President's Perspective
The Art of Negotiation
by Leonard L. Loeb
As lawyers, we are negotiators. Negotiation is
one of our premier tools of the trade. Negotiations should be entered
into in a "win-win" mode. Since most cases are settled by negotiation
rather than by litigation, one of my goals of office is to create a set
of guidelines that will assist practitioners with negotiations. Last
summer, I appointed a forum of knowledgeable, experienced practitioners
to discuss and draft guidelines under the able chair of Robert Elliott.
Ultimately, I hope that the guidelines will be approved by the State Bar
Board of Governors and will be disseminated statewide for the
membership's benefit.
The forum is charged with formulating guidelines,
which express for both novice and seasoned lawyers, what the bar expects
from attorneys engaged in negotiations. In addition, it is hoped that
all parties who are engaged in negotiations will agree to comply with
the guidelines.
The Wisconsin Guidelines of Negotiation Forum includes chair Robert
Elliott, Michael Bamberger, Andrew Barnes, Thomas Brown, Steven Kravit,
Patrick Matthews, Kathleen Miller, Howard Meyers, Kathy Nusslock, Prof.
Andrea Schneider, and Joseph Tierney III. These are experienced lawyers
who use the tool of negotiation regularly in their practices. Their
practices range from labor law to family law, from financial and
business transactions to civil and criminal litigation.
The forum met regularly for six months and drew initially upon the
wealth of published materials that exists on this subject, including
publications from the American Bar Association, the Delaware State Bar
Association, Chapter 20 of the Wisconsin Supreme Court Guidelines (preamble to
20:1.7 and 20:2.1 to
end), a December 1998 State Bar CLE Seminar entitled "Ethics of
Negotiation," and numerous law review articles.
Forum members found that they share a number of similar personal
negotiation guidelines. They also discovered that concepts that appeared
on their face to not be disputed were, in fact, vigorously debated. For
example, the forum debated whether an attorney has an obligation to
correct an opponent's misapprehension of a law or fact if it operates to
that attorney's client's advantage and whether an attorney has an
obligation to not take advantage of an unrepresented party to a
negotiation. Answers to such questions differ according to the
interpretation of attorneys' obligation to the public in relation to
their obligation to the client.
The Wisconsin Guidelines of Negotiation are, as their preface states,
intended to be read and applied in conjunction with the Rules of
Professional Conduct, adopted by the Wisconsin Supreme Court as SCR 20
(preamble
to 20:1.7 and 20:2.1 to
end). Essentially, they are an articulation of what each attorney
would determine to be fair and honest under the circumstances, either as
to that attorney's client, opposing attorney, or opposing unrepresented
party.
The guidelines will be presented to the Board at its April meeting. I
invite your comments and annotations. The guidelines can be found online. Please fax your comments to
either Robert Elliot at (414) 225-9063 or me at (414) 272-7918.
As always, you can reach me by email.
Wisconsin Lawyer
