Every business deal involves risk and litigation always involves risk. Frequently, opposing parties and even those across the negotiating table want the other side to feel they are backed into a corner. This lends itself to a belief of a superior negotiation position. How do you get yourself out of that position? Do you need a quick resolution to avoid what appears to be a looming disaster? Understanding all options and what actually created the position is important to understand.
In August of 216 BC, the Romans thought they had Hannibal backed into a corner expecting a final defeat. Hannibal used this to his advantaged and created a methodical retreat strategically placing certain aspects of his troops based on their abilities. Hannibal used his superior knowledge of his own troops and weaknesses as well as the terrain to ultimately surround the Romans. This was the worst defeat for the Romans and although they had an overwhelming force, the strategy employed by Hannibal marked a historical moment in the Battle of Cannae. This is still the subject of study in military strategy.
What action can you take when you feel backed into a corner, whether in a business deal or litigation?
Check Your Position
Many times a position will be taken that is unsustainable or incorrect. If a position is based on a false principle or incorrect facts it is certain to fail. This is the easiest and quickest problem to solve by taking a position that is supported by proper legal principle and sound facts. If a position cannot be defended, you need to move away from that position. By putting yourself there in the first place, you already know the way out by making a move.
Know Your Territory
This falls within the category of checking your facts and law. Understand the surrounding territory before you begin with negotiations or litigation. Know what you can factually support and the legal principles involved including any tax ramifications. Understanding your own facts and legal support will allow you to move around the terrain in negotiations or litigation as you need. As much information that can be obtained about the other side’s facts and supportable legal positions is also extremely important.
Understand Your Team
Understanding the capabilities of your team is extremely important when you feel backed into a corner. Do they have the ability and knowledge of what action can be taken? Further do they have the ability to make decisions? Decision making ability is one of the most important roles of your trusted confidante. Building a successful team should start in the beginning, but it is never too late to create a great assembly.
Create a Plan
Know the courses of actions that can be taken to move yourself out of the corner. This will come with reliance of your most trusted confidante and from understanding the territory and team. All the decision makers to formulate a plan of action must be in place. This quite frequently requires you to turn over the plan creation to the team members with the most knowledge and ability. A great trusted confidante is not afraid of failure, but is more afraid on not taking the necessary action.
Execute the Plan
Putting the plan into action is the last, but most important step. Not following the advice of the trusted confidante or second guessing of the decision makers can result in failure. A great plan not executed is not a great plan. Certainly there is a need for built in contingency, but a well thought out plan will be executed easily if there is some flexibility in the time of execution and good contingencies built in for delay.
Plan and surround yourself with knowledgeable professionals. There is no problem that does not have a resolution and finding yourself in a corner can be daunting.
Stephen Fuller is the managing partner of Fuller Sloan LLC and has practiced in business litigation and consulting for 37 years and has over 25 years representation of the founder of one of the largest sit-down casual restaurants in America. For more information, send Mr. Fuller an email.