Here’s 5 negotiation tips that I’ve learned about in law and mba courses and also in real life working as a lawyer that may help give you the edge in your own negotiations:

1. Don’t be the decision-maker.  Yup.  I said it.  It’s a tip.  If you’re about to reach a deal but want to put some pressure on the other side, simply say that you need to check with the boss, wife, husband, business partner, etc. to get the final OK.  At this point, a deal has practically been reached and the other side may be desperate to close given all they’ve put into it.  They may just make a concession at this point!

2. Decide on which strategy to use. If you’re doing a one-time deal and don’t really care about maintaining a long-term or even amicable relationship with the other side, then you might want to use an aggressive negotiation strategy.  Push hard on price and terms.  Hold back on making concessions.  If, however, you want to keep things amicable because of a long-term relationship, you might want to be more polite and reach consensus based on all of the factors, not just price.  Both parties should feel as though they’re getting something.  Which strategy you use will depend on the context of the negotiation.

3. Come prepared. Most negotiations are over before they begin.  The party which has the arguments and counter-arguments in their head, has all the facts and issued laid out, and who has a strategy picked out will most likely get what they want.

4. Document the negotiation. This is important for a bunch of reasons.  First, if you start writing what the agenda, issues, positions, and final agreement is, then you will have the power of the pen.  He or she who has this power has more leverage over the other person.  They can include or avoid issues, present the agreement in favourable language, etc.

5. Structure the negotiation. This goes parcel and parcel with documenting the negotiation.  The first thing you’ll want to have is an agenda.  Depending on which strategy you’ve employed, you may want to unilaterally decide this or decide this by consensus.  Once the agenda is set, you can follow it according to timelines.  The agenda could be something like this:

• Introduction
• Issues
• Interests
• Positions
• Argument
• Alternative Solutions
• Final Agreement / Next Steps

written by admin \\ tags: negotiation strategy

I thought it would be worthwhile to outline some tips when it came to legal drafting that I often educate my clients on.  This shows why legal kits aren’t as good to protecting your rights and promoting your interests as an experienced lawyer is – particularly when you need to negotiate the terms and conditions of an important agreement.  So, without further adieu, here are my 10 big tips:

1. Organize your thoughts. I have a general rule about this: 1 idea per sentence, 1 idea per paragraph.  Keep things simple and make sure it flows naturally.
2. Use clear language. I can’t say this enough.  If you have the option of using lots of words to get your thoughts across, it’s likely going to get confused.  You’d better cut up your sentence into clauses and then make those clauses separate sentences, each expressing only 1 idea.
3. Know your audience. At the end of the day, your contract – for it to mean anything – must be capable of being enforced through litigation.  Therefore, write your contract with a judge in mind.
4. Anticipate concerns. There are lots of things you may not realize could impact the interpretation of your agreement at the time you write it.  Try to anticipate those situations by looking for precedents and asking around.
5. Use precise language or wishy-washy language to suit your needs – just realize when to use it! If you’re a commercial tenant, you may want to use very loose language when it comes to the types of businesses you can operate in the leased premises (to give you flexibility); you may also want very broad language when it comes to an exclusivity clause which restricts te landlord from leasing out adjacent premises to competing businesses (so more types of businesses are captured).
6. What are the consequences? If your intention is to create an enforceable agreement, then you should spell out the consequences of breaching the agreement or a specific provision therein.  Also, you should – when it is to your benefit – indicate WHO is the decision maker when it comes to things like breaching the document.  By this, I mean: if there is an alleged breach, then under the agreement, final decision-making authority for making that call is Party X.  This puts the power in that party’s hands.
7. Less is more. You’ve heard it before, but it’s still worth repeating: use smaller words, smaller sentences, smaller paragraphs, smaller everything to get your message across.  Too many words and things get messy.  Also, if you have the option of using smaller words to get the message across, use them!
8. Don’t use legalese unless you know what it means! Legalese is comprised of archaic words and phrases that only lawyers should be bothered with deciphering.  They often have specific meanings which are beyond the knowledge or understanding of the lay person.
9. Leave room for amendments later on. Sure, you might not get everything you wanted down in one shot, so just make a provision in your agreement that things can change through mutually agreed upon (in writing) amendments.
10. Keep learning! There are always new techniques to better legal drafting so research them by reading books, articles, etc.

At the end of the day, if you need a Toronto or Ottawa lawyer, just go to Dynamic Lawyers and make a post of your legal drafting wants, needs, etc.

written by admin \\ tags: lawyer, legal drafting, litigation

Please note that the information provided herein is not legal advice and is provided for educational purposes only.   If you need legal advice, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).

A friend recently asked me: “What are the legal ramifications when I purchase something that doesn’t work for the purpose which I bought it for?  Take for example, the case of an explosion proof refrigerator.  What if it failed to protect people and things on the outside from the dangerous contents on the inside?”

Now that may be an extreme and unfortunate example, I thought.   But nevertheless, I thought it would be worthwhile to dissect his question and outline some general thoughts here..

As I understand it, the purpose of an explosion proof refrigerator is generally twofold:  (1) to protect the internal contents from external explosions and (2) to protect external things, people, etc. from internal explosions.  If the explosion proof refrigerator fails to do either or both of these things, then injuries, damages, and losses may result.

In these situations, a person may claim, in addition to other things, that the manufacturer of the explosion proof refrigerator: (1) breached the contract of purchase and sale with the buyer or (2) was negligent in manufacturing the explosion proof refrigerator.   In the former case, the contract should be examined to see what exactly was bargained for.   Sometimes, the contract (particularly in the fine print) will specify that consumer protection statutes are inapplicable.  Consumer protection statutes are generally designed to allow people to raise claims that the product they purchased did not meet the purpose for which it was purchase.  If the contract, however, specifically excludes the application of such statutes, then claims and relief through them would generally not be available.

With respect to negligence claims, it’s safe to say that the manufacturer owes a duty to the ultimate purchaser of the explosion proof refrigerator to take reasonable care in the way in which it manufactures such refrigerators. The manufacturer will be held to the standard of care of a reasonable manufacturer in the same industry following industry standards (i.e. with respect to safety, testing, design, etc.).  Hence, if the specific manufacturer failed to live up to that standard of care, it could be liable if the ensuing damages from the defective explosion proof refrigerator were caused by its negligence, those damages were reasonably foreseeable as resulting, and no viable defence (e.g. contributory negligence) is available.

Also worth mentioning is that advertisements in respect of the explosion proof refrigerator should  be examined to determine if they claimed that the product was suitable for something which turned out to be false.  In these case, a claim for misrepresentation (either innocent, negligent, or fraudulent) may also arise.  Claims for misrepresentation are generally based on false statements that induce one party to take action or refuse to take action and which causes injury or damage.

written by admin \\ tags: breach of contract, breach of statute, consumer protection, damages, educational purposes, explosion proof, internal contents, internal explosions, lawyers, legal advice, legal analysis, legal ramifications, losses, misrepresentation, negligence, negligence claims, professional assistance, purchaser, refrigerator, unfortunate example