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Washington Lawyer

Legal Spectator: 30 Golden Rules

From Washington Lawyer, November 2002

By Jacob A. Stein

spectator

Lately I participated in a series of long, drawn-out negotiations. There were periods when there was nothing to do but wait for responses to cell phone calls to principals hiding out, so it seemed, all over the world. After the third day I brought with me several books giving advice on how to negotiate.

These books contain commonsense observations on human nature that were known a thousand years ago, together with sociological studies of how people behave during a negotiation, and complicated mathematical formulae attempting to capture human cynicism and the techniques of used-car salesmen and stockbrokers in algebraic equations flecked with x’s and n’s and E=mc2. I remain unconvinced that algebra can catch a liar.

During one of the breaks I asked cocounsel whether he reads books or attends courses in negotiation. He said he does not. He knew there was much to be learned, but his habits were formed by years of give-and-take, and it was too late for him to try to learn new tricks. I think that is where I am.

When I act as mediator and one or both of the parties to the negotiation show signs of having taken a course in the art of negotiation, I know I am in for trouble. The course shows through and slows things down. But things go rather well if I know the lawyers and they put aside technique. In a private meeting with each side, I often can get to the issues without the rain dance.

We are told lawyers must not engage in misrepresentation. But negotiation is of the marketplace with its exaggerations and disparagements. It is far away from solemn statements made under oath subject to the penalties of perjury.

George Washington, in his March 30, 1796, message to the House of Representatives, caught the spirit. Although he referred to foreign negotiations, what he said applies to many domestic negotiations:

The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and, even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions, which may have been proposed or contemplated, would be extremely impolitic; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers.

     It has been said that a good negotiator must have the hide of an elephant. The patience of Job. The cunning of Machiavelli. A mask for a face. The resourcefulness of Casanova. The nerve of a bandit. And the concentration of a card cheat. On occasion I have had the feeling such a person was sitting across from me at the conference table.

We learn the rules of the game by experience. Here are the the 30 golden rules experience has taught me:

  • Patience, patience, and more patience. Persistence, persistence, and more persistence.
  • Don’t negotiate in a hurry.
  • If knowledge is power, you lose power when you talk and gain power when you listen. Be a dangerous listener. Don’t interrupt.
  • Get used to being told no. Saying no often leads to getting to yes.
  • “No” may mean “maybe,” “not at this time,” “not exactly.”
  • At the conference table, don’t be clever, be useful.
  • Know when to suspend to let time bring a better setting.
  • Avoid repeating your best points.
  • Avoid having your client available at the table.
  • Keep something in reserve. Your adversary may be doing just that.
  • Once there is agreement on the main issues, immediately settle the details, including the precise language of the closing documents.
  • Have an associate take notes.
  • Have in mind what your next move is if the negotiation fails.
  • What does your adversary really want: prestige, to look good to his principle, to get home before 7, to catch a plane, to delay so he will be better prepared at some later date?
  • What can you give away without affecting what you really want?
  • How is payment to be made: all cash, periodic payments, or personal guarantees?
  • Emotion is to be used only as a device. Separate yourself from the case. Indignation and sarcasm are to be used, if at all, with care.
  • When a document is presented, read it line by line, noting the date, who received copies, and whether it refers to other writings. Is it the original?
  • When the session is over, identify all your papers, and put them in order before leaving the room. Make sure that your adversary has none of your papers.
  • What you say casually may be turned against you at a crucial time.
  • “In the range of” means the lower figure.
  • Don’t correct every mistake of fact when asserted by your adversary. Reserve as many as you can for later use.
  • Don’t deal in absolutes. Beware of standing on principle.
  • Patience, patience, patience.
  • Make up your mind what you want before the negotiation begins.
  • Don’t be afraid of leaving something on the table.
  • Although everything is off the record, nothing is off the record.
  • When you obtain a concession, write it down. Don’t ask that it be repeated. It will be modified.
  • A bully is to be met with dignity and infinite resources of silence interrupted by an occasional undisputed fact.
  • And above all, not too much zeal and always patience, patience, and more patience. What’s the rush?

Jacob A. Stein may be reached by e-mail at jstein@steinmitchell.com.