Teaching Students to Negotiate Like a Lawyer
Washington University Journal of Law and Policy, Vol. 39, p. 109, 2012
University of Missouri School of Law Legal Studies Research Paper No. 2012-20
37 Pages Posted: 18 Jun 2012
Date Written: June 18, 2012
Teaching students to negotiate effectively is central to their thinking, acting, and being like good lawyers. Virtually all lawyers spend much of their time negotiating, whether they deal with disputes or transactions. So law school negotiation courses should provide the most realistic possible portrayal of legal negotiation. This essay is intended to help instructors plan and teach negotiation courses, recognizing that every course should be tailored to fit the interests, capabilities, resources, and constraints of the instructors and students.
This essay argues that many lawyers engage in “ordinary legal negotiation” (OLN), which is distinct from “romantic” theories of positional and interest-based negotiation that comprise the canon of negotiation theory. These traditional theories focus on a single, dramatic settlement event to resolve the ultimate issues at stake through a series of counteroffers, in positional negotiation, or systematic analysis of parties’ interests and options, in interest-based negotiation. OLN primarily involves an exchange of information between counterpart lawyers to jointly figure out an appropriate result based on legal norms. In OLN, negotiation sounds more like a series of normal conversations where early conversations are important parts of negotiation (and not merely preparation for an ultimate settlement event). Although there is only sketchy empirical evidence about how often lawyers use these three models, it seems likely that lawyers regularly use OLN. If so, negotiation instructors should include it in their courses.
Simulated negotiations are the heart of most negotiation courses and instructors should structure their simulations to provide the most realistic possible experiences. Most simulations probably involve the single stage of negotiation focused on the ultimate resolution of a matter. Because lawyers normally do not “parachute” into a case right before the ultimate negotiations, instructors should consider using some multi-stage simulations in addition to single-stage simulations. Some important stages might include: (1) initial client interview, (2) negotiation of a retainer agreement, (3) developing good working relationships with counterpart lawyers, (4) conducting factual investigation and/or legal research, (5) working with counterparts to plan the negotiation process, (6) resolving discovery disputes, (7) preparing client for negotiations, (8) conducting an ultimate negotiation, (9) engaging a mediator and mediating the matter, and (10) drafting a settlement agreement. This essay suggests that by using both single-stage and multi-stage simulations, instructors can better prepare students for negotiations that they will actually conduct in practice. These suggestions grow out my book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money, which provides detailed suggestions for planning and conducting negotiation from the outset of a matter.
The essay also includes suggestions for promoting professional behavior by students, debriefing simulations, and designing course requirements. It describes my experiences teaching a negotiation course based on the suggestions in this essay.
Keywords: teaching, negotiation, lawyer, students, simulation, client interview, retainer, professional behavior, lawyering
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