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7 negotiation tactics they won’t teach at law school

Poker Faces

Most law schools have some kind of Attorney Negotiations 101 course that students love to take because it is one of those courses where nearly everyone gets an A, A-, or B+.  This course was offered as an elective at my law school, but it ended up being one of the most important classes for my career, and probably the only one that I still use today.

Most of these negotiation classes teach out of, or at least reference, a book called Getting To Yes. My opinion of this book was that it was one of those fluffy, everybody wins when we all collaborate fantasy land productions of academia that didn’t offer much in the way of actionable content. After a few years of practicing law, I’m still looking for an opposing counsel who wants to collaborate … on anything.

I quickly realized that I needed a negotiation plan for the real world. I found Secrets of Power Negotiating for Sales People, by Roger Dawson (I recommend you get the Audible version). Over the years I’ve found that this book was written with human nature in mind, especially lawyers.

Here are 7 negotiation tactics from that book.

1. Always ask for more than you expect to get.

I used to think that I would be nice and reasonable and come in with an offer that would likely be accepted gladly. This never works out. People just expect you to negotiate. They expect you to dicker over terms. So don’t disappoint.

Come in with an offer that is actually more than you expect to get. Then you can build good will by backing off of the offer, i.e., giving something up in the negotiation.

This is actually the only way to set up a “win-win” outcome. The other side wins by getting you to come down off of your starting offer (saving face with their client), and you win by getting something close to what you actually expected to get.

The other reason to always ask for more than you expect to get is that you just might get it.

2. Realize that negotiations are played by a set of predictable rules.

Have you ever played poker or chess with someone that doesn’t know the rules? It’s usually very easy to defeat this person. Great chess and poker players realize that their opponents will respond very predictably to every move that is made.

Negotiating is the same way. Great negotiators are familiar with all of the tactics and stages of a negotiation. They know that there is a proper way to respond to a low-ball offer, and they know how you are most likely to respond to their response to your low-ball offer.

This was probably the greatest revelation in Roger Dawson’s book. After reading a few chapters of the book I started knowing what the other side was going to say before they said it, and what’s more important, I knew exactly how to respond in order to get a desired outcome.

3. The Flinching Gambit

People tend to believe what they see more than what they hear. This is why you should react with shock and surprise at the other side’s first offer. I’ve found that this tactic causes people to start making concessions without being asked.

When someone makes a proposal to you, they are watching for your response in order to gauge how amenable you are to their offer. If you respond favorably, or not at all, then they are going to ask for even more from you. But if you visibly flinch and show surprise at their offer, then they are going to start thinking that they have asked for too much. At a minimum, they’re going to stop trying to get anymore from you.

This tactic works so well, I even flinch when I’m negotiating over the phone.

4. “You’ll have to do better than that.”

The author actually calls this the Vice Gambit, but the gist of this tactic is to simply respond to any opening offer with the phrase, “You’ll have to do better than that,” and follow it up with complete silence.

Many times this tactic causes the other side to begin negotiating against themselves, immediately coming down off of their offer.

However, if you are negotiating with someone who also knows the rules, then they are going to immediately respond with, “Exactly how much better than that do I have to do?”

5. Trading off

I have been in negotiations with people who are always asking for a little bit more, or one more concession. These are the people who are always grinding away and are almost always trying to get something for free, or without offering anything in return.

The trading off tactic just states that you should never give anything away for free. Anytime the opposition asks for a concession, you should respond to it with, “I’m not sure if we can do that for you or not, but if we can do that for you, what can you do for us?”

This is the best way I have ever found to deal with a confrontational or nit-picky negotiator. Just asking, “If we can do that for you, what can you do for us?” has saved me a ton of time and money over the years.

6. Nibbling

This is a tactic that can be used at the end of any negotiation and it is based off of the belief that the human mind always works to reinforce decisions that were previously made. This tactic states that it is better to ask for certain concessions at the end of a negotiation.

This is why car salespeople spring the warranty and corrosion resistant undercoating on you at the end of the negotiation, after you’ve already signed on the major paperwork. You’ve already made a decision to buy a car, you are already saying “yes” to them, so you are more likely to reinforce that decision by saying yes to a small little upsell like corrosion resistant undercoating.

The nibbling tactic asks you to set aside some minor little wins to ask for at the end of the negotiation, kind of as an add-on or minor upsell that is more likely to get accepted as an afterthought than as a major part of the negotiation.

7. Positioning for easy acceptance.

More often than not, it’s something as ridiculous as human pride that keeps a deal from going through. Price is important, the terms of the deal are important, but human pride has killed more deals than both of them.

The positioning for easy acceptance gambit is a simple head nod to this fact.

Making a small concession (often meaningless concession) at the last moment is just an easy way to make the other side feel like they just destroyed you in this negotiation. And it significantly increases the likelihood that they will sign on the dotted line.

You might say something like, “I’m sorry, we just can come down any more on the price, but if you can agree to this price, then we will guarantee 15-day delivery.”

The 15-day delivery isn’t important, maybe you were going to do that anyway, but the point is that you have been respectful enough to position the other side to say something like, “Okay, if you can do 15 day delivery, then we’ll agree to that price.”

They save face with their client, they feel like they won something in the negotiation. Everyone is happy. Win-win.

Isn’t this kind of scummy and disingenuous?

Maybe it is scummy. Unfortunately, it’s also how people negotiate in the real world, outside of Professor Johnson’s Attorney Negotiations 101 class. You don’t have to actually employ any of these tactics. But I feel like we owe it to our clients to at least learn the negotiating tactics that great negotiators are going to use against us.