Karate Strategy in Legal Negotiation: Part 1

One mistake that people make is not playing their game. They’ll see an opponent that spars in a different way. Perhaps they’re from a different stylistic background, or maybe they’ve just got some interesting tricks. The differences in the opponent cause a deviation from the normal game plan. However, if you don’t know what your game is, you’re just throwing your punches haphazardly. If you start experimenting with something new while you’re in the ring, when faced with an unusual scenario, your opponent will have the advantage. They are playing a game that they know intimately, and you are making it up as you go along. At best, you won’t know what you’re doing at worst. You’ll have your reactions dictated and controlled by your opponent.

You should stick to your game plan even if you’re losing. I play a long game rather than close in-pocket fighting. If I have an opponent who has an in-close game and they keep getting under my guard and under my reach, then the last thing I should do is change to a similar in-close fighting style. Although that might be a good style for facing them, or at least equal, I am simply not good at that style. What I should do instead is play my game to the maximum even if I am destined for second. It’s better to play a game that brings you to a close second than something that has a small chance of winning, but most likely, you will slip up. If you’re playing your game and you don’t make a mistake (less likely because it’s your dominant game), then your opponent still has the possibility of making a mistake, in which case you can capitalise on it and win. The Olympic speed skater Steven Bradbury won by sticking to his game plan and capitalising on his opponents’ mistakes.

In legal negotiation, it is, of course, paramount to understand what your client’s position is and what your skill set is. You need to understand in the most objective way how strong your case is and your strategy for achieving your desired outcome. For example, if your client is partially responsible for a breach of contract and are happy to accept proportionate liability, then you should not deny entirely their responsibility. What you would end up doing is causing a fight that is more expensive and damaging than is necessary. If the client has a good relationship with the opponent and they wish to continue it on into the future, you’re not going to play an extremely aggressive game even if their lawyers start to. If your game plan is to have make offers of settlement, then keep doing so even in the face of unexpected circumstances.

You should also play to your skill set. I am a technical tax lawyer, and so I want to dive deep into a legal argument on complex interactions of law that I am familiar with, and which are less widely known. Other lawyers might be better at compiling detailed evidence, court procedural arguments, or just winging it. Whatever your skill set is, make sure that your game plan hews as close to it as possible.

Instead, you should always lead with a punch or lower techniques. Once you have attacked them with multiple techniques, they will be on the defensive, and then you follow through with the head kick. One of my favourite combinations is jab, cross, head kick (kizami zuki, gyaku zuki, mawashi geri). I start with punches to the head, get them paying attention to the front of their face and move their guard to the front, and then the round kick to the head comes outside of their immediate vision and around their guard.

There are two exceptions to this rule ie, where you can lead with a head kick. First is in response to the opponent. For example, if your opponent is rushing in at you and they leave an opening, then you can respond with a kick. You don’t need to lead with punches to make them move their hands because they have already committed their guard in a way that opens them up. Second is to make them keep their distance. I will occasionally throw out big flashy kicks that I know have no likelihood of hitting but which make the opponent take their easy reaction to step out of the way and evade it, which creates the distance that I want. Even though these techniques have no more than a 5% chance of landing, they do need to be respected and so force the opponent to keep the distance that I want.

In legal negotiation, I see the head kick equivalent as the ambit claim. There is a school of negotiation that says that you should start with the highest (or lowest) offer that you can have, and then the parties will work their way together and meet in the middle. I utterly reject this. Whenever someone sees a high offer, they simply ignore it and come back with their own counter offer. It is not some elegant dance. It is simply wasting time.

Yes, we all want to be the lawyer who demanded some obscene sum, and the other party paid up, but that’s little more than a dream. What you need to do is set up the offer first. You need to set out logical reasons why this is a reasonable offer and is likely to succeed, and based on that set up, then follow through with an offer that is going to hit.

The best response to someone who is using a high-low negotiation tactic is similar to responding to a head kick: rush in and punch them. If someone comes through with an ambit claim, you should respond with a reasonable offer. They decrease their ambit claim slightly, expecting that you’re going to meet in the middle you will then respond with your same offer. They come back with an offer that is slightly lower you, then come back with your same offer, all the while explaining why yours is the most reasonable.

Pursuing this strategy also has advantages from a legal costs perspective, not only in incurring lower costs through more efficiently coming to a negotiated outcome but also in the event of taxation of costs (where the court considers if the legal costs you have incurred were reasonable and reduces them accordingly to be paid by the other side) where if you’re shown to be made an offer that is lower than what you ultimately achieve in court you can get a much higher amount of your costs back. (In Australian, known as a Calderbank offer).

Following the strategy, with head kicks, you may deviate and use the high-low strategy in the analogous cases. Firstly if the opponent leaves themselves open. I recently had a case where after some months of reasonable negotiations and offers, which were all rejected, the opponents came in with an extremely desperate position and an urgent timeframe because of unrelated circumstances, and we simply demanded that they pay everything that we could want. And they were forced to accept that. (K.O.!) Secondly, you might throw it out as an occasional threat where you’re not actually intending to come to negotiations. For example, coming to a quantification of potential damages in a very high number for the purposes of intimidating someone but without actually intending to get them to pay that amount. Of course, this second strategy should be read in line with the next rule. (to be continued next week)