General Practice, Solo & Small Firm DivisionMagazine
Volume 17, Number 7
From the Editor
Terms of Negotiation
By jennifer j. rose
Negotiation gets a bad rap, evoking images of weak-kneed, hand-wringing, spineless and lazy wimps afraid to get out there and do a Real Lawyer’s work of trying cases to a judge and jury. None of the titans of law, all the way from King Solomon to television’s trial lawyer of the week, get credit for his or her negotiating skills. A lawyer known for negotiating risks being branded as a pushover, lacking confidence in the case, looking for the quick and easy fix, a silver-tongued smooth operator, or a Birkenstock-shod, Rod McKuen-quoting, tree-hugging, granola-munching love child who really believes that it’s important for the opponent to win. The truth lies somewhere between Gandhi and Clint Eastwood.
Negotiation takes place all the time. Whether framed as risk management, gambling, bargaining, or just plain playing well with others, negotiation’s as much a part of our survival as food and shelter. Whether a lawyer is characterized as a litigator, transactional specialist, general practitioner, judge, or professor, negotiation skills come to the forefront. The reality is that negotiation keeps lawyers from going broke, insane, and worse.
This year’s GPSolo editorial board marks some departures as well as new faces. Retiring after many years of hard work are Anne Segrest McCulloch, J. Michael Jimmerson, and Tracey Skinner. And joining us is Judy Toyer, a sole practitioner from Rochester, New York.
Former General Practice, Solo and Small Firm Division Chair John Clark and Florida Lawyer Assistance Executive Director Michael Cohen approached GPSolo with a proposition we just couldn’t refuse. Truthfully, we wish we could claim credit for the idea, but the credit belongs to these guys, and the ABA Commission on Lawyer Assistance Programs, who’ve put a whole new face on the issue of lawyer impairment. "In the Solution," debuting in this issue, is a standing column focusing upon lawyers’ experience in substance abuse, mental health, stress, and quality-of-life issues.
Section Chair Wynn Gunderson first suggested to the editorial board this issue’s theme, negotiation, more than a year ago. Bryan Spencer, a retired military lawyer from Austin, Texas, brought skills honed from running law offices in Vietnam, Italy, Thailand, and Kansas to nurture and develop this issue, hounding, cajoling, and sweet-talking authors. The very first military lawyer I’d ever met, Spencer epitomizes the broad range of lawyers who participate in the Section.
Family law and labor unions might seem worlds apart at first blush, but the negotiations in both arenas are far more similar than many might expect. Both demand that the parties continue to work with one another after the deal’s finished, and the success of any deal depends upon the other’s ability to survive after the last nickel’s wrenched out in settlement. Milwaukee lawyer Gregg Herman explains the parallels in "Divorce Settlement Negotiations," while Oshkosh attorney James R. Macy takes on the finer points of labor contracts in "Negotiating Union Labor Contracts on Behalf of School Districts and Municipalities."
Mississippians H. Lee Hetherington and X. M. Frascogna, Jr., point out the ground rules in their article, "The Ten-Minute Negotiator: Bargaining Basics for Busy Lawyers." Mediator and Pepperdine Law School Adjunct Professor Jeffrey Krivis takes on the issue of timing in his article "From Conflict to Resolution: When to Negotiate the Litigated Case."
Sometimes it seems as though negotiation just isn’t in the cards. In "Approaching Negotiations: Playing a Cooperative Game," Bay area lawyer Juliet Gee discusses how to develop a strategy to change the game from an adversarial one to a cooperative attempt to solve mutual problems.
Mediation practices can be attractive practice niches for many solo and small firm lawyers, but what are the pitfalls? Wearing the hats of attorney, mediator, arbitrator and conciliator, Milwaukee’s Roy Nelson spells out the ground rules in "Setting up a Mediation Practice."
Personal injury lawyers’ first point of contact almost always is the insurance claims adjuster, whose role can be confusing and frustrating to the uninitiated. Clinton Miller spells out the claims adjuster’s role in the entire process in his article, "The Proper Protocol for Working with Claims Adjusters."
Oklahoma City lawyer A. Daniel Woska, chair of the Section’s Alternative Dispute Resolution Committee, takes on the dark side in his article, "Arbitration Clauses in Consumer Contracts: Why They Are Not Enforceable."
Coming right up in December is our special Technology & Practice Guide issue, jam-packed with the latest in techno-tools as well as new applications for last year’s hardware and software.
jennifer j. rose, editor-in-chief of GPSolo , is a lawyer and writer living in Morelia, Michoacan, Mexico. She can be reached at firstname.lastname@example.org.