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Managing Lying by Opposing Attorney

By Paul Fisher1

When you do not trust the opposing attorney during negotiations, use these tools suggested by Harvard Law School’s Project On Negotiation (PON) and Wharton School professor Richard Shell. What follows is a paraphrase of the PON article, “Common Lies in Negotiation”, by Professor Richard Shell.

Lies about bottom lines and your alternatives: The opposing attorney’s statements about just how low (or high) she will go with her offers should be taken with a grain of salt. Avoid being taken advantage of by researching the other side’s claims and reputation, and by exploring your alternatives to the current deal.

“Too good to be true” offers: Beware of an offer that is much better than you expected, especially from an opposing attorney you do not know well. After you commit to a lowball price, the other party might try to tack on less-desirable deal terms. One tip-off that you could be getting a bad deal, according to professor Shell, are questions that are hypothetically phrased, such as “Would you buy this today for $X?” If an offer is framed in the abstract, ask for more concrete wording—such as, “I am offering this to you today for $X”—and insist on seeing all deal terms. Negotiate the complete package, not item by item.

Escalation of commitment: You may find you have made a significant investment, such as considerable time or an up-front payment, before you agreed on a deal. The other party may be aware that you will be less willing to walk away and admit defeat after sinking resources into the negotiation. When faced with such a strategy, remember that such “sunk costs” are gone forever—and that there is no shame in walking away from a problematic deal.

Lack of reciprocity: According to the widely accepted norm of reciprocity, each concession in a negotiation should be rewarded with a roughly equal concession from the other side. If the opposing attorney fails to match your concessions or only pays lip service to the process of exchanging offers and commitments, don’t negotiate any further; confront him about it, and walk away if he won’t cooperate.

Last-minute nibbling: Has the opposing attorney ever made a modest request just before you are about to sign the deal? By preying on your desire to wrap up a hard-won negotiation quickly, the “nibbler” may succeed in gobbling up several more percentage points of value, cautions professor Shell. His advice: Shun the request unless the nibbler agrees to a matching concession.

  1. Copyright 2017 by Paul Fisher