Negotiation

When it comes to negotiating, Chinese companies view American companies as easy marks: impatient, unfocused and too willing to compromise to avoid losing out. Accordingly, Chinese companies often employ the following three negotiating techniques:

1. Wear down the American side down with endless issues. This tactic actually has two variants. In the first variant, the Chinese side raises a series of issues. Once these initial issues are resolved, the Chinese side then raises a series of unrelated new issues. This process never stops, because the list of issues is endless. The second variant is for the Chinese side to make several unreasonable demands and then refuse to address the American company’s concerns at all. Both variants are designed to induce the American side to concede on all major points out of a desire to keep the deal moving forward….

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It is no secret that I work for a supply side corporation. While my position largely requires legal advice and support to the “field,” I am thankfully separated from sales by ethics and obligations to the company. I know from email correspondence that many of you also support sales in your companies. I have received several questions related to dealing with the conflict between assisting clients in meeting their, and the corporation’s, quarterly and annual revenue targets, and Legal’s ultimate obligation to the company.

In baser terms, the dichotomy may be viewed as attempting to rein in Mario Williams after a B-12 shot late in the fourth quarter….

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I had today’s column dealing with confidentiality provisions all set to go. However, given the Baylor Law School fiasco, I changed topics to another very contentious issue in business-to-business terms and conditions negotiations: data security. I will take some liberties with the factual scenario of the Baylor data release in order to make the issue more relevant to those of us in-house.

Let’s assume that instead of an employee of Baylor’s admissions office allegedly being responsible for the data release, it was an outside contractor who had been hired to perform data collection for Baylor. Let’s further assume that the contractor acted negligently in releasing the information. Finally, let’s assume that Baylor’s legal counsel vetted the Agreement and Statement of Work (“SOW”) between Baylor and the contractor, and included a data security provision. What should happen now that prospective students’ personal information, including LSAT scores and GPA, are in the public domain? I would begin by stanching the bleeding and assessing the damage….

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By the time I made the switch to in-house work, I was burned out on litigating. Some of my friends and colleagues live for the fight, or as Wallerstein recently said, “have a fire in their belly.” In my case, I just couldn’t draft yet another motion to compel, interrogatory, etc. I had been doing it so long that it had become mundane. Appearing in court was always a kick, and depositions could be entertaining, but the day to day fun had dissipated.

Due to the economy and firm billing practices, I found myself at times resorting to noting “.1s” on my time sheets. So, when my bio says I don’t miss litigation, I really don’t. And what I don’t miss most of all is the bluster of the powerful down to the less leveraged.

In litigation, bluster can begin as soon as the adversary reads your bio and decides that you are not quite a peer. This inappropriate elitism only worsens when one side gains the upper hand for whatever reason; the bluster ends, and the bludgeoning begins….

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Caveat: I did not write the following dialogue. It is from the “comments” section of one of my columns where I mentioned I’d be writing about HIPAA and GLBA. Unfortunately, I cannot attribute the comments to the persons who wrote them, as they are anonymous; however they are quite apropos of today’s subject:

1) “I wish vendors would get it into their heads that indemnity for being sued on a confidentiality basis doesn’t cut it for financial institutions and other customers/clients that have affirmative obligations without being sued in the event of a breach of confidentiality.”

2) “I wish financial institution customers would get it into their heads that the ‘customer information’ they’re obligated to protect is not the sort of thing they would ever disclose to the vast majority of their vendors, and stop using their ‘affirmative obligations’ as a tool to cram unnecessarily restrictive confidentiality terms down the throats of vendors.”

Perfect. Those two comments capture the schism between vendors and customers when dealing with private financial or personal confidential information….

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Close, Lindsay, but no cigar.

* Rajabba is appealing his insider trading convictions and prison sentence, but someone needs to suffer for this outrage. Where are Solo and the Wookiee when you need them? [Bloomberg]

* PETA is suing SeaWorld on Thirteenth Amendment grounds for enslaving killer whales. Oh, so the only marine animals you’ll help have to be black and white? Racists. [Washington Post]

* It’s not just black Biglaw associates who get called “token,” but now it’s law professors, too. Kellen McClendon is suing Duquesne Law for race discrimination. [Courthouse News]

* Lindsay Lohan is getting a full spread in Playboy’s January issue, but won’t be doing any spreading of her own. Contract negotiation just ain’t what it used to be. [Los Angeles Times]

* When you sue for age discrimination, you probably shouldn’t discriminate against your judge, no matter what his age. At least this violinist can play his own sad song. [New York Daily News]

Yesterday my wife and I signed a lease for a new apartment. It was a pretty big day for us, since we’d been living in the same squalid spider hole for eight years.

The entire process — which, depending on when you start counting, took 10 days, 6 weeks, or 11 and a half months — gave me a chance to closely examine one of our favorite topics around here: Is it really more difficult to rent a place if you are a lawyer? We’ve done stories about the kinds of things lawyer residents can do that can give building managers angina. But do any of those lawyer horror stories actually make people less likely to lease spaces to attorneys?

Based on my recent experience, I think the answer is no — it’s just that lawyers and people with legal training go through the process differently than regular folks. That may make the process more difficult, but not discriminatory against people who know their rights….

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