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Off the Bench and Off the Cuff Column

"Insights Shared Through Pen and Practice


Interview of Barry J. Lipson, Esq.
by Judge Marvin R. Halbert
Pennsylvania Law Journal-Reporter
February 9, 1987

HALBERT: My guest today is Barry J. Lipson, the author of Corplaw7 Commentaries. While
now in private practice in Pittsburgh, he brings to his business-law counseling, negotiation and
litigation practice the insights of a former general counsel of a major company, and of a former
assistant attorney general. He has also been advisor to the Pennsylvania Chamber of Commerce,
the Business Round Table, the American Arbitration Association, the U.S. Trade Representative
and the U.S. Secretary of Commerce. Thank you for joining us, Barry.

LIPSON: It is my honor, your Honor.

Q.

I note that you are always quick with a pun.

A.

Yes. I find humor is one of the best lubricants there is in human relations. It's hard to stay

distant from someone who makes you smile. However, once you get their attention through humor,
then it is important to let them know that your comments and observations have real substance also.
This is true with clients and adversaries in negotiations, litigation, articles and seminars.

Q.

I understand that while you are now in private practice, you have been with corporations

and with government. How does this influence your day-to-day practice?

A.

From my government experience, I have an understanding of the government mentality, of

what the government wants and of what it will probably be satisfied with. Government in our
society, be it federal, state or local, is not "all powerful," and this is important to keep in mind.

From my experience with corporations, I have an intimate understanding of business clients,


of what they want, of how to communicate with them and of how to obtain their objectives. As one
attorney with a large Washington law firm once told me while I was in-house counsel, "I'm jealous!
You know what's happening with the front line troops, while I only get the predigested news
releases prepared for the people behind the lines."

Private practice permits me to use these special insights, and to use them for the benefit of a
variety of clients in a number of different industries, either directly or through consultation with
their legal counselors.

Q.

The only area you seem to have skipped is the bench.

A.

In law school, I had such aspirations, and probably still do. Perhaps, this is why I have been

active in setting up the Roofing Industry Mediation Panel and in serving as an arbitrator for the
American Arbitration Association, the Better Business Bureau and the Allegheny County Court of
Common Pleas.

Q.

Do you have any particular philosophies in counseling clients?

A.

Personally, I believe there is only one basic approach. Find out if there are any problems

with what your clients plan to do, and if so, work with them to find ways to lawfully avoid these

problem areas while still accomplishing substantially all of their goals and objectives. Early in my
career, I was shocked when I learned from a client that not all attorneys followed this philosophy.
This client had been exasperated by other attorneys telling him only "yes" or "no" and then, if "no,"
requiring him to come back with alternate plans for them to pass similar judgments on.

Q.

What about negotiations?

A.

Several years ago, I studied negotiating techniques with Professor Roger Fisher at Harvard

Law School. He is the author of "Getting to Yes," and advocates "win win" negotiations. I found
that I had been successfully using these techniques all along, but he helped to synthesize and clarify
the process.

Basically, I believe that the first job of a negotiator is to obtain as much as is feasible for his
client. Within this context, it is important to aim at maintaining a reasonably good working
relationship with the other side, develop strategies that will help them to agree with your positions
without their losing face and, better yet, help them "gain face" without disadvantaging your client.
It is also important to keep in mind the old clich, "It's always darkest before the dawn."

Q.

And litigation?

A.

Much of what I have said about negotiations, I believe, is also applicable to litigation. The

best approach is normally "the carrot and the stick" approach. You should at all times appear to be
reasonable and willing to talk if there is something to talk about. At the same time, your opponent
must realize that he has a real fight on his hands if he persists in litigating. This approach would be

equally applicable to the representation of defendants or plaintiffs. But, Judge, I'm sure you don't
need any advice on litigation.

Q.

We are all students. Do you have any particular advice for suing a large corporation?

A.

Only the same advice I would have when contemplating suit against any legally

knowledgeable defendant. If you have a cause of action which could have ramifications beyond
your lawsuit, or which could place the potential defendant in a bad light, after preparing your case
for filing, but before filing, you should seriously consider giving such a defendant the opportunity
of settling at that point.

Once you have thrown down the gauntlet of suit, your charges are a public record, and the
defendant may feel that it has no choice but to fight, if for no other reasons than to avoid other
lawsuits or to vindicate itself to its customers, shareholders and the public. Accordingly, the
possibility of suit is quite often much more threatening than the suit itself, and therefore, a
reasonable settlement may be available then, which may not be available again, if at all, until you
are on the courthouse steps ready for trial.

Q.

What type of matters have you been involved in?

A.

Over my career, I have been involved with the broad spectrum of business legal matters and

have been responsible for all of the legal affairs of a major company. These matters have ranged
from simple day-to-day counseling, contract review and trademark registration to complex
negotiations and involved litigation.

On the other hand, I have successfully sued the U.S. Government over a U.S. Naval Base
my client built in Australia, have been involved in setting up joint ventures in Africa, Europe,
mainland China and the United States, have been involved in acquisitions and high-technology
licensing arrangements, have orchestrated the settlement of hotly contested state tax matters and
have successfully represented my clients in a variety of governmental investigations and
proceedings to name a few.

Q.

You didn't mention antitrust.

A.

Antitrust is certainly one of my strong suits, and I don't want to down-play it. However, as

my experience covers the full spectrum of business matters, it is not always the first thing I think of
when asked to give examples of what I have done.

Q.

How did you come to write your legal commentaries?

A.

I've always had printer's blood in my veins. When I was about 11, I reported on the

activities of Betty Beet and Billy Bean in the "Weeders Digest."

Skipping to my legal writings, in the mid 1960's, I became concerned over the deviation of
the New York courts from consistency with federal antitrust concepts and wrote an article for the
New York Law Journal on this subject. In the following decade, I wrote a series of articles on trade
regulation, trade association and international law subjects for "The Practical Lawyer" which were
recently compiled in "The Practical Lawyer's Manual on Trade Regulations."

From these

beginnings, my writings have appeared in publications from coast to coast, however, I had not
thought about writing a regular column until the editor of this newspaper wrote to me concerning a

submission I had made, beguiling me with his silver-tongued prose. He induced me to become a
"regular contributor" on the promises of "statewide fame, movie contracts, etc. etc."

Q.

Have these promises been kept?

A.

Well, I guess I have statewide fame . . . you called me in Pittsburgh from Philadelphia,

didn't you?

Q.

How about movie contracts, etc., etc.?

A.

With your seniority as a columnist, I'm sure I'll have to wait until after your picture is

released; and with regard to "etc., etc.," I'll need your judicial interpretation to determine what I
have been promised here.

Q.

What are your goals with these articles?

A.

My goals are to establish dialogues with the members of the bar throughout Pennsylvania

who may from time to time become involved in business-law matters. I'm trying to accomplish this
by sharing with them my experiences, pursuant to our editor's instructions, in a readable and
entertaining fashion; by learning from their questions and comments; and by receiving input from
them for future columns. I believe we all benefit from sharing our knowledge and experience.

Q.

Do you have any parting advice?

A.

Yes. My definition of an expert is someone who knows enough to know that he doesn't

know everything. If you are on the verge of treading into unknown territory, do not be afraid to
seek guidance. You and your clients will be better off because you did. Quite often you have done
your client the greatest service by recognizing in the first place that there may be a problem, even if
you don't have the answer to that problem. There should, therefore, be no loss of face in seeking
assistance. As your Honor indicated earlier, all good teachers and true experts are also perpetual
students.

Q.

Thank you for spending some time with me, Barry.

A.

My honor, your Honor.


*****

P.S. I must be in a rut as this reads to me as if the interview was only yesterday. And, indeed,
ever word must be gospel as His Honor was on his honor to report honestly, even without an
honorarium - Honest! BJL

Copyright8 1987-2012 by Barry J. Lipson