The Art of Negotiation for Attorneys

This article could also be titled the “Art of War” by Sun-Tzu because the strategies and tactics are strikingly similar. In an adversarial system, attorneys are always negotiating and trying to win strategic advantages for clients, these same negotiation tactics are utilized by generals in battlefields. Similar to generals, attorneys need to strategize, accede territory, and sometimes forfeit a small battle to win the war. Of these attributes, an attorney must able to strategize instinctively to be successful.

Do not allow the enemy to choose the battlefield


Too often, lawyers hastily accept offers without a second thought. For example, when a lawyer calls an opposing attorney to make an offer to meet and confer, and you acquiesce to the time and place abruptly. At this moment, you start losing the war because you are letting the enemy choose the site of the battle. It is always better to contemplate the pros and cons before committing to a meeting. Sudden offers can always be deferred by using the age-old excuse, “I'm in the middle of something, I'll call you back.” To strategically analyze the offer, ask yourself why the lawyer on the other side chose a particular time and place for a meeting, what would be his/her advantages for choosing the specific location, and how can you neutralize the location or turn the offer into a better location, which favors your client.

War always happens due to misinformation, so be informed

If both sides in any war were accurately aware of the strengths and weaknesses of the opposition, then there would never have been any wars, because outcomes would have been predictable. Just take the case of Genghis Khan in the middle ages – empires fell before him because the empires could not accurately assess his abilities, while small towns and cities survived where they paid him his tribute. Accurate information about the other side is the key to survival, and to decide whether to negotiate or to go to war.

Many lawyers speak more than they listen. By doing so, attorneys offer up more information than they should, and therefore give up strategic advantages. For proper negotiations, time should be spent to make sure all relevant questions are asked and answered before subsequent steps are taken.

Win the war by controlling its pace

By remaining in control of the agenda, you can speed up or slow down the negotiation process and the sequence in which issues are discussed and resolved. This is one of the most challenging tasks of any attorney engaged in a critical negotiation. Understanding and using deadlines and controlling the agenda properly may help you win in negotiations. The other side would always try to pressure you to do more in less time in an attempt to convince you that taking additional time is irrelevant. Do not be fooled. If they are giving you 15 minutes to explain your position, they are ready to give fifteen hours, so do not allow yourself to be pushed into corners.

Find the chinks in the armor – the biggest strengths always hide the biggest weaknesses

For instance, let's assume the lawyer on the other side has an uncle in the Senate. Although this is the opposition's biggest strength, this linchpin has the potential to be his biggest weakness because, if somehow, that power can be neutralized. Further, once this power is neutralized the opponent lawyer would lose nerve and be left with nothing. Whatever your opponent's biggest strength, be it charm, physical strength, connections, intelligence, or knowledge, it is something your opponent has come to rely on. Therefore, that same attribute or quality also constitutes his/her weakness. Keep that in mind to win your negotiations.