Recently I was negotiating a deal with a company I’ve been doing business with for a long time. It became obvious that we had reached an impasse and we each settled on our “final” offers. A note about my negotiating philosophy: while I consider myself a strong negotiator, I’m not one to bluff very often in a business setting. I save my bluffing for poker games with my twin brother Vince (don’t tell him that’s how I won that last jackpot from him, LOL). I pride myself in creating and maintaining strong business relationships and always coming from a place of fairness and integrity in my dealings with other people – that’s why many of my vendor and business relationships are long-standing.

In this situation though, I got the impression that the other party was bluffing and was holding back more than they had put on the table. It wasn’t a “put up so you don’t have so much” moment; it was a “you can do better than you’re telling me” moment.

So in my own words, I let the other party know that I was willing to walk away from the deal if they didn’t step up to the bar. I made my case and offer and signed off from the negotiation. The other party had never experienced that from me before, so they knew I was serious. They waited, but I waited longer; they finally came back with an offer that was fair to both of us.

That reminded me of one of the most pivotal days in my legal nurse consulting business – the day I realized that if one attorney wasn’t willing to play according to my terms (terms that were favorable not to just one of us, but to both of us), there were more than a million others who might. As a Certified Legal Nurse Consultant, you’ve got to learn when to walk away from a deal because it isn’t meeting the needs or goals you’ve set for your CLNC^® business.

When that moment arrives, pull out your iPod^®, crank up Kenny Roger’s song “The Gambler,” sing along with the words, “you got to know when to hold ’em, know when to fold ’em, know when to walk away and know when to run” and give yourself the courage to make the decision that’s best for you.

Success Is Inside!

Vickie,

When proofing a revised draft of a contract for my CLNC^® business, do I really need to read it word for word?

Julia, RN, CLNC

Hi Julia,

That’s a great question. Of course everybody’s preference is to generate a contract that will not require revisions. This works well with legal nurse consulting subcontractors who usually sign our contract without revision requests. This allows us to quickly move on to doing business together. In 29 years, I have only had two subcontractors request minor changes to our form contract. With vendors though, negotiations are more common. Especially with large vendors, it’s not unusual to have 5-10 drafts, depending on the vendor, size and type of contract (IT services company, software, hotel, etc.).

Once the negotiations start and the versions start flying back and forth, I often joke (or not) that I’m getting drafted to death, but sometimes it’s necessary. As the number of versions increases, it can quickly get harder and harder to keep track of the changes. One way I keep track of the documents is by writing “Live” and “Past” along with the dates on the top of each hard copy version. My preference is to proof a hard copy rather than the electronic version. Most of us read and proof more accurately from paper than from a computer screen. Also, I keep all printed and electronic versions in file folders for easy reference.

With Microsoft^® Word, you can use the track changes feature which shows the additions and deletions made by the parties. The document can get pretty “busy,” so once we hit a certain level of agreement on the changes I’ll accept the changes/deletions to create a “clean” document. Then we can continue the editing process, but fresh, with fewer changes to track.

When reading a contract from one draft to another, the experienced Certified Legal Nurse Consultant will always read and compare each draft to the prior draft word for word to ensure that nothing has been deleted or added either accidentally or intentionally. Word processing errors and text drops do occur, despite the best intentions of the parties involved. The best way to do a comparison reading is to lay each contract side by side and read and compare them one paragraph at a time.

“Lazy” legal nurse consultants can also just compare the first or last word in each line of each paragraph in one contract to the other to ensure they match. This isn’t a perfect system but can be quick. Another more accurate but still “lazy” method is to hold each page from the contract against a sun-lit window and then lay the corresponding page from the other draft on top of the first page. You can then compare text and look for text drops or spacing changes. I shouldn’t even be telling you these “lazy” tricks because neither of them should be considered a replacement for a full read, especially on the final executed copies.

When you finally sign the paper copy of the contract you’ve so carefully negotiated, you want to be sure that what you get back from the other party is what you sent them. My solution is to initial and date the bottom of each page in blue ink. When the fully-executed copy is returned to you, it will be clear there have been no page “substitutions.” We also sign our contracts using blue ink. This will always help you distinguish the original from a copy. If we’re sending the final versions over for signature, I sign the contract in advance. This process helps guarantee the other party signs the copy we sent.

We often scan and email a signed copy of the contract and we accept scanned copies of executed contracts as final. What matters to the Institute is that we have a final signed contract, no matter the method by which it is sent.

Finally, make sure you file the original signed version in a secure location (hard copy and electronic) so that you’ll be able to locate it quickly. Be sure to calendar the expiration of the terms and the dates of any notices that must be filed.

Success Is Inside!

I was negotiating a contract with my publisher, Wiley Publishing Company, to update and revise my book Inside Every Woman. They sent me the first draft of their contract as a PDF, which for most people is an un-editable document format. This is actually a pretty good strategy when negotiating a contract as most recipients will simply sign and return it. It can also serve as an intimidating, take-it-or-leave-it message.

But if you know me, you know that’s not the way I roll. In this situation, I had two choices: ask the publisher for the original document in its native word-processing format and rewrite it with track changes (which I did), or use my Adobe^® Acrobat^® Professional editor to rework the PDF document (which I also did on the final copies). Yes, there is software that allows you to edit PDF documents, so no document is edit-proof unless its security settings are locked down tight.

But is sending un-editable contracts to attorneys for your legal nurse consulting business a good idea? My short answer is that it depends on the condition of your contracts or letter agreements. If you have a well-written, fair contract or letter agreement (like those available from the Institute) that you’ve used successfully in the past with other attorney-clients, then go for it. Especially if you’re using a simple letter agreement, this makes total sense and will speed the negotiation process.

When working with attorneys, it’s always best to make things as easy as possible. After all, if an attorney receives a contract in an editable format, they’re likely to do just that – edit it. This will guarantee that you get back an edited document that may not meet your approval or worse, require that you hire an attorney to review the changes before you sign it. If you send your prospective attorney-client a PDF of a contract that’s been well-received in the past, the odds are high that you’ll get back an executed copy.

Eight drafts and several negotiations later, my publisher and I reached an agreement on a contract version that was beneficial to both of us. When they sent me the final executable contract, they did so in PDF format. While I was reviewing it, I found a couple of typos and corrected them using Adobe Acrobat. Needless to say they were surprised, but not shocked. Now that I’ve got a contract, I can get started writing. It’s due to the publisher on June 15th and will be published in September 2011. Wish me luck!

Success Is Inside!

One of my favorite Broadway musicals is Jersey Boys. I’ve seen it five times and have had the pleasure of sharing it with many friends. Two of the lead characters, Frankie Valle and Bob Gaudio strike a deal to collaborate and share everything 50/50. They sealed their deal with a “Jersey Contract” – also known as a handshake. This happened in 1961, early in the group’s history – a time which brought us many, many hit songs including “Sherry,” “Big Girls Don’t Cry” and “Can’t Take My Eyes Off of You.” Their Jersey Contract thrives today, as does a bond of friendship between these powerful musical talents.

I recently entered into a Jersey Contract with the owner of a company. I’ve known him for a long time and always felt we had a bond that transcended business. I was thinking we’d be like Frankie Valle and Bob Gaudio.

I always joke that I like to break the rules and here I was, violating one of my own, which is to have a contract in every business relationship. Questions and issues that should have been covered in a contract came up and needed to be resolved. It became obvious to both of us that the only way to clear things up was with a contract.

Luckily, we have enough respect for each other and have a strong enough relationship to go back and fix the errors of our ways. We arrived at a contract favorable to both, but along the way there were a few tense discussions and potential for damage to the special relationship we nurtured for more than 20 years.

So as much as I admire Frankie Valle and Bob Gaudio, I have to admit it’s not 1961 and in 2011 I’m resolving not to break my rule about contracts ever again. No more Jersey Contracts for Vickie Milazzo Institute.

For Certified Legal Nurse Consultants, negotiating and getting to a contract that is best for both parties can take some time, but it’s worth it. The bottom line for all CLNC^® consultants is that you should have a contract for every business relationship. It’s not a matter of trust – it’s business (even if you’re in Jersey).

Success Is Inside!

Recently a Certified Legal Nurse Consultant contacted the Institute and told us about a subcontractor she’d hired. After completing the project, the subcontractor proceeded to list herself on several different social media sites as being associated with the contracting CLNC^® consultant. The subcontractor then used the contracting CLNC^® consultant’s “LinkedIn” profile and network to contact other parties announcing her association with the contracting CLNC^® consultant and marketing her availability to subcontract.

Looking at this through the subcontracting retro spectroscope, I believe that every CLNC^® consultant who is using subcontractors should include a “social media nondisclosure clause” in their subcontracting agreements. I don’t recommend hiding the existence of subcontractors from your attorney-clients and that’s not what this is about.
 
Simply speaking, your subcontractors should not use your social media and your connections for their own benefit, at least not without your expressed permission. I asked Tom to draft some language that you can add to your CLNC^® subcontractor agreements (with your contract attorney’s approval) and here’s the result:

SOCIAL MEDIA NONDISCLOSURE: Subcontractor agrees that throughout the term of this Agreement, and for a period of two (2) years after the termination or expiration of this Agreement, Subcontractor shall not, without the prior written consent of Company, in any way or in any form disclose, publicize, market or advertise to any contact of Company or any other person, party or company via any form of social media including, but not limited to, FaceBook, Twitter and/or LinkedIn, the fact that this Agreement exists, that you are working or have worked as a subcontractor with Company or any other facts regarding this Agreement and our relationship.

This may seem strict, but you don’t want your subcontractors marketing to, or associating with, your social media contacts. If they’re already a friend on FaceBook, you don’t want them discussing business on your Wall. As the legal nurse consulting world adapts to social media, so must our contracts.

Success Is Inside!

As registered nurses, we were trained to give and to take care of others. But to successfully manage your legal nurse consulting business you must also be a strong negotiator, willing to ask for what you want and what you need. As nurses, you’re not trained to negotiate, but luckily, you’re born negotiators even though you don’t necessarily think about it that way. You negotiate with patients about taking their meds. You negotiate with doctors to assure the appropriate medical orders are written for the patient. You negotiate with hospital administrators for safe staffing and delegation. You are always negotiating as a nurse and usually it’s for the benefit of someone other than yourself, although you also negotiate with the cafeteria to keep the food from killing you and you negotiate your way through shifts with issues that would make lesser mortals weep.

When you walk into an interview with an attorney, you’ll be using your negotiation skills on behalf of yourself and your legal nurse consulting business.

Attorneys are masters at negotiation, so these inside strategies I’ve learned through 28 years of business negotiation will give you the confidence and the know-how to negotiate with the best of the best.

1. Ask for everything you want at the beginning of the negotiation. Don’t add on as you go along. It makes you seem unfair and looks like you’re just pushing the envelope to get more. For example, if you tell an attorney your fee is $125/hr and his reply is “That’s very reasonable,” you can’t jump in and say, “I really want $150/hr.”
   
   Be prepared and think through what is really important to you and your legal nurse consulting business before you sit down to negotiate. Have your list of what points you need and what points you’re willing to give up. Some people do keep score and being able to track what you really need will help you determine your negotiating success.
2. Ask for more than you think you can get and don’t jump too fast to say “yes” to the first offer someone makes; even if you think it’s fair. Assess the situation and the person making the offer. Use and trust your strength of intuitive vision to diagnose how far you can go. This is not being greedy, this is being a strong negotiator. And you’d be surprised at what offer could be around the corner. It’s yours for the taking if you only ask for it.
   
   I recently mentored a Certified Legal Nurse Consultant on a toxic tort case involving 40 plaintiffs. The attorney firmly told her that instead of her hourly fee, he would pay her a flat rate for each of the 40 cases because he felt there would be a lot of “cut and paste” from one case to another.
   
   The CLNC^® consultant was convinced that she would lose this large project unless she agreed to the attorney’s terms. My advice was to stand firm on her hourly fee because she had no way of knowing before the reviews which cases would be simple, and which would be complex. Locking herself into a flat fee per case could cost her. Even though the plaintiffs all shared the same toxic exposure, they each were sure to have different medical histories (some more complex than others) which could influence causation. Not to mention the variation in the volume of medical records to sort through. The attorney would still benefit from any efficiencies she gained as she worked on the cases even with an hourly billing structure. Likewise, she would not risk losing money on the deal. The CLNC^® consultant stood firm on her fee structure, and as I predicted, the attorney agreed to her hourly rate.
   
   You must be willing to walk away from a deal, especially when that deal is not favorable to you. If you don’t like the deal with one attorney, remember there are over 1,180,000 more waiting for you to call.
3. Do not get emotional during negotiations. Appear detached even if you’re not. I negotiated a contract with a guy who was very emotional. Every time he took off on a point, I’d let him vent and then ask him what he didn’t like about that point. I calmly listened to his concerns and nicely pointed out how the contract supported both parties. As the negotiation went on and his rants slowly ran out, his blood pressure (and my anxiety level) came down. I conceded a number of little points because I knew he was keeping score and would have to win. I stuck to my guns on the important ones. Those points that I needed to win or at least couldn’t bend on, I blamed on my attorney, saying “I’d really like to do this but my attorney feels it’s necessary that I….” This took the pressure off me and helped to end what could have been a line of arguments. We hammered out a deal that was fair to both of us. Know in advance the points that you must win and what you can give up.
4. Don’t assume your bargaining power is weak just because your business is smaller or that you need the deal more than the other party. Negotiating can be challenging when faced with the perception of uneven power positions, but weakness is one thing you can’t allow the other side to see. I have rewritten entire contracts sent to me from companies way bigger than mine who claim they can only use their contract with no changes. But I prevailed and they used mine!
   
   Go in knowing and believing in what you have to bring to the business relationship. Even if you believe the attorney-prospect holds the power card, don’t underestimate your unique selling position and how it benefits the attorney-prospect. It’s your job to educate the attorney about how you can make a positive difference in the outcome of his cases.
5. Never say anything off the record – “Just between you and me, I want ‘X’ but I’ll settle for ‘Y.’” In negotiations everything is on the record and if you say that, more than likely you will end up with “Y” or even less than “Y.”
   
6. Never let the other party bully you or treat you in a paternalistic manner. I’ve worked with plenty of attorneys, met some very tough negotiators and seen many different negotiation styles at work. Surprisingly, it was a non-attorney who negotiated like a pit bull. Realizing what I was up against, I took a long walk and role-played with Tom. Role-playing helped me to anticipate every possible objection and get myself into a Zen-like state. When it came time to negotiate for real, I was centered and ready for him and we reached a win-win. If I’d gone head-to-head with him, like two pit bulls, instead of handling it as I did, the negotiations would have failed.

Use these 5 strategies the next time you are negotiating with an attorney.

Success Is Inside!

Every CLNC^® consultant worries endlessly, and to some extent needlessly, about privacy. Without getting into a discussion, let’s talk first about the hippo in the room – HIPAA. It’s been said that law firms are not covered entities under HIPAA (hooray).

That being said, in my humble opinion (which was wrong once back in 1977 – a really bad haircut), a legal nurse consultant working for the defense would be considered a business associate of the defense attorney who would be a business associate of the hospital, other facility or other defendant who is covered by HIPAA. On the plaintiff side, HIPAA regs don’t apply because you’re looking at the records with the plaintiff’s, or potential plaintiff’s permission. But to be safe, keep your CLNC^® subcontractors under contracts with confidentiality provisions and you should be in good shape. Once the suit has been filed, the plaintiff’s medical records are pretty much fair game as they’ll become public records. Here’s a Medscape article on the subject if you want to read more, but the best way to stay in compliance is to discuss any privacy expectations with your attorney-client first.

Enough of HIPAA – let’s talk tech! More and more Certified Legal Nurse Consultants are buying laptops, which means you’re working in places where other people can see your laptop’s screen. I know that every time I walk through a Starbucks^® or to the airplane’s restroom from my seat in steerage I look at what people are doing on their computers (most of them are watching movies but you see the occasional worker bee crunching away on a spreadsheet). Sometimes I get dirty looks but I really don’t see much. It’s the person sitting next to you for a period of time at a table or on a three-hour flight who is the danger.

If you’re worried about people seeing your work product, or lack thereof, consider buying a frameless privacy filter for your laptop. You’ll have to mess around with the installation and make sure your laptop will close with the screen installed, but the filter will hide your data from prying eyes. 3M makes some highly rated filters. They’re a bit pricy, none is perfect (some can be viewed from above) and all can be seen from behind you (otherwise you couldn’t see through them). The good news is that it works on all laptops, after you figure out how to install it. If you think you need one go ahead and buy it. I’m thinking about getting one to keep Vickie from looking over at my laptop to see my flight simulator score on those long “working” flights. But if people seeing your work (or play) isn’t a concern for you, save your money and put it into your marketing materials.

Another privacy concern is with getting your work product to an attorney via email. There are ways to encrypt your email but they can be pretty complicated to set up and not every attorney understands “public key encryption” like you do. So, for legal nurse consultants who want to keep their documents private, buy a copy of WinZip^®. It will allow you to compress your reports, into password-protected “zip” files, which you can then send to your attorney-client. Simply set up a different agreed-upon password with each attorney-client and then send them the password-protected zip files. If anyone intercepts your email or it goes to the wrong address, they won’t be able to read it (easily).

In an earlier blog I discussed another way to secure your work product by sending your attorney-clients your work product in portable document format (PDF). If you have the free Bullzip PDF Printer or a full version of Adobe^® Acrobat^® you can password protect your PDF documents too. Once you get Adobe, it will integrate into your Microsoft^® Word software so you can print PDF files straight from Word. The “save PDF” add-in from Microsoft will let you create PDFs but will not let you add security so you really need either Bullzip PDF Printer or Acrobat (Bullzip is a lot cheaper…free). Then you can simply email your new password-protected PDF documents to your attorney-client (just make sure he’s got the password).

You should keep in mind that it’s pretty unlikely that someone will intercept your email. It’s more likely that you’ll send it to the wrong address and password-protecting your work is a great way to keep it private.

This post should help allay some of your privacy fears but, remember, even paranoids have real enemies!

Keep on techin’,

Tom

I just mentored a Certified Legal Nurse Consultant who had completed a project for an attorney. She had not entered into a contract or letter agreement and did not get a retainer before starting the project. After completing the project she had difficulty getting paid for the work she’d done. When she contacted the Institute for mentoring, I asked her to describe her plan for solving this challenge. Her response was, “I guess I’ll just chalk this one up to experience.” That was exactly the WRONG THING TO SAY to me. I was all over that like a goose on a bug.

“No, you don’t chalk it up to experience. No, you don’t write off your time or claim you’re gaining experience just because you ignored the model for success you learned in the CLNC^® Certification Program. That time you want to write off, you will never get back. The time you want to write off would have been better spent solidifying your relationship with your attorney-clients, marketing to grow your CLNC^® business and working on cases for $125 per hour. Lost time is lost money. Sometimes you have to chalk a mistake up to experience, but this is not one of those times. Why? Because you didn’t make a mistake. You consciously chose to do something you knew you should not do. With that conscious decision comes a conscious price you pay.”

I am all for making mistakes (I make at least one every day, sometimes before I even get out of bed). After all people who never make a mistake never make anything. But I am not into making just any mistake – especially not mistakes that are obvious and avoidable. Instead I aim for making intelligent ones. Making a bad choice and expecting a different outcome isn’t a learning experience, it’s insanity.

In the CLNC^® Certification Program I teach that when you do X, you will get Y result. For 27 years I have taken the Xs very seriously and that is why CLNC^® graduates get the enviable results they do. But if you choose to do Z, do not expect to get Y, and you shouldn’t be surprised by the pain either. (Think about a recipe – even growing up in Louisiana we didn’t add crab boil to our lemonade – bad choice – bad result.)

My motto is “Do what is right, not what feels easier at the moment.” And if you are uncertain, go back and review the pertinent portions of the Core Curriculum for Legal Nurse Consulting^® textbook or request mentoring. It’s always better to take the time to prepare in advance than to lose the time, money and possibly an attorney-client because you didn’t.

Make it your goal to only chalk up to experience that which is enriching. This is how you grow yourself and ultimately your CLNC^® business.

To life’s enrichments.

Success Is Inside!

Vickie,

I was hired by an attorney to locate a testifying expert. When I sent the contract to the attorney to sign, he sent it back requesting that I put the plaintiff’s name in the contract instead of his. I learned in the CLNC^® Certification Program that the contract is always between the law firm and me and that is how I have always done it. Should I consider his request or stick with the way I was taught?

Leann E., RN, CLNC

Hi Leann,

You are absolutely correct. Stick with the way you were taught. The contract should always be between you and the attorney, never with the plaintiff or defendant. Contact the attorney and politely emphasize that your contract has to be with the attorney, not the plaintiff and that all invoices will be submitted to and paid by the attorney. Communicate that your standard business practice is to collect a retainer check for the amount of your location fee and the signed contract. Upon receipt of both, you will begin work to locate a testifying expert.

Success Is Inside!

Vickie

P.S. The new CLNC^® Certification Program catalog has just been mailed. If you did not receive it, please call my office at 800.880.0944.

P.P.S. Great news! We have renegotiated lower hotel room rates for our 2009 CLNC^® 6-Day Certification Seminars. Call 800.880.0944 for details.