Getting in the Reps

Getting in the Reps

Younger lawyers – are you getting in the reps?

This morning as I was working out, the trainer kept pushing the class. “Finish your reps.” “[Muscle] failure is where the growth begins.”

It’s not much different in the legal practice. No matter how many books we read, no matter how many CLE’s we attend, no matter how much mentoring we receive, we still have to get in the reps if we want to become better trial lawyers.

More depositions.

More hearings.

More writing.

And, of course, more time in trial.

The first time we do something, we may feel like we’re on the brink of failure. And, if we’re being honest, some of our early efforts aren’t great. 

Each rep, whether it’s motion practice, hearings, depositions or trial, will increase our ability and our comfort level with what we are doing. 

There are high stakes in the practice of law. Sometimes it’s uncomfortable. But nothing is more important than putting in the work, getting reps, and learning from our mistakes. There is no substitute for getting in the reps.

Oh, and that’s not me in the picture . . . 

#Trial #Triallawyers #MSBLaw 

Equipping Your Client For Success in Mediation, Part 2

Equipping Your Client For
Success in Mediation, Part 2

Have you ever been in a mediation where you believed the case could be settled on terms that would be in your client’s best interest, but your client had a mindset that made settlement impossible? When I use the term mindset, my intention is to include your client’s emotions, biases, preconceived notions, or mental preparation (or lack thereof) for mediation. My next few posts will focus on how you can help your client mentally prepare for mediation.

If you have been in a litigation practice for at least a few years, you know what to expect in mediation. You aren’t shocked when the other side’s initial proposal is lackluster. You aren’t surprised that the other side views the facts differently. You aren’t alarmed when the mediation hits an impasse. You expect the mediator to challenge your position. These normal mediation experiences can drive your client to anxiety, anger, or despair. You can help your client mentally prepare for the normal frustrations of mediation by taking a few simple steps.

Step 1: Encourage your client to presume the other participants in the mediation are acting with positive intent

What do I mean by “presume positive intent”?

I don’t mean that the other side is looking out for your client’s best interest. Clearly, they’re not.

What I mean is that most parties simply want a rational and reasonable settlement. They don’t know how to get there. As a result, they make low offers or high demands so they can leave room for more negotiation. Both parties are dealing with uncertainty, and they often fear giving up too much too early. The fog of uncertainty will slowly clear if the client sticks with the mediation process. The gap will begin to narrow. A lackluster offer or demand does not mean the other party is intending to be insulting or disrespectful.

Until the mediator tells you otherwise, it makes sense to assume the other party is working towards settlement. When in doubt, ask the mediator if he or she thinks the other party is serious about working towards settlement.

Step 2: Help Your Client Understand that Mediation Can Be Emotionally Draining

Early in the mediation process, both sides often feel a sense of disappointment. It can help to share some stories with your client (sanitized for confidentiality of course) about other mediations that started slow, or hit impasse, and then concluded with a good settlement.

Explain that there will be times when it feels like nothing is happening, but that the mediator is working hard in the other room.

Clients have seen plenty of courtroom dramas on TV or in the movies. I doubt they’ve seen a movie depiction of a mediation. Clients who have never been in a mediation probably don’t have any analogous life experiences to prepare them for the process. The process can be slow, frustrating, and draining, but it works. When clients know what to expect, they have a better ability to let the process work.

Step 3: Encourage your client to avoid anger and focus on achieving a rational and reasonable settlement

It’s normal for litigants to be angry with the other party. Clients need to minimize their anger at mediation. Anger is contagious. Anger clouds judgment. When a client knows what to expect in the mediation, they are better equipped to handle their anger related to the process or relating to the facts of the lawsuit. Encourage your client to focus on the end goal of settlement, not on the frustrations that occur during mediation. Mediation may be stressful at times, but that stress will be much worse for your client at trial.

In part 3, I’ll discuss additional mental preparation for your clients that will help pave the way to mediation success.

Unlocking the Power of Choice Through Mediation

Unlocking the Power of Choice Through Mediation

The Power of Choice

At the heart of mediation is the power of choice. Unlike a trial, which places decision-making in the hands of a jury or judge, mediation empowers the litigants to choose how the dispute will end. The mediation process recognizes that each party has not only the right but also the capacity to make informed decisions about their lives and conflicts. Through mediation, the parties and their attorneys can choose options that may not be available in court. It can be helpful for lawyers to explain to their clients the power of choice that mediation gives them.

How we perceive a difficult situation can vary greatly depending on whether we have chosen the situation or whether the situation has been forced upon us. Vigorous physical activity is a perfect example. If we choose to run in a marathon, training by running long distances may appear to be an exciting challenge and an opportunity to increase fitness. If we are forced to run long distances every day, we may feel stress, helplessness, anxiety and even despair. The difference is choice.

The same thing is often true for our clients. They probably didn’t choose the situation that led to litigation. The only choice they may have made is to hire a lawyer to file or defend a lawsuit. Once the litigation starts, they often feel like they are trapped and have lost control. They have a sense of powerlessness and helplessness.

Mediation gives clients the power to choose their future in a setting where they have a trusted advisor and where they can thoughtfully consider the pros and cons of their options. One of those options continues to be trial, and in some cases that is the best option. Regardless of whether they choose to settle their case or choose to go to trial, clients are more likely to be satisfied with the outcome when they made a choice.

Escaping the Cycle of Anger and Unforgiveness

One of the less discussed, yet profoundly transformative, aspects of mediation is its capacity to help individuals move beyond anger and unforgiveness. Conflicts, especially prolonged ones, can trap us in a state of emotional turmoil, where anger and resentment overshadow everything else. There’s an old saying that unforgiveness is the poison we drink hoping it will kill the other person. Usually, it is the person filled with unforgiveness or bitterness who suffers from the poison.

The power of choice clients experience in mediation helps them let go of the burdens they have been carrying. Sometimes this process can lead to surprising moments of empathy and connection, allowing individuals to see beyond their anger, recognize the humanity in the other, and open the door to genuine forgiveness and healing. More often, it just allows the parties to let go of their grievance when they exercise personal agency and choose to end their dispute.  Even when cases don’t settle at mediation, the client benefits from knowing that they made a well-considered choice to go to trial.

Why This Matters

Mediation is not just about finding a resolution to a current dispute; it’s about changing how the parties relate to the conflict itself. The parties are no longer powerless litigants; they become decision makers. Decision makers are more likely to be satisfied with the outcome and with the lawyers that assisted them in getting there.

The Art of Give and Take

The Art of Give and Take​

One of the most powerful principles influencing human behavior is the rule of reciprocity. If someone does something for you, you feel an obligation to do something in return. Society looks down on those who don’t reciprocate. Reciprocity is a powerful force that the litigants should harness in mediation.

In his book, “Influence”, Robert Cialdini shares his insight on reciprocity and other “levers” of influence. Cialdini explains that stores give free food samples because many customers will feel obligated to buy the product. Charities send free address labels to prospective donors knowing that this dramatically increases donations. The rule of reciprocity shapes human behavior, particularly in the context of mediation.

Early in a mediation, it’s common to hear parties criticize the other’s proposals as unrealistic. Frequently, that criticism is fair. When the parties apply the rule of reciprocity, they can influence each other to make more satisfying proposals. When one party makes a financial or other concession, it influences the opponent to reciprocate

While the rule of reciprocity seems obvious, don’t underestimate its power. Parties who want to achieve a settlement should come to mediation expecting to engage in a certain amount of back and forth. If one party makes a concession and the other party refuses to budge, it will be more difficult to resolve the case, no matter how reasonable the second party’s initial position was. If each party is prepared to make some concessions, the mediation will be productive. I am not suggesting parties take a settle at all costs approach or make unwise concessions. Instead, I contend that litigants should plan their mediation strategy to include thoughtfully timed concessions that are consistent with their overall goals. In most cases, this will lead to reciprocal concessions.

Applying the rule of reciprocity in mediation is not dishonest manipulation. All parties benefit by understanding basic human nature. Parties are better prepared to negotiate when they understand that each party must feel like they received something of value for settlement to happen. The rule of reciprocity is one of the reasons parties don’t like to bid against themselves. It feels offensive to make additional concessions when the other party has not reciprocated. Parties should strategically consider what concessions may motivate the other side and when to make them.

One tool mediators use that encourages reciprocation is the bracket. When the mediator suggests a bracket, the bracket usually requires both sides to make a meaningful move or concession. This can jump start the negotiation after impasse.

Not every case can be settled. But, by applying the rule of reciprocity, the plaintiff can find out how much the defendant will pay short of trial. And, the defendant can find out how little the plaintiff will take short of trial. Then each party can make an educated decision about whether settlement or trial is the best option. Reciprocity is one of the keys for the parties to get the information they need in mediation.

The Mediator’s Dilemma: Will a Mediator’s Number Help or Hurt?

The Mediator’s Dilemma:
Will a Mediator’s Number Help or Hurt?

My first exposure to a mediator’s number was about 25 years ago. I was representing a party in a will dispute. The mediator was a retired judge who told us he didn’t need to hear opening statements. The mediator met with the other party first. Not more than 5 minutes later, he walked into our caucus room and declared, “I told those guys in the other room that both parties are just going to have to split things down the middle.” Our mediator didn’t call it a mediator’s number, but that’s what it was. Although we eventually settled the case, both parties and both lawyers were upset and disappointed with the mediator and the entire process. Our retired judge short-circuited the process and forgot to be a mediator.

That bad experience taught me some valuable lessons about best practices when proposing a mediator’s number. The mediator’s number is a valuable tool, but only when it is used at the right time and with the consent of all the parties. When used properly, the mediator’s number can help bring the parties to the finish line.

A key principle of mediation is self-determination of the parties. The mediator’s goal should be to help the parties reach a voluntary, mutually agreeable settlement – not to strong-arm the parties into settlement. The decision to propose a “mediator’s number” to the parties is a nuanced one. The mediator must consider the timing, the parties’ receptiveness, and the overall dynamics of the mediation process. There are several factors the mediator should consider before proposing a mediator’s number:

1. Timing: The best time for the mediator to propose a number is after all parties have fully expressed their interests, concerns, and positions and they have absorbed information about the other party’s perspective. It’s important for the mediator to learn more about the parties, their interests, and their positions than what might be apparent from the mediation position papers or the opening statements.

2. Readiness of Parties: The parties must be ready to hear and consider compromise solutions. This readiness often comes after the parties have recognized the strengths and weaknesses of their own and the other party’s positions, the potential risks of not settling, and the benefits of resolving the dispute. This usually occurs after several rounds of offers and demands.

3. Stalemate or Impasse: A mediator’s number can be particularly useful when negotiations have reached an impasse, and the parties seem unable to move closer on their own. A proposal from the mediator can help to break the impasse.

4. When Asked by the Parties: Sometimes, parties or their attorneys request the mediator’s input on what they consider a fair or reasonable resolution. This direct request can be an ideal time for the mediator to propose a number, as it shows that the parties are open to third-party suggestions.

5. Avoiding Premature Suggestions: Proposing a number too early in the process can be risky, even if it was requested by one of the parties. A premature mediator’s number may anchor negotiations at an unrealistic level and the proposal will not have the benefit of full development of the facts, the law, and the parties’ positions and interests.

Mediators must use their judgment, experience, and the specific context of the mediation to decide when and if to propose a mediator’s number. Careless use of the mediator’s number can doom a mediation to failure, but skilled use can settle the case.

Patience and Mediation

Patience and Mediation

“The two most powerful warriors are patience and time.”-Leo Tolstoy

“All we need is just a little patience.”-Guns N’ Roses

Patienceis one of the virtues most closely connected with success in mediation.

Patienceto listen to the other side’s position.

Patienceto endure unreasonable early moves by the other party without walking out.

Patienceto learn as much as you can about the other side’s position.

Patienceto let the process unfold under the guidance of a good mediator.

Patienceto find out what the other side will do short of trial.

Patienceto guide your client through a process that can be frustrating at times.

Patience to work through a hard day of mediation so your client can avoid days or weeks of trial.

Patience to figure out whether a settlement is within reach, or whether it’s time to call it a day.

Mediation Advocacy: The Significance of Opening Demands and Offers

Mediation Advocacy:
The Significance of Opening Demands and Offers

In three decades as a trial lawyer and twelve years as a mediator, I have never seen the plaintiff accept the opening offer at mediation, and I have never seen the defendant pay the opening demand. While it’s rare for the plaintiff to accept the initial offer or the defendant to meet the opening demand, the significance of these numbers should not be underestimated.

Even though opening numbers are just a starting point, they often set the tone for the entire process. When opening demands and offers are extreme, there can be negative consequences. Tempers can flare, patience can evaporate, and parties may be tempted to walk away from the negotiating table. Extreme offers or demands can erode any good will or trust between the parties or their lawyers. At best, extreme opening numbers will make the mediation take longer. At worst, they make the mediation a futile exercise.

Although no one expects their counterpart to accept their first move, each lawyer should have a rational basis for his or her opening move. When a lawyer makes an opening offer or demand that is outside the realm of achievable trial results, the prospects for achieving a settlement decline. If a plaintiff’s best day at trial is a verdict of $1 million, the defendant will not take a $10 million demand seriously and may assume there is no prospect of settlement. Similarly, if the defendant offers a number that is well below its best day in court, its credibility takes a hit.

Surprisingly, parties also have worse outcomes when they start with a number near to what they hope will be the final settlement. When a party’s opening number is too close to their walk away number, they may not have sufficient room to respond if their counterpart only bargains in small increments. Parties need to leave room to negotiate and to respond to the other side. Negotiation is reciprocal. The give and take process of mediation should be embraced, not short-circuited.

Parties have the best mediation outcomes when they begin with a number that is close to the verdict amount they hope to receive if everything goes well at trial.  Visualize a bell curve representing all potential trial outcomes and their probabilities, with lower verdicts on the left side and higher verdicts on the right side of the “x” axis. The highest probability outcomes sit in the middle of the curve. The plaintiff’s optimal opening demand leans toward the right side of the bell curve, while the defendant’s sweet spot resides on the left side.

When the parties begin negotiations towards the edges of the bell curve, they have room to move even if they learn their case is better or worse than they thought. And, they leave room to respond to the other side’s proposals.  By keeping their opening numbers within the range of “best day” trial results, the parties don’t insult the intelligence of their opponent (even if the opponent grumbles about the numbers).

In addition to the strategies above, lawyers also improve mediation outcomes when they prepare their clients for the realities of mediation. Setting expectations is crucial – clients should anticipate that the other party’s opening move will often appear unreasonable. The opening numbers signify the beginning, not the conclusion, of the negotiation journey. Clients must be prepared for the likelihood of rejection and understand the importance of allowing the mediation process to unfold patiently. Building trust with clients through effective communication about the give-and-take of mediation can go a long way in achieving successful outcomes.

Surviving the Season: A Mediator’s Not-So-Serious Guide to Navigating Family Political Debates

Surviving the Season: A Mediator’s Not-So-Serious Guide to Navigating Family Political Debates

The holidays! It’s a time for festive cheer, questionable sweater choices, and the annual gladiatorial spectacle of Uncle Ernie and Aunt Edna’s political debates. Buckle up, it’s going to be a bumpy sleigh ride.

Once again you will be stuck sitting between Aunt Edna and Uncle Ernie at the annual holiday dinner. Aunt Edna is a dyed-in-the-wool conservative, and Uncle Ernie is as liberal as they come. They don’t hold opinions, they spew them.

Here are some mediation techniques that might just help you survive your next holiday dinner.

Active Listening (or Pretending Really Well)

Try to master the art of active listening, which is really just nodding while Uncle Ernie and Aunt Edna rant. It’s like agreeing, but not really. Just nod and make noises that suggest interest.

Speaking in Neutral – The Switzerland of Conversations

Adopt the language of neutrality, which is essentially agreeing with everyone and no one simultaneously. It’s an impressive party trick.

These first two ideas will provide you with some protection from your politically crazed relatives, but they won’t stop the fight. You will need some additional tools.

Common Ground: As Elusive as Santa’s Naughty List

Engage in the noble pursuit of helping Edna and Ernie find common ground. It’s there, hidden beneath layers of disagreement and eggnog. Perhaps they both think the holiday music started too early this year. Maybe they both think the dog wearing a Santa hat is cute. You’ve got to start somewhere…

Diplomatic Pirouettes

When the conversation veers towards the political abyss, pivot with the grace of a Nutcracker ballet dancer. “That’s one way to look at tax policy, but have you tried the mashed potatoes?”

Reframing and De-escalating

When discussions become polarized, reframe them. Steer the conversation away from divisive specifics to broader, mutually respected values (or maybe steer the conversation to the food, or a discussion of your cousin’s choice of sweaters and significant others).

The Wrap-Up: Agreeing to Disagree, Vigorously

If none of the above work, try to end the argument with a skillful summary and wrap-up. Find a summary that pleases no one and resolves nothing. “So, what we’ve established is that we all have opinions. Fascinating. Now where is the pecan pie?”

The Artful Dodger

The information above can be a lot to assimilate before the holiday dinner, so there is one more suggestion that always works. Arrive early, sit at the other end of the table, and let Aunt Edna and Uncle Ernie be someone else’s problem.

Conclusion: Surviving with the Family Still Intact

As you navigate the choppy waters of family political debates, remember that the goal is not to change minds but to exit the conversation with your sanity, your sense of humor, and your family relationships intact. Here’s to a holiday season where the most heated debate is about the best type of pie.

Mediation Basics – Preparing the Client

Mediation Basics – Preparing the Client

By: Rick Morefield

Failing to fully prepare a client for mediation is one of the most common errors I see newer lawyers make in mediation. Newer lawyers know that it is important to educate the mediator about the case, but they sometimes miss the importance of educating the client not only about the case, but also about what to expect in mediation. Mediation is a process. It requires the client to exercise patience. It requires the client to have faith in the lawyer, the mediator, and in the mediation process. But, a client cannot be expected to trust the process if the client doesn’t know what to expect. Even clients who have been through mediation in other cases need a quick refresher that focuses on the unique aspects of the current case.  Below is a quick list of topics to cover.

1. Explain what will happen in the opening session. 

Typically, the mediator explains the process, but it helps if the client has heard an overview from their lawyer first. This should include information about anything unique to expect from the mediator. It is becoming more common for parties to skip an opening statement. If opening statements will be given, make sure the client knows that the opponent may make statements or arguments that offend them.  If your client is forewarned, your client will be more likely to keep control of their emotions. It is equally important to explain to your client that your opening statement is advocacy and they should take it with a grain of salt.

2. Explain that the initial offers and demands at mediation will usually be unacceptable to both parties. 

Defendants typically start with ocean bottom offers; plaintiffs tend to make sky-high demands. Remind your client this is a process and to let the process play out. If the client is surprised, their emotions may derail the mediation.

3. Have a frank discussion with your client about the strengths and weaknesses of their case. 

No case is perfect. Mediators will tend to highlight case weaknesses during caucus sessions. Clients are better able to trust the mediation process if they have already heard about the weaknesses in their case from their own attorney. If they hear about weaknesses for the first time from the mediator, they may tend to lose trust in their lawyer or in the mediator. 

4. Warn the client that the mediator will ask hard questions in the caucus sessions. 

It’s the mediator’s job to help each party see the weaknesses in their case. Remind your client that the mediator is doing the same thing in the other room. Encourage your client to listen to the mediator and carefully evaluate what they hear. The mediator wants a good outcome for the parties.

5. Remind your client to keep a poker face when the mediator is present. 

When a satisfactory offer or demand is made, the client should not look too happy. More negotiating may lead to a better offer or demand. When an offer or demand is disappointing, the client should avoid arguing with the mediator. You should discuss with your client when or if they should discuss the case with the mediator and when they should defer to you. 

6. Provide your client with a detailed understanding of the costs and the risks of trial so your client can have context to evaluate the reasonableness of settlement offers or demands. 

Make sure your client is aware of any additional costs that may be incurred if the case proceeds to trial. It is helpful to prepare a spreadsheet for clients that shows what they would take home from a settlement after deducting fees and expenses. The spreadsheet should also show their “take home” with different potential outcomes at trial. For defendants, the spreadsheet should show the “all in” cost of a settlement compared to the cost of different outcomes at trial. Without this information, your client may not understand the real impact of a settlement on their life or business.

7. Finally, ask your client what their needs are. 

Does your client want to go to trial? Does your client consider trial unthinkable? The goal of mediation is to maximize the benefit to your client. Knowing your client’s desires and needs will help you provide better advice at mediation.

Mediation: Taking the Uncertainty Away from Trial and Reaching an Agreed Outcome

Mediation: Taking the Uncertainty Away from Trial
and Reaching an Agreed Outcome

Are you involved in a lawsuit and facing the uncertainty of a trial? Are you looking for a way to avoid that uncertainty and reach an agreed outcome? If so, mediation may be the answer. Mediator and trial attorney Rick Morefield had a recent experience that demonstrates how the outcome of a trial depends as much on the jurors selected to decide the case as it does on the quality of the case or the skill of the lawyers.

ABOTA and ABA Offer Trial Academy for Less Experienced Lawyers: Lessons Learned from a Product Liability Case

In September 2022, the American Board of Trial Attorneys (ABOTA)  and the American Bar Association (ABA) Tort Trial and Insurance Practice Section offered a one-week Trial Academy to provide training for less experienced trial lawyers. Mediator and trial lawyer Rick Morefield was one of the instructors and mentors. During the week, the students got to practice and receive training on jury selection, opening statements, direct examination, cross examination, and closing argument. At the end of the Trial Academy, the students conducted a full trial in front of a jury picked from the normal state court jury pool in Reno, Nevada.

This year’s trial was a product liability case involving a young boy who allegedly suffered a traumatic brain injury that was caused by a defective roller coaster. The Trial Academy had enough jurors available that it was able to have the entire jury pool observe the trial, but then it split the jury pool into two separate juries for deliberations. The two juries deliberated in separate rooms while the students and instructors watched the deliberations on a video feed. One group of jurors rendered a verdict for the plaintiff and awarded $5 million in damages. The other group of jurors rendered a verdict for the defendant. It is shocking that two juries who heard the same facts and arguments presented by the same lawyers at the same time reached such wildly different verdicts. Although this was an unexpected outcome, it was a valuable lesson for both the students and the instructors. The same thing can happen in a real trial. Regardless of the skill of the lawyers and the justice of the cause, trial lawyers and their clients are ultimately at the mercy of their jury. 

The Importance of Mediation

This is why mediation is so important. A skilled mediator can help all parties see what could go wrong at trial and avoid the uncertainty of a jury verdict. Mediation allows the parties to bypass the uncertainty of trial and the unpredictable nature of juries. Mediation allows the parties to control the outcome of their case by reaching a settlement with the assistance of a skilled mediator.

Save Time, Money and Relationships

While mediation does not guarantee that an agreement will be reached, it does provide an excellent opportunity for parties to have honest discussions with a neutral mediator about the strengths and weaknesses of their case. This can save time, money and stress associated with trial. Mediation can also help to preserve relationships between people who will have to do business with each other in the future. 

Avoid Lengthy Trials and High Legal Fees

Mediation gives parties the chance to find a resolution that works for both sides and that takes less time  and money to achieve. By reaching an agreement through mediation, parties are able to minimize costly court fees, expert witness fees, attorneys fees, and the time associated with a lengthy trial and possibly an appeal. 

MSB Law: Your Trusted Partner in Mediation

Mediation is a great alternative to trial for resolving legal disputes. MSB Law provides highly experienced Overland Park and Kansas City mediation lawyers for many different types of claims and disputes. Rick Morefield heads the firm’s mediation services practice and regularly serves as a mediator in Overland Park, Kansas City and throughout Kansas and Missouri. 

If you need a mediator, call us at (913) 839-2808 to get on Rick’s schedule!