Just bubbling under in my top ten rubbish negotiating tactics was that old favourite, “I’ve never come across that before”. Implication: your proposal is so far off the wall, you ought to be struck off just for thinking of it.
It happened to a colleague today. She put forward our standard force majeure definition, and the opposing lawyer took exception to one of the events listed: “In all my years of doing this, I’ve never seen that defined as force majeure”.
She looked him up after the call, and it turns out he’s one year PQE. Although I suppose we have to allow for some pre-qualification experience, so let’s not be too hard on him.
Anyway, it’s not just lawyers. We have a senior manager whose meets the legal advice we give him with “In all my 24 years in the collections industry, I’ve never heard of that”. I’d argue the toss with him, but he’s nails.
Why is this argument so objectionable? Here’s four reasons:
1. It’s incredibly patronising. Basically, it says “What do you know about the law, little boy? Now run along and let the grown ups sort everything out”.
2. It makes you look out of touch. I mean, if you’ve not seen my totally reasonable clause before, maybe you should get out a bit more? After all, times change, and what was normal when you were a lad may not be normal now…
3. It makes you look dumb. As in, you’ve spent twenty years in law and you’ve never come across this standard clause? Clearly you’ve not been doing it properly…
4. It’s often not well-founded, even on its own terms. See the example above – surely there should be a rule about having at least ten years’ experience before you’re allowed to use this argument?
5. It’s almost certainly wrong. Not in the sense that you have seen it before, but in the implication that “it” isn’t normal, or even reasonable. Nobody, not even the many magic circle partners that I have had the privilege of being patronised by in negotiations, knows everything.
Now, I will allow that some forms of this argument have their place if used with care. It’s perfectly acceptable, for example, to talk about what the market position is, or to explain why a clause isn’t normal for a particular type of transaction.
And of course, sometimes you’re confronted with a clause or an argument so bizarre that you can’t believe that anyone had the nuts to propose it. That’s where lawyerly understatement comes in handy: “Hmmm… that’s, ah, an unusual request…”.
But mostly, it’s just one of those arguments wheeled out by lawyers who are too arrogant or too lazy to actually engage with the issue at hand. And as I’ve said before, we’ve surely got the skills to be better than that.
Postscript: Not exactly on topic, but reason 5 reminds me of the supermarket buyer who told me that her previous job was with a bank, and that she therefore knew for a fact that we would have had to agree to her point in all of our contracts with financial services clients. Except that we hadn’t, or even been asked to.
All of which goes to show – that killer argument you just thought of while we were talking? It’s probably bollocks.