Do I really look like a guy with a plan? You know what I am? I'm a dog chasing cars. I wouldn't know what to do with one if I caught it! You know, I just... do things.
- The Joker, The Dark Knight
I’m taking a summer class on negotiation because 1) I need to satisfy my professional skills requirement; 2) this is a class I would want to take regardless of whether it satisfied a graduation requirement; and 3) the summer professor is an adjunct, meaning the odds of me learning something practical are far higher than if I had taken it with the usual career professor. So far the class is going well. The basic premise is: Studying evolutionary biology, cognitive psychology, and behavioral economics will give you insight into how humans think and why they think that way; you can then use this knowledge to gain an upper hand in negotiations. Even more welcome for me than the material is how the professor runs the class. We’re assigned daily readings as always, but he prefers not to lecture. The class is more of a panel discussion where we ask the questions based on our own experiences and he attempts to answer them to the best of his knowledge. Only when the questions run out does he proceed to lecture on the assigned material.
While the structure of the class is a breath of fresh air, the questions people ask are more like the smell of aged, sun-dried compost. Most questions are some variant of, “Is this tactic better than that tactic?”
“Should I be a type A or a type B when negotiating?”
“Should I make my opponent comfortable so he drops his guard, or uncomfortable so he can’t wait to leave and hence takes the first number I offer?”
“Should I wear a tailored $2,000 suit to intimidate the other guy, or dress casual to put him at ease?”
The answer to all of the above—and the most common answer to nearly any question in the legal profession—is it depends. Negotiating is like litigation in that you’re selling a story. You’re selling the story of why the guy sitting across the table should accept your offer. Perception is reality. When your job is to craft stories by stretching and manipulating the truth, there is no such thing as an objectively correct or best answer. The correct answer is the one that works. And you won’t know what will work unless you know who you’re going up against.
For example, ask any professional fighter worth a damn and he’ll tell you he studies his opponent and develops a game plan accordingly. Is the other guy a solid wrestler? Better work on your sprawl and submissions from the bottom. Does the other guy have a strong clinch? Make sure your footwork is on point so you can stay on the outside. The point is that successful fighters do their homework. Successful lawyers do their homework. That’s why we research precedent and craft arguments in advance. It’s so when opposing counsel slaps you with a controlling case you are ready for it and already know how to distinguish it. Winging it may work on last-minute road trips or for dinner plans, but not when something real is on the line.
Negotiating a deal is no different. There is no single negotiation approach to rule them all. You prepare by doing your homework. You study the deal. You study your opponent. What’s the deal worth to your client? What’s the deal worth to your opponent’s client? What’s the damage to your client if the deal doesn’t go through? Does your opponent have any negotiation gimmicks he likes to use? What, if any, gimmicks is he susceptible to? You then develop a strategy based on the information you’ve gathered. If you find that your original course of action isn’t getting you the desired result you change your approach. Sometimes that means walking away entirely.
In a recent class my professor posed the following question to a student. Which of the following two scenarios is more likely: 1) that an alcoholic tennis player will win a major tournament, or 2) that an alcoholic tennis player will enter rehab at the encouragement of a close friend, get clean, and then go on to win a major tournament?
The student answered that the second scenario was more likely. Wrong. The second one makes for a better narrative, but assuming that a detailed set of conditions is more likely to occur than a general set of conditions is called the Conjunction Fallacy. The first set of conditions is a component of the second set, making it logically impossible for the second set to be more likely to occur. P&Q is never more likely than just P.
This is an extremely common mistake though, one that about 85% of the population will make. It was also explicitly outlined in the second day’s reading. Way to do your homework.
