Category Archives: Legal

Nicest cease and desist letter ever

A classic lesson from old No.7 that asking nicely and focusing on a win-win can pay MASSIVE dividends for all parties concerned. Check out the full article about this letter here at Forbes http://www.forbes.com/sites/avidan/2012/07/26/the-worlds-nicest-cease-and-desist-letter-ever-goes-viral-sells-books/

Cheers to you Jack…

The reality of the situation is that this is actually typical action. I sent this letter to my network of lawyers and their unanimous response was along the lines of

“Ha!   These are the letters they send out when they haven’t got a legal leg to stand on.   The newspaper we act for still regularly receives very polite letters from the US owner of a US trade mark very politely asking the paper to stop using the plain English words which correspond with its trade mark.  As if.  You can also guarantee that if they had a legal leg to stand on the letter would be very different in tone.” 

Business Tools for Designers – Mastering Negotiation

The following is a great summary of some classic negotiation skills from former lawyer and author Matthew Swyers. During the career f any designer in any market there will be a need to negotiate. Throughout the production, distribution, and sales process, making sure your needs are meet, along with the needs of your various stakeholders will be crucial to success.

Please note this post was first written on inc.com, published 26 July 2012.

Basic Skills

1. Listen

To negotiate, you must learn how to listen and apply what you hear to formulate your next move. Every word has a purpose. Every statement a hidden tell. If you listen carefully, I mean really carefully, you will be able to hear and understand what your opponent in the negotiation truly wants. Listening is the bare minimum skill you must have to start building your abilities as a good negotiator.

2.  Be Willing to Walk Away

When two sides are negotiating, one of the other most basic skills you must retain is the ability to walk away if the deal does not satisfy your requirements. Some may think this is axiomatic, but it is not.

Once I was assisting a friend in negotiating the purchase of a new car. At the end we were close, but the dealer refused to remove some extra charge that was just more fat on the bone for his sales price. After much back-and-forth over this item, we reached an impasse: The salesman would not take it out of the price, and I would not move on him taking it out. I stood up, politely thanked him for his time, and said to my friend, “Let’s go.”

To my surprise, my friend remained seated, turned his eyes toward me, his expression quickly changing to that of a child’s wanting a toy in a toy store, and said, “But I really want the car.” At that point, any chance of continuing to negotiate a better deal evaporated like a puddle on a hot Southern summer afternoon. If he would have stood and walked, we would have never made it to the door before that item was taken off the cost. But by not being willing to walk away, we gave the other side a critical advantage: He knew we would not walk. Always be willing to walk away from a deal, and let it be known in either a subtle or not so subtle manner, as the situation dictates.

Intermediate Skills

1.  Feign Indifference, Don’t be Indifferent

Obviously we care about the thing we are negotiating for, otherwise there would not be a negotiation. But just as we must be willing to walk away from the deal, equally as important is that you must never let the other party know how much you want or need to make the deal.

For example, for anyone who is familiar with my other writings you may recall that I am a trial attorney who has tried hundreds of cases in my career and litigated thousands more. At some juncture during the course of litigation, the parties will discuss settlement. Irrespective of my client’s concerns and directives, I always feign indifference during settlement discussion. Why? Because if the other side ever gets a whiff that you are not willing to try the case, it will have a decided advantage over you in the negotiation process.

So no matter if my client is ready to take the case to the mat or can’t afford or does not want to move forward anymore, opposing counsel gets the same routine from me every time: “We can try to settle the case or just go to trial. I’m good with whatever.” The goal in feigning indifference is to be as difficult to read as a blank page. In the end, however, it is a valuable skill to have in any negotiation. So you may not be indifferent, but never let them know.

2.  Have the Ammunition You Need

In litigation, this is about having your case ready to go to trial if it does not settle and making sure the other party knows you are ready. In other negotiations, such as in real estate, it’s about letting a prospective purchaser know you have another buyer on the line and that if he does not meet your terms, you’ll just sell it to the other guy. In any negotiation that involves an alternative action if the terms are not met, you must let the other party know you can, and will, do a specific act it does not want you to do in the event terms are not met. In short, let the other party know that you have your ammo and are willing to use it.

Many years ago, my then firm represented a man who had been horrifically injured by a product. Our firm was brought in to represent his interests against the manufacturer. Because of certain confidentiality provisions, I cannot mention the product or even the type of product it was. Suffice to say, however, it was the first case of its kind and had significant national exposure on not only a media level but political as well. Well, as in any litigation case, the parties are required to exchange documents whether they are detrimental or not to your case.

We knew that the defendants were holding out on us and saying that these specific very damaging reports did not exist despite the fact we had witnesses that testified to the contrary. We knew if we got our hands on these reports, they would be shaking in their boots. Well, to make a long story short while referencing a great episode from Seinfeld,we employed a special team of people to “retrieve” the reports for us, and “yadda yadda yadda,” we appeared at pretrial with these ultra-damaging reports in hand. The case, one of the most contentious and longest I had ever been involved in, settled minutes later. Why? Because we had the ammo.

So it does not matter if it is litigation, real estate sales with an alternative buyer, or otherwise, always have the ammo—or appearance thereof—to support your side in the negotiation.

Advanced Skills

1.  What Motivates the Other Party? Use It

As a prerequisite, you must always listen. Listening, as stated above, is critical to hearing what the other side wants. But on a higher level, you must strive to understandwhy. What is motivating the why? If you can listen between the lines to understand that which truly motivates the other party, you will gain a decided advantage in the negotiation of the deal.

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A Lesson in Strategy

A basic strategic principle, using deceptive plots to distract the other party and wisely choosing the time to bring something forth in order to preserve the element of surprise, can be applied with success in military, sports, business and most other competitive environments.

An example of the principle’s application in business appears in the approach Apple adopts for the development and release of its products. The recent release of iPhone 4S brought this to my thoughts again. Since Apple introduced the first iPhone to the market, the company built around its development process a sense of mystery and excitement by releasing products only in certain times of the year and making the overall development processes a tightly kept secret.

While proper surveillance of Apple’s patenting activity can reveal its development focus – to the average customer, Apple keeps the element of surprise – nurturing the company’s reputation as an innovator and leader in the field with every new product presented to the market.

Is this a two edge sword though? I believe so. Secrecy can fuel rumors that will in turn affect the perceptions and expectations of the market – falling short of these expectations consistently can be dangerous. Reputation is more easily lost than gained.

On the positive side, Apple can largely influence those rumors. On the negative side, without concrete intervention, the voice of the market will have the most influence (common desires of customers based on needs and also expectations based on the past experience of outstanding offerings).

Did the latest “Let’s talk iPhone” event match the high expectations of the client base? I don’t believe so. The strong rumors about a potential iPhone 5 release might have left some iPhone fans disappointed by what they got. The introduction of the voice command system and iCloud features is a good response to competitive threats within the industry but does not really match the expectation of the customer base – expressed in numerous online blogs (increased battery life, larger display, better antenna, design improvements, etc.). Moreover, historic experience with the voice command still leaves some skepticism and doubts concerning its actual functionality. Will people still buy the product? Most likely…

Will the same stand for another company? I am not sure. Apple still benefits from a large ‘fan base’ and strong reputation brought partly by historical experience and partly by the iconic leadership given by the late Steve Jobs. Still, to keep the perception of trends setters in the industry and surpass the tragic loss of its leader, Apple will require not only a sustained PR and branding effort but also more aggressive strategies for product cycle times and licensing/buying in add-on technologies – making future releases prove that the outstanding innovator tradition is kept.

The following article first appeared on the blog for intellectual property strategy firm Think IP, and is written by Ana from their Goteberg (Sweden) office. The original article can be view here.

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