Understanding the Other Side: The Art of War
A post yesterday from our friend Chris Hill at Construction Law Musings really resonated with me on a critical skill that many lawyers seem to lack. The post, "What Owners Look for in Green Building and Why Contractors Should Care" advocated that contractors should know and understand what project owners were looking for in green buildings. As Chris states well, "Knowing the other side's playbook is one way that a football team can prepare, the same holds true in pre-construction negotiation of contracts."
This same concept can and should be applied in every legal context. If I cannot understand the strengths and weaknesses of not only my case, but also my opponent's, I am wearing blinders and courting disaster. Not being able to play both sides of the chessboard is asking for surprises. In negotiations, that means losing ground unnecessarily. In litigation, it can mean flat out losing the case.
For years, a pocket classics translation of Sun-Tzu's absolute must read, The Art of War has lived on my desk. A classic passage from centuries ago echoes this issue:
So it is said that if you know others and know yourself, you will not be imperiled in a hundred battles; if you do not know others but know yourself, you win one and lose won; if you do not know others and do not know yourself, you will be imperiled in every single battle.
For clients on the receiving end, you should understand and cherish the need for your lawyer to play the "devil's advocate" role in testing assumptions, articulating weaknesses, and educating you regarding the strengths and weaknesses of your position. Ultimately, that very approach may mean success or failure of your matter.
Image by vlasta2
Thanks for the link Tim! I appreciate it. I enjoy all of the posts here and truly enjoy the give and take.
The feeling is obviously mutual Chris. I think the most rewarding part of the blog, and social media generally, is getting to share ideas and engage in dialogue with interesting, smart folks and you are top of the list.
Must not be a very long list! :) I appreciate the thoughts.
Tim,
Couldn't have said it better myself!
Recently, my parties reached impasse even though I believed both were viewing their own case reasonably. I put counsel together and said, "I just don't understand why you're not closer on the number. I don't want to let you go if your bottom lines overlap or are close enough for me to close."
Then I asked them to walk one another through their own risk analysis one more time, justifying their most recent demand and offer.
That did the trick.
Though both attorneys were ready to walk away and go to trial (or spend additional litigation $$ making the case even more difficult to settle) taking one last opportunity to reconsider their numbers broke impasse.
Persistence is probably more important than any other attribute in the settlement game, particularly where the mediator says "gee, you're BOTH being reasonable on merits and risks but your numbers are still worlds apart so let's try it one more time."
Thanks for being one of the savviest mediation advocates around, Tim. Keep up the great work! (that Art of War quote is front and center on one of my negotiation power points!)
All best,
Vickie
Vickie,
Thanks so much for your comments! I knew as I was writing this was one that was up your alley.
I cannot remember all the abcs, I could see P being for either patience or persistance. Both are clearly connected and appropriate in context here. Especially in these longer construction and real estate deal negotiations and litigation matters, you need the marathon approach.
Too much on the quote, going to need to remember to come back to Sun-Tzu again soon!
Tim