In his own uniquely modest way, President-elect Trump has said: “Our country needs a truly great leader, and we need a truly great leader now. We need a leader that wrote The Art of the Deal” which, of course was a book he wrote. In fact his 1987 book has sold over 1 million copies. He says that his style of deal making is simple and straightforward: “I aim very high, and then I just keep pushing and pushing to get what I’m after.” And, in his book he outlines eleven negotiation tactics that are at the heart of the message in his book. Let’s look at them to see if we can benefit from the advice in our professional negotiations.
Think Big. He says that he likes thinking big. “To me it’s very simple: if you’re going to be thinking anyway you might as well think big.” He writes that if you’re satisfied knowing that you can comfortably make a deal that doesn’t require much effort, then you’re not thinking big enough. He claims most people think small because most people are afraid of success, afraid of making decisions and afraid of winning.
I couldn’t agree more based upon my observations of a lot of plaintiff negotiations. Too often plaintiff lawyers take the easy and comfortable deal because they are motivated by recovery of their costs and earning a fee or afraid of the challenge of trial instead of being primarily motivated by what’s best for the client. Instead we should be courageous and think big.
Protect the downside and the upside will take care of itself. He says: “I always go into the deal anticipating the worst. If you plan for the worst – if you could live with the worst – the goodwill will always take care of itself.” He recommends to get into deals that you can afford to recover from if things go poorly and know when the cost for making a small deal is lower than had you not made a deal at all.
Certainly we must know the pros and cons of our cases and settlement before negotiation. We need to be prepared to walk away from the negotiation when it is non productive and to be prepared to try the case if we have to. We also need to be prepared for failure of negotiation which may require more than one attempt or even a settlement on the courthouse steps. We need to be mentally ready when things don’t go well in our negotiations for the consequences and never negotiation out of desperation.
Maximize your options He says you have to be flexible. He writes “I never get too attached to one deal or one approach. For starters, I keep a lot of balls in the air, because most deals fall out, no matter how promising they seem at first. In addition, once I’ve made a deal, I always come up with at least half a dozen approaches to making it work, because anything can happen, even to the best laid plans.”
There is a real skill to seeing other ways to make settlements in negotiation. It’s an art which, like playing chess, requires you to see all the consequences of an innovative settlement agreement. Personally, I was always very reluctant to make any deal that wasn’t totally simple. My basic demand was money for a release without any contingencies. I was particularly against high – low arrangements, partial settlements or settlements with conditional provisions. My position was the Jesuits quote “In God we trust. Everyone else cash” By doing so I avoided a lot of problems of complicated settlement provisions.
Know your market He says that he likes to rely on his own research rather than that of the work of consultants, statisticians or critics. He says he made it a habit to collect himself as many opinions as possible about a potential deal.
I think experienced lawyers do need to “trust their gut” but I also think there is benefit in consultant advice. Well conducted focus studies, for example, are valuable assists as are surveys of the potential jurors.
Use your leverage He says “the worst thing you can possibly do in a deal is seem desperate to make it. That makes the other guy smell blood, and then you’re dead.” He argues that the only way you’re going to make a deal you want is if you are coming from a position of strength and can convince the other side that you have something they need.
This applies our plaintiff work. Being too quick to adjust demands, demonstrating being anxious to settle and showing doubt are deadly in negotiation. Clearly the art of negotiation involves knowing your strengths and weaknesses. In negotiation we promote our strengths and frame our weaknesses in the best possible light. Being confident and showing a strong position is important in our negotiation.
Enhance your location He claims that the adage that location is everything in real estate isn’t true. Instead he argues: “you can take a mediocre location and turn it into something considerably better just by attracting the right people. His point is that rather than overpay for something that’s already established, you should consider cheaper alternatives that have the potential to be molded to your taste.
I’m not sure I can apply this principle to our professional work except to putting our cases in the best possible light. I think you can also enhance your weaker cases by strong witnesses, good experts and persuasive exhibits.
Get the word out He says: “one thing I’ve learned about the press is that they’re always hungry for a good story and the more sensational the better. The point is that if you are a little different, a little outrageous or if you do things that are bold or controversial, the press is going to write about you.” Therefore he argues that once you’ve made a deal, the only way it’s going to be worth anything is to attract customers and creating a public persona helps you get the most out of your deals. He says that he’s always embraced a healthy dose of sensationalism and controversy to create media interest. He argues that a little hyperbole never hurts because people want to believe “that something is the biggest and the greatest in the most spectacular.”
Clearly he is right about sensationalism and controversy creating media interest. But, often our cases have issues or involve people with media interest. When we use the media to enhance our position we also strengthen our negotiation position. However, we need to be very cautious that in doing that, press releases and the like, we do not cross the ethical line. Doing so can result in discipline or even change of venue. Having handled my share of high profile media cases I’ve found the right kind of media coverage is always helpful in negotiating settlement. The fear of exposure in the media of corporate or other wrongdoing is always a powerful motivator.
Fight back Trump claims that “in most cases I’m very easy to get along with. I’m very good to people who are good to me. But when people treat me badly or unfairly or try to take advantage of me, my general attitude, all my life, has been to fight back very hard.” He says that he prefers to be cooperative and positive but sometimes it’s necessary to be confrontational when the other side is being unfair or try to take advantage. He argues that: “the risk is that you will make a bad situation worse and I certainly don’t recommend this approach to everyone. But, my experience is that if you’re fighting for something you believe in – even if it means alienating some people along the way – things usually work out for the best in the end.”
Trump is clearly a counter puncher which is an effective boxing technique and has application in our plaintiff’s work as well. While I believe the biblical directive of turning the other cheek, I confess that in my plaintiff’s work, I practiced the advice of Prince Machiavelli “It is much safer to be feared than loved…fear preserves you by a dread of punishment which never fails.” Not only that, I remembered who my enemies were following the adage “bury the hatchet but leave the handle sticking up.” I tried to make sure there were punishments for defense misconduct in dealing with me. Another important lesson Trump is right about is that it is not our role, in representing our clients, to be loved. It’s not our role to be friends with defense counsel or judges in representing our clients. Our duty is to be determined and courageous in standing up for them. I never strove to be loved by my opponents or judges while representing plaintiffs, only feared and hopefully respected for ethical conduct.
Deliver the goods He points out that: “you can’t con people at least not for long. You can create excitement, you can do wonderful promotion and get all kinds of press and you can throw in a little hyperbole. But, if you can’t deliver the goods, people will eventually catch on.”
This has obvious application to us our professional work. You can’t fool defense counsel, clients and juries for very long. Success enhances power in negotiations. We need to “deliver the goods.”
Contain the costs Trump says that his father taught him to never pay a penny more than you should for something since pennies can easily turn into dollars. He points out that he’s found that throwing money at a project is never the path to success if it was shoddily planned.
I see this advice as applying to our case management. Too many plaintiff lawyers don’t consider the potential value of the case and the odds of success in governing their costs or time invested. Too many times I’ve seen lawyers spend costs which substantially exceeded the probable value of the case or spend excessive time on cases. We are obligated to our clients to avoid doing this and it is in our bests interests as well.
Have fun He believes that successful deal making should be about the thrill of winning and accomplishing something, not sorely for making money. “Money was never a big motivation for me, except as a way to keep score. The real excitement is playing the game.”
Certainly, if we don’t enjoy what we are doing we need to find something else to do. Winning in order to accomplish good for clients and others should be our goal, but not just winning for winning sake. For our clients their cases are not a game for lawyers to play. The case is their life and we are responsible for it. Remembering our client at all times is our duty.
Well, that’s my summary of the book. Perhaps I’ve saved you the price of buying it!