The Practice of Law

Negotiating With Idiots

Back quite a few years ago, I was out for lunch with one of my associates who for today will be called “Samantha”.  We were having a quick meal at one of those sandwich places where you line up at the counter and order your meal and then take it to a table, gobble it down for 15 minutes and get back to work as quickly as possible so that you do not waste too many billable hours.

Samantha had ordered pasta.  After she finished all of the pasta, she looked at the sauce remaining in the bowl and said: “They didn’t give me enough pasta”.  I asked, “What do you mean?” and she replied: “Look at my bowl. There is sauce left over, so obviously there was not enough pasta.”  I said: “Maybe they gave you too much sauce.”  She looked at me like I was the crazy one, went back to the counter and demanded more pasta.  The person behind the counter, who struggled with English a bit, looked somewhat confused but filled her bowl with more pasta.  She returned to the table with her replenished bowl and said: “See, he agreed with me.”

I grew up in a culture which encouraged me to ask for things. My mother always taught me that if you don’t ask for something, you won’t have any chance of getting it.  I have used this advice in both my personal and professional life, often with good results.   I think nothing of asking whether a discount is available when I am making a large purchase in a retail store. My wife, on the other hand, grew up in a culture where you simply pay the sticker price.  Over the years, I have explained to her that it is people like her who have to pay more to subsidize people like me.

Having said that, while my wife sometimes cringed when I asked for a discount in a retail store, which I consider a perfectly reasonable thing to do, I thought that Samantha’s demand for more pasta was over the line. 

I suppose that how aggressive one is in any negotiation is an interesting reflection on one’s upbringing, culture, and personality.

I know a lawyer who I will call Paul.  Paul specialized in commercial leasing, working inhouse for a commercial landlord.   Paul took a novel approach to that area of practice, by creating a standard form of lease which was reasonably fair to the tenant.   His approach was that rather than play the usual game of seeing how much you could get away with, he would provide a form of lease that gave the tenant most of the reasonable provisions that a good tenant’s lawyer would ask for.  Paul’s theory was that this would save everyone a great deal of time, money, and stress, and get deals done faster.  Of course, as this approach would not account for the need of every tenant’s lawyer to negotiate some changes to justify their fees and satisfy their egos, he also left in a few provisions that he knew that they would want changed so that he could appear to be very reasonable by agreeing to make some of the changes that they requested.

Paul once told me that the most competent tenant’s lawyers who he dealt with were often the easiest to deal with. They recognized that many of the points that they would usually ask for had already been covered, and they knew what was important and what was not.  They would ask for some changes and would readily agree to the usual compromises.

Near the other end of the spectrum, the lawyers who were not that competent were also easy to deal with. They would ask for some changes.  Paul could explain why most of them were not needed. They would understand and retract their demands. 

The lawyers for whom Paul would make the most changes to his lease form were the complete idiots.  They would ask for nonsensical and unreasonable changes and would not understand when Paul explained why the requested changes were not necessary or were completely unreasonable.  They would constantly press forward with their ridiculous demands, and never retreat. With the businesspeople pressuring Paul to get the deal done, these lawyers would wear Paul down to the point where it was easier to give in than to keep trying to apply logic to the situation. (Of course, in the rare circumstances when the businesspeople did not care whether or not the deal got done, Paul was free to tell them to jump in the lake.)

I suppose that it is hardly news that understanding both your own personality and the personality of the person with whom you are negotiating is a really important thing when you are practicing law.  

When I went to law school, negotiation was not even an available course option, although that has now changed.   Whatever I learned about negotiating, I learned from observing more senior lawyers and from reading Herb Cohen’s book “You Can Negotiate Anything”.  The rest I figured out along the way.  Young lawyers should read some books about negotiation and perhaps take a course or two on the subject. A course in how to deal with difficult people would also be helpful.  It will stand you in good stead if you ever have to negotiate a contract with Samantha.

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