At O’Neill Kellner & Green, we are prepared to try our cases before a judge or jury; but the vast majority of our cases end with a negotiated settlement. We are committed to negotiating the best settlement for our clients. Our Claims Analyst John Schraven has extensive experience negotiating on behalf of our clients over the past 20 years and before that when he worked as a claims adjuster for insurance companies. John also applies his skills in his day to day life. While we all want our negotiations, whether for a legal claim or a car purchase, to be successful, few of us have the skills and experience to achieve that. We hope you will find John’s pointers helpful in your next negotiation.

1. Prepare.

Do not go in unprepared with the expectation that your blinding white smile and charismatic personality will win the day – it won’t. Remember the Five P rule - Proper Planning Prevents Poor Performance. Do your homework. Gather information and evaluate it before you begin negotiating.

2. If You Are Not Willing To Walk Out, Don’t Walk In.

“Walking out” or politely ending a negotiation is one ofthe strongest statements you can make. It signals to the other side that you believe your position is fair and you are willing to risk not reaching an agreement. Ending a negotiation without settlement should be a business decision, however, not an emotional decision. If you cannot reasonably afford to increase the offer, end the negotiation. One of the biggest mistakes you can make is to have an emotional attachment to the outcome or the object of the negotiation. Decide beforehand what you can afford and stick to it.

3 . Understand Alternatives to Settlement.

What are your options if you do not reach an agreement? Understand that, in most cases, you can return to negotiate later when circumstances make it more favorable to you, You may also decide it is not possible to reach your goal and abandon the negotiation entirely. It is very important to understand that not everything must happen today. Instant gratification is not a friend to a good negotiator.

4. You Get More With A Carrot Than With A Stick, But Bring A Stick Just In Case.

The best negotiators are calm, reasonable and well prepared, however, they can be firm and unyielding when necessary. Be friendly and fair when possible but do not avoid conflict.

5. Take Your Time – Do Not Rush.

Take the time to constantly reevaluate your position, even if it means walking away from the table for a few minutes to clear your head. Remind yourself of your goal, assess any new information you have received and adjust your goals if necessary. There are very few situations when you need to respond to a time deadline. Control the clock, do not be controlled by it.

6. Be Flexible.

Recognize when you have made an error in your overall evaluation and adjust your goals accordingly. Refusing to accept a factual error in your evaluation is being obstinate and not helpful strategically.

7. Drop Deads and Bottom Lines.

Bottom line statements and drop dead offers should be used sparingly and only when you are prepared to back them up. A statement such as “This is my bottom line. Take it or leave it.” suggests that you have drawn a line in the sand that you will not cross. The problem with a bottom line statement is that it only leaves you with two further option: 1) you walk out if your bottom line is not met, or (2) you disregard your own bottom line and continue negotiating at which point you have lost credibility.

8. It Is Not Personal.

It is not personal. It is not personal. It is not personal and do not let it get personal. Your own emotion is a distraction to you, not your adversary.

9. State Your Position – Shut Up and Endure the Silence.

Have confidence in your position, state it and then do not speak until the other side responds. Otherwise, you are negotiating against yourself. Silence is one of the strongest statements you can make.

10. Ask For More Than You Expect and Do Not Be Insulted When You Are Offered Less Than You Believe is Fair.

Negotiation is like a dance, the first offer and counteroffer are the first steps, and the music is just beginning. It does not matter where you start, it is where you end up that counts.

The goal of negotiating is to obtain something that you want or need. Very rarely is it something you need. A specific car or a specific house are things you want. They are not things you need. Understanding the difference between “wants” and “needs” are important. Food, water and a roof over your head are things you need. When you are negotiating a “want” item and understand that you do not need it, it is far easier to walk away from the table when you cannot get it for the price you desire.

For years, drug company advertising for prescription drugs was aimed directed at doctors, trying to get doctors to prescribe particular drugs to consumers. In the recent time, however, the drug companies have decided that going directly to the consumer is the way to go, with the idea that consumers then will ask their physicians for the particular drugs.

Is drug company advertising something that is safe to rely on? A recent episode suggests that caution is important.

Bayer Healthcare Pharmaceuticals, Inc. is a huge drug company. One of its products is YAZ, which, in the words of the Food & Drug Administration is “indicated for the prevention of pregnancy in women who elect to use an oral conceptive.” In other words, it is a birth control pill.

YAZ also is indicated for the treatment of symptoms of a condition called Premenstrual Dysphoric Disorder (PMDD), as well as for the treatment of acne in women at least 14 years old.

The Food & Drug Administration requires drug companies to disclose risks and other information about drugs. Bayer advertised YAZ as “Prevents Pregnancy, May Help Moderate Acne and PMDD.” Bayer did this through the most modern means, as sponsored links on the web. However, in doing so, it did not communicate any risk information about YAZ. The FDA was very concerned about this because YAZ has what is known as a boxed warning, and this information was not included.

The FDA concluded that Bayer provided an incomplete and misleading statement about YAZ when it suggested that YAZ was useful in a broader range of conditions for patients than had been demonstrated by supporting evidence.

Bayer settled claims brought by the Food & Drug Administration and 26 States that included requiring Bayer to conduct a national $20,000,000 corrective ad campaign for misleading consumers about the use of YAZ. In addition, Bayer agreed to submit future television ads promoting YAZ to federal regulators.

Why is all of this important? Because this reminds us that when we see drug ads we should be very skeptical of the claims and at least go back to the company’s website to get the full information about the drug before talking to our physician about it.

At the time of the recall, the CPSC was aware of the death of one eight month old and an additional 25 incidents with no injuries. The CPSC recommended that users immediately stop using the recall cribs and find an alternative, safe sleeping environment for their baby. www.cpsc.gov/cribs.html.

This news is disturbing, but what is equally disturbing is the defects in childrens’ cribs is not new. The CPSC reports that 13 children have died in recalled Simplicity Cribs or bassinets. The CPSC has provided a long list on its website going back to May of 2005 of nine separate recalls of Simplicity brand cribs or bassinets, as well as two recalls for Simplicity Play Yards.

Simplicity is out of business. That does not mean, however, that users of the crib should give up on replacements. Anyone having one of these products should take it back to the purchaser for a refund, replacement or store credit. Since the total of over 4,000,000 Simplicity Cribs have been recalled, it is very likely that many of these cribs are still in use.

If you have a Simplicity crib, should you stop using it? Yes. If you have a chance to get a used crib, should you? No. Hand-me-down cribs can be very dangerous. Many will not meet current standards, and thus can be very unsafe for babies.

If you have a need for a crib, buying a new crib is a much safer step than saving money by buying a used crib or using one someone else has given you.

Unfortunately, high doses of acetaminophen lead to liver damage–a well known side effect and one which is warned against on the Tylenol–acetaminophen labels. “Acetaminophen may cause liver damage.”  The warning also relates to alcohol consumption, since as the label warns, if you consume three or more alcoholic drinks every day you should ask the doctor whether you should take acetaminophen (the answer is no!). While liver damage from using acetaminophen is well known, the drug remains a cause of serious liver damage. Now, however, the Food & Drug Administration has received a recommendation from its panel of experts with respect to two other drugs, Percocet and Vicodin. Both are prescription strength pain relievers that combine a narcotic with acetaminophen. The result is real potential for serious liver damage. The reason is that patients who take Percocet and Vicodin for long periods of time often need higher doses to achieve the same pain reduction effect. As a consequence, they are getting more acetaminophen, raising the possibility of serious damages to their livers.

The FDA Advisory Panel recommended a ban on the combination drugs because of the liver damage they may cause.

Among the panel’s recommendations are reducing the allowed dosage of acetaminophen and over-the-counter pills like Tylenol from 500mg down to 325mg and to recommend a reduction in the maximum daily dosage to less than 4000mg.

The expert recommendations limiting the use of Percocet and Vicodin are not new. However, the most recent FDA Advisory Panel recommendation should raise red flags with users of acetaminophen, but also Vicodin and Percocet, even if the FDA ultimately does not ban the drugs.

In Vermont, as in most states, the law gives a patient who is injured or killed by a medical mistake the right to pursue a medical malpractice claim. In reality, it is very difficult to win such claims, and lawyers who represent patients are very careful to take only the strongest and most meritorious cases. Even when presented with strong claims, many hospitals, doctors and their insurance companies put up a fight, often refusing to make reasonable settlement offers and requiring the patient to file time-consuming and expensive lawsuits.

For these reasons, someone considering bringing a medical malpractice case should think long and hard before filing a claim, and should find an attorney who specializes in these kinds of cases, who can give them honest advice about whether it would make sense to pursue a claim.

If you think you have been the victim of medical negligence, please click here for more information.

Most Vermont children get tested for lead by their pediatricians. If the child tests positive, with a lead level higher than is allowed by Vermont law, the Vermont Department of Health takes action to protect the child’s health, and to make the property safe.

Vermont property owners and landlords are legally required to adequately maintain their properties so that children are not lead poisoned. In fact, Vermont has one of the strongest laws in the country protecting children in rental units from the hazards of lead paint poisoning. Vermont law requires owners of rental units (especially those built before 1978) to take reasonable steps to prevent children from being exposed to lead paint. Property owners who fail to meet their responsibilities can be sued by the parents or guardians of young children who have been severely lead poisoned. Those children can recover money damages from the landlords for all injuries they prove they suffered because of the lead poisoning.