Monday, September 7, 2009

Principle Number One: Never Negotiate Against Yourself

President Obama is a lawyer and was an instructor of constitutional law. His handling of the public option portion of the health care debate (first you see it, now you don't, there it is again) tells me that he needed some experience as a practicing trial lawyer as well. Let me explain:

In the course of my legal career I had the opportunity to assist in the development of several fine young lawyers. In a manner of speaking, I was kind of like a big league baseball manager cultivating a new young pitcher. Both types of tasks demanded a systematic approach to allow the young person to fully develop without doing too much too soon Just as the baseball manager wouldn't dream of allowing a fresh young face to make 125 pitches in a game, the boss lawyer wouldn't think of allowing a one or two year lawyer to conduct a full-blown complex scientific-based trial. The exposure was always incremental; let the new lawyer present one or two witnesses to the jury and sit the remainder of the trial at the side of the more experienced lawyer. Then turn the young lawyer loose on a dog bite case, or something similar, to handle by herself/himself. In every case, big or small, the subject of settlement always came up. it was absolutely necessary from day one to teach the principles of negotiating to young lawyers. The principles were and are always the same, whether the cases were big or small.

The First Principle: Never negotiate against yourself. Let me give an example; A lawyer wants to settle a case for his client for $5000. He started out by telling the other side that he'd like to settle the case for $10,000. Without the other side offering any money, the usual response to the initial demand was, "what would you really take?" If the young lawyer responded that he'd be willing to take $5000, any experienced negotiator knows at this point that the case will settle for $2500. The young lawyer has negotiated against himself.

In the present situation, President Obama has violated this principle by negotiating away the public option in various pronouncements along the way. If he was prepared to give in to the opposition on this important issue, its importance should have been held in reserve to be used as the ultimate bargaining chip in obtaining real change on the many other issues that are part of the debate. Instead, he is going to get $2500 instead of the $5000 the public rightfully deserves. In my law firm, he would have been assigned dog bite case duty for a couple of years if he pulled a stunt like he has on the public option issue.

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