Sep 30, 2021
Karate Strategy in Legal Negotiation: Part 2
Never feint
You should never feint. Yes, people talk about throwing feints all the time, but a good fighter never really throws a feint. Feint is a technique that is not intended to hit. The difficulty with this is that your opponent will read that the technique is not going to hit and simply ignore it. The only way to make Your opponent react to a technique (which is the purpose of a feinting strategy) is to have a technique that is intended to hit. Only then will your opponent have to react to it. For example, I like to use the double jab. This is not a feint first jab followed by a real second jab. Instead, it is one jab that will hit if they do not respond to it, which I will then retract as they begin blocking and punch over their guarding arm with the second. Feinting is a commonly used strategy, but yet it’s terrible and easy to simply call every bluff. There is nothing more embarrassing than someone throwing out a feint punch or a kick where you simply stand there because you’re out of range, and their technique sails limply off in the air. The same applies in negotiation: you should never bluff. If you make outrageous claims, the other side will simply see the outrageousness of these and call you on it, which will diminish your standing as you go forwards. You have to respect your opponent and remember that they are probably at least as smart as you. Refrain from petty feints. And you should call someone out when they feint. I have a rule that any time someone demands that I respond to correspondence within a timeframe (e.g., “respond within 7 days” or some such), I always respond outside of their timeframe. I’ve just called their bluff, and they look stupid. If you do not have the power over someone, then do not pretend that you do. If I wanted a response within 7 days, I would request it in a polite manner. Doing so shows respect of my opponent and cordiality. It also demonstrates that I don’t bluff and so they should respect every statement that I do make. (Note: always follow Court orders for timeframes. Judges have very real powers and don’t bluff with them).
Lead the opponent
One of the precepts of karate as set out by Shotokan founder Gichin Funakoshi was “karate ni sente nashi” which translates as “there is no first strike in karate.” The idea is that the karate-ka should not attack someone. Does this mean that karate is only ever a reactive game? No! You can control the game but hit second. Or hit first, but second in intention. To do this you force your opponent to move and then attack before they attack. Whether you move before your opponent or in reaction to them, the important part here is controlling their actions. To control someone’s actions who is aggressive towards you, it is important that they think that you are not controlling them. For example, if you try and push someone into the corner of the ring so that they cannot move backwards, they will do everything that they can to resist going into the corner. As soon as they see a game plan of yours revealed, they will do anything that they can to disrupt it. If you want to get your opponent to move into the corner of the ring, you need to threaten the space to the side of them so that they take the decision to move into the “safe” space, which is in the corner of the ring. Another way of controlling the opponent is creating a fake opening which they then attack in a way that you expected. For example, if you bring your guard up high, exposing your chest such that they then attack a perceived opening. You will see them move before they even do so, and then you can find the opening in their technique created by them moving towards you and strike that. If they are striking towards your chest, they will open up their head, and so you simply launch a pre-emptive head strike. There is a parallel rule of thumb in negotiation that “whoever makes the first offer loses.” This means that wherever possible, you should not lead with an offer but instead encourage the opponent to put forwards their offer first. They will reveal information about them and set a maximum (or minimum) for them, and enable you to counter. Indeed, one of the best counters to someone’s offer is to decline to make a counter offer and get them to bid against their own offer. Whenever I do make an initial offer, I will usually be attempting to find the most reasonable position between the parties, following the rule of not leading with a head kick. Which means that you can’t be disadvantaged by leading in the middle because that’s probably where you would end up anyway. However, if I do make such an offer, it is take it or leave it, given that any response other than minor tweaking is rejection of something that’s reasonable. One amusing example of this applied was where I lead with a reasonable offer in the mid point of what the parties hoped to achieve in a dispute, and the opponent who was used to playing high-low games assumed that that meant that that was my low position and that they were in a strong position and kept trying for a really high head kick. They totally misunderstood my client’s position due to their own hubris they ended up some years later with large legal fees and nothing at all — nothing is much less than a low offer, let alone the mid-point offer that they could have taken if they were reasonable. In legal negotiations, your opponent’s client will often hate your client. If you make a demand of them, then they will almost never follow it. One mistake that people often make is trying to set out two alternatives, each of which are acceptable to them, and to try and force their opponent to pick one of those two. For example: “1. you need to continue meeting your obligations under the contract or 2. pay a break fee to me to get out of it”. If the other person is hostile towards you, they will do anything they can to avoid picking either of the things that you have put forwards. What you should do instead is demand of them one option while also making them aware of the other option that you wish them to take. So you might demand that they “continue meeting their obligations under the contract” and find a way of making sure that they’re aware of “paying the break fee.” They will then come back with a stunning (in their mind) counter to you of “paying the break fee” and feeling like they are winning when you accept the thing that you wanted all along. A related mistake that people often make is to state their best arguments all at once and not considering what their opponent will do. If you both yell at each other as strongly as you can, all that will happen is that you will shout over each other until matters have to go to court and someone else decides for you. You should instead consider how an opponent who hates you is going to respond and set out only the arguments that will lead to them responding in a way that you desire. I frequently will diagram out decision trees of possible responses and apply game theory outcome maximising models so that I can control the responses of the opponent.
Break the rules
Mike Tyson famously said, “Everyone has a plan until they get punched in the face.” If expedient or if you think that your opponent is anticipating your action, feel free to break any of the above rules. I very rarely do, but having the option of it means that if anyone becomes used to my sparring style, I can switch things up. My goal is not to become a robot that blindly follows rules but instead to win.
When I mentioned writing this article to friends in both karate in law, many expressed concern that in future, someone could simply refer to this article and “work out my plan.” In reply, I explained this final rule, in that I could break any of the rules if I thought that I was being controlled in my own game. In this way of following rules, but occasionally breaking them, you can become the “honest man” that the dishonest Pirate Jack Sparrow warns against “Me? I’m dishonest, and a dishonest man you can always trust to be dishonest. Honestly. It’s the honest ones you want to watch out for because you can never predict when they’re going to be dishonest.”
Adrian “the Taxinator” Cartland has been training Karate for over 25 years and holds a 3rd degree Black Belt in Goju Ryu Karate. He also holds the Australian record for fastest cage fighting knockout, winning in 6 seconds with a head kick.
