Always forgive your enemies; nothing annoys them so much.
- Oscar Wilde
“I’ve got a weed connection coming through. You in?”
I’m 15 years old at a birthday party for a guy I work at a summer camp with. Trey, a kid I’d just met not two hours ago, grabs a few other guys from the party and takes us to one of the shadiest 7-11s I have ever seen. Eventually a late 60s purple Chevy Impala roles up. I don’t know if it was out of anxiety or because I wanted to impress these guys, but I walk up to the car before anyone else takes a step forward and hand the driver $20. He has cornrows and is wearing a 2Pac “thug life” T-shirt. His girlfriend in the passenger seat—at least I think she’s his girlfriend, could have been his bottom bitch (or both) for all I know—is obviously strung-out yet staring at me with a hawkish intensity. He takes the money and hands me a Ziploc bag. I thank him before heading back to the guys who are eager to inspect what I’ve returned with.
Trey volunteers his place because it’s close and his parents aren’t home. He rolls the joints one by one while the rest of us drink from the bottle of Smirnoff we stole liberated from the party. As Trey was finishing the third joint I hear the door opening. His dad walks in: 6’5”, built like a brick shithouse. Two tear drops tattooed under his right eye.
I am fucked.
“Who brought the weed?”
They all point at me like a gang of foxhounds.
This is how I die.
“It’s just your luck, Trey. You go to a party and meet up with a stoner. Let me get one of those.”
My heart now resumes its regular course of beating.
I give him one of the joints Trey had rolled and as he hands me a $20 in exchange he looks at his son and says, “You see that? Take care of people and they’ll take care of you.”
I wish more lawyers would take his advice. Too many lawyers think that being an asshole is equivalent to being tough. That being the top dog by means of intimidation is the only or best way to get things done. You don’t want to be pushed around in your job so you push around your opponent to establish dominance. You send faxes at the end of the workday. You don’t comply with discovery requests until the last minute. Maybe you verbally abuse the opposing counsel or his client in front of your client to show off what a shark you are.
The problem with using fear and asshole tactics to intimidate your opponent or impress your own client is that such tactics are lazy and will come back to bite you in the ass. A lawyer should be feared because he is good at his job; not because he’s difficult to work with, but because he’s thorough, knows how to frame issues and spin facts to better suit his argument, and is able to effectively sell his version of the story to the jury. And think about the ramifications to being an asshole. Someday you’ll need a break. Something will slip through the cracks and you’ll need opposing counsel to cut you some slack. Will he? Even if you haven’t yet been an asshole to that particular OPC, your reputation will precede you.
A better means of dealing with opponents was developed by Anatol Rapoport in the 1980s. It is called the tit for tat solution. Anatol coded a program for a tournament revolved around figuring out the best possible strategy for an iterated prisoners’ dilemma game. His program was the simplest, only four lines of code, and yet it was one of the most effective. The stipulations for Anatol’s program were simple: 1) be nice, that is, the program’s default setting was to cooperate; 2) reciprocate accordingly, sort of an eye-for-eye maneuver in that the program would retaliate in the subsequent round if the opponent defected rather than cooperated; 3) forgiveness, the program would immediately return to cooperating when the opponent did—the program held no grudges and did not seek revenge; and 4) don’t be envious, the program was not concerned with the opponent’s score or the score of any other program in the competition.
The strategy of the tit for tat program is not viable in every circumstance, but it does provide a general framework for how to deal with people. It applies just as easily to negotiations as it does to litigation. Negotiations, in deals or settlements, go better when both sides are working toward a mutually beneficial solution rather than merely trying to screw over the other guy. But of course blood pressures can run high in these situations, especially when one party dislikes or feels wronged by the other. That’s the client’s problem though, and the lawyer shouldn’t get swept up in it. The lawyer should be keeping his client as calm as possible while he works for a solution. You have to be a zealous advocate without being consumed by that zeal. As always, finding the balance is difficult.
As part of my advanced legal writing class the students were separated into pairs to mock a settlement negotiation arising from an alleged discriminatory firing. I was representing the employee while my opponent was representing the company. We were given background information about our clients and the issue, but what made it interesting was the addition of secret terms. Each side was given a piece of paper with terms that we were expected to negotiate for. Some of the items were starred, meaning they were the most essential to our respective clients. We weren’t supposed to let our opponent know which terms were primary and which were secondary. I went into the negotiation expecting it to be amicable. I offered a term and she offered one back. When she stopped with the quid pro quo, I stopped making offers until she gave something up, at which point I would reciprocate. Once she realized what it would take to get me to cooperate everything went more or less smoothly. At the end of the exercise she had gotten more of her terms overall, but I had gotten all of my starred ones. Afterwards we went out for a few beers.
I would later ask some of my classmates how their negotiations went. Some were very pleased at how they had “wiped the floor” with their opponent, while others admitted frustration at not being able to get every term on their list. Still others complained about how their negotiation would often hit dead ends because neither side wanted to give anything up for fear that it would make them appear weak. Both sides feared giving up leverage. Because of that there was no reciprocity. And because of that there was no progress in the negotiation, only frustration and ever increasing animosity toward opposing counsel. The teams that were perpetually hitting dead ends eventually gave up and shared their secret terms so they could divide them as evenly as possible before class was over to make it look like their negotiation had gone well.
No one wants to appear weak, but turning yourself into a non-cooperative bastard is not the way to become strong. All it does is delay solutions and make people hate working with you. And people who hate you won’t be looking to do you any favors. This doesn’t mean becoming a doormat. Be too cooperative and others will walk over you at every chance you give them. You have to draw your own line given the circumstances presented to you.
In a world where survival means having to interact with other people, you can be a convict or a computer; just don’t be an asshole.
