Gary Marsh is a partner at Troutman Pepper (a national law firm known for its higher commitment to client care). He is an expert in bankruptcy law which is the focus of this episode. Gary is a veteran restructuring attorney focused on all aspects of bankruptcy, workouts, debtor and creditor law, and general commercial litigation. He represents debtors and creditors in Chapter 11 cases, out-of-court restructurings and litigation. He also represents court appointed receivers, examiners and trustees. Gary’s practice primarily involves representing financial institutions and servicers in and out of court in enforcing their rights and remedies. Gary has deep industry experience particularly with healthcare, energy and real estate insolvencies.

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Key takeaways:

  1. When negotiating it is important to really get a handle on the facts early on: Consider: time, cost, risk; client pain and suffering… and then put it all together to come up with a reasonable sense of what is a fair settlement.
  2. Avoid drawing a line in the sand unless you genuinely intend to stick by it.
  3. Be flexible – things change, and you’ll need to adapt.
  4. Control anger when in difficult situations!
  5. Get all issues on the table at the beginning – if you have ten issues then you can know which ones you’re willing to trade beforehand to more easily find common ground.
  6. Cases which involve raw human emotion can be the most difficult kinds of case.
  7. Trying to pull parties apart rather than bring them together can be a big mistake.

How did you learn your negotiation skills?

Gary learned by doing: Law schools are better at teaching negotiation skills now, but 35 years ago it was not taught at all. He also learned a lot from John Aldridge (a colleague from a previous law firm).

Key lessons from John Aldridge:

Assessing the client, yourself, and the deal: what leverage do you have?

The importance of face-to-face negotiation.

How do you deal with the ‘lunatic’ opponent?

Separate clients and lawyers to see if this changes the dynamic.

Sometimes you have to tough it out!

Bankruptcy is a complicated and challenging area of law. How to expand the pie when money seems zero sum and there are so many interested parties?

Multiple creditor negotiations and competing interests?

The difference between secured and unsecured creditors?

How to determine the value of a claim – what is a good result?

How do you prepare for a negotiation?

Really get a handle on the facts early on.

How do you get past impasse?

Make sure all parties necessary to actually make a decision are present – you don’t want to negotiate with someone who doesn’t have authority to settle.

Non-economic terms in a bankruptcy case?

Such as a good business relationship going forward.

Difficult types of cases?

Would abuse cases be considered as unsecured creditors?

An interesting discussion on the details and difficulties of abuse cases.

What mistakes do bankruptcy lawyers make when negotiating?

Overplaying their hand.

Other mistakes?

How does bankruptcy law differ from other areas?

A bankruptcy system is multifaceted multiple parties – a chessboard.

Gary’s teaching roles.

How to manage expectations?

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