More Advice for Online Contact

Following up on my post regarding email negotiation last week, the ABA Journal noted this week that there are limits on the use of social spaces in order to gather information:

A lawyer who wants to see what a potential witness says to personal contacts on his or her Facebook or MySpace page has one good option, a recent ethics opinion suggests: Ask for access.

Alternative approaches, such as secretly sending a third party to “friend” a Facebook user, are unethical because they are deceptive, says the Philadelphia Bar Association in a March advisory opinion.

Not telling the potential witness of the third party’s affiliation with the lawyer “omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness,” the opinion explains.

“The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she [might] not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.”

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American College of Trial Lawyers Task Force Recommends Use of ADR

As reported in the April edition of the Resolution System Institute’s Court ADR Connection e-newsletter (a great e-newsletter devoted to information on Court ADR): 

A report recently released by the American College of Trial Lawyers Task Force on Discovery includes a recommendation that courts should “raise thepossibility” of pre-trial mediation and other ADR processes, and in some cases should order its use. The report, conducted in association with the Institute for the Advancement of the American Legal System, was based on a survey of ACTL members to identify perceived problems with the discovery process in the civil justice system. In that survey, 82% of respondents said court-related ADR was a “positive development,” and 72% said it led to settlements without trial. The majority of respondents also said ADR decreased their clients’ costs and led to a shorter time to disposition. These results led to the task force’s recommendation. However, the task force also noted that it hoped its other recommendations for decreasing the cost of discovery would help to increase the use of judicial trials, as opposed to ADR.

For the full report, click here.

Cross posted at Indisputably.

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You’ve Got @greement–Email Negotiation Advice

This past semester, my students participated in an email negotiation with students from Hastings and Boalt law schools which turned out to be quite interesting for them and for me reading their journals afterwards.  It is always lovely to write an article — it’s even nicer to see that what you write might actually be happening in reality as well!  In a chapter entitled You’ve Got Agreement: Negoti@ting via Email in the recently published book Rethinking Negotiation Teaching,  Noam Ebner and others (including me) review some of the advantages and disadvantages to email negotiation, many of which were experienced by my students.

The difference in the type of media meant that students really needed to engage in conscious “shmoozing” to build rapport.  We discovered that one Hastings student was actually a Marquette alum — building instant rapport — while other overly brusque email exchanges did not work as well.  Tone in email matters.  Students also appreciated the asynchronous part of email negotiations.  They could think, do some research, and then email back to their counterparts.  They also noted when they got in a good email rhythm with the other negotiator.  At the same time, email also made it easier to lose touch and for the negotiation to take longer than it would have otherwise.

We also saw some other effects from the email negotiation — diminished information exchange and diminished trust — that students needed to overcome.  But, having talked about this in advance, students knew that they would need to work at this.  All of which goes to the point that this was a very worthwhile exercise and practice. 

As the New York Times wrote about last month in a very good article, even real estate deals are being done over email. 

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