Being right about the law isn't enough, and may not even be relevant: it's your influencing and negotiation skills that make the real difference
| Autor | Graham Massie |
| Cargo | Director and mediator of Centre for Effective Dispute Resolution (CEDR) - United Kingdom. Former Chartered Accountant with KPMG. |
| Páginas | 12-31 |
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BEING RIGHT ABOUT THE LAW ISN’T ENOUGH,
AND MAY NOT EVEN BE RELEVANT: IT’S YOUR
INFLUENCING AND NEGOTIATION SKILLS THAT
MAKE THE REAL DIFFERENCE
Graham Massie1
Abstract: Whereas imparting knowledge of the law and its application remains
at the heart of legal education, the emergence of Articial Intelligence technol-
ogies is creating a shift in client needs from their lawyers, with a far grater em-
phasis being placed on their abilities to make best use of the information they
hold, particularly in the way that they deploy inuencing and negotiation skills
to advance their clients’ interests. All too often, however, negotiation training
courses and textbooks are little more than a series of anecdotes and situational
advice. This article seeks to redress the balance by outlining both a mindset and
a structure upon which any negotiation might be based. It promotes the value
of curiosity, rapport-building and carefully calibrated questioning, rather than
tough guy hardball demands, and it provides a ve-phase model that gives a
structure to a negotiation that highlights the important steps in the process and
provides a foundation upon which negotiator can build their practice and skills.
1 Director and mediator of Centre for Effective Dispute Resolution (CEDR) - United
Kingdom. Former Chartered Accountant with KPMG.
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INTRODUCTION
Advice to young lawyers throughout the ages has emphasised that knowl-
edge of the law is not the only prerequisite for success in the profession, even when
arguing a case in the courtroom. In their classic text of 1911, father and son lawyers
from Indiana, Byron and William Elliott relate the following tale:
If you have a case where the law is clearly on your side, but the facts and justice seem
to be against you,” said an old lawyer to his son, who was about to begin the practice
of the law, “urge upon the jury the vast importance of sustaining the law. On the
other hand, if the law is against you, or doubtful, and the facts show that your case
is founded in justice, insist that justice be done though the heavens fall.” “But,” said
the young man, “how shall I manage a case where both the law and the facts are dead
against me?” “In that case,” replied the old lawyer, “talk around it,” and “the worse
it is, the harder you pound the table.2”
This advice has often been repeated, these days in the rather more pithy aph-
orism attributed to high-prole lawyer Alan Dershowitz that:
“If the facts are on your side, pound the facts into the table. If the law
is on your side, pound the law into the table. If neither the facts nor the
law are on your side, pound the table.3”
This implication of this advice goes to the heart of my thesis, not just for
litigators but, in my view, for all lawyers who are representing their clients’ inter-
ests. Because prevailing in trial, a debate or a negotiation is not simply a question
of being right, of having the law on your side. Rather, it is about being persuasive
– persuading juries to accept your arguments, persuading clients to trust you with
their important issues, and persuading your counterparts to agree to your proposals
in a negotiation.
NEGOTIATION: A KEY SKILL FOR LAWYERS
It is often said that the three attributes required to be successful as a phy-
sician are affability, availability and ability – in that order. The same might be said
about what clients are seeking from their lawyers, and certainly there is a growing
trend within legal education to teach students a broad range of so-called soft skills
in addition to the traditional subjects of knowledge and application of the law.
2 ELLIOTT B., ELLIOTT, W. The work of an advocate: a practical treatise, Bobbs Mer-
rill Company (2nd edition), 1911, p. 390 ISBN 978-1-34-536197-1
3 NAVARRETTE, R., Pounding the table about border episode, Fort Worth Star-Tele-
gram, Fort Worth, Texas, Page E3, Section: Weekly Review, March 4, 2007
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