The Bizzle

"Saving your ass since 1999"

Calm down, dear, it’s just a contract

We lawyers like to see ourselves as intellectual, urbane and articulate. Maybe even sophisticated, for the city types. So why do we shout so much? 

It happened to me the other day, in a routine contract negotiation. I was making a (so I thought) reasonable point about a provision that appeared to require us to perform the same obligation twice, when the opposing lawyer erupted into a rant about my alleged failure to take their requirements seriously. 

It’s far from an isolated incident. I’ve been shouted at in negotiations more times than I care to remember. By customers, and by suppliers, by partners and by NQs – sometimes it seems like everyone’s at it. 

It’s not that I have a uniquely irritating personality (well, not just that, at any rate). A colleague of mine, who’s probably the nicest man I know, gets it as well. In one particular negotiation, apparently, conference calls were frequently interrupted by the sound of the opposing layer slamming his file on the desk and launching into a ferocious denunciation of our position. 

It’s not always an effective tactic, to put it mildly. A shouting match isn’t usually the best way to reach a mutually acceptable agreement, and personal attacks will often result in a hardening of the other side’s position. 

And, let’s be honest, it doesn’t make you look clever. In my negotiation last week, the opposing lawyer got himself so worked up that he completely lost track of his argument, and the facts. Advantage Bizzle. 

To be fair, the well-judged hard word does have its place around the negotiating table. Sometimes you do need to put your foot down, for example if the other side is trying to row back on commitments that they’ve already made. 

But to lose your rag as often as some lawyers do seems counter-productive and unprofessional. Ranting just gives the impression that you don’t have a good argument to make, so you’re going to bully your opposite number into acquiescence instead. 

So why do it? Well, there’s understandable frustration when you have a strong argument but the other side’s not buying it. I’ve been a bit tetchy myself in those circumstances. 

It also seems to me that there’s been a trend towards more coercive procurement practices in recent years, where the main point seems to be to make suppliers do what you want irrespective of their own commercial interests or the practical realities of the deal. In this context, intimidation is just part of the buyer’s negotiation toolkit. 

And in one sense, I can understand it. If you have the bargaining power, why not leverage it in any way that you can? 

Well, as well as the issues discussed above, it’s a truism that negotiations work best when both parties feel like they’re getting something meaningful out of it. If the only thing that one side’s getting is earache, what chance is there for a successful long-term relationship? 

And aren’t we professionals who pride ourselves on our ability to formulate and articulate an argument? Pretty much anyone can shout, and most of them will be a lot cheaper. 

So next time the other side’s not getting it, maybe you need to explain it better, not louder.

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2 responses to “Calm down, dear, it’s just a contract

  1. Julian Summerhayes March 14, 2011 at 10:01 pm

    .. and of course this is all supposed to serve the client’s best interests?

    Lawyers sometimes need to put their ego to one side and just concentrate on what they are paid to do. I recall one lawyer hanging up on me because he didn’t like what I was trying to tell him (very politely). It felt like I was back a primary school. Keep at it. You are not being unreasonable but sure-footed.

    ~ J ~

  2. Kevin Freeman March 15, 2011 at 4:03 pm

    I am a transactional/commercial attorney in the states. I really appreciate your blogs. Your experiences are very similar to mine. I really appreciate your perspectives, thanks for sharing them. You get it!

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