Earlier today I attended a 45-minute Continuing Legal Education webinar on the Art of Negotiation, which solely consisted of an interview with James A. Baker III conducted by the (then) President of the State Bar of Texas.  Baker was 93 years old at the time of the interview. 

I was in the midst of processing payroll for a home healthcare company for which I play a financial management role, thinking I could multi-task and do both the CLE and payroll at once.  That plan did not work out, but for the better.

Baker is a second-generation Houston attorney (his father founded Baker & Botts).  Baker served in the White House under Presidents Ford, Reagan and Bush (the elder).  After leaving the White House, Houston’s Rice University invited him to establish the Baker Institute for Public Policy, which he has been doing ever since. 

Baker knows a thing or two about negotiation.  I do too.  As a law student working full time at a law firm by day and attending law school at night, I wound up being the only staff member at the firm who knew the intricacies of Texas’ archaic construction lien laws.  When our healthcare attorneys landed a national hospital chain with a large Texas construction problem, I was brought in to manage it even though I was still in law school. 

Our client was constructing building four psychiatric hospitals in Texas when its General Contractor became insolvent.  The Indiana GC had underbid the projects thinking it could make up the loss on change orders, but our client had an in-house architect and never needed any change orders, so the GC stopped paying its subcontractors.  By the time our firm was hired, there were approximately 125 construction liens filed in four Texas counties, and seven lawsuits were pending to foreclose the liens.  For the next 2+ years, I negotiated and settled all but one of these claims (with some rather deferential attorney supervision) and was de facto second-chair in the trial of the one claim remaining. 

I have taken courses on negotiation, read at least one book on the subject, handled numerous mediations, and settled hundreds of matters since.  Even though negotiation is my forte, I still learned some things from the interview with Baker.  The following is an outline of his major points.

I.  Work hard.  Prior to the start of negotiations, be ready.  “Know your counterparts red lines.”

II.  Build trust with your counterpart.

a.  Do not set your principles aside.

b.  Find a way to satisfy yourself that your counterpart is reliable.

c.  Engage in parallel reciprocal confidence building.

1.  Get some small things done as you lead up to the big thing.

2.  This is necessary to keep the conversation going.

III.  Practice principled pragmatism – pragmatism that does not sacrifice principle.  Baker observed this approach in Presidents Reagan, Bush and Ford.

a.  Be sufficiently realistic.

b.  Be willing to compromise.

c.  Get to an agreement that benefits you.  It may benefit the other side as well. 

III.  Do not do a victory dance when you reach an agreement.

a.  Nothing is ever finished.

b.  Usually, there is still work to do to implement the agreement.

I have nothing to add to this outline -- absolutely nothing.  Well, maybe that is not completely correct. 

Sometimes, speaking as an attorney, the client loses objectivity and wants to turn down a deal that really is to the client’s benefit, only the client is too emotionally involved or too inexperienced to recognize the benefit. 

Some attorneys will defer to the client in this situation but I cannot.  Sometimes it is the client which has drawn the red line in the wrong place.  Unless my client can persuade me otherwise, I stand my ground, even at the risk of losing the client, which has happened more than once.  What is best for the client may not be what is best for me, but what is best for me does not matter. 

As a very timely aside, regarding working in Washington, D.C., Baker quipped, “It’s easy to kill things in Washington.  It’s hard to get them accomplished.”  He said it twice.

P.S.   I have a major editorial bias to disclose.  My opinion of Mr. Baker is certainly magnified by my opinion of President Bush (the elder).  One of the most touching books I have ever read is All the Best, George Bush: My Life in Letters and Other Writings.  If you have never read this book, you are in for a treat.

May you find joy in what you do and who you are with.