Negotiation Theater: When Lawyers Perform Instead of Close

Some lawyers negotiate to move a deal forward. Others negotiate to make sure everyone sees them negotiating. They are aggressive, dogmatic, and insistent and often confuse hostility with strength. Worst of all, they refuse to recalibrate, even when the facts, the market, and their client’s actual bargaining power demand it.

This is negotiation theater.

It may look effective and sound impressive to a client who is not directly involved in the negotiations. But it rarely protects the client’s interests. More often, it makes the deal more tedious, more expensive, riskier, and unnecessarily contentious.

Three Real World Examples

The Lawyer Negotiating the Wrong Deal

A hedge fund client signed an LOI to lease 50% of a small suburban office building. They had been in business for more than 20 years, were financially strong and in the midst of a global expansion. Equally important, they planned to invest more than $1 million in leasehold improvements.

Even in a tight, landlord-favorable leasing market, this tenant had meaningful bargaining power.

The landlord, a family office with a small portfolio, hired a BigLaw attorney accustomed to representing institutional owners of major office buildings that typically held most of the bargaining chips.

This attorney clung to the same one-sided, landlord-favorable positions he was accustomed to getting for institutional owners negotiating with tenants taking relatively small blocks of space. When we repeatedly rejected those positions, the response was not to reconsider them. It was to defend them more aggressively, to the point of becoming personally offensive.

My client ultimately prevailed where the facts and market warranted it, and the lease was executed. But it took much longer, cost substantially more and created enormous frustration on both sides.

The attorney’s posturing did not improve the landlord’s position. Eventually, even his own client recognized that he was negotiating the wrong deal.

The Lawyer Who Didn’t Understand the Market

In a recent sublease transaction involving 15,000 square feet in a Class A CBD office building, my client, the subtenant, and I were well aware that we had to contend with a tight, landlord-favorable market.

Even so, the sublandlord’s attorney took positions so extreme and commercially unreasonable that the broker representing her client repeatedly had to push back. That should have prompted recalibration. Instead, the attorney became openly hostile. She was personally insulting in a performance for an audience of one: me. It became so counterproductive that we avoided involving her whenever possible.

None of this created bargaining power. None of it protected her client. And none of it moved the transaction closer to execution. It did the opposite.

Counsel can reject what others claim is “market.” But if a lawyer is going to insist on provisions that don’t make commercial sense, there should be a strategic reason and a realistic understanding of what the client gains by taking that position.

Otherwise, the lawyer isn’t negotiating the deal in front of her. She’s performing a version of toughness that has no connection to the transaction.

The Lawyer Who Mistook Volume for Leverage

A not-for-profit client had six years remaining on a ten-year office lease when its landlord decided to convert the building to residential use.

My client refused to vacate the premises or terminate its lease without being compensated. The landlord, holding firmly to its position that none of the office tenants deserved compensation because office rents had plummeted, began renovating the building around my client.

When settlement discussions began, the landlord’s attorney became the bully in the playground, resorting immediately to threats and belligerence. The threats didn’t end the negotiation. They changed it.

My client retained a top-tier litigator to prepare a breach-of-contract action. Journalists became interested in the landlord’s treatment of its tenants. We raised serious concerns about the attorney’s conduct and were prepared to bring it to the attention of the appropriate disciplinary authorities.

What could have been a focused business negotiation became a prolonged and expensive confrontation. After months of delay, my client prevailed, receiving a settlement appropriate to the circumstances.

The bullying did not save the landlord money. It didn’t make the underlying problem disappear. It simply forced my client to escalate until the landlord confronted the actual risk.

Tough Is Not the Same as Effective

These lawyers had different styles, clients, and transactions. But the underlying mistake was the same. They made the negotiation about themselves. One couldn’t depart from the positions he was accustomed to taking. Another treated basic deal management as a personal affront. The third believed that threats and volume could substitute for a credible assessment of the parties’ rights and bargaining power.

In each case, the performance created delay and expense without materially improving the client’s outcome.

When I’m in a negotiation that is starting to perform rather than close, the question I ask is simple:

What does my client actually need from this deal, and is this position moving us toward it or away from it?

Sometimes that means holding a difficult line. Sometimes it means rejecting what others call “market” or making clear that litigation is a genuine possibility. But those decisions should be driven by the deal, not by the lawyer’s need to dominate.

Great deal lawyers know when to push, when to explain, when to change course, and when an issue truly justifies putting the transaction at risk. Most importantly, they understand that the objective is not to win the performance. It’s to get the right deal closed.

Is your lawyer advancing your business position, or mistaking performance for negotiation skill?