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How To Negotiate Like A Lawyer

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During twenty years practicing law, I enter into negotiations of some sort every day.  Sometimes the negotiations are with opposing counsel, sometimes with the Judge, sometimes with my own client, sometimes at formal mediation.  Here is what you need to know to negotiate like an experienced lawyer – all in under four minutes.  Yes, I am that good.

Know More than the Other Side

First, in order to win a negotiation, it’s vital that you know more than the other side.  That’s why buying a used car is a horrible position to be in.  You have less information about the car than the person selling it – how much did they pay, what are the problems with the car, etc.  

So, the first thing is to do as much research as possible and know more than the other side. In terms of  a legal case, that means knowing how strong your case is and what the weakness in the other side’s case is and knowing better than the other side what the outcome might be if the case does not settle.

Never Negotiate Against Yourself

Second, and this is the ultimate mistake, never, ever, under any circumstances negotiate against yourself.  That means, never move from your position unless and until the other side moves.  

For example, if you are negotiating salary at a new job and they offered you $60k a year and you asked for $75k, and they call you and say “we can’t afford $75k” then you don’t ever say “well, I guess I could work for $70k.”  No no no.  You HAVE to wait until they move up from $60k or perhaps offer additional days of working from home, or SOMETHING.  Don’t ever give away the milk for free.

Lock the Other Side in on Their Position

Third, lock the other side in on their position.  This might be uncomfortable but you need to “memorialize” any potential settlement terms in writing and don’t let any negotiation terms be hazy.  If your potential employer moves up to a $65k offer with work-from-home two days a week, you need to email them “Thank you for the $65k offer including two days from home starting August first.  I will let you know by tomorrow.”  

Negotiations tend to get tricky and confusing – follow-up emails solve that problem. 

Be Prepared to Walk Away

Finally, fourth AND fifth (these are key folks listen up), be prepared to walk away.  I should really say “ You HAVE to walk away.”  You will never get or know if you are getting the best deal unless or until you walk away.  

And this really goes hand-in-hand with the fifth tip which is – don’t agree to split the baby.  Let me explain these important concepts:

When you make the initial offer, which I often do as the Plaintiff in the case, let’s say we would agree to settle a case or whatever for $100k and the other side responds that they would settle for $50k.  They are signalling, very strongly, that they would settle for $75k.  

That is not always the case but any mediator will tell you, that is the signal.  Now, if that IS the case, my 6 year old daughter could walk into that negotiation and get the $75k.  That is NOT a good settlement.  Your goal is to now push that number past the $75k and I would go so far as saying that splitting the baby in that case is for babies.  Instead, you signal RIGHT AWAY, that you would not settle for the “split” and, when the number gets there, if it ever does, you say “no” and don’t move down to it.  This is KEY.

Going back to your salary negotiations.  They offered you $60k and you asked for $75k.  The obvious split is $67.5k.  They then offer you $65k and you move down to $70k.  They then think, ok great, we are going to end up paying her $67.5k and they suggest meeting in the middle.

DON’T DO IT.  DON’T.  TRUST ME.  Because you will want to.

Instead you offer something new, a new term or offer something minimal like the fact that you can use your personal laptop for work, or just say that was your bottomline.  And YES, they may walk away and call your bluff as well.  If that happens, do you think you can’t throw in the towel at that point and accept $67.5k?  Maybe 1 in a 100 times if you don’t do this professionally, it may backfire and they may pull all offers off the table.  But what I can guarantee you, 100% of the time, is that if you agree to $67.5k right away, you have a 100% chance of never getting a dime more.  This is the biggest mistake I see in negotiations – don’t make it – don’t agree to split the baby.  Make them come up above expectations, or at least give them the opportunity.  

“You miss 100% of the shots you don’t take.”

Good luck with your next negotiations!

Jeremy Hogan
Jeremy Hogan
Attorney Jeremy Hogan is a partner at Hogan & Hogan.