Okay, so Friday I talked about how Negotiation is being taught in law schools. I also said that while that shit’s fine in theory, it doesn’t have a lot of application in the real fucking world, because the people that are gonna determine the negotiation style aren’t the recent law school graduates that are all about “Getting to Yes.” Instead, they’re the products of the offices they work in, and will carry those habits with them through the rest of their fucking careers.
So, that in mind, let’s just jump right into the fucking 5 Negotiation Languages (Yeah, I’m stealing it from “The 5 Love Languages.” Fuck you.)
“Fuck You, Gimme What I Want”
There’s a more professional name for this type of negotiator, the “Aggressive” negotiator, and among older lawyers – especially those asshole litigators – it’s probably the most common negotiation style out there. Since those same elderly, asshole litigators are training and mentoring the next generation of attorneys and tend to be the partners that dictate firm policy, you’re always gonna have to deal with the Aggressive Negotiator to some extent. Nobody wants to be the guy who pisses off the boss by not “coming out with the strength of their position” in a negotiation.
The hallmark of this style is that it’s not a negotiation, it’s a fight. This is what is known as “playing hardball” or taking the “superior position.” The aggressive negotiator is the one who is nothing but confident his client will carry the day in the unlikely event the damn thing goes to court. You’ll hear phrases like “Your guy is in the wrong” or “My guy’s confident in his case.” You may even hear the famous “We have all the cards here.”
But, let’s just be honest, this motherfucker is going to bluff you. He doesn’t view negotiation as a way to reach a middle-of-the-road solution or settlement that ends the matter. He views negotiation as a poker game, and he’s trying to bluff you nine times out of ten. The issue with a poker game, though, is sometimes you can win the pot by bluffing a weak hand, and sometimes you get knifed by some motherfucker named Tito in the backroom of a shady bar. You don’t want to be playing casino poker, buddy. When dealing with the Aggressive Negotiator, you want to be Tito, with a straight razor hidden in the pocket of your Brooks Brothers suit.
The key to dealing with an aggressive negotiator is, as always, preparation. I mean it, man. You gotta be ready to rebut what this asshole says and willing to poke holes in the ego balloon they’ve puffed up for themselves. This probably means that you need to be prepared for the negotiation the same fucking way you’d be prepared for a fucking trial: research, research, research. Know their arguments, know your arguments, know the fucking evidence, and be ready to yank each and every one out every time the asshole on the other end of the phone line tries to steamroll you into agreeing with him by sheer force of will. Sometimes you just gotta cut a bitch.
If you’re going to be the aggressive negotiator, here’s the thing you have to remember: You damn well better be in a position to actually follow through on your stance in negotiation, because nothing pisses off opposing counsel more than some pigheaded attorney or client that does nothing but harangue you and threaten you into accepting their position. This is not a negotiation style that goes for compromise, this is an adversarial process where both of you end up fighting for every fucking scrap of concession you can get. It’s a slog, and is never resolved in one “sit down meeting” with the opposing side, and has the well-known issue of opposing counsel saying “You know what? Fuck you. Let’s go to court.”
“We’ll Burn The Whole Damn Thing Down.”
You ever play with kids outside when you were little? I know that sounds like a stupid question, but with all the Poke-a-Man and You-Guy-Low shit that happened since I was a child, I figure that it’s a good idea to make sure we’re talking about a common experience. If so, then you almost fucking definitely encountered this type of negotiator at some point as a kid. Maybe it was the kid who owned the Nintendo 64, maybe it was the kid who had the only backyard big enough for a game of pad-less tackle football, maybe it was the kid whose parents bought him like a full fucking baseball set for street ball, complete with fucking bases and everything. Still, it was the kid who said these things:
“I want to be Mario.”
“I want to be the quarterback.”
“I want to be the pitcher!”
And, of course, you always let that little bastard do whatever he wanted to do, because the one time you thought it may be fair to let someone else have a fucking turn being the guy everyone always wants to be, he’d say this:
“Fine, buttheads! If I can’t do [X] neither can you. I’m taking my stuff and going home!”
The “We’ll Burn It All Down” negotiator is this motherfucker all grown up after the bar exam. Also known as the “Avoidance” negotiator, this asshole’s primary tactic is to essentially say “I can’t get what I want, but I’ll make damn sure you don’t either. Everyone’s gonna lose, assholes.” There’s a chance he may have voted for Trump at some point in the past year or so.
This guy is aggressive, but he’s aggressive in a different way. He knows his position isn’t a winner, but he sure as hell knows he can make yours a loser. He’ll do it by running the fees for your client sky-high, by taking it to trial despite the fact that it shouldn’t go to trial, and by literally making your life a living hell at every twist and turn along the way. So how do you deal with him?
First, point out that your client is actually willing to give something up in return for getting something, and that your client will run the motherfucker down, beat him up, and take the fucking ball back if they can’t get a compromise on something out of them. Also, document fucking everything that comes from this guy. I mean it, offers and counteroffers need to be made in writing, because this is the same asshole whose client will try to back the fuck out of any arranged agreement at the last second.
If you are the “fuck you, I’m taking my ball and going home” kid, realize that literally nobody liked you as a kid, and we still don’t like your ass now, RIGHT MATTHEW? However, you need to be aware that this tactic may work as an opening, but it isn’t going to carry the fucking day. If you push it too damn hard, the other side is going to start getting exasperated at the fact that every single thing you do is a threat to essentially commit murder-suicide and start regarding you as the type of unhinged motherfucker that can’t tie his shoelaces without demanding we investigate Benghazi. At some point, you need to stop threatening litigation is a zero-sum game…especially with me.
Because I’m the type of asshole who will serve a garnishment order on the funeral home your client’s body is taken to for their jewelry.
“Hey, Buddy, We Can Both Get What We Want!”
This guy is…actually kind of my favorite, because he likes to spin his wheels trying to make every negotiation a win-win situation. He’s not a bad negotiator, he just thinks that every situation can be a total win for every person involved, and will consistently promote it by saying things like “Your guy gets what he wants, my guy gets what they want, everyone wins!”
The problem is, that never actually fucking happens. While I generally never overestimate the intelligence of my clients, most people who have the foresight to hire a lawyer and try to settle a case are also capable of exploring other possibilities. There are really very few situations that can be resolved in a way that makes everyone happy, until, of course, there are. Like housing cases, those are easy ones to do this with:
“Your guy wants the house back, my guy wants time to move. Can you give my guy two months at reduced rent, then my guy will be gone and your guy can keep the security deposit and release him from the rest of the rent?”
“Your guy wants the car back, my guy wants to give it back. Can you give him a month to find a replacement?”
“Your guy needs time to pay the debt, my guy needs it paid in full. How about you drop your challenges to the amount and we agree to a payment plan?”
Those are the best situations, but you’ll notice each of them actually rely on the attorneys involved being able to identify what a “win” is for their client. This is where shit like preparing your clients for settlement at the start comes in handy, because when you’ve clearly defined what a “win” is for your client, it’s a hell of a lot easier to have everyone win.
“Well, You Can’t Get Everything.”
You can’t always get what you want/But if you try sometimes, you just might find/You get a reasonable solution that requires everyone to give a little but makes sense in the long run when viewed against a backdrop of expensive and long-running litigation!
There’s a reason lawyers don’t write song lyrics.
This is what people think of when they think of a negotiation and settlement. This is the style that you’ll find with the guy who talks about “collaboration” and “giving a little.” These guys like to take the stance that a good negotiation will always end in a compromise. Think of the middle school “peer mediator” who had everyone come in a room and then tried to talk them through their problems to reach a solution where everyone got a little and gave a little.
In other words, this is the guy whose opinion of negotiating is “Nobody should be happy with the result, but nobody should be upset with the result. You’ve gotta give something to get something.”
Generally, these guys are easy to deal with as they’ll lay most of their cards on the table at the start and try to reach a deal that’s good for “everyone” from the get-go. If we lived in a perfect world, this would be the negotiator everyone wants to be. But we don’t live in a perfect world, shit happens, and sometimes you can’t be willing to give up shit.
Why not? Well, because, man, sometimes you have a case where you know you have the stronger fucking position than the other side, and you’re negotiating from a position of power. Maybe your guy can give a little in the interests of avoiding the costs of litigation, but you shouldn’t be all Buddy-Buddy with the opposing counsel and give up shit you know you’re going to win on simply for the sake of convenience and being collegial.
Note: I fucking hate it when people say we should act in the spirit of “collegiality.” Fuck that. I’m paid by my client, not you.
Plus, and let’s be clear, sometimes this “Hale and well met good fellow” asshole will propose something that makes absolutely no fucking sense. Like “Why don’t we let a church council of elders decide the dispute?” Fuck that. This isn’t the middle ages. Theological courts aren’t in existence for the resolution of civil disputes anymore. Unless God is gonna pay the mortgage arrearages owed by your client with that 10% tithe he gets, the Church has nothing to do with this shit.
Plus, this guy can switch tacks pretty quickly once they get you to concede something, going from “You give, We give” to “You gave, now we’re taking.” That’s where you document the fuck out of everything and append that 408 Notice to your communications. If you don’t know what a 408 notice is, go punch your Evidence Professor in the balls, please.
“Fuck It, All Is Sorrow and Darkness.”
I like this guy most of all, because this guy is throwing in the towel in negotiations. This is the attorney who calls you and says “Yeah, my guy fucked up. You’ll win, I’ll admit that…can you please just not fuck him so hard?”
There’s no strategy for this guy. He’s just asking your client to be reasonable in winning. And, frankly, if they’re willing to give in, maybe you can get your client to concede on something too as a show of good faith. There’s no point in being an absolute dick about it.
So there we go, five negotiation styles. I’ll wrap this negotiation shit up tomorrow with the last post, then we’ll get back to business as usual for the rest of the fucking week after I tell you how not to be the only reason a settlement isn’t reached.
Now, give me a moment to myself, because I gotta go be an aggressive prick to opposing counsel.