Mark DeBofsky is the top disability lawyer in the state of Illinois. He was named a Super Lawyer in Employee Benefits/ERISA in every year since 2009, and since 2011, he has been listed among the Top 100 Lawyers in the State of Illinois and among the Top 10 in Illinois in 2017. 

He is a member of the DeBofsky law firm as well as an adjunct professor of law at University of Illinois-Chicago John Marshall Law School. He is a prolific author who has written many journal articles and has been a regular columnist for the Chicago Daily Law Bulletin since 2004. Mark DeBofsky is also an annual contributor to the ERISA Survey of Federal Circuits published by the American Bar Association and served for many years as a senior editor of Employee Benefits Law published by Bloomberg.

His warmth, empathy and compassion really come through when discussing this profoundly important and under-reported area of not only the law, but indeed also of the misfortunes and challenges people face.

For more information on Mark:

www.debofsky.com

mdebofsky@debofsky.com

Key takeaways:

• Working in disability law is a chance to do good for individuals and to solve concrete legal problems.
• The ERISA act of 1974 was designed to help claimants, but is in fact now being used mostly to favor the interests of employers and companies in social security cases. This can make things very difficult – and there is a good chance of ending up with $0. Mark has argued that elements of the ERISA act are unconstitutional.
• A common mistake lawyers make is being too eager to reach a resolution; be more patient and stick to your guns (though you must have a high tolerance for risk).
• Explain the process of mediation properly to clients to prepare them for the process. Don’t ask them for their bottom line (they should come in with a completely open mind and be willing to listen).
• Some companies discourage pre-litigation resolutions as a general rule.
• Cases brought in Texas are worth less than cases in Illinois.
• If you know your case, you can be ready to go to court on day one.
• As a disability lawyer, you need to know the claim record of your client inside and out. You’ll be dealing with a host of medical conditions, some of which translate into a disability more easily than others in the support of a claim.
• Terms are mostly economic in these kinds of cases.
• Mark spends 50% of his day being a psychotherapist due to the nature of this work.
• There is rampant discrimination in insurance policies for psychiatric considerations, and some people assume that there must be some fault on the disabled person for becoming disabled (another form of discrimination).
• Media coverage is absent on this area – editors consider it too difficult to make a succinct and clear story from these cases.

2:35:

How did you become a disability lawyer?

7:30:

Dealing with insurance companies and the difficulties in this?

13:00:

Preparing for a negotiation?

15:00:

How to resolve a case pre-litigation?

19:20:

Biggest mistakes lawyers in your field make?

20:28:

How do you prepare a client for mediation?

22:45:

How to determine the value of a disability claim?

24:50:

Specifics of negotiating value?

26:12:

When do you decide to mediate cases?

27:30:

Dealing with impasse?

31:15:

Non-economic terms?

34:00:

How does the psychological state of clients affect the process?

38:30:

Media coverage?

42:50:

The future – optimistic or pessimistic?

46:10:

Contact details and final remarks.

Scott Becker previously served on the McGuireWoods LLP Board of Partners and served for nearly 15 years as chairman of the firm’s national Healthcare department. McGuireWoods has one of the best regarded healthcare practices in the world. Scott is the Founder and the Publisher of Beckers Healthcare and Beckers Hospital Review and its related events and publications. Mr Becker remains the Publisher and Chief Content Officer of Beckers HealthCare. Scott also produces the Becker Group Business News, the Becker Private Equity Podcast, and the Becker Business Podcast. Mr Becker is a Harvard Law School Graduate and a University of Illinois undergraduate business school graduate in Finance and Accounting. He is also the author of four books and a CPA.

Key takeaways:

• Simplify your goals and objectives: What is your side looking for in the simplest terms? This provides clarity.
• People can go into negotiations without really knowing what they want, and this can make things messy. Make sure everyone on your team is on the same page.
• A balance of working side by side with other professionals and learning the academic side of negotiation is key.
• You can’t do a good deal with bad people.
• People generally want a fair amount of money and a good working relationship, not necessarily the most amount of money.
• Private equity has been democratized in recent years to some degree.
• A client needs to understand what their core goals are and how they will impact the deal. 
• What are the important and unimportant issues? You don’t be a ‘killer’ on every issue!

1:50

How did you hone your negotiation skills?

3:40

How do you do things differently from others in your field?

5:30

How to deal with mixed messages from your own team in health care negotiations?

9:10

Hardest types of health care deals to negotiate?

12:30

How to expand the pie when money seems like a zero-sum proposition?

13:50

Hardest matters to deal with in private equity?

17:20

Are private equity valuations going up?

18:35

Common mistakes lawyers make in private equity deals?

21:50

Common mistakes in health care work?

24:40

Typical non-economic terms in health care?

26:30

Dealing with difficult clients?

29:36

When do you decide to mediate?

30:40

Dealing with impasse?

31:40

Settlement privileges?

32:36

Take it or leave it deals?

34:40

How does media involvement and publicly available information affect a deal?

37:50

Final remarks

This week’s guest is top family law attorney Christopher C. Melcher. For more than twenty years, Chris he has been helping his clients navigate all the financial aspects of divorce, including tax consequences of property division and alimony, corporate laws dealing with the division of a family business, and the definition of income for purposes of setting spousal and child support. 

He has presented approximately 150 continuing legal education programs to other attorneys across California and in other states on the issues of complex family law issues. A published author, Mr. Melcher has written multiple treatise chapters and several articles on financial issues in family law proceedings. Before entering family law exclusively, he practiced criminal defense and civil personal injury litigation. He earned his law degree at Pepperdine University School of Law in Malibu, and was admitted to the California bar in 1994. He has a Bachelor of Arts in Psychology from California State University, Northridge. He holds the rating of AV® Preeminent™ by Martindale-Hubbell* and a rating of 10.0 (Subperb) by Avvo.com. He was named to Chambers & Partners Tier 2 for their individually ranked attorneys for 2019-2020.

Chris is an honest, intelligent, and honorable person and this shines through in this lively and informative episode of Consult the Negotiator Podcast.

Key takeaways:

• Avoid the courtroom – keep control by aiming for the negotiated outcome.
• Chris learned to negotiate by watching how his Mom navigated conflict.
• Be objective – listen to the other side and the nuances of their position.
• High conflict disputes are the most difficult to deal with in family law. 
• Some lawyers cultivate the ‘scorched earth’ aggressive brand. But they get their way through intimidation and more than likely, if you go to court, you will win.
• Clarify your approach and litigation style at the outset to make sure you match with your clients.
• It is surprising to some people how expensive divorce will be.
• Ideally, your client will accept the other side’s offer – this is the best-case scenario. This will feel like a win.
• How to respond to take it or leave it? Leave it!
• The same triggers that have caused a couple to break up can lead to impasse.
• Almost all divorces have a mental health dimension which adds complexity to the situation.
• Whether a celebrity or not, we are all the same deep down and worry about the same things.
• Video conferencing is making things more affordable and accessible.
• Let the small stuff go!
• The three biggest mistakes lawyers make?

1. Taking on the client’s cause as if it is your own – becoming a cheerleader who lacks objectivity.
2. Not knowing enough about the complexities of family law and its breadth and depth.
3. Not setting expectations properly for clients.

2:00

Is negotiation the core of being a top lawyer?

2:40

How did you hone your negotiating skills?

3:30

Were you a mediator growing up with friends and family?

4:35

How do you personally negotiate differently to others in your field?

6:00

How to deal with toxic clients who want to destroy the other side?

9:50

Do your clients levitate to your style and approach to litigation?

11:00

How to deal with sharks?

13:00

The three biggest mistakes lawyers make?

15:30

How to expand the piece in zero-sum cases?

19:30

Money now vs money later?

21:00

Determining the value of a claim?

23:45

Financial disclosures?

26:30

Step one in preparation for a negotiation

28:00

Where to begin a negotiation?

30:00

When to use a mediator?

32:40

How to prep a client for a mediation?

35:00

Issues that lead to impasse?

37:00

How to respond to take it or leave it?

38:20

Non-economic terms?

40:30

Dealing with substance abuse or mental health type problems?

43:00

Differences in family law and other areas of the law?

45:10

How to set boundaries with clients

47:15

The most challenging family law matters to settle?

48:35

Celebrity cases?

50:30

How do celebrities keep their divorces out of the media?

53:00

The next five years for family law?

55:50

Keeping in touch with clients?

Paul G. Neilan has more than twenty-eight years of experience as an attorney concentrating his practice in all aspects of energy and telecommunications, with an emphasis on matters arising from deregulation and competition in those fields. He has comprehensive expertise in competitive electricity supply and renewable energy, and has represented commercial, industrial and governmental energy users in both litigation and transactional matters. His long experience in the energy industry makes him a highly skilled negotiator for his clients.

Paul and Marc met after being handpicked as two of the best lawyers for a marketing group. Marc thinks of Paul as one of the smartest people he knows which makes for an interesting episode of Consult the Negotiator podcast.

Go to www.chicagoenergylawyer.com for more info on Paul.

Key takeaways:

• To deal with massive companies confidently, you must understand the mechanics of the industry in which you are negotiating.
• Paul has experience of being on either side of a negotiation (for example borrowers and lenders) and found the experience of negotiating on either side an excellent way to learn.
• When managing client expectations, early communication on the value of the case is essential. No case is perfect, and the client needs to know that to keep expectation realistic.
• Make sure you have a clear path to settlement with your client’s authorization.
• People make threats that they shouldn’t when trying to settle. Avoid threatening or pressuring opponents when stuck at impasse since it’s hard to dial it back down.
• Try being overly polite to soften up a difficult opponent.

1:45

What type of work do you do in telecommunications?

3:00

Why did you select this area of law?

5:40

How do you negotiate with massive companies?

11:45

What are the mechanics of ComEd paying your fees?

12:40

Are a lot of your cases class action cases or one off’s and individual?

15:15

Are some of the cases subject to arbitration?

17:30

How do you expand the pie in a negotiation which seems like a zero-sum proposition?

24:00

Aren’t you sometimes in situations where the cost of ligation trumps what the damages will be?

25:40

Where do you determine where to begin settlement negotiations?

27:45

Biggest mistakes you see other lawyers make?

30:50

What threats have you seen people make?

32:35

How has media attention affected some of the cases you have handled?

33:45

Dealing with impasse?

37:00

How to deal with a jerk opponent?

39:30

What are the most challenging matters to negotiate?

43:25

Website and contact details?

Karen Conti has been an aggressive, committed, and well-known litigator in Chicago for more than 33 years. Karen founded her own practice (ContiLaw) five years ago. With family law as her primary legal area; she has represented all types of people:  sports celebrities, politicians, artists, stay at home mothers, police, teachers… She has a full rounded practice which gives breadth and depth to this discussion on negotiation. Karen also host’s her own podcast: ‘The Karen Conti Show’ (https://wgnradio.com/tag/karen-conti/) and has hosted weekly legal radio shows for over 25 years.

Karen is a dynamic and influential attorney in the local and national legal community. She has intensive and diverse trial experience from the Circuit Court of Cook County to the U.S. Supreme Court. At the same time, Karen has exceptional negotiation skills which allow her to quickly and creatively settle matters with the least possible expenditure of time and money. She is formally trained and certified as a mediator and in collaborative law. Karen’s handling of numerous high-profile cases has created her reputation for fierce advocacy among judges and other lawyers.

Karen proves herself to be an extremely lively, dynamic and fascinating speaker in this episode of Consult the Negotiator Podcast.

Go to www.kcontilaw.com for contact information.

Key takeaways:

• Preparation is key.
• 95% of family lawsuits settle, hence the necessity of having well developed negotiation skills.
• The best way to settle isn’t to create arguments.
• People cannot make rational decisions when in ‘fight or flight’ mode.
• Structure negotiations and make a plan: create a hierarchy of important issues (children first and foremost).
• Don’t create a financial settlement range (for example between $100 and $200): your opponent knows you’ll take $100 so the upper number is pointless!
• Abuses can use mediation to their advantage.
• Help clients in divorce cases to look to the future in a positive way!
• Be yourself! 

2:00

How did you learn your negotiating skills and who are your biggest influences?

Marc himself helped her realise negotiation skills are something you can learn.

There is not enough attention paid to negotiation in education.

3:20

Dealing with divorce law and the emotions involved?

When both parties are ready you can start negotiating. Try to foreshadow what their new life is going to be like… Help them to look forward and not backwards.

7:10

How to prepare for negotiations after you have met your client?

9:20

How to determine the value of a case?

Alimony is codified - there is a formula which makes it easier. Parties can deviate from the statute if both parties agree.

11:45

Leverage?

13:30

Avoiding pettiness and emotion?

A funny anecdote of estates with 10 million dollars negotiating about a grandfather clock.

15:30

How to deal with disagreeable opponents?

18:00

Mistakes lawyers make?

20:00

The uniqueness of family law?

The relationship between the husband and wife outside of the legal context is one key factor.

23:20

Personality disorders and divorce.

24:45

Which cases do you decide to mediate?

26:15

Preparing clients for mediation in emotionally tense cases.

29:45

How do you as the lawyer survive when surrounded by toxicity?

32:00

How do you deal with the 24/7 nature of the job?

Work 7 days a week but take planned time off.

33:40

How to get past impasse?

37:30

Advice to new lawyers coming into the field?

The importance of learning to negotiate… Hone your negotiation skills like any other skills.

39:00

How to lessen the bitterness that can occur in divorce cases?

Gary Marsh is a partner at Troutman Pepper (a national law firm known for its higher commitment to client care). He is an expert in bankruptcy law which is the focus of this episode. Gary is a veteran restructuring attorney focused on all aspects of bankruptcy, workouts, debtor and creditor law, and general commercial litigation. He represents debtors and creditors in Chapter 11 cases, out-of-court restructurings and litigation. He also represents court appointed receivers, examiners and trustees. Gary’s practice primarily involves representing financial institutions and servicers in and out of court in enforcing their rights and remedies. Gary has deep industry experience particularly with healthcare, energy and real estate insolvencies. 

Go to www.troutman.com for more information.

Key takeaways:

• When negotiating it is important to really get a handle on the facts early on: Consider: time, cost, risk; client pain and suffering… and then put it all together to come up with a reasonable sense of what is a fair settlement.
• Avoid drawing a line in the sand unless you genuinely intend to stick by it.
• Be flexible – things change, and you’ll need to adapt.
• Control anger when in difficult situations!
• Get all issues on the table at the beginning – if you have ten issues then you can know which ones you’re willing to trade beforehand to more easily find common ground.
• Cases which involve raw human emotion can be the most difficult kinds of case.
• Trying to pull parties apart rather than bring them together can be a big mistake.

2:20

How did you learn your negotiation skills?

Gary learned by doing: Law schools are better at teaching negotiation skills now, but 35 years ago it was not taught at all. He also learned a lot from John Aldridge (a colleague from a previous law firm).

3:25

Key lessons from John Aldridge:

Assessing the client, yourself, and the deal: what leverage do you have?

The importance of face-to-face negotiation.

4:10

How do you deal with the ‘lunatic’ opponent?

Separate clients and lawyers to see if this changes the dynamic.

Sometimes you have to tough it out!

6:20

Bankruptcy is a complicated and challenging area of law. How to expand the pie when money seems zero sum and there are so many interested parties?

8:50

Multiple creditor negotiations and competing interests?

10:40

The difference between secured and unsecured creditors?

12:00

How to determine the value of a claim – what is a good result?

13:45

How do you prepare for a negotiation?

Really get a handle on the facts early on.

16:00

How do you get past impasse?

Make sure all parties necessary to actually make a decision are present – you don’t want to negotiate with someone who doesn’t have authority to settle.

20:10

Non-economic terms in a bankruptcy case?

Such as a good business relationship going forward.

21:45

Difficult types of cases?

23:45

Would abuse cases be considered as unsecured creditors?

An interesting discussion on the details and difficulties of abuse cases.

26:50

What mistakes do bankruptcy lawyers make when negotiating?

Overplaying their hand.

28:30

Other mistakes?

30:30

How does bankruptcy law differ from other areas?

33:10

A bankruptcy system is multifaceted multiple parties – a chessboard.

35:10

Gary’s teaching roles.

36:45

How to manage expectations?

Keith Allen is a partner at Mandell Menkes LLC. Keith and Marc met at a marketing group whereby each lawyer represents a particular practice. Keith has specialist knowledge of first amendment law and has handled many areas of complex commercial matters, including contract disputes, defamation claims, common law fraud, consumer fraud, deceptive practices, publicity and privacy rights, insurance coverage disagreements, and enforcing creditor rights in bankruptcy court. Keith is well-known for being practical and aggressive when protecting his client's interests.

Keith also works in the community to mentor young attorneys in their personal and professional lives. He works will many non-profit organizations and is a group leader at his church. He focuses on uniting community members and teaching them the heights they can achieve regardless of their racial and/or socioeconomic status.

Contact info can be found at: www.mandellmenkes.com

Some of the main takeaways from this episode are:

• Keith learned to negotiate by playing chess: concepts such as ‘giving up a pawn to get something in return’ are key to his negotiation style.
• Facts never matter: facts are just our own personal view of a case.
• Understanding what each party really wants and understanding what is fair for both sides is key to negotiation.
• Figuring out what makes a person tick is the best way to win a trial.
• A good negotiator must let the client know when a result is the best that they can reasonably expect.
• How to respond to an insulting offer… watch the Godfather!

Episode highlights include:

3:00: How did you hone your negotiation skills?

5:40: How to get past opposition who are at boiling point?

8:50: How do you expand the ‘pie’ in negotiations when money seems like the zero-sum proposition?

11:30: Does Keith have a unique way to negotiate?

Keith undertook personal development classes to develop his negotiation craft.

15:00: Difficult cases to negotiate?

When personal insult comes into it.

19:00: What does a 7-figure case look like?

How can defamation be judged in terms of money? Keith takes us through an example case – if you can trace losses of that amount, you can start to build a case.

23:40: A formula for making a first offer or counteroffer – where to start negotiations?

26:10: How to respond to an insulting offer?

Know the high and low range of a realistic offer and move between these posts.

28:20: How to get past impasse? Get ‘little wins’.

29:45: How to deal with ‘take it or leave it’?

It’s very rare this someone’s position is unmoveable in practice.

32:10: What are some non-economic terms you see in your field?

Non disparagement clause… Confidentiality…

33:45: Typical mistakes lawyers mistake?

Don’t lose your cool

39:00: Difference between business people and lawyers:

Lawyers negotiate more out of pride/reputation. Businesspeople priorities the bottom line.

41:00: Mentoring young people about negotiating.

Know your case – know what your weakness and strengths are, and admit to yourself and your client where you are weak and will lose. Knowing your weaknesses gives you options.

45:45: Marc’s final thoughts.