A Lawyer’s Tips on Negotiating for Dummies and Congressional Republicans

Kurt Schlichter

12/6/2012 12:01:00 AM - Kurt Schlichter
Somewhere, there’s a whiplash lawyer who runs his law office out of a van down by the river who watches the congressional Republicans attempt to negotiate the fiscal cliff crisis and has to turn his head away. John Boehner and his inept coterie of GOP establishment cronies have made every mistake in the book. It’s professionally embarrassing.

Frankly, if these hacks were my associates, they’d be on a street corner with signs reading “Will litigate for food.”

Congress is famously full of lawyers, but what people don’t understand is that it is really full of bad lawyers. Good lawyers tend not to want to take the pay cut. And the current crop of Republican leaders negotiate like bad lawyers do, which is great for President Obama. He’s giddy, and I know the feeling. When I face opponents like Boehner’s bunch at a mediation, I start checking out new 6-series convertibles on my iPhone.

A good negotiator, first and foremost, understands his client’s goals. This seems pretty basic – you want to know what the people you represent want to achieve by negotiating. However, this concept seems lost on the GOP.

Their clients – the voters who elected them – were pretty clear. No tax increases. Period. After all, not one Republican congressman was elected on a platform promising “I will raise taxes in order to help Obama morph America into Greece.” Well, maybe some of the ones from New England did, but that’s beside the point.

The client doesn’t want tax increases. This implies that the GOP should – wait for it – not support tax increases.

Naturally, the first thing the GOP does is roll over. Then to compound it, Lindsay and Saxby smarm up the Sunday morning talk shows with sanctimonious talk about how they are so patriotic that they are compelled to break their solemn pledge to their constituents never to raise taxes.

So, having not just discarded the client’s intent, the congressional GOP then rubbed its clients’ collective nose in it. There’s nothing that sets you up for failure like setting your sights on a goal that, to your client, constitutes failure.

Besides knowing what the client wants – and not utterly ignoring it – the skilled negotiator next figures out what the other side wants. Negotiations are rarely just about the putative subject. In a lawsuit, sure there’s money, but there is also often emotions – anger, pride, and so forth. All of these play a role. And sometimes, there is another objective entirely.

Here, it’s pretty clear that Barack Obama is not merely trying to get the Republicans to raise taxes. Additional fuel for the bonfire consuming America’s culture of self-sufficiency is a sweet bonus, but he has his sights on something more.

Obama is trying to get the GOP to commit suicide so that it will be unable to oppose him. And the GOP is responding to this attempt to disembowel it by handing its enemy the figurative samurai sword.

Obama sees that the kind of betrayal the GOP Establishment is dying to pull off will split the party and ignite an internal struggle that would make the post-1968 Democratic convention convulsions seem like a group hug. He’s not negotiating to get something. He’s negotiating to do something, and we conservatives are the ones Obama wants it done to. Moreover, he wants the GOP Establishment to do it for him.

Now, when you understand what your client wants and what your opponent wants, you are ready to form your negotiating strategy. What the GOP Establishment fails to understand is that reacting is not a strategy. Whining that the liberal media is going to be mean to you if you stay true to your principles and to your word is not a strategy. Cursing Grover Norquist for allowing you to make a promise to your constituents about never raising taxes, which helped you get elected, is not a strategy either.

A strategy focuses you on your goal, which means the congressional Republicans have no strategy because they have no goal other than to make the hurting stop.

Yet the GOP actually has several aces in the hole – the only reason they are taking the submissive role in the Fifty Shades of the Fiscal Cliff playing out before us is that they chose to assume it. Maybe Obama has a mandate, but so do they. They should be exercising it.

Their first step is to stop showing fear and to start counter-attacking. So America falls off the fiscal cliff? Who cares? Hell, a substantial number of the rich and sorta-rich are Democratic voters in blue states anyway. Let them put their money where their progressivism is. And if there’s another recession, awesome. We call that a teachable moment for America about what happens when its president is a spendaholic who would rather campaign than lead.

What about those cuts to defense? Okay. We’ll live having only exponentially more military power than our nearest competitors. And if all else fails and the bad guys invade, as Red Dawn teaches, we’ll just open up our gun safes and go all Wolverines on them.

Sound a bit, well, crazy? Unreasonable? Even scary? Good, because a skilled lawyer understands the awesome power of being the craziest, most unreasonable and scariest guy at the table. Obama is hanging tough only because he thinks – he knows – the congressional Republicans are dying to fold well before he pays any kind of price.

But what if the GOP’s offer was a two-word response beginning with the letter “F” – and what if they meant it? After all, the secret of being the unreasonable negotiator is that you can’t be bluffing, that you have to be ready to pull the pin and take the whole table out with you. In other words, the Republicans ought to be telling the President “Hey, I’ll be Thelma and you can be Louise, and we’re pedal to the metal.”

The GOP knows the worst case scenario – rates on everyone go up and sequestration. All they have to do is be willing to take the hit for longer than Obama. The GOP has an advantage – the liberal media will screw them no matter what they do. This gives them incredible freedom.

Go off the edge and then, after the mainstream media panics and David Brooks wets himself, pass a bill dropping all the rates back and send it over to Harry Reid. Now it’s the Democrat’s problem. Thirty-three senators have to run in 2014, around 20 of them Democrats. How many are going to want to vote “No” on dropping the rates back? As the election cycle begins, I estimate the number will shrink to roughly zero.

In other words, turn the tables on the Democrats. Split them. They have the most to lose, not the GOP. If the congressional GOP loses this fight, that’s just a dog biting a man. But if Obama loses it, that’s a man biting a dog.

This is the final lesson. A sharp lawyer takes a tough situation and turns it to his advantage, while a hack takes an advantage and turns it into a tough situation. With a little skill, the GOP could not only get what it wants tax-wise but also turn the tables, setting the Democrats at each others’ wattled throats and neutering Obama.

After all, isn’t crushing progressive dreams really what the GOP should be all about?

All it takes is a little guts and some wiles. Come on congressional GOP – make that whiplash lawyer proud.