Bankruptcy

I SAVED THE FAMILY FARM, WITH THE HELP OF SMART OPPOSING COUNSEL!

By Joseph McDaniel, Esq.

But I didn't have to file a Chapter 12 case for the Good Ol' Boy. I was able to fix it with the free bite at the apple, augmented version (I made the phone call, instead of the client making the phone call).

There is a tool that makes all cases in all areas of law work better, and I had that tool to work with in my Family Farmer case.

That tool is Smart Opposing Counsel(tm).

Opposing counsel, representing Snidely Whiplash, with a potential trustee's sale on the family farm, was smart, experienced, courteous, and capable.

And with several decades of experience, he approached this case with exactly the right attitude; he knew I'd file if I had to in order to protect my client from foreclosure, and he knew I would avoid filing if I could do so and still protect my client.

And he knew about the cure provisions in Chapter 12 cases.

And he got far more for his client than he would have gotten if I'd filed the Chapter 12 for my Good Ol' Boy.

And my Good Ol' Boy was spared the embarrassment of filing for a bankruptcy, and spared the risk associated with any proceeding in any Court at all.

Now, what can be learned from this sort of negotiation? First, when you negotiate with opposing counsel, always be nice. If opposing counsel turns out to be as dumb as a stump and as pleasant as a rattlesnake, there's always plenty of time to change your approach. And do your homework prior to making the first phone call; find out how long opposing counsel has been in practice, and what AVVO and Martindale and Findlaw say about him or her.

Second, if opposing counsel turns out to be as dumb as a stump and as pleasant as a rattlesnake, don't shift gears too quickly. What if his wife is undergoing chemo? Do you think that might make most folks a little cranky? What if she was in an accident in the dojo, and now has fainting spells and worries that she can't stay in practice and support herself? Opposing counsel is human. Be compassionate.

Third, don't go in too hard. Tell 'em what you want, and listen to what they want. If you can keep it nice, you get to say "Gee, I'd really like three months, because I don't want to have to come back to the well if my guy doesn't have the dough in 60 days!"

LISTEN TO OPPOSING COUNSEL; YOU GET FREE INFORMATION THAT TELLS YOU WHAT THEIR CLIENT WANTS THE MOST. Because, sometimes, they just up and tell you!

LISTEN HARD, THEN LISTEN SOME MORE, AND THEN TRY LISTENING FOR A CHANGE! AND DO SOME CHANGE-UP! LISTEN, THEN TALK, THEN LISTEN LISTEN LISTEN!!!

Another issue in negotiation is similar to work in front of a judge. Repetition works. Certainly, put together all the arguments and theories you can, but when you find one that seems like it's your strongest argument, repetition is a useful tool. It works even when people say, "You're just repeating yourself now!".

Here's a trick that shouldn't work, but does. When you ask anybody for anything, use the word because. "May I cut in line here at the water cooler, because Aliens from Mars are eating my shorts?" Because is an interesting word; after that word is used in a sentence, most people act like somebody just pressed their reset button, and they are much more liable to say, "Sure!" and not even ask about the Martian Aliens.

Here's a cool part that wasn't around a few years ago in Arizona. I now get to go to AVVO.com and tell the world that opposing counsel is Smart Opposing Counsel(tm), and I get to tell the precise truth about my experience with him as opposing counsel.

Over the course of years, there should be a good deal of benefit to the bar from similar posts.

And then, there's Evil Smelly Opposing Counsel Who Calls With Two Associates on the Line and Immediately Confirms Nonexistant Conversations and Agreements, but there are very, very few of those. But they are very dangerous, and must be treated with the same care as an old, unstable vial of nitroglycerine.

Remember, baby lawyers; if a grown up emails or faxes you a confirming communication for a conversation or agreement that never happened, respond immediately with a short "I disagree with every aspect of your letter, fax, email." Don't try to catch every white mouse that's been dumped on the floor.

But don't let the non-confirming confirming letter or email stand, because it will be the centerpiece at the emergency hearing scheduled for later the same day.

NOTHING HERE CONSTITUTES LEGAL ADVICE RE A CHAPTER 7, CHAPTER 13, CHAPTER 11, OR CHAPTER 12. FIND AN ARIZONA BANKRUPTCY LAWYER WHO IS BOARD CERTIFIED IN BANKRUPTCY LAW, AV RATED, AVVO 10 RATED, ON SUPERLAWYERS, OR JUST VERY EXPERIENCED AND A FORMER CHAIR OF SOME BANKRUPTCY SECTION OR COMMITTEE. NOTHING HERE MAY BE USED AS LEGAL ADVICE IN CONNECTION WITH ANY BANKRUPTCY, WHETHER THAT BANKRUPTCY IS IN PHOENIX, GLENDALE, TEMPE, MESA, SCOTTSDALE, OR ANYWHERE ELSE.

Full post as published by Arizona Bankruptcy Attorney Blog on July 07, 2009 (boomark / email).