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Negotiation
Admissibility of Settlement-Related Evidence at Trial
August 6, 2013
Many trial lawyers assume that evidence of settlement offers and negotiations can never be admitted at trial. There is a general belief that placing the legend “Settlement Communication” on correspondence and other documents somehow precludes those documents from ever being seen by a jury. The bar on admissibility of settlement-related evidence is not nearly that broad, however, and can lead to a trap for the unwary. Federal Rule of Evidence 408, which governs admissibility of settlement-related...
August 6, 2013
Many trial lawyers assume that evidence of settlement offers and negotiations can never be admitted at trial. There is a general belief that placing the legend “Settlement Communication” on correspondence and other documents somehow precludes those documents from ever being seen by a jury. The bar on admissibility of settlement-related evidence is not nearly that broad, however, and can lead to a trap for the unwary. Federal Rule of Evidence 408, which governs admissibility of settlement-related...
Negotiating the Reverse Auction in Class Action Cases
July 30, 2013
This story is for you if: You handle wage and hour class action cases; You run into the situation where there are multiple similar actions filed against the same defendant by different plaintiffs. Settling class action cases is typically a distributive negotiation where there is a fixed pie that gets divided up. While there is some room for creativity, for the most part it is a zero sum game in which a litigant’s gain (or loss) is balanced by the losses (or gains) of the other litigants....
July 30, 2013
This story is for you if: You handle wage and hour class action cases; You run into the situation where there are multiple similar actions filed against the same defendant by different plaintiffs. Settling class action cases is typically a distributive negotiation where there is a fixed pie that gets divided up. While there is some room for creativity, for the most part it is a zero sum game in which a litigant’s gain (or loss) is balanced by the losses (or gains) of the other litigants....
Teaching with Teaching a New Negotiation Skills Paradigm
July 18, 2013
I am in the process of thinking about the last year and what worked, or didn’t work, in my classes. As part of that process, I thought I would share one new approach I took this year that I thought worked very well in my negotiation class. This new approach is thanks to Andrea Schneider’s Teaching a New Negotiation Skills Paradigm, 39 Wash. U. J.L. & Pol’y 13 (2012) or on SSRN. For those who haven’t yet read this article, Andrea recommends that when we teach negotiation we should...
July 18, 2013
I am in the process of thinking about the last year and what worked, or didn’t work, in my classes. As part of that process, I thought I would share one new approach I took this year that I thought worked very well in my negotiation class. This new approach is thanks to Andrea Schneider’s Teaching a New Negotiation Skills Paradigm, 39 Wash. U. J.L. & Pol’y 13 (2012) or on SSRN. For those who haven’t yet read this article, Andrea recommends that when we teach negotiation we should...
Yes You Can Be Liable For Negotiating in Bad Faith
July 11, 2013
I don't believe these arguments would fly in California, but in Delaware where so many corporations are born and with whose law so many contracting parties agree to comply, you can be liable for benefit of the bargain damages if you fail - in bad faith - to negotiate to conclusion agreements memorialized only by term sheets (which usually have too many holes to be enforceable). Here's Morrison & Forester's case analysis with a link to its article on this important new case law. A term...
July 11, 2013
I don't believe these arguments would fly in California, but in Delaware where so many corporations are born and with whose law so many contracting parties agree to comply, you can be liable for benefit of the bargain damages if you fail - in bad faith - to negotiate to conclusion agreements memorialized only by term sheets (which usually have too many holes to be enforceable). Here's Morrison & Forester's case analysis with a link to its article on this important new case law. A term...
Harvard’s Top 5 Business Negotiation Mistakes
July 10, 2013
Business negotiation mistake #1: Underestimating your own authority, ability and strengths. Business negotiation mistake...
July 10, 2013
Business negotiation mistake #1: Underestimating your own authority, ability and strengths. Business negotiation mistake...
Are Young Lawyers Less Willing to Negotiate Agreements?
July 8, 2013
According to one of my lawyer friends, older lawyers are complaining that younger lawyers are less willing to work at negotiating their way out of cases and conflicts. They hold fast to demands and don’t want to give an inch. Given the plethora of law school courses on mediation, negotiation, and the like, one would think that younger lawyers would be more willing to find solutions to conflicts. I speculate that with the tight job market, the recalcitrant lawyer fears cutting a deal, going back...
July 8, 2013
According to one of my lawyer friends, older lawyers are complaining that younger lawyers are less willing to work at negotiating their way out of cases and conflicts. They hold fast to demands and don’t want to give an inch. Given the plethora of law school courses on mediation, negotiation, and the like, one would think that younger lawyers would be more willing to find solutions to conflicts. I speculate that with the tight job market, the recalcitrant lawyer fears cutting a deal, going back...
Negotiation Law Blog Lives On and On and On at The Library Of Congress
July 8, 2013
The LOC describes this archive as a “selective collection of authoritative sites” associated with law schools, research institutes, think tanks, and other expertise-based organizations. “These blogs contain journal-style entries, articles and essays, discussions, and comments on emerging legal issues, national and international,” the LOC says. No matter the fact that the joy of blogging is in the . . . . blogging, it's gratifying to be recognized as having contributed something valuable...
July 8, 2013
The LOC describes this archive as a “selective collection of authoritative sites” associated with law schools, research institutes, think tanks, and other expertise-based organizations. “These blogs contain journal-style entries, articles and essays, discussions, and comments on emerging legal issues, national and international,” the LOC says. No matter the fact that the joy of blogging is in the . . . . blogging, it's gratifying to be recognized as having contributed something valuable...
Terms of Merger Agreement Not incorporated Into Master Settlement Agreement
June 27, 2013
Alford v. Kuhlman Electric Corporation No. 11-60728 http://www.ca5.uscourts.gov/opinions/pub/11/11-60728-CV0.wpd.pdf Before STEWART, Chief Judge, GARZA, and ELROD, Circuit Judges. AFFIRMED. (May 24, 2013). Posted in Contract - Interpretation, Indemnity, Settlement Affirming the District Court, the Fifth Circuit holds that the terms of a Merger Agreement and Cooperation Agreement were not incorporated into a Master Settlement Agreement. Here, the MSA's statement that "[obligor]...
June 27, 2013
Alford v. Kuhlman Electric Corporation No. 11-60728 http://www.ca5.uscourts.gov/opinions/pub/11/11-60728-CV0.wpd.pdf Before STEWART, Chief Judge, GARZA, and ELROD, Circuit Judges. AFFIRMED. (May 24, 2013). Posted in Contract - Interpretation, Indemnity, Settlement Affirming the District Court, the Fifth Circuit holds that the terms of a Merger Agreement and Cooperation Agreement were not incorporated into a Master Settlement Agreement. Here, the MSA's statement that "[obligor]...
The Steve Jobs Emails That Show How To Win a Hard-Nosed Negotiation
June 19, 2013
The US government’s price-fixing lawsuit against Apple goes to trial next month in New York. Ahead of its court date, the US released emails that purport to show Apple was the “ringleader” in a scheme to set artificially high ebook prices with some of the largest American publishers, which have already settled the case. The emails have mostly been viewed in the context of the lawsuit, but they also provide an extraordinary view of high-stakes negotiation between the leaders of two powerful...
June 19, 2013
The US government’s price-fixing lawsuit against Apple goes to trial next month in New York. Ahead of its court date, the US released emails that purport to show Apple was the “ringleader” in a scheme to set artificially high ebook prices with some of the largest American publishers, which have already settled the case. The emails have mostly been viewed in the context of the lawsuit, but they also provide an extraordinary view of high-stakes negotiation between the leaders of two powerful...
Mind Mapping Streamlines a Business Negotiation
June 18, 2013
The breakup of long-time business partners can be one of the most complicated and emotionally charged situations for a financial adviser to handle. It’s even more difficult when the partners are also family members. That was the challenge facing adviser Rob O’Dell of Wheaton Wealth Partners in 2010, when a client asked for help negotiating the sale of his shares in the family business. Mr. O’Dell’s client was in his early 60s, and together with his younger brother had owned a retail business...
June 18, 2013
The breakup of long-time business partners can be one of the most complicated and emotionally charged situations for a financial adviser to handle. It’s even more difficult when the partners are also family members. That was the challenge facing adviser Rob O’Dell of Wheaton Wealth Partners in 2010, when a client asked for help negotiating the sale of his shares in the family business. Mr. O’Dell’s client was in his early 60s, and together with his younger brother had owned a retail business...
