Law Negotiating

After 30+ years of practicing law, it becomes fairly obvious what one’s strengths and weaknesses are. Often, these are substantially different than one might have imaged at the outset.

For me, a surprising and enjoyable strength has been negotiating. Before I carry on with some of the whys and wherefores, I want to be sure to differentiate between negotiating and mediating. #Mediation is a form of conciliation, wherein everyone tries to make nice, along with a facilitator, work out their differences and wind up roasting weenies and singing kumbayah around a campfire.

Negotiating is more like convincing someone that if they don’t make some necessary, often painful, concessions, he or she will end up having his or her weenie roasted over that same campfire! In its purest form it’s more like a couple of dogs fighting over a found piece of red meat without ever actually engaging in combat. It involves growling, snarling and seeking advantage, while keeping one’s gunpowder dry—if possible.

Why am I so good at that? Partly, perhaps because of my childhood experiences with being abused (see domestic violence articles) and partly because of my native intelligence. I’m not purposely boasting. It’s just an “is,” as to why I think I’m good at negotiating. I can keep track of, appreciate and abide by the fundamentals, as well as the facts being brandished aboutm often at high speed. The rest is an art.

A list of the fundamentals is fairly easy to come by. While there are as many negotiating styles as there are people who are good at it, there are a few rules that apply in all instances. One is to evaluate your case, or the value of the ware you are buying or selling, as the case may be. By that I mean, determine its fair market value outside the context of the negotiation at hand. I.e., if you didn’t have this prospective buyer in your sites, what would it be worth elsewhere? Or in the case of litigation, what is the most likely outcome, if the case is tried. Use that as a benchmark to determine your negotiating success or failure.

Also, one needs to size up his or her opponent, early on. I would guess that I’m viewed as pretty tough in negotiating circles, largely because I’d rather fight than flee in most instances. I have a button, which sets off a blast, whenever I feel that someone is trying to push me around. I’m still fighting with Dollar Rent a Car, years after a $210 incident that I do not feel was my fault (they allege that a rock hit the windshield while I had the car; I allege that a. there was already a small hole in the windshield, when I got the car and b. they charged me for 16 gallons of gas, when the tank only held 13 gallons.) We could have resolved this in 15 minutes, except that they decided to become jerks, right off, rather than having a mutually respectful discussion about it.

They made outlandish threats, which I knew were hyperbole at the time. In the words of Barack Obama’s immortal predecessor, I told them to "bring it on!"

And, this is within the context of a situation in which I had insurance that would have covered it in any case, but (*&^%$^& them!

Do remember that there is an economy to both sides in a negotiation if a deal can be struck before moving on in the absence of a settled price or dispute. If it’s litigation, both sides save court costs, attorney’s fees and such. If it’s the sale of an asset from real estate to a yacht to an airplane to a junker-of-an automobile, there’s an economy to working out a deal—no more ads, no more time consumption and the seller has his or her money drawing interest or being put to another use.

Now, if I weren’t a good negotiator, I might say, “Let’s divide the above 50-50.” Sounds nice, but, to be honest, I’m really thinking more along the lines of 90-10 with the other person being so glad to get things worked out that they’ll cheerfully give up the difference to avoid another round of negitiations with me.

Are you getting an idea as to the tone?

As one of my negotiating mentors pointed out early on, one usually has better luck using vinegarm rather than honey to get one's way. An exception is the government. Government employees tend to be “cruisers,” i.e., don’t expect productivity to peak on Friday afternoons. But, I don’t mean this in a mean way. I’m sure it’s true in most, if not, all other countries, as well. Again, it’s an “is.”

So, with them, you need to be cordial—to a point, anyway.

I wouldn’t say that I’m disagreeable by nature. You’d have to ask my family to know. I would say that I’m not swayed by public opinion, or private opinion for that matter. So many people are governed by what other people think of them that I’m convinced by this time, that’s the main area where people lose expensive ground in negotiations.

You have to be willing to rub the oppostions' noses in it without being apologetic. I’ve been consulting with someone recently regarding a negotiation, where some crimes have pretty obviously been committed. If you threaten to turn someone in, if they don’t do or pay X, that’s blackmail. But, in instances, where it’s appropriate, you just turn them in without saying anything to anyone. It can be in certain (actually not in most) instances an effective leveraging tool.

Some people don’t respond to a shot over the bow. They are so brazen and count so heavily on social pressure to avoid controversy that you have to actually fire a torpedo at their ship to get them in the mindset to make reasonable concessions. The rare instance in which criminal action can be effective in a negotiation is where the perpetrator has his or her hand in the cookie jar. By shining the light of justice on them, it is usually possible to keep them from taking another handful of cookies. In most instances, though, it’s better to focus on one’s own objectives and let the state worry about retribution.

Another effective ploy in negotiating is to give the other side the distinct impression that you are either apt to be, or completely capable of, being irrational in the face of adversity. My wife and I once rented a house wherein the landlord had made some promises regarding repairs, improvements and such, but not kept them.

When it came time to move, I gave them notice of our tenancy termination and told them to take the balance out of the security deposit, along with the last month’s rent. They responded by suing me for an eviction. In California, the only allowable issue is payment—a landlord centric piece of legislation, probably not all that uncommon.

Nevertheless, when I noticed the landlord wife for a deposition on Christmas eve and the landlord husband for the day after Christmas, they saw things more along the lines I had proposed and we settled.

I should also point out that this is not as irrational of an approach, as it might sound at first. We have a ridiculous stop sign near our house, where almost no one ever stops (right turn onto a cul-de-sac). One day a neighbor said, “I got fined $300 for running that stop sign.”

I replied, “No you didn’t! You paid $300 to run that stop sign hundreds of times. In the end you paid just a little over a dollar per time for the privilege and convenience of not having to stop.” The rest of the neighbors haven’t had to pay anything.

Above all, though, I think it’s that sense of not caring what others think of me that has been most effective. We had a young lawyer in the firm I used to manage, who inherited a very big case, because the people being served could never find their way clear to pay our bills. By law, we weren’t free to just quit working on the case, due to non-payment, as a contractor might. They were entitled to continued representation. So, we hired a guy with a law license and gave him the files.

There was some crucial evidence in the case, which we had. And, there was only one copy of each. In an effort to be a “good old boy,” vis-à-vis some other prominent lawyers in the community, he let them walk out of our office with all the pertinent evidence—every shred without even an itemized list—“to have a closer look at it.” He would be the antithesis of the person I try to be in a negotiation.

I guess God had to create a healthy number of chumps to serve as prey.

Oh, and if you can just abide by the rule, “Fool me once, shame on you. Fooling me twice, ain’t gonna happen,” you’ll be way ahead of the game. I can’t begin to tell you how many times this has come up in all forms of dispute, whether personal, business, or law.

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(Yes, I do negotiating for clients in a wide variety of contexts, including employment law and with the tax authorities and banks. I call this aspect of my practice “negotiations unlimited,” and the fees are negotiable. Negotiating services are not limited by state, except to the extent that they involve legal cases, per se. In those instances, I often engage local counsel to meet any necessary licensing requirements.)