In Dealmaking, Look for the Needle in the Haystack

By — on / Dealmaking

When you’re desperate to make a good deal, breakthroughs can come at unexpected times and places.

Consider what happened when Assistant U.S. Attorney Richard Elias was looking through a sheaf of J.P. Morgan Chase & Co. documents while taking care of his newborn son in 2012. At the time, directed by President Barack Obama, the federal government was launching expanded probes into the role of the largest U.S. banks in the subprime mortgage crisis of 2008. But the investigations got off to a slow start, with officials finding little of the evidence they would need to win a large fraud case, write Andrew Grossman, Emily Glazer, and Christina Rexrode in a December Wall Street Journal article.

Elias, a federal prosecutor since 2011 who works out of a satellite office in Fresno, California, was instructed by his boss to start looking into J.P. Morgan, the Journal reports. Amid the haystack of documents he was perusing, Elias found a needle: a memo from one of the bank’s employees warning her bosses that they were putting bad loans into securities. Elias immediately recognized the importance of the memo and soon was reporting his findings at Justice Department headquarters in Washington. Not long after, J.P. Morgan officials received subpoenas tied to the memo.

Within a few months, top officials at the Justice Department were telling investigative teams across the country to search for smoking guns similar to the one found by Elias amid the millions of documents they were sorting through from other banks. Lawyers searched company records for words like “fallout” and “kick” that Elias had noticed in the J.P. Morgan documents.

Discoveries similar to Elias’ ultimately led to intense negotiations with some of the nation’s largest banks over their role in the financial crisis. After J.P. Morgan staged a mock trial in which hired jurors sided against the bank, it engaged in negotiations with the government, ultimately closing the deal at $13 billion.

Since late 2013, the government has reached settlements with J.P. Morgan, Bank of America, and Citigroup totaling $36.65 billion—thanks in good part to one relatively inexperienced attorney’s careful sleuthing.

In negotiation, we generally view important deal-making skills as those that play well at the table: the ability to persuade the other party, to drive a hard bargain on price, to build relationships that last. Yet we often overlook the fact that negotiation often requires real grunt work before the dealmaking begins: specifically, a willingness to take the time to build a strong argument and thoroughly analyze the issues and problems at stake.

Because our lives are so busy and rushed, we tend to overlook important information that’s right in front of our faces, writes Harvard Business School professor Max H. Bazerman in his book The Power of Noticing: What the Best Leaders See (Simon & Schuster, 2014). Due to our penchant for multitasking and slashing items off our long to-do lists, few of us have the patience needed to make the kinds of discoveries that Elias did.

How can we follow in Elias’ footsteps and become “first-class noticers,” in the words of the novelist Saul Bellow?

Here are three pieces of advice from Bazerman:

1. Adopt a noticing mind-set.

Recognize times we’ve failed to notice important information in the past and strive to do better. Rather than blaming others or circumstances for a failed negotiation, for example, we must look at what we ourselves missed so that we can notice key data in the future.
2. Ask “Why not?”

Just because a negotiation method or approach hasn’t been tried in the past doesn’t mean it won’t work. Try to look at your negotiations as an outside would, as a more objective perspective may lead to key breakthroughs.
3. Encourage others to notice.

Higher-ups in the Justice Department charged investigators like Elias with poring over reams of bank documents in the hope that someone would find something important. That hope paid off. When we encourage others to notice more, we help our organization do better deals.


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