In the fast-paced and often high-stress world of law, effective negotiation skills are essential for lawyers.
At this year’s Clio Cloud Conference, Chris Voss, CEO of the Black Swan Group, delivered an enthralling keynote speech titled “Tactical Empathy
: Negotiation Secrets from an FBI Negotiator”. We got to sit down with Chris to learn more about his philosophy and what advice he’d give to lawyers and legal professionals. While Voss’s expertise lies in hostage situations, his advice holds significant relevance for lawyers seeking to improve their negotiation techniques.
Read on for more of what Chris had to say.
Listen to understand
A number of the negotiation tips in Chris’s bestselling book, Never Split the Difference, involve listening carefully to the other side. And this makes sense: Listening well is something we’re taught starting in grade school. But, as adults—and particularly as legal professionals taught to focus on formulating strong legal arguments—many of us miss the memo. Why?
According to Chris, it’s because there’s a misconception about what it means to truly listen to understand. “Stephen Covey’s advice is ‘seek first to understand, then to be understood. And that’s halfway there,” he explained. “There’s very little focus on making the other side feel understood.”
To put it simply, don’t simply exhibit traits of active listening while focusing on formulating a response. Really give the other side your full attention. Legal professionals who confirm their understanding of what the other side is saying, and ensure the other side feels understood, will build trust and get further, faster in their negotiations.
Confirm your understanding
So, how do you confirm you’ve understood what the other side is saying? Is it as simple as confirming what they’ve said in your own words? Chris says this is the bare minimum. What’s needed is a confirmation feedback loop.
Chris referred to the book Beyond Winning by Robert Mnookin, the second chapter of which discusses the tension between empathy and assertiveness and how to balance the two. “You need to describe where you think the other side’s coming from, let them give you feedback, check again until you’ve got it right,” he said.
The real benefit here is reading between the lines, and seeing what isn’t being said, to get a full understanding of the situation—and to learn more than the other side may want to reveal. “A lot is analyzing and looking for insights, and checking to see if those insights are accurate,” Chris explained. “You’re looking for stuff they didn’t realize they were revealing, and stuff they’re reluctant to reveal—that they want to know if they can trust you with.”
Skip small talk
For lawyers and legal professionals billing by the hour, won’t this confirmation loop unnecessarily draw out the legal process? Chris says it’s the opposite. “Listening seems indirect, but what it really is is an accelerant for the entire negotiation process,” he explained. You need to build trust with the other side first, and when done right, “relationship building and information gathering can occur simultaneously.”
Specifically, Chris advises getting straight to the point and focusing on making sure the other side—or your client, for that matter—feels understood about what’s most important to them. Don’t ask if their kids play little league baseball. That’s C+ level relationship building, according to Chris, and very much a waste of time. Skip that, get to what’s most important, and spend your time there.
Get the other side talking
Chris abhors the common advice given to trial lawyers to “never ask a question you don’t know the answer to.” The more questions you ask, the more you can get the other side talking, and the more they’ll reveal. Conversely, don’t start explaining yourself while negotiating. If you’re explaining, you’re losing, because you’re opening yourself up to revealing things you don’t want to reveal.
“As soon as the other side launches into an explanation you learn where their weak spots are. You don’t get that from yes or no questions. You get that from them talking,” said Chris.
Use focused comparisons
If you’re dealing with an extra-tough litigator, Chris’s advice is to stay calm, listen, and think. “The more you listen, the less focused you are on what you have to say and more on what the other side says. And then you’ll be prepared to ask legitimate follow-up questions,” he explained.
Specifically, Chris advises using focused comparisons (“you said x, and you also said y, how do they add up?”) as a way to find holes in the other side’s argument and get them explaining themselves. Compare the things they’ve said and done, and the things their clients have said and done, and stay there until you’ve got clarification.
And if they try to change the subject? “That’s a tacit admission they don’t have a defense,” according to Chris.
Expect the expected
Legal negotiations can be civil and straightforward. They can also be long, drawn out affairs where litigators pull out all the stops to win. So what do you do when the other side provides you with new information at the last possible moment? Chris notes that time is a weapon that can be used both ways. Yes, last minute updates are likely to come. If you know this, however, you can do your best as a legal professional to decide ahead of time what your course of action will be.
“Don’t get caught off guard by things that are imminently predictable,” he said. “If it’s predictable, expect it, and make a plan.”
Use Tactical Empathy![™]()
The original root of the word empathy was from the German word Einfühlung, which meant understanding the emotions an artist was trying to convey via a piece of art or literature. Today, it’s synonymous with sympathy or compassion. But according to Chris, your definition of empathy is crucial to how you use it in negotiations.
“Sympathy is a precursor to empathy, but it is not empathy,” Chris said. “Empathy is an action. It is always about the transmission of information.”
In other words, by staying mindful and present in the midst of legal negotiations, and using Tactical Empathy to truly and fully understand what the other side is saying (confirming they feel understood as well), this will get you further in legal negotiations than many hardball tactics out there. And when the other side keeps talking and reveals more than expected, you may even get more than you bargained for.
Want to hear from more incredible speakers like Chris? Don’t miss your chance to get passes to the 2024 Clio Cloud Conference for the lowest price available. Get your pass today.