Resistance Is Not Futile:Harnessing the Power of Counter-Offensive Tactics in Legal Persuasion
Volume 64, Issue 4, 1171-1229
A core competency for people working in law or business is the ability to influence and persuade: People need to become expert at getting others to agree, to go along, and to give in. The potential “targets” of one’s influence throughout a given workday are seemingly endless and include clients and customers, co-counsel, opposing counsel, supervisors, direct reports, contractors, subcontractors, consultants, secretaries, judges, juries, witnesses, police officers, court personnel, and others. Moreover, that influence is largely exerted through words spoken and behaviors exhibited within the context of a negotiation. And yet, leading academics have argued that the vast majority of academic writing on negotiation has ignored the element of interpersonal influence. This Article was written to help correct this glaring omission.This Article underscores the notion that throughout each day, people move rapidly and fluently between the roles of persuasion “agent” (that is, one who attempts to persuade others) and persuasion “target” (that is, one whom others attempt to persuade). If an “agent” party is attempting to persuade, the receiving or “target” party must understand the various tactics, strategies, and techniques being employed in those attempts, as well as ways to resist and defend against them. This Article provides this knowledge and understanding so that all parties, whether agents or targets, can be more effective negotiators. Those who are not aware that these techniques exist and who cannot recognize them and resist them place themselves (and their clients) at a clear disadvantage with respect to negotiation outcomes and final settlement results. It is only by recognizing and responding to various strategies and techniques of influence and persuasion that negotiators can begin to resist their powers and nullify their impacts.