Effective Negotiation Tips From an Attorney's Perspective With Zach Gwin

Hello, my friends, and welcome to another exciting episode of Negotiate Anything. Negotiate Anything is produced by the American Negotiation Institute and with over 3 million downloads and listeners in over 180 countries, listeners just like you have made this the number one negotiation podcast in the world. I'm Kwame Christian and I'm the director of the American Negotiation Institute. We're growing and I want to introduce you to our new team members and new trainers. This will help to give you new diverse perspectives on negotiation and conflict resolution. That's why I'm excited to let you know that Shane Martin, our head of sales and partnerships, is going to serve as co host of the show. From time to time. We are passionate about providing you with the best content that will help to make your difficult conversations easier, both at work and at home. Lastly, before we get into the episode, I want to remind you that our team conducts negotiation and conflict resolution trainings in the United States and abroad. Our trainings will give you the practical skills you need to resolve conflict, negotiate, lead, and persuade with confidence. Click the link in the description below to learn how we can help to make your difficult conversations easier. And now let's get to the show. Zach, thanks for joining us today.

Glad to be here.

Yeah, man, it's a pleasure to have you. So how would you get us started? By telling us a little bit about yourself and what you do.

Yeah. My name is Zach Guinn. I am an assistant city attorney here for the Columbus City Attorney's office. For City Attorney Zach, my current role is that in the zone initiative. Now, zone can be a bit of a misnomer. Zone really means the part of the city that I am assigned to. And I am assigned out here on the west side of the city. And that includes the neighborhoods such as Franklinton, the Hilltop, parts of what are considered Hilliard and Grove City. My role is to be something of a community attorney. So two, three nights a week I'm at a block watch or a civic association or an area commission with the goal of being immersed in the neighborhood, connecting with residents, determining what type of problems they have, and then hopefully improving quality of life issues that they might have, whether it's a vacant, burned out house, property that's been turned into maybe a drug house, issues where a child has been poisoned by lead paint, trash, things like that. And so the goal being responding to those. And then I practice in the environmental court at Franklin county, and that is where we file all of our cases for injunctive relief to force property owners to deal with the problem.

That's great. That is great. That's important, important work. And is there anything interesting coming up in your career in the next couple of months?

Yes, in fact, I am, actually. I have been endorsed by the Franklin County Democratic Party to run for a seat in Franklin Common Police Court. And that is an election that is occurring. November 8th is election day. I will be on the primary ballot, but I do not have an opponent.

Good. Well, congratulations on your victory in the primary and all the best of the future. So, everybody listen. So Zach and I went to law school together at the Ohio State University's Moritz College of Law. So just to give you a little background on Zach, So you know how these colleges and universities, how they like to have pictures of people that they're proud of, alumni and everything. That's Zach. He's like that picture of the model graduate who's always doing really good things. So we are in for a treat today, my friends. And with this episode, I want to make this a little bit longer and more conversational because I want to highlight some of the ways that Zach has used negotiation to obviously solve problems as a lawyer, but also to advance his career throughout the process, and then some of the key tools, techniques, and things that he used to make those really successful. Right. So when you think about negotiation and the difficult conversations that come to mind for you, Zach, what are some of those key examples in your career?

Sure. So as a prosecutor, obviously, we have an adversarial justice system where we have prosecutors and defense attorneys. I've had the opportunity to be a prosecutor. I've been a criminal defense attorney as well. I've also been a. I was a victim witness advocate prior to going to law school where we assisted folks who were victims of crime, navigating the justice system, understanding how the cases worked. What I have found to be important is understanding how every party in the negotiation perceives the situation. So a defendant who obviously feels, you know, they have not committed a crime or feels that any sort of plea that they might be offered is inappropriate, prosecutor who might be dealing with a victim who was seriously injured and needs help figuring out why a certain plea offer might have been offered. And so really, just understanding where every party is coming from is, I think, so important in that process.

Definitely. And when you think about the reality that understanding is important, what makes understanding so difficult in these situations?

Right. Well, everyone is experiencing, you know, usually what we're talking about is a fairly traumatic. It can be a very traumatic experience that different folks are experiencing. The very nature of being, you know, a defendant in the Criminal justice system can be, you know, very challenging for that individual. Obviously, the victim of a crime is dealing with a lot, both emotionally, psychologically. But what we have tried to look at is kind of a problem oriented approach to cases when I was a prosecutor in Franklin County Municipal Court. So looking at root causes, why we came to where we are, you know, is this person, why is this person maybe stealing? Is it to feed their family? Is it to feed an addiction? What are those issues that are really driving the conduct? As we know, addiction is a major driver of a lot of illegal conduct.

Yeah, 100%. And now it's clear for us here and for the listeners why it's important for you to understand that in order for you to do your job really well. But if we take the perspective of the other party, let's say the person who is being accused of doing something wrong, they look at you, again, adversarial system as the enemy. And they might say, this is this Zach guy thinks I'm stupid, thinks I'm just going to tell on myself, what's that about? And so there's going to be a healthy amount of skepticism and lack of vulnerability. So how do you get people to feel comfortable in those types of situations, feeling safe enough to share that type of information?

And are you talking about that coming from a prosecutor perspective or defense attorney prosecutor perspective? Yeah. What I have found to be helpful when you're negotiating with the other attorney, but, you know, this is all being communicated back to the client and you have to help them understand what conclusion you're coming to. So are you saying I would, if this were to resolve, I would be asking for a plea to the charge or to an amended charge. And I think it's helpful to kind of explain how you came to, to that offer. It's not just, here's the offer on a piece of paper, take it or leave it. It's I came to this conclusion because of maybe this prior criminal history, or I made this amended offer to a lesser charge because, you know, there are some real questions of culpability or maybe even real questions of your ability to prove that case. If you have, you know, factual or legal questions that you're not confident about or that you might feel a jury could be split on, then you have to respond appropriately.

No, that makes sense. That makes sense. And I like the point essentially of showing your work. So you're not just giving the answer and saying, hey, this is the offer and take it or leave it. You're saying, this is why I'm Offering what I'm offering. And this ties directly into our everyday negotiations with family and friends, but also in the business world as well, if you just come to a conclusion, especially in situations where there's some emotional duress, right? There's stress, there's pressure, anxiety, it's more likely that in. In an ambiguous situation where there's no context, people are going to take things the wrong way. But when you actually take the time and explain, hey, this is my conclusion, but this is how I got to this conclusion, and this is why I'm offering what I'm offering, it makes the person feel a little bit more comfortable simply because they offer. Have a deeper understanding of the situation.

Exactly. And I've been in the position as a defense attorney where I've been, on the other hand, of receiving an offer from a prosecutor. And I think it's, you know, helpful to do the same thing and say, hey, I've got to go explain this offer to my client. So could you help, you know, help me articulate why you're making that offer so that I can effectively communicate it back to them?

I love that. And, Zach, tell me if you've experienced this too. When I phrase a request for information in terms of help me, it seems as though that's. It lowers people's defenses. Has that been your experience, too?

Absolutely. Just trying to help the other party empathize with you really can go a long way.

Yeah, absolutely. Absolutely. And in our prep, one of the things that we talked about, we talked about two main things. Perspective, the importance of perspective and empathy. And like you said, you've been on both sides. You've been a prosecutor, and you've been a defense attorney. Now, for you, what value does that perspective give you as you navigate your career?

Yeah, absolutely. And as a prosecutor, which is where I started, it was already extremely important to be able to put yourself in the shoes of the defense attorney, not just from how they might be feeling about the case, but how they're gonna present their facts. You have to always be considerate of, you know, what you're going to be arguing against and putting yourself in the shoes of the other party. And so developing that base knowledge of, here's what I'm going to. Presenting, understanding what their perspective is on that, and even empathizing with the way in which their presentation might be compelling to a jury, to a judge. Extremely important.

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Absolutely.

No, this is good. And now when we talk about the empathy side, again, when we're thinking about criminal law, defense, and prosecution, where does empathy come into play in those types of conversations?

Yeah, I think that's getting back to looking at root causes, understanding why we've come to the place that we are in. And ultimately, you know, I think in the criminal justice system, we're looking at rehabilitation, how to keep people out of the cycle. And keeping them out of the criminal justice system is ultimately the end goal of the system. So it should be. And the idea that we need to figure out why we're here, can we address some underlying issues? And in municipal court, we have the opportunity to sometimes refer somebody to a social worker if, you know, they don't necessarily have. They don't have a public defender or someone, they can potentially find different resources somewhere, different avenues of diversion. And I've had the opportunity to work in some of our specialty dockets. I worked in the drug diversion course court as a prosecutor and saw the way that, you know, there are alternatives to just the very cut and dry plea offer plea and then sentencing.

Yeah, no, that's great. And that actually speaks to the increased ability for people in the defense in the criminal justice system to be creative with the offers that you give too. Because if the only negotiation bargaining tip you have is how much jail time do you get, then you're kind of limited in what you can do.

Absolutely, absolutely. And there's the specialty docket within the court system has grown substantially and it's been very effective. Looking at our veterans court catch court for individuals, sex workers, people who have been exploited, those are all courts that really get to root causes, helping us kind of solve the problem, keeping people out of that system.

Definitely, definitely. And now for people who might not be very familiar with what it means, what it really means to be a judge, when you think about the negotiations or difficult conversations you have as a judge, what does that look like?

Well, at the end of the day, you are there to interpret the laws fairly. And different judges take, you know, at the end of the day, you are a referee of sorts. As some Supreme Court justices say they are there to call balls and strikes. But in the trial courts, you, some folks take, I think, a more active role, such as in civil negotiations, if there's a mediation, some judges get more involved. It very much depends on style, but in my experience, I think helping the parties maybe see through issues that don't seem to be relevant or helping people understand where everyone's coming from is especially important in that referee style role.

Okay, all right. So, Zach, one of the things that people often ask in our negotiation trainings is when to walk away from a negotiation when it stalls. And then the follow up question is, how do I walk away from a negotiation when it stalls? So in your experience, when you're negotiating with opposing counsel, when do you determine, hey, this negotiation isn't being productive, I should continue to move forward with trial?

Yeah, I think what you're constantly negotiating, so you're, you're trying to find that light at the end of the tunnel, the resolution, getting to where everyone's needs are met. But in the law, you know, sometimes you have a situation where you have genuine disagreements about the facts or the law or how the facts apply. And so at a certain point you do say, hey, I don't see us coming to an agreement on these, you know, pertinent issues. I think we, the nice thing about the justice system is at the end of the day, you can present those to a judge or a jury, and they are the arbiter, they get to make the decision about who's right in that situation. But I wouldn't say, in my experience, your, you know, when you cross the Rubicon, let's say, and you're, you know, starting your trial, that at any point you've really given up on finding some sort of resolution. So I've had cases where after you pick the jury negotiations, you know, start back up and you find a resolution. So you never walk away from the negotiation in a sense that you're burning a bridge because you want to be able to engage because facts change, witnesses become unavailable, or different things may occur that put you in a different position and force one party or the other to come to the table. And so just keeping an open mind about where things may move, because they are very fluid, especially in a trial.

Absolutely. You're right. I think this in the legal world and then also in the business world, these negotiations really can go on in perpetuity. So even though you might say, all right, hey, it doesn't look like it's working out right now, in the future it might, and both parties can come back to the table. And I think a lot of times people are hesitant to end a negotiation because they don't think they have another shot. Right. And so, again, if you're not getting what you need at the negotiation table, you have to remember that negotiation is but one of many tools to meet your needs. And so you don't need to feel obligated to kind of spin your wheels in perpetuity. If there's nothing and you're at impasse and things aren't moving forward, at a.

Certain point, you've just beat, you know, they say, you know, don't beat a dead horse. You know, if you've gone over the same issue 10 times, you know, there's no reason to create more, you know, animosity about it.

Absolutely. Yeah. And I think, Zach, what you brought up there really was a really great point, because when you get to a point where you're repeating the same things over and over and over again, and they are repeated, repeating the same things over and over and over again, but we are not moving forward. That's usually a good sign that things have stalled. And that's okay. That happens. And a lot of times it's no fault of our own. It just. We simply do not agree. And our values, our desires, our wants, our needs are simply not aligned. And so now both of us have a right to try to meet our needs in other ways. And in your case, it's going to trial, which is pretty, you know, pretty significant. But in the real world, not saying that trial isn't the real world, but, you know, in the business world or in our everyday lives, usually the consequences aren't so dire. We're not talking about jail time or anything like that day to day. One of the things that you mentioned was you want to make sure that you don't burn a bridge in the process. What are some of the things that people can do in these negotiations where they burn bridges and they make it so that they can't come back to the negotiation table?

I think where you can trip up is where you get personally invested to the point where you're not making a rational decision or a rational argument because you aren't seeing that your own emotion is getting in the way. So it's so important to be empathetic to the other side story and to your own. But that can be a barrier when you've become too invested and you can't step away.

Agreed, agreed. And I think that perspective is really important. I know for me, just on a self awareness type of thing, if I find myself telling other people or telling myself I'm not emotional, I'm not mad, I'm not upset, that means I'm very upset. That's what I realized, you know, but before I realized, oh, no, I'm. Before I realized that that was an actual emotional tell. What I would think is that, oh, I am behaving rationally right now. The things that I'm saying make sense, but they don't. And they're burning bridges inadvertently. And I think the other person is, is wrong for taking it personally. But if I had more perspective and I stepped back and I actually look at it objectively, I'm like, oh, Kwame, kind of sounded like a jerk right now. You should probably tone it down, you know, but when I. You're right. Once you get too personally invested in it, that's when you start to get more emotional. And then when you're more emotional, you're not making rational decisions and you say and do things that you end up regretting. And now the thing is, of course, I think most people could listen to, to that and say, yeah, that's right, be less emotional. But in your experience, what do you think makes it so hard for people to keep their emotions in check during these negotiations?

Well, I think it's when the stakes seem or are very high. You have, in the case of maybe domestic violence, stakes are very high in terms of relationships and people's intimate lives. So it absolutely makes sense that, you know, emotions can take over for the parties, for the attorneys. And so you really do have to take a step back. And that is maybe when you put your neutral arbiter glasses on and say, how is this going to be perceived by others in the situation?

Oh, I love that. I love that. Because when you ask yourself that Question. In order to answer that, you actually have to try to look at yourself as if you are somebody else who has little less personal context. Right. Because they don't understand how you are feeling emotionally. They just see what you are doing and they hear what you are saying, and that brings a little bit more objectivity to your perspective. So you can see yourself and the other person and the situation as a whole in a. In a clearer type of way.

Yeah. The ability to, you know, it's about taking a breath, taking a step back, and just understanding again, just maybe regulating yourself and saying, how do. How. Why am I responding this way? You know, is this the way I would normally respond to this?

Absolutely. Oh, this is great. This is great. And so, Zach, before you go, I want to ask you this one parting question. If you're giving advice to people who want to become better negotiators and especially better under pressure in these really high stakes negotiations, what is it that they should keep in mind?

I think one of the best things you can do is just repetition, just getting reps. You know, I'll use the example of trying cases. My first trial, very low level offense. But I could have convinced you it was the trial of the century. I could have convinced you that lives hung in the balance of this trial. But after you do it a number of times, you know, that all kind of washes away and you understand that it's really about presenting your evidence and getting things out there. So by the 50th time you've done it, you're calm, you're collected, and you're better able to make decisions and respond when things change.

I think that's great. I think that's great. Yeah. The more reps you get, the less intimidated you become with those reps. Right? I think that is. That's a great example. That is a great example. Well, Zach, I appreciate you taking the time to join us today on your road to the Supreme Court of the United States of America. We wish you the best of luck, my friend.

Thank you, Kwame. Really appreciate it.

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