‘Ghost-Writing’ severance negotiations

By: Diana Digges – LawyersUSAonline.com – December 9, 2002

Why would you spend up to 20 hours on a letter for a client who’s unhappy with a severance package?

If it increases the severance offer by 400 percent, the real question is why wouldn’t you?

Minneapolis attorney Steve Heikens has built a niche business around “ghost-writing” letters in severance negotiations. Clients unhappy with their severance pay but unenthusiastic about filing a lawsuit come to him for advice. In a marathon 72-hour period, he helps them draft a letter that is clear, comprehensive, persuasive – and completely devoid of legal concepts and language.

Heikens says the practice is fair, ethical and fast. And the results have been stunning. For example:

  • An employer raised a retirement offer from $50,000 to $280,000 eight hours after receiving “The Letter.”
  • An employer increased the six-month severance pay of a fired female executive from $100,000 to $370,000 and dropped non-compete and unemployment conditions, 24 hours after receiving the letter.
  • An employer who offered $200,000 in severance pay raised it to $880,000 just 36 hours after receiving “The Letter.”

What makes these employers jump so fast and so high?

They worry they’ve done “something wrong” is Heikens’ short response, and that concern shows itself in the initial settlement offers.

“The amount they put on the table to begin with, or the conditions they insist on are clues that they know something’s odd here,” said Heikens.

His response is geared to bring about results, not a lawsuit.

“The contents of the letter we write in response is reasonable. It makes common sense. It’s not a bluff; it’s not meant to trigger litigation. That’s the biggest mistake most lawyers make in settlement negotiation,” he said.

Heikens’ first success in 1999 – the third example above – was so stellar he put it down to a fluke. Now, however, he’s convinced otherwise: He has written 35 such letters, and only two have failed.

Heikens is averaging $1,480 an hour – and also having a lot of fun.

“A competent lawyer can make money, but what’s different about this is that you can have a lot of fun getting inside someone’s head. I’m figuring out what the pressure points are and making sure not to push too many,” he said.

While Heikens still handles employment cases, ghost-writing severance negotiation letters is a significant part of his practice.

No wonder: When revised settlement offers are routinely three to five times as high as the initial ones, the success is far beyond “the fluke stage.”

Assessing Good Candidates

The first 20 of Heikens’ clients were all executives or upper management employees. They were verbally skilled, accustomed to documentation, and “thoughtful, practical” people, he said. None wanted a lawsuit. While they were all “capable” of aggression, they were not aggressive personalities themselves.

“That would put them in the troublesome category for me because they probably would have alienated so many people,” said Heikens. Entrenched antagonistic relationships are not fertile ground for common sense arguments, he points out.

He would also steer clear of employees who were fired more than a month before coming to him or whose departure was engineered gradually, with warnings, documentation of poor performance and probation.

And if the employee was fired as part of a wider layoff, the “ghost-writing” intervention won’t work, unless the employee was subject to differential treatment.

Finally, it is more difficult to bring results for entry-level workers, whether blue collar or pink, than upper level employees, but Heikens emphasizes that he wants to “make the system work for everybody. I’ve been disillusioned a bit that neither the legal system nor this ghost-writing business works as well for ordinary people as it does for CEOs, but you can make it work – you just have to dig deeper for powerful facts.”

With those caveats, Heikens will take all comers. And whether the client’s salary is way up in the stratosphere or near the poverty level, his retainer doesn’t change: one week’s pay, win or lose. If the severance offer goes up, he gets 20 percent of the growth value.

The First Case

Heikens got into this business by accident. His first case, referred to him by a Chicago colleague, remains his most spectacular.

A woman unhappy with her severance proposal came to him with three conditions: she didn’t want to sue, she didn’t want to lose the offer that was on the table, and, at the same time, she wanted a much better deal.

“She’d been to three lawyers who could not figure out what to do, given those constraints,” said Heikens.

Heikens didn’t know either. But being an attorney who welcomes challenges and the creative use of his legal training, he mulled it over, looking at the problem from every perspective.

That was made easier by his background: five years as a defense attorney in employment law before switching over to the plaintiffs’ side 17 years ago. An undergraduate degree in speech, theatre and communications helped. As a budding novelist, his interest in people’s motivation was piqued. And finally, the crusading part of him that believes the law is skewed towards employers kicked in.

And he had written a book, “The Balancing Act,”on how to write good settlements. The subtitle of that book, “You Can Lead A Horse To Water, But Your Job Is To Make It Thirsty,” is a clue to his psychological approach to negotiating settlements.

“The point is that you can’t operate on the abstract level, which is what lawyers love to do and are trained to do. You have to go beneath the surface and get to the underlying motivations and push the buttons that make people want to settle,” Heikens said.

So he began interviewing the woman. He asked her to write a “brag sheet” of everything she’d contributed during her 18 years there, every achievement she’d ever made. He probed her in detail about her accomplishments within her own department and her success vis-à-vis other departments.

He analyzed the type of staff the woman had put together, looked at departmental growth and new products that she or her staff had developed that were successful. Then he sought indicators that would confirm that her achievements were recognized by the company: pay raises, bonuses, commendations.

“I start by trying to get as much objective data as possible. In this case, she came back with four pages. I was impressed,” said Heikens.

Get Inside The Employer’s Head

The next stage was to cluster related facts and accomplishments and to analyze reactions to them. “We were trying to focus on determining who the key actors at the workplace are. This kind of snapshot of the workforce is very important, not for the letter, but for my own understanding,” said Heikens.

Most lawyers who fire off a letter on severance issues tend to stay on the level of job titles, duties and responsibilities, he says. “We try to go to the extra level of personalities and feelings. People pretend that decisions are made rationally; that’s bogus. A situation like this is driven by feelings under the guise of fact,” he said.

Then he zeroes in on who made the severance decision and who’s going to decide what the company is willing to pay. He tries to get personal information about the decision-makers, not just official data. How do they treat other people≠ How is that reflected in their language? Is this somebody who puts his arm on your shoulder when he’s talking to you? Or does he sit down across the table from you and give you orders? Does he talk in short sentences or long, rambling ones? Does this person eat alone? Go out in groups? Give a lot of speeches?

“No single fact tells me anything, but we’re working intuitively. We try to saturate ourselves in facts. But we do this only when we’ve narrowed the universe to just a few people,” he said.

Armed with the client’s “brag sheet,” a chronology of major employment events and capsules of the key actors, Heikens begins his letter. He said he follows the principles for good settlements he laid out in The Balancing Act: settlements are bought, not sold, they occur at different stages of negotiation, and they are effective only if they are properly targeted at the specific audience.

He pays homage to the weight of inertia and asks himself: What does the employer need to know in order to change his view about the settlement offer?

Plain Language

Heikens builds momentum in the letter, relying on facts and concrete language rather than legal concepts.

“With a judge, jury or employer, facts have more power than the law,” he said. “Is the word ‘discrimination’ a fact or is it a legal concept≠ The fact is that the woman is paid less than the man; calling that discrimination is a legal concept. You will almost never see in any of our letters the legal concepts of discrimination or harassment. We talk about people’s behavior in terms of facts: ‘He punched me’, not ‘he assaulted me.’ He ‘broke a promise’, not ‘breach of contract.’”

Heikens contends that terms such as discrimination and harassment have been so overused, they have lost all power to motivate a change in behavior.

“What we’re after is the power of uncertainty; you do not have to convince the other side that they’re going to lose. All you have to do is convince them it’s uncertain that they will win,” he said. “That uncertainty is what creates their desire to look at things differently.”

The interviewing and drafting of the letter is an intense and concentrated process over a very short period of time, which is important for the client both practically and psychologically, Heikens maintains.

“There is momentum to resolve the matter, to get closure, while the employee is still there, at the workplace,” he said.

In that first case, the client wrote the initial letter, which then went through three more drafts by Heikens.

“The client read the third draft and corrected it for accuracy. By draft six, she pretended she was the recipient and we revised it in light of her perceptions. Then it went through a few more versions – changing the order of presentation of acts, moving around sentences, some structural changes for impact. She read draft 10, again as if she were the audience,” said Heikens.

Finally, the 13th draft was e-mailed to the appropriate person. The result, 36 hours later, was a phone call offering four years’ pay.

The Role Of The Professional Skeptic

Heikens admits that he was surprised by the results.

“I thought we might double the offer,” he said.

His doubts about whether he could duplicate his success, however, evaporated as the strategy worked again and again.

Convinced that it is the power of the letter as much as the particulars of any given situation that brings results, Heikens has extracted for attorneys some of the key principles that make ghost-writing effective.

In the initial drafts, he advises, follow a stream-of-consciousness technique, trying to get at the underlying conflict by getting inside the heads of the participants.

Identify possible motivators for the severance. Personal animosity? Dislike or distrust of certain groups? Impulsive or arbitrary inclinations? Assumptions about the employee’s unwillingness to learn new skills? Management differences?

Then look for euphemisms that imply any of these motives, says Heikens in “Ghost-Writing: Opening Doors To Hidden Perceptions.” Locate a decision or incident that can “ONLY be explained by retaliation or discrimination,” he says, and ignore everything else.

And do not stop probing the client until “a hook” emerges.

“I am not talking about implanting memories that don’t exist,” cautioned Heikens.

But some incidents or comments that might be discounted by the client turn out to be important. In the forced retirement scenario cited at the beginning of the article, for example, it wasn’t until the ninth hour of interviewing that the client remembered a comment made to him that turned out to be useful. The president of his company had referred to him – on a formal occasion before members of the Board – as being “long in the tooth.” The client, not understanding the expression, didn’t see it as a reference to his age. But it was a comment that proved useful in increasing the severance deal, as it hinted of age discrimination.

But do not let a hint lead you into the trap of preaching or making threats, Heikens cautioned. Avoid legal language at all costs.

“The goal is to show, not tell, what happened. Hint at the motive, but do not preach,” said Heikens. “They know what they did wrong. You are playing on their guilt of getting caught.”

Avoid using dollar amounts, if possible. Ask for two years’ pay, not a specific figure.

“There is no magic formula for the amount, but it is not the trial value,” said Heikens. “If you pick a number close to what makes sense to them, after digesting the facts and big picture of your letter, they often do not counter.”

Heikens also advises working with a “professional skeptic” – someone who is not a lawyer who can help exorcise the legal language from the letter and predict the reactions of the reader.

“I work with Stacy [Meier] and one of her real strengths is that she cuts out a lot of my redundancy and adds new insights,” he said. “She’s able to step outside of herself and look at things from the reader’s perspective. What more information do they need? What can we let go?”

She also reacts to “damaging” facts in a distinctly different way than a lawyer would, said Heikens. For example, in a discrimination case, he was worried about a client’s having been offered another job when her own was eliminated.

“That was a hard fact to get around. But Stacy had a different reaction. She was reading through the brief and noticed that the company justified paying a male peer of our client more money and offering more prestige,” said Heikens. “Her reaction was that if the guy was so good, why hadn’t the job offer that was made to our client been made to him≠ That suggested to her the possibility that the job offer was a fake one. So a fact that looked damaging to me we were eventually able to use against them.”

Heikens cautions lawyers, however, that the only way to profitably work with a professional skeptic is to give him or her free license to criticize, argue and debate – “in short, to be blunt without fear of losing employment. It is crucial that he or she possess the self-confidence and honesty to be blunt. The return on the investment is enormous.”

Coming Out Of The Closet

What happens when the client succeeds in getting a better offer and the lawyer suddenly surfaces to review the deal≠ In the case of the female executive whose offer was quadrupled in 36 hours, she simply called Heikens to inform him of the oral offer, then sent him the next day the 12-page document she’d been given to sign.

Heikens got on the phone to the employer and began negotiating on the employee’s behalf, as her lawyer. The employer was not at all surprised that a lawyer would be involved at this point, and Heikens did not reveal he had a hand in the letter.

“If a lawyer hurriedly writes a letter for a client, not on letterhead, and the client then presents it as if it’s his or her own, if it later becomes public that the lawyer drafted that letter, he will face an ethics charge,” said Heikens. “He may win; I think he should.”

And ethics experts agree that he should, as long as he did not engage in misrepresentation or advise the client to commit fraud.

The only ethical rule that could conceivably be invoked is one requiring that a lawyer not bypass opposing counsel. If the lawyer knows that the other side is represented by counsel, he must contact them, said Harold Levinson, a professor of law at Vanderbilt University.

He and others concede, however, that in most cases, the employer is also getting behind-the-scenes legal advice.

“Quite often, the letter that comes from the employer will have been run by counsel,” said John Leubsdorf, a law professor at Rutgers. And while he notes that some judges are starting to complain about lawyers who help people write briefs but don’t put their names on them, those are largely pro se cases.

If the employer mentions having received a well-crafted letter, Heikens said that he acknowledges that “it’s very well written. But I’m a little evasive because I believe it’s attorney-client privilege. If they asked me what date she first came to my office, I would tell them honestly. But it’s never happened.”

Again, the ethics experts say Heikens is on firm ground and that his communications with the client are protected by attorney-client privilege.

“If somehow a dispute arose about how the letter came to be written, then you might get into the question of a waiver of privilege, but why would such a dispute arise≠” said Leubsdorf. “Either the person got a proper severance package or he didn’t.”

Heikens does caution lawyers to make sure that nothing in the letter will create a factual or legal obstacle, if the matter does end up in court.

And he emphasizes that all of his ghost-writing advice applies to situations where the person has already been terminated.

“This is not about advising someone who suspects they are being discriminated against and the lawyer helps them write the letter before they are fired. If it’s before termination, you’re setting up the employer for a retaliation claim if they later fire you. That is much, much more delicate in terms of what the lawyer’s role is,” said Heikens. “In that situation, lawyers are guarded about crossing an ethical line by becoming either a) a witness to the event by having participated in the letter or b) participating in a piece of evidence that may become important in determining whether the employer retaliated or not.”

But isn’t the lawyer indirectly setting up the employer for a lawsuit if a “reasonable” settlement isn’t reached?

“In my mind, it’s a very different situation, because one is before the fact [of termination]; the other is after,” he said.

Some lawyers finesse this problem by keeping their role in letter-drafting strictly advisory.

“If a client is going to send something, the client will do the draft and I’ll advise them on revisions,” said Gary Phelan, a New Haven, Conn., plaintiffs’ attorney and expert in disability law. “Often, I’ll tone things down to remove the hostility and to make it more effective. But frankly, the letters being written to our clients are ghost-written. It’s usually not the supervisor who’s drafting that severance letter, but a lawyer.”

Other attorneys agreed that it is perfectly acceptable not to disclose the relationship.

“Whether an employee has a disclosed or a non-disclosed attorney is none of [the employer’s] damn business,” said Joel Bennet, a Washington, D.C., plaintiffs’ attorney specializing in employment law. “As long as you are not misrepresenting or lying to someone, it shouldn’t be a problem,” he said.

For Heikens, it’s a matter – ironically – of keeping the law itself out of the loop until absolutely necessary.

“Lawyers are accustomed to doing combat. What do we usually do? Start a lawsuit, engage in negotiations, trigger the legal frameworks. This technique is different. It’s all about thinking outside the box.”

For a copy of Heikens’ booklet, readers may contact him at zorbaluv@aol.com or 612-305-4384.