Negotiation, How The Fuck Does It Work? Part 1, Getting to No.

Alright folks, let’s talk about the fine fucking art of negotiation. This isn’t exactly a new topic, with people writing about it all the goddamn time and there being a lot of books out there, like the seminal volume Getting to Yes: Negotiating Agreement Without Giving In (a…pretty good read), but it’s one that I really haven’t written on yet, have I? No, I haven’t, you know, in case you’re the type of mouthbreather who can’t be bothered to actually read my past entries on this site to determine if I am, in fact being truthful.

By the way, fuck you for doubting me.

Anyhow, we’ve all been there before, ain’t we? On the verge of making a case that’s been sitting around like a thumbtack in your extra-wide ass go the fuck away by finally reaching some sort of reasonable resolution with opposing counsel. We’ve all felt the thrill of hearing a number that isn’t too far apart from your client’s number, and started to do that Snoopy dance of unmitigated joy at the prospect of finally closing the file. Sure, billables are great and all, but at some fuckin’ point continuing with the litigation just doesn’t make sense for anybody involved, and the clients are starting to get weary of paying the monthly invoice with no discernable (to them) movement on the case at all…because clients have no idea that 90% of legal work is done behind the scenes, and it’s hard to encapsulate “spent five hours desperately trying to salvage the claim from the client’s latest fuck-up” in a form on the invoice that doesn’t raise their unjustified ire.

So you waltz to opposing counsel and say “Hey, let me take this over to my guy, but I think I’m going to suggest we heavily consider this one.” Everything is right with the world, and your client says “Get me $1,000 more and we’re done.” Great! Who’s going to fight over a fucking grand?

Opposing counsel’s client, who just dropped their last offer by $6,000 in response to your counter. Congrats, you’ve gone from “a reasonable prospect of settlement” to “a goddamn negotiation.” So, what exactly are you dealing with? Shit man, that’s hard to say, because everyone out there negotiates stuff differently. Hey, why don’t we take three fucking days to talk about it?

Well, welcome aboard for the first day of my three part series on “Negotiation, How The Fuck Does That Work?” Today we’re gonna talk, really generally, about the issues in how negotiation styles are being taught to prospective lawyers. Tonight (or Monday), we’ll talk about The Types of Negotiators You’re Gonna Meet, then, to wrap the whole damn thing up, we’ll talk about how you can avoid being the fucking problem.

But, today, let’s just stick with the issues in how negotiation styles are being taught, and when I say “styles,” I mean the one fucking style law schools actually teach: Principled Negotiation.

In that book I referenced above, Getting to Yes: Negotiating Agreement Without Giving In, they espouse something called a “principled negotiation,” which any recent law school graduates or current law school students will recognize as the negotiation style that’s being taught in law schools these days. Principled negotiation is, well, I mean it’s a good theory, and it can work, but here are the steps it takes:

  1. Separate the people from the problem;
  2. Focus on interests, not positions;
  3. Have a variety of options available;
  4. Base the agreement only on objective criteria, and;
  5. Recognize the “Best Alternative To a Negotiated Agreement” (BATNA).

They’re pretty straightforward on what they mean, but if you want to know more about what they mean either go buy the damn book or Google some information on principled negotiation.

Any litigator in the fucking world can identify that four of those five steps have absolutely no bearing on your clients and aren’t realistic without a shit-ton of work, because at the end of the fucking day your client and their client are the ones that have to sign off on the agreement, not the fucking lawyers. That in mind, let’s take a moment and go over those issues:

  1. You will literally never get your client to acknowledge the issue isn’t personal, because people take shit like “getting sued” and “not getting paid” pretty fucking personal, especially when they have to hire lawyers;
  2. Most clients are incapable of separating their interests from their positions, in part because of their fucking lawyers and in part because some clients are incapable of distinguishing their legal issues from themselves;
  3. Many clients, and in some cases many lawyers, are simply unable to accept any goddamn option other than the one they want the most;
  4. “Objective Criteria” is not only a really vague term, but it suggests the issue isn’t personal, and;
  5. No matter what a realistic BATNA is, your client will never accept they could lose the goddamn case.

See, that’s the shit they don’t teach you in law school. And that’s a fucking problem. Because negotiation is a huge fucking part of a lawyer’s job.

Alright, so, in law school they give you a copy of Getting to Yes and say “Read this and then we’ll do some exercises!” Then some professor pairs you up with another law student, or a couple other law students, and everyone has these sheets of information and the whole idea is to play a role in a simulated negotiation to try to reach an acceptable agreement. However, the professor, the students, and the person who wrote that goddamn fictional scenario are all working off of the idea that principled negotiation is the predominant negotiation tactic out there in the real world. So, when everyone’s using the same fucking book, with the same fucking directions, and there’s no real goddamn pressure on anyone in the situation outside of their grade, it’s easy to reach a resolution, take your praise like good little boys and girls, and amble out the door with the J.D. and the belief that somehow you’ve taken a course that teaches you marketable skills.

Have you motherfuckers been ignoring every lawyer in the fucking world that’s telling you law school teaches you absolutely nothing that has applications in the day-to-day life of an actual practicing lawyer?

Because, seriously, principled negotiation is great in theory, and I’ll even agree that it definitely fucking should be the negotiation style employed by damn near everyone in the legal field because it’s the one most likely to lead to a stress-free, no frills, easy settlement of a situation without the need for costly litigation. However, even I don’t fucking use it, because it can’t be employed in every situation and, at the end of the fucking day, I gotta answer to a client who is not paying me to be a reasonable and respectful negotiator. I’m being paid by a client who wants me to get them the most I can, and nine times of out ten, they want me to salt the fuckin’ earth in my wake. My clients want me to ride in on a pale horse, with Hell following behind me. Principled negotiation (and sometimes just the concept of principles in general) don’t often coincide with a client’s view.

While, as we know, I believe in controlling the goddamn client because I’m a good lawyer, there are plenty out there who don’t, and will press the hell out of an issue way past the point where it makes any goddamn sense because they are weak-willed shitstains who will bow to the interests of the non-legally trained moron that got themselves into the situation in the first place (this doesn’t apply to my clients, who are all reasonable people who have never done anything wrong in their lives and are being unjustly persecuted, of course). Those lawyers are not going to in any way suggest that their client “not place blame” or “look at the matter objectively” in the beginning, and subsequently won’t have the authority to settle when the time is right. Further, and let’s be clear, when your negotiating in a manner that puts you in the spotlight, you’re performing for your client, and these assholes have no interest in looking even remotely conciliatory in those circumstances.

Plus, and this is important, what you learn in law school has a bad tendency to not fucking matter in the real world because so much of learning how to actually be a fucking lawyer is done in an actual law office, under the tutelage of a mentor (or several mentors). Mentors are generally older folks who learned how to negotiate from their mentors, who learned from their mentors, who learned from…look, you get the picture. If you trace it back, your office’s negotiation style probably traces back to two cave-lawyers sitting around going “No, fuck you Ogg! Your guy obviously has no right to mammoth pelt!” So, if you’re a young associate who walks into an office with a really goddamn confrontational negotiation style, that’s probably the style you’ll start to adopt, and next thing you know the whole idea of principled negotiations are filed away with other shit you learned in law school but never actually use (like the Rule Against Perpetuities).

Of course, you’re always welcome to be the crusading first-year associate that suggests your boss, a thirty year veteran of the litigation wars, change his entire negotiation style to match what some professor told you. Let me know how unemployment is working out for you.

So what you learn in law school is worthless, and what you learn in an office matters, and this is a big fucking deal because, unless you’re like me and got your ass tossed in the fire immediately, you will never be the party leading a negotiation on behalf of a client until you’ve been there long enough to pick up your boss’s good and bad habits. You can’t actually develop your negotiation style, or learn how to handle negotiation styles in a non-academic manner, without really doing a negotiation, and the real think is nothing like the play theater they run your through in that seminar class you took in law school because, unlike law school, there is no fucking rule book, everyone has some skin in the game, and there is a lot of fucking pressure on people to get an acceptable outcome. Also, the judge of what is an “acceptable outcome” is your client…who probably isn’t going to be the most reasonable motherfucker in the world.

So, what’s the value of books like Getting to Yes: Negotiating Agreement Without Giving In if it’s a great theory that may not see a lot of use in practice? Well, I mean, if your opponent is a first or second year associate, it’s gonna give you some great insight into recognizing what the fuck they’re doing. It also can help you identify what opposing counsel is trying to do is you run into one of those “principled” guys. Oh, yeah, and it may just influence your negotiation style into something that’s a bit more advantageous in the long run for your practice and your clients, but only if you have reasonable clients.

I’ll wait for you to stop laughing.

Got that out of your system? Good. Now, recognizing that “principled negotiations” are unlikely to actually fucking occur due to the realities of practicing law, what styles of negotiation, and negotiators, are you likely to encounter?

That, gentle assholes, is the next post.

-BB