If there is one thing that almost
all lawyers do, it is negotiate. Business lawyers do it. Litigators do it do
it. Real estate lawyers do it. I suspect that even patent lawyers do it.

Most of us think we do it well.
Particularly after you have been practicing for a long time, you feel confident
about the things you do over and over. And you are probably right. If you’ve
been a practicing lawyer for a long time, you’re probably a pretty good negotiator.

Still, I remember negotiating as
one of the most challenging things I had to learn when I started in private
practice. At least in those days, there were few law school courses about the
art of negotiation.

Most lawyers learn to negotiate after
they begin to practice. If they are lucky, they have a mentor who is a skilled
negotiator and is happy to teach it. Many lawyers are not so fortunate. Perhaps
the best training in negotiation that some law firms provide for young lawyers
is negotiating the lawyer’s own salary!

 I learned, like most of my colleagues, through
trial and error.  I did make a real
effort to understand more about the subject, including reading Roger Fisher and
William Ury’s book, Getting to Yes, shortly after it was published back
in 1981. It was useful, but a bit impractical for a lawyer practicing civil
litigation. There are not so many win/win solutions when the question is how
much money your client will receive or pay.

Not long after that, I was
fortunate to be selected as an Early Neutral Evaluator in the first such
program for the U.S. District Court for the District of Vermont. We had good
training on how to facilitate negotiation and I started working as mediator.

 As a neutral, I’ve observed countless other lawyers negotiate. I noticed which techniques seemed to work and which did not. And I kept reading, although until this month, I never came across a book on the subject that I thought was really good.

Well, now I have. I just finished Chris Voss’ book, written with Tahl Raz, Never Split the Difference: Negotiating as if Your Life Depended on It (Harper Collins Publishers 2016). 

The book covers the waterfront on negotiation technique. No matter how skillful a negotiator you are, there’s something in this book for you. The lead author, Chris Voss, is a former international FBI hostage negotiator. The emotional challenge of negotiating where people’s lives are at stake has obviously focused Voss’ attention on the subject. And the context in which he has negotiated lends itself to great, if sometimes tragic, stories about how he has employed the techniques he discusses. That makes the book an entertaining read, as well as an informative one.

Voss has also taught negotiation at the University of Southern California’s Marshall School of Business and Georgetown University’s McDonald School of Business, as well as lecturing at Georgetown University’s McDonald School of Business, the MIT Sloan School of Management and Northwestern University’s Kellogg School of Management.

Not everything in the book is
directly useful to the normally mundane negotiations that most lawyers are
engaged in. But if even one of the techniques Voss suggests would be useful, the
book is worth your time.

Voss makes the important point,
quickly learned by any mediator worth his or her salt, that listening intently
is the key to effective negotiation.

Let me give you a few examples of techniques
that Voss covers. He points out the importance of “mirroring,” that is,
repeating the last few or critical words that your opposite number has used.
This helps build an empathetic relationship between the negotiators. Voss
doesn’t just suggest this approach, he gives you the right process for doing it.

And my favorite technique — one
that I have used before but did not have the vocabulary to describe until I
read this book — is the use of “calibrated questions.” These are open ended
questions that begin typically with the word “what” or “how,” or even very rarely

The point of these questions ,
which ask for help, is to create the impression that your opponent has control
of the conversation and help to generate crucial information that you can use
to move the process in the right direction. 
Voss suggests several calibrated negotiation questions. My favorite is “How
am I supposed to do that?”

Voss also offers great advice on
how to say “No” without ending the negotiation in failure.

Unlike many books about negotiation
that ignore the traditional positional bargaining which occupies a major share
of most lawyers’ time, Voss offers some guidelines for this kind of maneuvering.
He calls it “Ackerman Bargaining,” and suggests a formula for increasing offers
(or reducing demands) that he thinks will lead to settlement.

The positional bargaining that I
see as a mediator, and advocate, typically has many more steps than the three
steps Voss describes. This may simply be a function of the fact that this kind
of bargaining is very well developed among litigators.

There’s lots more here and I can’t tell
you everything in a page or two that takes Voss 263 pages to deliver. But I
will share one more idea.

Voss suggests that it’s important to know what kind of negotiator you are: an “analyst,” “accommodator,” or an “assertive.” it’s equally important to accurately categorize your opposite number.

If all this hasn’t persuaded you to
read Voss’ book, I’m tempted to chalk it up as a good thing — after all you
won’t be applying these techniques against me!

But in the interests of fairness (a word that Voss has very specific advice about), you can learn more by taking a look at a great six page “Summary Cheat Sheet,” based on the book created by Yan-David Erlich,  by clicking here.

Happy negotiating!


Photo of Rich Cassidy Rich Cassidy

Rich Cassidy is a Vermont personal injury and employment lawyer. He also works regularly as a mediator and arbitrator.

A founder of Rich Cassidy Law, he has more than 40 years of experience with the practice of law in Vermont. Over the years…

Rich Cassidy is a Vermont personal injury and employment lawyer. He also works regularly as a mediator and arbitrator.

A founder of Rich Cassidy Law, he has more than 40 years of experience with the practice of law in Vermont. Over the years, his practice has changed substantially. As a result, Rich has represented all sides in many kinds of disputes: plaintiffs and defendants, employers and employees, injured parties and insurance companies. He believes that the breadth of his experience benefits all of his clients.

He is proud to represent the Burlington Police Officers Association and United Nurses & Allied Professionals.

For many years, Rich’s personal injury practice has been limited to representing injured persons and his labor and employment practice has been focused on representing employees. He enjoys the challenge of representing individuals in a world that seems increasingly dominated by large corporations and powerful institutions.

He has significant experience with litigation and alternative dispute resolution involving higher education, public education, public safety, health care, municipalities and manufacturing. His clients have included college students, faculty, and administrators as well as individuals, businesses, governmental agencies, and not-for-profit entities. He represents both labor unions and individuals in collective bargaining relationships. Many of his individual clients in employment law cases begin work with him under Limited Scope Representation Agreements.

He has also advocated for individuals, businesses and governments in a broad range of civil litigation, including in construction cases, cases under the Uniform Commercial Code, and contract and business tort claims.

In addition to his work as a litigator and counselor, he has served as a mediator and arbitrator and is a member of the Panel of Early Neutral Evaluators for the United States District Court for the District of Vermont and the early neutral evaluation panels for the Vermont Environmental Court and Vermont Superior Courts.

Rich believes that legal process can serve the ends of justice and has been active in work to improve the law throughout his career. For details see our public service page.

When he’s not practicing law or in a committee meeting, Rich enjoys reading, walking his dog, Sophie, skiing, swimming, and rowing his Adirondack Guide Boat on Lake Champlain.



·         Albany Law School Union University, Albany, New York

    • J.D. – 1978

·         University of Vermont, Burlington, Vermont

    • B.A. – 1975

·         Mount Saint Joseph Academy, Rutland, Vermont

    • College Preparatory Diploma – 1967 -1971

Bar Admissions:

·         Vermont, 1979

·         New York, 1979

·         U.S. District Court District of Vermont, 1979

·         U.S. District Court Northern District of New York

·         U.S. Court of Appeals 2nd Circuit, 1986

·         U.S. Supreme Court, 1990

Honors and Awards:

·         Jonathon B. Chase Award, ACLU of Vermont, Inc., 1990

·         Grassroots Award, American Bar Association, 2009

·         Equal Justice for All Award, American Bar Association, 2008

·         President’s Award, Vermont Bar Association, 2015

Professional Associations and Memberships:

·         Uniform Law Commission

    • President, 2015 – 2017
    • Executive Committee, Member
    • Scope & Program Committee, Chair, Member
    • Secretary
    • Uniform Collateral Consequences of Conviction Act, Drafting Committee Chair
    • Apportionment of Tort Responsibility Act, Member, Drafting Committee
    • Revised Uniform Arbitration Act, Member, Drafting Committee
    • The Model Punitive Damages Act, Member, Drafting Committee
    • Covenants Not to Compete Drafting Committee, Chair, 2020 to present
    • Developments in Privacy Law Committee, 2020 to present
    • Vermont Member, 1994 – Present

·         American Bar Association, 1978 – Present

    • Board of Governors, 2005 – 2008
    • American Bar Association, House of Delegates, 1999 – 2015

·         American Counsel Association, President, 2009 – 2010

    • Director

·         American Law Institute, Elected Member, 2015 – Present

·         Vermont Association for Justice, Member

·         Vermont Trial Lawyers Association, Member

·         Vermont Employment Lawyers Association, Founding Member, Past President, Treasurer

·         Vermont Bar Association, Member, 1978- Present


Past Employment:

·         Hon. Robert W. Larrow of the Vermont Supreme Court, Law Clerk, 1978 – 1979

·         Chief Justice Albert W. Barney, Jr., Vermont Supreme Court, Chief Law Clerk, 1979 – 1980

·         Law Office of David C. Drew, Associate Attorney, 1980 – 1982

·         Hoff, Wilson, Powell and Lang, P.C., 1982 – 1986

·         Hoff, Wilson, Powell and Lang, P.C., Shareholder, 1986 – 1989

·         Hoff Curtis, President and Shareholder, 1989 – 2016


Rich is a frequent writer and speaker on legal topics. He has lectured on trial practice, employment, arbitration, mediation, and construction law subjects before the American Bar Association, the National Employment Lawyers’ Association, the Vermont Bar Association, the Vermont Trial Lawyers Association, and the Vermont Employment Lawyers’ Association.

He has been selected for inclusion in Best Lawyers® and New England Super Lawyers® by his peers. (Listing in The Best Lawyers in America® or Super Lawyers® does not guarantee a desired result in a legal case or that listed lawyers are necessarily more skilled than lawyers who are not listed in such publications.) He was the 2013 “Best Lawyer of the Year” for Employment Law – Individuals and the 2015 “Best Mediator of the Year.”

His blog, On Lawyering.com is widely read by legal professionals and is syndicated on Lex Blog.