Lessons from Teaching Students to Negotiate Like a Lawyer

Abstract

The legal education system is in a major crisis now, in part because law schools do not prepare students adequately to practice law. Law schools should do a better job of teaching negotiation, in particular, because it is a significant part of the work of virtually every practicing lawyer. This includes lawyers who handle civil and criminal matters and lawyers who do litigation as well as those who do transactional work. Negotiation is especially important because most litigated cases are settled and virtually all unstandardized transactions are negotiated.

Most law school negotiation courses rely primarily or exclusively on simulations in which lawyers "parachute" into a case just before the final negotiations. In real life, however, negotiations grow out the preceding activities such as interviewing and counseling clients, obtaining necessary information, conducting legal research, and performing case management procedures. For law students to get a realistic understanding of how lawyers actually negotiate in the real world, it is important that they understand how negotiation fits into the "big picture" of legal practice. This article describes how my negotiation course provided students a more realistic experience of negotiation.

I wrote Teaching Students to Negotiate Like a Lawyer when I was preparing to teach negotiation for the first time. That article was a vehicle to develop some theories about better preparing students to practice law, which I tested in the Spring and Fall 2012 semesters at the University of Missouri School of Law. This article reports my observations from teaching those courses and offers suggestions for future efforts to improve legal education. My experience supports the (1) focus on negotiation in a wide range of situations in addition to the final resolution of disputes and transactions, (2) addition of "ordinary legal negotiation" to the two traditional theories of negotiation, and (3) use of multi-stage simulations in addition to traditional single-stage simulations. These approaches were critical in providing students with a more realistic understanding of negotiation. This article also describes experiments with other teaching techniques in my courses.

Keywords: legal education, legal education crisis, teaching, pedagogy, negotiation, negotiation theory, ordinary legal negotiation, simulation, single-stage simulation, multi-stage simulation