Absolutely! I suspect most of us know it when we encounter it. A Shakespearean demand letter? A Dantesque jury instruction? Imagine an US District Court law clerk confronting a brief riddled with Faulkner’s poetic, but torturous sentences. While Garner acknowledges that tastes for “grandeur” in legal writing have evolved over time, he describes what is currently in vogue:

“[M]odern readers — even of law books — prefer the Attic style. We like what is plain; we grow impatient with what is fancy. Legal readers admire directness and scorn baroque curlicues.” (p.8)

Well, there’s a starting place. Consider style. Accent that which is important. Cut out what is useless. Strive for proportion. But, at all costs, guard against the baroque curlicue.

Legal blogging rock star and client service guru Dan Hull recently recommended an interesting book, Lawyering: A Realistic Approach to Legal Practice, by James C. Freund. Trusting Dan’s judgment, I promptly ordered up a dog-eared copy of the tome from AbeBooks.

Turning first to the chapter entitled “Handling Clients,” I found some interesting and sage advice right away. Freund asks what do you do when a client calls and wants to be counseled whether her company can legally do something. In the simplest terms, if a client asks you the sum of 2 + 2, do you automatically say 4? Or should we be concerned with what the client wants to hear? Would she prefer to hear 5?

Recognizing this sounds like ethical blasphemy, Freund rushes to explain himself:

“Now before you round up a posse to haul me before the bar association, let me hasten to add that the reason for desiring this knowledge is not . . . that it can or should affect the substance of your answer or reaction, where a legal issue or some other objective manifestation of your views is concerned. You’re not worth your salt as a lawyer if you provide phony answers to please a client. You have to call ’em as you see ’em, no matter what the consequences: it may be painful at the time, but in the long run your client will respect you for this and value your advice all the more.

On the other hand, knowing how the client wants to come out can be very important to you in deciding on the manner in which you reply–the style, as contrasted with the substance–and on shaping any practical advice you might offer.” (151-152)

Freund offers a couple of good illustrations, hypos if you will, to make his point. In the first, you are called by a client CEO who immediately announces you are on speaker phone and in the room with him is an “Employee.” CEO wants to know whether the company can issue the Employee shares of stock which the Employee will pay for with promissory notes.

While the law either allows or doesn’t allow the company to issue shares to an Employee to be paid for with promissory notes (I have no friggin’ clue), Freund points out that “the way that you handle the question can be influenced significantly by whether . . . (CEO) actually wants to issue . . . (Employee) some stock for notes, or whether . . . (he)’s just going through a charade–using you as a whipping boy–for the benefit of . . . (Employee).” (152)

What do you do? Freund suggests you try to ascertain what client CEO really wants to hear before you begin providing advice (assuming, unlike me, you could answer this query on the fly). Freund concedes it may not be easy to determine CEO’s angle:

“By the way, ascertaining . . . (CEO)’s real interest here may not be so easy–and tomorrow, you should let him know what an uncomfortable position he put you in, with a warning against future repetitions. For openers, don’t answer right away. Get . . . (CEO) talking; he’s likely to drop a clue (such as, ‘I told (Employee) this was a very difficult thing for a public company to do . . .’), which you can then pick up on.” (152)

Another way to get an idea what the client is looking for is to “test the water. Say: ‘And what did you tell him when he made that suggestion?’ The client’s reply should give you a fair indication of the direction in which he’s heading.” (153)

But why do you want to know? Again, it’s not about conjuring a phony answer, but about subtly strengthening your relationship with the client and bringing greater value. For example:

“If you determine that  . . . (CEO) isn’t really interested in issuing the stock, you can emphasize the legal difficulties which do exist under the applicable state law when you use notes to pay for par value shares–to say nothing of the unfriendly scrutiny such a transaction would receive from stockholders, other employees, and so on. All of this is good, sound counsel; you’re not deceiving anyone . . . On the other hand, if you sense that . . . (CEO) very much wants to issue the shares, then your litany of difficulties would be somewhat more muted, with a smooth transition into a constructive analysis of how the transaction can be accomplished–by securing the note, charging bona fide interest, and so on.” (152)

Again, as Freund says, the object of this preliminary fact-finding isn’t to cause you to change the substance of your advice to match the client’s desires, but instead to influence how you present the advice. The closer we get to the justifiably coveted status of “trusted advisor,” the more these subtleties matter. We’re not legal research “machines,” hired to churn out one-dimensional answers to legal questions without regard to how our advice impacts the client. Our role is not just to protect, but to advance the client’s interests, and the route to this goal is not always obvious or easy.