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Negotiation Tip # 9: Know Your Enemy

Negotiation Tip # 9: Know Your Enemy
Pat Dickson - Sun Jun 24, 2012 @ 09:36AM
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KNOW YOUR ENEMY

When you are sued, have received a nasty demand letter, or have been threatened on the phone, or in person, you must assume you are in danger. You don't know how much danger you are in. You don't know how much is at risk.

How much this confrontation is ultimately going to cost you in money, time, reputation, and emotional well-being, is unknown. In some cases even your property and person may be in jeopardy. How do you assess the threat you have just received? It could cost nothing. It could cost everything.

Negotiation Tips, Balance, Know Your EnemyIf you or others are in true danger, scream for help, defend yourself as the law permits, or dial 911!

If you safely have time to reflect, one of the first questions you must ask is who is threatening me? It is all about balance. The same threat from the mouth of a mouse is not the same threat when it comes from the mouth of a lion. When a snake threatens to bite you, it is a very real threat. Would you rather have a bull or a lamb threatening to charge at you? 

An identical threat depends on who is making it. What to do next and when to do it depends on the identity and character of your enemy. If a bull is threatening to charge you, you may want to run and hop the nearest fence. A lamb might just need to be coddled.

KNOW YOUR ENEMY! IT IS ALL ABOUT BALANCE

When a client comes to me with a complaint for breach of contract, I recommend a different response each time. A claim for contract damages, due to breach, is nearly always the same, but there are many other variables. Herein, I'm just focusing on who is suing. Who is the enemy? It is all about balance. How do I balance whether my enemy is a snake, a bull, a lion, a mouse, or a lamb? Usually I immediately look at three things:

1. How often does the enemy sue? I look on the local court docket, make phone calls, and do other research. Has the enemy sued before? How often does he sue? Is he litigation happy? Tied to this is how long he has been in business and how many other times he's been in the same situation. In court.

If the enemy is a large contractor that has been in business for 20 years and he's never sued anyone before, the fact he is suing my client is likely a very serious matter. If he sues all the time and often takes the case all the way to trial without settling, it is likely a very serious matter. If this contractor has only sued a few times and has always settled out, there is likely some breathing room.

Also, it is important to know your enemy's lawyer. With a few phone calls to attorneys and business owners in town, I can usually get a reading on how difficult and litigious the attorney I will be facing can be. Attorneys' dispositions matter. Their clients often listen to them.

You can often go online and search your local court docket and find the parties your enemy and his attorney have previously sued. Call these defendants and ask them about their experience with your opponent and his lawyer. You'll likely receive a lot of valuable information which will help you balance your risk.

2. What kind of person is your enemy? Knowing his temperament can be invaluable in determining whether you should run and jump the fence or simply offer kind and soothing words. Is he a bull or a lamb? Call around and ask. Look at how litigation happy he has been during the last 20 years.

I remember looking up the court record of one of my client's enemies and discovering he'd had 5 injunctions filed against him in the previous 3 years. He'd had his visitation rights with his children revoked, and he'd been convicted of felony fraud. To top it off, he had recently been charged with a DUI and assault. 

After seeing our enemy was more of a snake than a lamb, I recommended to my client we just do nothing. Let's just wait until we were threatened with a written notice of default. Silence is often the best way to deal with a very hot-headed person. Don't even get into the pasture with the bull. In the end, the case was dismissed. No notice of default ever came and the case was eventually dismissed for inactivity.

3. Does the enemy have financial resources? If you are being sued by someone without any money, and you know his case isn't on contingency, there is probably a good chance the case won't go to trial. You should be able to settle the dispute quickly and amicably, without a lot of cost to either of you. Of course, this assumes your enemy is reasonable.

On the flip side, if your enemy has no money, the case is on contingency, his attorney isn't hungry, and your kind of case often leads to a jury trial with extremely high damages, you are probably in a lot of danger. You are standing in front of a recoiled snake that is ready to strike!

It is all about balance.

KNOW YOUR ENEMY! IS HE A LION OR A LAMB?

Negotiation Tip # 1

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