Negotiation, How the [Expletive Deleted] Does It Work? Part 3: Don’t be the problem.

Wasn’t that a nice little respite yesterday? I thought it was, if for no other reason than talking about Infinilaw and its burgeoning collapse brought joy to my otherwise dreary day. There’s always an upside to a law school just failing so spectacularly, especially when it’s associated with another law school that just can’t help but fail so damn spectacularly.

Alright, so, first things first, you may notice I’m making my headlines safe for work. This was by request. Apparently there are some nervous nellies in the world who are concerned about things like “What if the firm sees what I’m posting on my Twitter” and such. I get it. I do. Believe it or not, I have a professional Twitter and such as well, I just don’t really post shit to it because seriously, who wants to get their clients from Twitter? As a lawyer, I can’t type a damn thing in 140 characters or less.  As the Boozy Barrister, however, I have the freedom to post whatever I damn well please up until the moment I get sued.

So there, all you Sensitive-fucking-Sallies out there. You can now share the headline without worrying about what your bosses think until they read the post.  I do want to point out, though, that my posts were shared by Federal Magistrate Judges, goddammit.

Next thing I know, you assholes will want me to start putting trigger warnings on shit.

So, that said, today’s the last part in my three part series: “Negotiation, How the Fuck Does It Work?”  Part 1 was all about how the concept of principled negotiation is taught in law school, and you can find it here.  Part 2 focuses on negotiation styles that are going to drive you out of your goddamn mind, and you’ll find that one here. So now we know, right, and that’s half the goddamn battle.  But you know what the other half of the battle is?

Not being the sole fucking reason a case doesn’t settle.

Alright, so how can you prevent yourself from tripping over your own feet in a negotiation?  Well, as always, there are the Boozy Barrister’s Rules to Negotiation. I also have The Boozy Barrister’s Guide to Eating an Entire Ice Cream Cake and Justifying It, but that’s not the purpose of today’s post. That’s more of a thing I talk about with my therapist. So, let’s jump straight in, alright?

Don’t Negotiate Without Authority

This is the biggest fucking problem lawyers have in this world. They sit around, thinking of come great strategy and resolution to an issue, but then they never get the actual fucking authority from their client to make the offer. Instead, they call up opposing counsel and say things like “Look, if I can get my guy to come to X amount and give up Y, would that be acceptable to your client?” They’re feeling out the parameters of a settlement and to see what direction negotiations are headed in, and in theory it should save everyone time because nobody’s running back and forth to clients with shit.

Except for opposing counsel, who is definitely gonna discuss this with his client at some fucking point before responding. Then when they respond with “Yeah, that’s fine,” you’re in a bad fucking position. Why? Because you haven’t even talked about this issue with the shitstain you represent. This is some shit you came up with off the top of your head on the concept you’d then try to sell it to your client. But what happens if your client says no?

Well, now you’re up shit creek without a paddle, aren’t you brother? Because the other side now thinks that your client is acting in bad faith, and even if they don’t think your client is acting in bad faith, they think your client is being unreasonable. Or, and this is a big one if you’ve got an asshole like me on the other side, you’ve given opposing counsel the impression you don’t know what you’re fucking doing.

Oh, yeah, and just for your information, the ABA has sort of fucking covered this before. Rule 1.4, buddy. Rule 1.4. You have  to keep the client informed, and this means informed as to not only the offers that are conveyed, but the offers and communications you fucking make as well.

Don’t Be The First Asshole.

Seriously, there are very few situations in the world where you need to be the hardass off the bat. I don’t care what the partner says, and I don’t care what the firm line is. You never need to come off as being a dick in your first communication with opposing counsel. We all know this guy, too: “Our position’s strong, you better settle or else.” You know what I hear when someone says that to me? “Please, Mr. Barrister, come fuck our shit all up.” I take it as a goddamn dare.

What you can do is be a polite, friendly son of a bitch and, even if you aren’t budging a goddamn inch on the position, not come off as a total prick about everything. There’s a difference between “Fuck you, you’ll eat our shit and like it” and “Look, we both have arguments but our position’s stronger than yours. However, nobody really wants to pay to litigate this, why don’t we talk?”

Don’t Be Afraid To Seek Alternatives.

Fun story: I had a case that once settled without any money changing hands. Why? Because we explored some fucking alternatives rather than cash payments.

My client was suing for a breach of contract. The opposing party had unjustly terminated the contract. We went round and round about liquidated damages and shit until one of us said “You know, there’s this other work over here that needs to be done…”

That’s how that got settled. They gave my client another contract for other work they needed finished, and a guarantee that they would receive the first option to accept contracts on certain types of work for a period of time. My clients got something, their clients got something, everybody went home happy. This is one of those things you need to keep in mind: sometimes you have to look at the whole picture to determine if there’s a way to negotiate that completely avoids the issue of money and shit.

Plus, and let’s be clear, people get fucking emotional about money. I’ve found a non-monetary settlement easier to negotiate where possible than any monetary settlement. People will burn the fucking house to the ground over $10.00, but they’ll cave if they get to keep that $10.00…even if they’re getting a raw deal on their end.

Stop Adding Shit Into Agreements.

The fucking settlement agreement drafting process is not a part of the goddamn negotiation. By the time you’re drafting an agreement, you have the general terms of the negotiated settlement in place. Stick to those fucking terms, and stop trying to add shit in that queers the whole goddamn deal.

Some lawyers are famous for this shit, adding in material terms in the settlement agreement and causing the parties to re-open what were previously completed negotiations. Don’t do this. You draft that agreement, you stick to the material terms agreed to in the negotiation and don’t fucking use it as a place to re-negotiate for a better position. If you do this, you’re an asshole, and none of us like you.

That isn’t to say you can’t insert non-material terms, such as releases that are obviously contemplated though not actually stated, or choice of law provisions. Some shit isn’t talked about or contemplated as part of the negotiation process, and it’s completely fucking appropriate to add those in. If there’s an issue, opposing counsel will let you know and you guys can hash it out. But if you agree to a 36 month term for repayment in negotiation, don’t then change the damn agreement to a 40 month term for repayment when you draft the fucking thing. That’s underhanded, and you know it, cocksucker.

If you are going to do that shit, give opposing counsel a heads up. Otherwise, you look shady as hell by just submitting an agreement, and you’ll open you and your client up to legal woes down the road when opposing counsel produces all of the emails that don’t contain or directly contradict what you’ve drafted. Just don’t be that asshole.  Got it?

Conclusion

There.  There you go. There’s a lot of other things to say about negotiation, and how to not be the asshole that queers the deal, but I’ll probably circle back to that shit in some later post. For now, though, I’ve said all I really want to say on the topic over the past three posts.

Oh, and for those who are wondering what my negotiation style is, I’ll let you in on a little secret: I use all of them. Every halfway decent litigator does. There’s no way to have a single negotiation style that works in every case. Your style is, or at least should be, unique to the facts that you’re working with.

Now, I got time to enter and invoices to get out. It’s the end of the month.

-BB