October 23, 2012
A substantial portion of legal negotiations take place over the telephone. Individuals often wing it on the phone since the other side cannot see them, and they thus believe there are no nonverbal signals. The most proficient readers of nonverbal signals I have seen are blind students who can hear things in my own voice that I cannot discern. Persons on the phone listen intently to the one stimulus – the voice. They hear the pitch, pace, tone, volume, and inflections. A fifteen second pause on the phone is obvious, because we cannot play with our glasses or look at our notes to cover it up.
Individuals should always be thoroughly prepared for telephone interactions. In fact, it is often better to be the caller than the recipient of the call. The caller is wholly prepared, but the recipient of the call may not recall where the parties were when they last spoke. As a result, they may forget that they made the last concession, and they go ahead and make another unreciprocated position change. When someone gets a call and cannot recall where the parties were when they last spoke, they should indicate that they are busy and will return the call in few minutes. They can quickly review their previous notes and return the call.
Most telephone interactions now take place on cell phones. This can create difficulties when the callers or the recipients of such calls are surrounded by other persons who may distract from their concentration or overhear confidential client information. When you reach an opponent on her cell phone, you should ask if this is a good time to talk. If she is distracted, she can say so and ask to call you back. When people talk on their cell phones they often speak more loudly than they do on land lines. I see this often in airports and on Amtrak trains. They speak so loudly that I can overhear confidential client information. Such conduct contravenes Model Rule 1.6 which requires lawyers to protect such information. As a result, attorneys should be careful not to conduct private client conversations when they are surrounded by strangers.