Negotiation in Suits: From a Law Student's Perspective

Negotiation in Suits

Suits aired from 2011 to 2019 and was the recipient of numerous awards and honors throughout its airtime. Attorney Harvey Spector is viewed by many as the “gold standard” for what a lawyer should be. Consequently, there is merit in examining Specter’s negotiation strategies and his outlook on negotiation.

Spector strives to always settle every case due to the unpredictability of taking disputes to court. Spector’s desire to settle cases and avoid courts appears ironic as Spector views legal disputes from the perspective of winning and losing. Spector frequently refers to himself as the “Michael Jordan of the legal profession.” However, Spector’s preferred forum for competition ends at the negotiation table and not in a courtroom.?He realizes that through settling he can yield the best situation for his client (a win in Spector’s eyes) without having to depend on all the potential variables involved when dealing with a judge or jury.

However, Spector approaches each case as if it is going to go through the entire process of litigation, culminating in trial and possible appeals thereto. This is Spector’s strategy even in transactional deals such as mergers and acquisitions. He follows this approach until he has gained enough leverage to thoroughly intimidate opposing counsel.?Only at this point does Spector remove his “litigation hat” and open his conference room doors for negotiation.

?Much of negotiation is about understanding one’s personal character; a primary factor in determining one’s “style.” A former star baseball pitcher, Spector views negotiation as a sport and opposing counsel as the opponent. Spector’s perspective often comes at the expense of a cooperative approach to negotiation. He has frequently been accused of “turning a settlement into scorched earth.” Thus, he frequently makes enemies. Fortunately, this animosity does not affect Spector’s ability to close deals favorably. He commands great respect and credibility through his track record of “getting the job done.” The reverence for Spector’s ability to secure positive deals for his clients is epitomized through his nickname, “The Closer.”

?Spector gains leverage in negotiation through a combination of preparation, understanding, and willingness to take on risk. He describes his success in negotiations by asserting that he “doesn’t play the case, he plays the man.” Spector strives to understand every detail of opposing counsel’s motivations and personal faults. This is reminiscent of what Getting to Yes and Bargaining for Advantage describe as understanding the other side’s Zone of Possible Agreements and Best Alternative to a Negotiated Agreement.

?However instead of using that information to create a “win-win” scenario, Spector deploys it as a strategy to “understand where they are weak” and then exploits his opposition. Spector’s preparation is reminiscent of a basketball player watching game film of his opponent’s weaknesses to force those scenarios in competition. Spector “makes a living learning how to read people.” Opposing counsel’s weakness is often a scathing dislike for Spector. Armed with the knowledge that many don’t like him; he is fond of the motto “someone doesn’t like you; you use it against them.”

?Spector also strives to understand as much about relevant case law, statutes, and internal documents for each agreement. He works thoroughly to ensure that the law supports his arguments. Upon achieving this objective, Spector boisterously informs opposing counsel of how easily he would prevail in court due to the one-sided nature of the case. He employs hyperbole masterfully, forcing opposing counsel to realize that a one-sided deal is a better alternative to what would await them at trial. Thus, Spector’s deals which formidably ensure his client’s interest are frequently begrudgingly accepted by flabbergasted “foes.”

?Perhaps Spector’s greatest skill in negotiation is his ability to place time constraints and a sense of urgency on the opposition. Spector does not leave his offer open indefinitely. In fact, he often only allows others as little as five minutes to consider his offer. Spector’s control over the situation is magnified by these meetings almost exclusively taking place in the Pearson Spector conference room. This “homecourt advantage” and the unease it propagates for opposing counsel is reminiscent of University of Miami’s Orange Bowl from yesteryear.

?When the law does not support his argument and positions, Spector bluffs. Spector is a poker enthusiast with an innate skill for bluffing. Through bravado and a keen ability to “keep his cards close,” few are ever privy of the many vulnerable positions that Spector places his clients in. The success of these ploys empowers Spector to take risks without fear for rules and disbarment. Many a time, Spector has drawn on hijinks to fool opposing counsel into believing that he has leverage when none exists.

?Despite his immense desire to “win the negotiation,” Spector is often to willing to make small symbolic concessions in negotiation. Of course, he does this with parts of the agreement that he is indifferent to. In these moments he leaves counterparts “with a shred of dignity.” He asserts that he is acting mercifully, and that the “beneficiary of his kindness” owes him one. With regards to a particular instance, he states that “it never hurts to have a man with a two-billion-dollar hedge fund owe you one.” Spector often “cashes in” on these favors and leverages them in subsequent deals and negotiations.

?Spector’s firm operates primarily in New York City. True to form, The Big Apple is full of shrewd negotiators. Spector is particularly skilled in how he handles negotiators who take a page from his book and strive to intimidate. Despite whatever leverage is intimated, Spector is firm on the premise that he “won’t be bullied by anyone.” Spector does not engage in threats and immediately leaves the table when encountered with bad faith. Upon walking away, he immediately goes all-out in search for a solution to the problem presented. Much to the chagrin of legal ethics Professors, his solutions often involve a great disregard for rules.

?Spector is proud of never relenting and combines his contempt for rules with astounding creativity. This often involves “going over the head” of whoever he is negotiating with and using all relationships at his disposal to change the fundamental balance of the situation. In fact, Spector orchestrates several “hostile takeovers” when dealing with a corporation’s leadership that has seemingly “placed his client in the corner.”?Furthermore, while Spector may have a fear of trial his demeanor suggests otherwise. Spector’s greatest bluff is that no matter what the situation, he gives off the perception that he believes he would win at trial. Spector’s bluff is so strong that opposing counsel is oblivious to Spector’s disdain for the prospect of a judge or jury settling his disputes.

?Spector’s negotiation style and strategy changes when he is negotiating with his own client or potential client. In these instances, Spector is negotiating for himself which changes the dynamic along with his mindset. This phenomenon is most exemplified whilst clients seek to obtain Spector’s counsel. Spector only expresses his terms and conditions for employment. If the client has any concerns, Spector lets them know not to “let the door hit them on the way out.” When it comes to his own employment, Spector does not negotiate. He can operate this way because of how strong his Best Alternative to a Negotiated Agreement (BATNA) is. Spector is in high demand and has many clients, so he does not need to make any concessions to gain clients.

?Television viewership is fueled by conflict and the familiar trope of seeing protagonists’ triumph over antagonists. To the pleasure of its viewers, Suits focuses on the discordant aspects of negotiation. Conversely, Getting to Yes and Bargaining for Advantage illustrate the merits of a cooperative outlook to negotiation. In real life, there would be benefits to harmonious relationships with other lawyers. Moreover, Spector’s methods are often both reckless and unethical. He frequently takes massive risks with his clients financial, corporate, and criminal futures. While it is a television show and Spector normally wins to the satisfaction of the audience, it would not be advisable for an attorney to completely model their behavior in this way.

?Suits displays the benefits of a competitive approach to negotiating while illustrating the pitfalls of taking this approach too far. Harvey Spector’s self-confidence, preparation, and resilience is admirable. However, despite Spector’s charisma, his methods would not lead to optimal results in real life. Spector does not increase the size of the pie in negotiations, he merely captures all that is there for himself. He does not treat the opposition in the way that he would want to be treated. As a result, there are very few win-win situations or lasting relationships created. Thus, despite its considerable glamor and grandeur, Suits does young negotiators a disservice through its disdain for ethics and cooperative negotiation.

?Julian Marx, 11/21/2021