TAL Draft Review August/September 2023 Vol 22, No. 2 | Page 28

COMMUNITY

Book Review :

Never Split the Difference

CARLOS A . FERNÁNDEZ Freeman Mathis & Gary LLP Carlos . Fernandez @ fmglaw . com

T he late , great Kobe Bryant looked to areas of life outside of basketball to maintain his greatness . He famously studied the habits of black mambas to learn about precision when striking towards the rim . He also studied soccer players and their mobility before switching to low top basketball shoes . Bryant also studied Joseph Campbell and the power of storytelling before writing his Oscarwinning film , " Dear Basketball ." You should not limit yourself to advice and examples from within your field but look for greatness outside of your field . Chris Voss , former FBI hostage negotiator , is an exemplar for anyone involved with negotiations , especially attorneys .

The 1981 book G etting to Yes by Roger F isher and William Ury has been on every law school ’ s required reading list for decades . It trailblazed the ideas of separating people from the problem , focusing on interests and not positions , and using objective criteria . Now , The 21st Century ’ s negotiation manual is Chris Voss ’ Never Split the Difference . Voss bases the book ’ s lessons on his experience speaking with goal seeking individuals in high stress situations , in other words , hostage takers . He extracts negotiation tips from his FBI anecdotes and gives the reader a practical approach to negotiations . Unlike other negotiation books and antiquated law partner advice , Voss tells his reader to lean into people ’ s emotions when negotiating . He found that staying objective and focusing on the Bureau ’ s goals was ineffective . The hostage takers he negotiated with had goals but were also emotional when the guns were drawn , and blue lights were twirling .
Similar to a hostage negotiation , our clients are in high stress lawsuits that often times take an emotional toll . Our clients are invested and have goals they would like to see achieved at the end of the case . This investment , according to Voss , makes our clients emotional actors and not purely rational thinkers . We , as attorneys , are tasked with navigating the case ; but as counselors , we are tasked with identifying our client and opposing party ’ s goals — emotional and rational . Voss ’ negotiation premise is simple : Use empathy , active listening , and targeted questions to reach your resolution .
Voss explains that open-ended questions are key to understanding someone else ’ s goals and emotions . Think , direct examination . Attorneys ask “ who , what , when , where , and how ” to illicit information from witnesses . Witnesses are not led with hostile questions but given the opportunity to answer the question from their point of view . Voss recommends a similar approach when establishing rapport with the other side in negotiations . However ,