Article. 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.