Barnett is a partner in Williams & Connolly LLP, where, in addition to his representation of Fortune 100 corporations, he represents approximately 350 television correspondents and anchors (he’s married to CBS News’ Rita Braver) and is probably the nation’s pre-eminent author’s representative. (Barnett’s appeal to big-time authors – those who can command six- or seven-figure advances – is that he doesn’t charge an agent’s customary commission of 15%, but bills at his hourly rate, which is currently $950.) Kim Eisler wrote an excellent profile of Barnett in the December 2008 issue of Washingtonian magazine, entitled "Bob Barnett: Master of the Game." And if you want even more information about Barnett, Eisler’s book, Masters of the Game — about Williams & Connolly and several of its more prominent partners, including Barnett — was published last month.
Barnett shared some lessons about negotiation with the HLS students. I linked to the whole article above, but here is Barnett’s advice:
• Know more about your case than anyone. “Know more even than your own client knows,” said Barnett, noting that Williams, before trial, would “hibernate” for two or three months, “learning every case, fact, every counter-argument. He’d go into court knowing more than anyone: judge, client, the adversary.”
• Put yourself in the other side’s shoes. “Try to understand where they’re coming from, what their arguments are,” said Barnett. “Try to realize they have bosses, self-esteem, careers. Try to treat your adversary fairly, and pride yourself on always treating them the same way you hope they’d treat you. That goes a long way toward getting a good result.”
• Assess your leverage. “Everybody is expendable although everyone seems to think they are indispensable,” said Barnett. “I try to figure out how important what I’m selling is to the buyer, or what I’m buying is to the seller.”
• Present your best story first. Put forth the facts of your side or the situation as you see it before the other side does the same. “I want to be able to influence the first offer, not to just receive it,” said Barnett.
• Negotiations are best done in person. “I think the first meeting has to be in person,” he said. “You want to watch their reaction, see the nuance of how they’re reacting,” he said.
• And a corollary: Avoid negotiating by email. It’s impersonal, subject to misinterpretation, and creates a record you may not want, Barnett said. “The more you can do in person or orally on the phone, the better. Email, in most ways, has made our lives much worse. It’s certainly made the practice of law much worse.”
• Four invaluable phrases: “‘Please correct me if I’m wrong’ means you’re asserting your position but you’re appearing humble and you’re leaving the other side open to correct you in a way that might inform you or get you something you want,” said Barnett. “I also like to say, ‘I appreciate your offer, but…’ It shows gratitude and respect but is not obsequious.” Another useful phrase: “Say, ‘Let me see if I understand,’ then repeat what they said.” And his fourth: “Don’t take a position but say, ‘One solution might be …’ You haven’t offered anything, aren’t stuck with it, and it hasn’t been approved by your client yet. But it furthers the dialogue.”
• “Don’t be afraid to say, ‘Let me get back to you,’ or ‘I have to consult with my client,’” said Barnett. “A continuance is as good as an acquittal, it just doesn’t last as long, Edward Bennett Williams used to say.”
• Always be the drafter of the agreement. “Williams used to say, ‘He who drafts, wins,’” Barnett said. Even though any contract is likely to go back and forth between the parties, working off of your first draft is a strategic advantage.
• At the end, give the other side credit. “I know my adversaries’ bosses. It makes me happy to say, ‘Your counsel did a great job on this.’”
• Give your client credit, too. “If the client got a great deal, it’s because the client is smart or a good writer or a good athlete,” Barnett said. “Never forget that you’re a fiduciary, a functionary.”
• Never lie. “It isn’t worth it, it isn’t ethical, it’s grounds for disbarment,” Barnett warned. “In the end, you’ll always get caught.”
• Cut the Valley-speak. “’You know’ and ‘like’ are the two worse phrases you can use. They make you sound like a teenage girl. They make you sound less smart than the Harvard geniuses you are.”
Although all of Barnett’s advice makes sense, my two favorites are not to negotiate by email (which I have done on occasion) and always be the drafter of the agreement.
What advice of Barnett’s do you like best?