3 Tips for deal­ing with dif­fi­cult bid­ders — The Fight­er (2)*

For him, it’s a point of hon­or, he does­n’t take any crap, and some­times he’s even proud of it. Occa­sion­al­ly he gets lost, and yet he com­mands our respect: the fight­er.

Do you hear it too, that clank­ing of met­al?

In the phe­nom­e­nol­o­gy of our bid­ding types, the fight­er must not be miss­ing. He does not car­ry weapons, his chants are not nec­es­sar­i­ly loud and wild, nor does he shake clenched fists. In a state gov­erned by the rule of law, he makes use of quite dif­fer­ent means: friend­ly inquiries, cun­ning and also stalling, threats and some­times even a lawyer. What makes us lawyers par­tic­u­lar­ly hap­py — so much hon­esty is nec­es­sary.

How he sees the client

The fight­er cer­tain­ly also under­stands the client as a part­ner, but as a rather dif­fi­cult one. As some­one who does not under­stand him, who does not lis­ten to him. Who does not let rea­son pre­vail, who does not give the fight­er what is due to the fight­er. The fight­er does not dis­re­spect the client at all, he just sim­ply lives in the assump­tion that the client pur­sues oppo­site, not only dif­fer­ent, but often dia­met­ri­cal­ly opposed inter­ests. Just as the fight­er does!

You already feel it, most­ly the fight­er is not very empath­ic. It is dif­fi­cult for him to imag­ine that oth­er peo­ple are moved by com­plete­ly dif­fer­ent forces than his own will. In fact, the client, as the fight­er sees him, has a will of his own, an oppo­site will. This includes that he sim­ply does not want to under­stand that the fight­er has to win. That it is the noblest task of the client to declare the fight­er the win­ner after — with plea­sure also vio­lent — resis­tance. To let him have his way. The fight­er sees the pub­lic client, the spe­cial­ized office, the award­ing author­i­ty ulti­mate­ly as a body with a dif­fer­ent will. He must break this will, cir­cum­vent it, let it run into the void — it does­n’t mat­ter, the only thing that mat­ters is that his will pre­vails. The will of the fight­er.

More than mon­ey?

Is our fight­er con­cerned with more than just the filthy lucre? Oh yes! Of course, the fight­er believes that the clients would ulti­mate­ly only man­age his mon­ey, and they would only reluc­tant­ly, much too reluc­tant­ly, hand over this mon­ey to him. And that also with­out any right, after all, accord­ing to the fight­er, it is ulti­mate­ly his mon­ey, the mon­ey due to him, his remu­ner­a­tion, com­pen­sa­tion, the just reward for all the drudgery.

But for all the empha­sis on mon­ey, it’s usu­al­ly about some­thing else. About what, you ask your­self now. The fight­er may speak of recog­ni­tion or of fair­ness. He may rec­og­nize the strate­gic impor­tance of a dis­pute or speak some­what vague­ly of oppor­tu­ni­ties in the future. All this exists with the fight­er. And all that is ulti­mate­ly unin­ter­est­ing. The fight­er — and you must under­stand this when you meet one — the fight­er wants to pre­vail. He wants to win. The fight­er wants his will.

So, a squab­bler?

If you now want to get to the heart of the mat­ter, if terms like law­suit-mon­ger, squab­bler, quar­rel­er, etc. pop into your head, then this lit­tle con­tri­bu­tion will have to be con­tin­ued. Because then you haven’t quite grasped what I want to tell you. The fight­er can be very pru­dent. He may even seem hon­or­able. He may also delib­er­ate­ly refrain from cer­tain quar­rels because he defines his bat­tle zone in a dif­fer­ent way that is still unknown to you. Because he does not con­sid­er the time for an open bat­tle, with which he would have no prob­lems, to have come yet. The fight­er can be like that, but he can also come across as a very bad type, who lies and cheats or does­n’t seem to have him­self under con­trol at any time. All this is con­tin­gent, it is com­plete­ly ran­dom. It has absolute­ly noth­ing to do with the qual­i­ty of being a fight­er. The fight­er is con­cerned with some­thing else, yes, with some­thing high­er and at the same time also infi­nite­ly emp­ty: the suc­cess of his will. The fight­er wants to win, he wants to assert him­self, he wants to assert his will — pos­si­bly also at the price of his own down­fall.

The fight­er — and this dis­tin­guish­es him from the com­plain­er, who is often sim­ply a right-winger, a pure crit­ic — the fight­er cer­tain­ly acknowl­edges that he may be wrong. He is not blind-mind­ed per se, he just nev­er gives up. He may even be cir­cum­spect, reserved in demeanor, appear mod­est and qui­et, all of which is con­tin­gent, mean­ing: it is pure chance. What is deci­sive is that he fights. He fights, if he is a real fight­er, with all means, not only with those of the law, and that means he will not give up any advan­tage, unless he wants it that way, and he will not rest until it is irrefutably estab­lished, even from his point of view, that he is defeat­ed. Fight­ers do not die, they lose the appeal.

And how do you win?

When you encounter a fight­er, whether in the sup­ple­men­tal bat­tle or in the award process, give him some­thing to win. Show him an area — with­out telling him — where he can win. Again, show him, but don’t tell him. To get along with fight­ers, you have to be strong-willed your­self. But also unpre­ten­tious. You must — if you want to get ahead — be will­ing to lose. Don’t be upset or dis­ap­point­ed now! I am not ask­ing you to give in. On the con­trary, you as the client should be hap­py to win. Only, to do so, you must also lose some­thing. You have to give the fight­er some­thing to win if you want to have peace. An effec­tive means, for exam­ple, is to open anoth­er com­bat zone, which from your point of view is not so impor­tant, but which you must make extreme­ly impor­tant to the out­side world. Think of unpleas­ant, dan­ger­ous grounds for exclu­sion in the award pro­ce­dure, the exact con­tent of which has not yet been clar­i­fied by case law. Or of oth­er, soon-to-be-issued ten­ders that are less for­mal and leave you more room for maneu­ver. But don’t say it, for God’s sake. Nev­er say to the fight­er that if he does or does­n’t do this or that, you will. Show him. He has to fig­ure it out for him­self. Show him and let him win a bat­tle. While you are win­ning the war.

What Ted­dy Roo­sevelt teach­es us

Does the name Ted­dy Roo­sevelt sound famil­iar? A bear hunter and sol­dier, and ulti­mate­ly even U.S. pres­i­dent from the begin­ning of the 20th cen­tu­ry. A gift­ed ora­tor, razor-sharp ana­lyst, in short: a com­plete­ly dif­fer­ent cal­iber than the cur­rent incum­bent. He gave a famous speech in Paris in 1910. Its title is “Cit­i­zen­ship in a Repub­lic”. I don’t want to deprive you of the most famous quote from this speech — which is also one of my favorites. It reads as fol­lows: “It is not the crit­ic who counts; not the man who points out how the strong man stum­bles, or where the doer of deeds could have done them bet­ter. The cred­it belongs to the man who is actu­al­ly in the are­na, whose face is marred by dust and sweat and blood; who strives valiant­ly; who errs, who comes short again and again, because there is no effort with­out error and short­com­ing; but who does actu­al­ly strive to do the deeds; who knows great enthu­si­asms, the great devo­tions; who spends him­self in a wor­thy cause; who at the best knows in the end the tri­umph of high achieve­ment, and who at the worst, if he fails, at least fails while dar­ing great­ly, so that his place shall nev­er be with those cold and timid souls who nei­ther know vic­to­ry nor defeat.”

The fight­er may be over­do­ing it. Per­haps he is trapped in a Manichaean world view char­ac­ter­ized by antag­o­nisms. Pos­si­bly he also does not know his own inter­ests, only his will, which must be by no means iden­ti­cal with it. And per­haps this will is incon­ceiv­ably emp­ty. One thing, how­ev­er, our fight­er is not. He is not one of those cold and fear­ful souls, as Ted­dy Roo­sevelt calls them. The place of the fight­er is nev­er with the cold and fear­ful souls. And you have to hand it to him.

*This legal tip is not a sub­sti­tute for legal advice in indi­vid­ual cas­es. By its very nature, it is incom­plete, nor is it spe­cif­ic to your case, and it also rep­re­sents a snap­shot in time, as legal prin­ci­ples and case law change over time. It can­not and does not cov­er all con­ceiv­able con­stel­la­tions, serves enter­tain­ment and ini­tial ori­en­ta­tion pur­pos­es and is intend­ed to moti­vate you to clar­i­fy legal issues at an ear­ly stage, but not to dis­cour­age you from doing so.

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