What decades of law practice can teach Trump about negotiation

OPINION:

I have been practicing law for five decades. Throughout my career, I have negotiated hundreds of contracts of all types.

That experience has taught me important lessons about structuring, negotiating and documenting transactions. Even though, as a lawyer, I am trained to rely on the written word, I have come to recognize the limited value of contracts.

I know that to achieve a desired outcome, other factors are potentially far more decisive than a written document.

Initially, it is important to accept that even the best-drafted contract cannot provide absolute protection against dishonesty or deceptive practices by a contracting party. All contracts are predicated on the assumption that the parties share a common understanding of and commitment to the rules governing contractual relations.

If either party does not share the belief in those rules, then the contract is just a piece of paper.

This predicate leads directly to the second critical factor. It is essential to conduct a thorough review of the fundamental elements of a proposed transaction. Is the transaction plausible? Does it make sense? Is it consistent with the legal, social and even historical framework within which the transaction is to take place?

If not, then it is unlikely to be successful.

Third, and most critical, is the need to develop a thorough understanding of the mindsets of the parties to the transaction.

What a party says about itself, whether true or not, speaks volumes about that party. Public statements by a party can disclose that it may not have the capability to pursue the proposed transaction or that it is unserious or even has duplicitous intentions.

It is vital to understand how the opposing party has comported itself. It is a fundamental truth of human nature that people tend to live their lives in patterns and rarely deviate materially from them.

Thus, if a party’s past comportment discloses undesirable practices and contentious behavior, then it is highly likely that any transaction with that party will engender disagreements and disputes. These have the potential for litigation or the equivalent of war in the commercial sector.

It is simply unrealistic to expect that a party that has engaged in litigious or disreputable practices in the past will act differently in a new transaction. Therefore, carefully evaluating the opposing party’s past actions is one of the most consequential elements of due diligence.

It is of little use to enter into protracted negotiations and to develop extensive documentation when there is ample evidence that the opposing party will not consider itself bound to honor its obligations.

Faced with compelling evidence that the opposing party is not trustworthy, it is simply unwise, if not downright foolish, to enter into a contractual relationship that must be based on trust.

Governments, being merely assemblages of individuals, fundamentally behave very much in the same manner as individuals. The lessons I have been privileged to learn during my legal career seem, in large part, applicable to relations with governments.

It is on that basis that I would hope that the man who prides himself on his skill in “the Art of the Deal” would apply these lessons in his role as president when negotiating with adversaries.

As President Trump enters into an agreement with the mullahs of Iran — who have been unambiguous regarding their adherence to violence and violent objectives — he must not lose sight of their past behavior.

A deceitful party remains a deceitful party, especially if it believes itself wronged, as the mullahs undoubtedly do in light of the recent war waged against them. That party may say things intended to induce and lull its opponent into an agreement — and may even sign an agreement.

However, it is highly unlikely to alter its behavior. No agreement, no matter how well drafted, can alter this fact.

I urge Mr. Trump not to mistake his hopes and desires for reality when reality points in a different direction. Rather, he must rely upon facts and be wary of elaborate promises that are inconsistent with past behavior.

A failure to be cognizant of this reality will assuredly engender surprises — undoubtedly, very unpleasant surprises.

• Gerard Leval is a partner in the Washington office of a national law firm. His book “Lobbying for Equality: Jacques Godard and the Struggle for Jewish Civil Rights During the French Revolution” was published by HUC Press in 2022.