Life is a Negotiation so be Prepared

Posted on: October 15, 2013. Post written by: - Tags: , , , , , , , , , , , , ,

As an attorney my life involves negotiation on a daily basis, professionally. But so does yours. You may negotiate with clients, customers, suppliers, co-workers, spouses or children. Is it for that big sale or to get your kid to do something? It doesn’t matter, prepare.

The preparation may just be thinking about the conversation. Or it may be strategizing with others or conducting role playing scenarios. There are many commentators out there who do a great job on writing about negotiation strategies and issues (For example, see Marty Latz’s (@MartyLatz) columns: http://www.negotiationinstitute.com/columns). Maybe your preparation can be researching his or other columns on the Internet. The point is do something; Think. It will help.

For me, professionally, negotiation can involve mediation, which is a more formal form of negotiation and usually is my client’s last opportunity to settle a dispute on terms agreeable to them before a judge or jury makes a decision that will impact their life or business in potentially unpredictable ways. That is a big deal. But so is the potential sale or going to the football game with your friends next Sunday.

One thing I always tell clients (and do when negotiating in my personal life) is to think about the person(s) you are negotiating with and the potential outcomes: your best case,  your worst case and what is an acceptable result (or range of results) to you. Know your audience because how you wrap the message is important.

I challenge you to try preparing for your next negotiation, whatever it is. And please let me know if you think your preparation helped or not (and if not, why).

If you want to talk about preparation for an important conversation or negotiation you plan to have, please feel free to call me (which is preparation too) because I may have a few ideas based on my experiences negotiating personally, professionally and as a mediator.

No Comments

Aspire to be Great!

Posted on: October 11, 2013. Post written by: - Tags:

Whether conscious of it or not the majority of people you know aspire to be great. At something. It may not be in an area or way you think. That CEO you know may aspire to be a better leader or to improve his skills at playing guitar or golf. But aspiring to be great at anything actually takes work. Hard work. And discomfort.

No matter whether you are working on a skill or behavior it needs to become second nature. Think repetition. A good example is golf. Swinging the different types of golf clubs well takes repetition until the swing becomes second nature, requiring no thought, like a habit. This level of discipline is not human nature and is why it takes hard work and discomfort to achieve or even try to reach your aspirations.

So whatever your aspirations are – developing more work, increasing revenue, running a marathon, improving your golf game – you have to be ready to invest blood, sweat and tears. If you do, there is no guaranty you will reach your goal, but there sure is a better chance. The results, or lack thereof, ultimately will reflect the level of work and discomfort you were willing to endure in aspiring to be great at something.

No Comments

Positive Reviews and Feedback Must be Earned

Posted on: September 30, 2013. Post written by: - Tags:

Most people I know talk about the need to work hard to be successful and earn a good reputation. Yes, I said “earn a good reputation.” That is what you hope to achieve if you put in the hard work.

But some people, not just the 20 somethings, have unrealistic expectations, which at times results in cutting corners and avoiding the hard work part. I just read about a San Diego law firm being sued by Yelp because it allegedly had its employees paste fake reviews on Yelp because the posting of fake reviews violates the website’s terms of service contract (you know, the long thing you don’t read and just click the “Accept” button blindly). In addition to pointing out that it is easy to trace IP addresses and having employees post fake reviews from your office is bad form, that firm was forgetting the part where you have to work hard and provide good service to customers to earn praise.

If you work hard and provide a good service experience you will build your reputation. This in turn may lead to many positive results including positive online reviews, peer recognition and a good reputation, which will lead to what individuals and business seek: more work, customers, income, etc.

This leads to an old saying that is true: you need to take the time to invest in yourself. If you do, success is not guaranteed, but if it does come it will be earned and that much sweeter.

No Comments

We All Need To Try Something New

Posted on: September 18, 2013. Post written by: - Tags: , , , , , , , , , , , ,

If you’re not successful, you’ve got to change something. Funny thing is that if you are successful it helps to change something. Trying something new is good for all of us. It could be regarding how you generate or create business. It could be how you organize your workspace. It could be stopping at the corner coffee shop in the morning and meeting your neighbors or other professionals and business owners.

Back to if you are not successful or are on a bad streak. The problem is you, but not in the way you think. Odds are it is not your work product. It is that you are stuck in routine and maybe with things that used to work. We are in a new world: post-recession, surrounded by technology twenty-four hours a day, sucked into interactions with or through machines that used to happen in person, or at least by phone. Change something.

One idea is to reconnect with people. I know people thirty and younger may be rolling their eyes, but life previously didn’t involve texting, Facebook and twitter. Make a list and call someone from that list each morning. All it takes is three to five minutes a day, but that personal touch means something. If not that, change something else, regularly.

Don’t let lack of success or success define you. Interact with people. For most of us, it is those people and their memory of you that will define us, not a witty tweet…

No Comments

Good Communication Must be Lucid, Cogent, Succinct, Interesting, Informative, and Convincing

Posted on: September 13, 2013. Post written by: - Tags: , , , , , , , , ,

Those are a lot of five star words I read in an interview answer United States Supreme Court Justice Anthony Kennedy gave when asked what qualities he admires in the briefs presented to his court. I think what he said has broader application in our daily lives, both professional and personal. Whether you are writing, on the phone, meeting with someone or a group, giving presentation, etc. you need to think about your audience and the result you are seeking.

It takes work to be clear, logical, and short (my three star understandable translation of Justice Kennedy’s words), let alone interesting, informative and convincing. This does not mean practice and plan every communication because thinking on your feet is another important skill to have and some communications need to and are meant to be spontaneous. It means know your audience and the context of your communication.

For example, if you are negotiating anything (we all negotiate in all aspects of our lives daily! You do….think about it), and here I am specifically thinking in our business or professional roles, do you have a strategy going in? If you don’t, you likely will not get to the result you seek or accept a result that would have been unacceptable to you going in. How you prepare is up to you and should be based on the context and type of communication. Negotiating a lower price for a curio on vacation is different than negotiating a business contract is different than negotiating settlement of a lawsuit.

In my world this mostly means dealing with clients, other attorneys and courts. What it means to you is relative to where you sit. And, again, the context of the communication. And it includes tweets and Facebook posts for business related accounts, and most certainly texts and email.

It goes back to something many of us have heard our entire lives: think before you speak (or in this case, before you write/type/tweet…or maybe blog).

If you have any thoughts or want to add to this conversation, please feel free to email me, text me, tweet me, message me on LinkedIn, comment here, call me or stop me in the hall!

No Comments

All Business is Relationships

Posted on: September 11, 2013. Post written by: - Tags: , , , , , , ,

It is important to remember how to be a member of the group. And don’t make it only about  business. Relax. All business is relationships, and it is where you need to do a good job. If you are not, you’ve got to tweak the formula.

Even if you know the answer, don’t always volunteer it. Many people don’t want to be wrong. Never. If you correct them, they’re alienated from you, and that might work against you…for years.

Generally try to avoid behaviors and actions that alienate people, like desperation, complaining or emotional reactions. It does not mean you should sublimate your personality. For example, you often meet bullies and people with a chip on their shoulder at the pinnacle of business. With some the only way you can gain their respect (sometimes begrudgingly) is to act just like they do. They may end up respecting you, they may not. But they will realize you know how to play the game.

But it’s much more complicated than that. And I’m still learning. This is why you always should try new things to find both what works for you and what you are comfortable with. And remember that important things such as friendship, respect and success are earned.

1 Comment

Know the Rules

Posted on: September 06, 2013. Post written by: - Tags: , , , ,

Only ask for a favor if you’ve got something you can give in return. Because favors are expensive. And if you don’t acknowledge or return favors, don’t expect those people to do any for you in the future. Really what we are talking about is the golden rule: do unto others as you have them do unto you; In modern language it means treat people how you want to be treated.

You know you have skills, but you have to know the rules. Last night I watched a Denver Bronco defensive player intercept a ball, go straight to the end zone, but drop the ball half a step before he crossed the goal line. He almost had a touchdown. My kids remind me that almost only counts in horseshoes and hand grenades. That player had the skills, but didn’t know the rules.

There’s more information out there than ever on how the game works. If you want to work in any industry or profession you have to know who the players are, learn about where they started out, and then not only how they got to where they are, but where they are going. This will take work. But the payoff is great. For most of us, the areas in which we are trying to find success are not new roads, but old, well-travelled roads. Desire and will only go so far. While traveling down those old, well-travelled roads there is no reason to reinvent the wheel. And by the way there is a reason why clichés became clichés, but I will leave that story to another day.

If you want to discuss the rules, or anything else, feel free to contact me.

No Comments

Things you need to know for business and life

Posted on: September 04, 2013. Post written by: - Tags: , , , ,

I am sharing some things I was thinking about over the holiday weekend. I hope you all were able to relax and recharge, and are ready for you and your business to head strongly into the fall.

1. Being the star may be short-lived

Being a rainmaker or achieve success usually takes hard work and time. At points it feels like it is easy to break through, but it can be much harder to sustain.

2. Quality counts.

If you want to maintain your reputation and have longevity at a high level expect to work hard. It’s hard to game the system for your career. Your best bet is to focus on your work and do your best for your clients or customers.

3. Talent is not something you are born with.

There is no way around the fact that you have to do your work and homework to do your best for your clients or customers. Find a niche you like, or yet love, learn and do your best. If you do it is likely your clients, customers and professional acquaintances will help spread the word for you. The goal is longevity.

4. Throwing it all at the wall doesn’t work well.

Even if it makes you feel good to get the message out every way you can, unless your target market is listening it is wasted time and effort. It is not a numbers game, but about being personal. One personal email to an important connector is more important than a press release sent out randomly; The personal touch is everything today. People remember personal emails, phone calls and meetings, which can pay dividends in the future.

At the same time, if using the written word, use spellcheck!

5. Invest in yourself.

Success is slow. Learn well, put what you learn into practice and treat clients, customers and everyone you deal with how you would want to be treated. Yes, try to be professional even when others are not because people will remember the one time you lack professionalism if it happens. And there’s plenty of money to be made in the long run and it comes easier if you don’t make it your number one priority.

Please think of me if you or anyone you know want to discuss these type of issues or have any legal needs.

Neal

No Comments

Are there fiduciary duties between members in an Arizona LLC??

Posted on: August 22, 2013. Post written by: - Tags:

In 1992, the Arizona legislature enacted the Arizona Limited Liability Company Act. Since that time the LLC has become the entity of choice for many individuals, businesses, partners and investors. While there obviously are differences between corporations and LLCs, attorneys in Arizona have always believed that there were many similarities.

For instance, when you form a corporation Articles of Incorporation must be filed with the Arizona Corporation Commission. When you form a LLC Articles of Organization containing generally the same type of information must be filed with the Arizona Corporation Commission. Shareholders in a corporation may enter into Bylaws that govern the shareholders, directors, officers and their various dealing with and among each other. Similarly, members in a LLC may enter into an Operating Agreement that governs the members and management of the LCC.

Based on the similarities and the abundance of Arizona case law on corporations, attorneys have looked to that law when dealing with issues between members of LLCs for the past twenty-one years. Part of the reason for this is that there still is, after so many years, little published case law on LLCs regarding issues between members and or managers.

When issues of wrongdoings have arisen between members in a LLC, breach of fiduciary duty claims have been brought in state court lawsuits. Recently, in a lawsuit I am involved with in bankruptcy court, these issues were dealt with in a surprising manner by the bankruptcy judge.

The bankruptcy judge dismissed claims based on breach of fiduciary duty based on the belief that there are no fiduciary duties between members of a LLC unless they are specifically provided for in an operating agreement. This was shocking to me, as well as to other attorneys at my firm and other firms who I spoken with about this issue. The bankruptcy judge specifically said the Arizona Limited Liability Company Act does not state that there are fiduciary duties between members, there is no Arizona case law on the issue and declined to impose fiduciary duties on members unless specifically set forth in the operating agreement.

As always, whether the potential lack of fiduciary duties is good or bad depends on the position of you or your client. There are situations where you or your client will or won’t want there to be fiduciary duties between LLC members. Because of this, the important takeaways include the following:

  1. At the time LLCs are being formed if you or your client want there to be fiduciary duties between members put it in the operating agreement to be safe.
  2. If you don’t want there to be fiduciary duties between members specifically state there are no fiduciary duties on the operating agreement.
  3. It is impossible to know what other Arizona state, federal or bankruptcy judges will find on this issue in any given case based on my recent experience.
  4. Attorneys need to be speaking with their clients about this issue to determine whether an existing operating agreement needs to be amended.

If you or your clients have concerns with this type of issue, please let me know if I may be of assistance in discussing and analyzing the issues so educated decisions can be made about either existing relationships between members or where there have been actions that appear to support a claim for a breach of fiduciary duties between LLC members.

No Comments

Not All Customer Lists Are Trade Secrets

Posted on: August 14, 2013. Post written by: - Tags: , , ,

In a case decided this past April, the Arizona Court of Appeals found that whether a business’s customer list is a trade secret requires a factual inquiry. Calisi v. Unified Financial Services, LLC, Case No. 1 CA-CV-0812.  The court’s holding requires a two part inquiry to determine whether a customer list is, in fact, a trade secret.

First, a trial court must determine whether the customer list has been kept secret and there have been reasonable efforts to keep the customer list secret. If the facts show this to be the case, courts then must consider four factors to determine whether a customer list is a trade secret: (1) whether the customer list contains a selective accumulation of detailed, valuable information about customers; (2) whether substantial efforts were expended to identify and cultivate the customer base such that it would be difficult for a competitor to acquire or duplicate the same information; (3) whether the information in the customer list derives independent economic value from its secrecy and gives the business a demonstrable competitive advantage over others in the industry; and (4) whether the business divulged its customer list externally or internally. If a business cannot provide and present evidence to a court to support these four factors its customer list is not a trade secret.

The takeaway from this case is that  it is important to keep your customer list secret, and clearly never provide the list to people outside of your business, and to be able to clearly provide background on the list to support the four factors enunciated by the Court of Appeals.

As a side note, two of my partners represented the plaintiff and were successful on all issues in the appeal.

If you or anyone you know needs advice or assistance on either side of a customer list or trade secret case, please call me for assistance at (602) 248-1009 or email me at nhb@jaburgwilk.com.

1 Comment

← Older posts
Newer posts →
Share This