2. Legal Counseling, Negotiating and Mediating: A Practical Approach 2nd Edition, G. Nicholas Herman, Jean M. Cary (LexisNexis 2009).
3. Supplemental Booklet Containing Cases & Materials for Simulated Negotiations, To be Distributed Based on Assigned Simulation Group ("A" or "B")
RECOMMENDED TEXTS 1. Gifford, Legal Negotiation: Theory & Practice (West)
2. Menkel-Meadow, Schneider, Love; Negotiation: Processes for Problem Solving (Aspen)
3. Chavkin, Clinical Legal Education: A Textbook for Law School Clinical Programs (Anderson)
LAWYER BARGAINING SPRING 2014
COURSE DESCRIPTION AND REQUIREMENTS Courtesy of Professor Norman Stein COURSE DESCRIPTION Professor Susan Orlando Liu
This course is about the theory, process, skills, and ethics of negotiation. Through simulations and discussions, you will learn to negotiate using various bargaining strategies and styles and negotiation skills, tactics and techniques. The simulations will provide practical, hands-on negotiation experience in the areas of business, civil, criminal and family law. The goal is for the students to gain experience and confidence managing difficult or stubborn opponents, developing effective themes and strategies to get better results for your clients, and becoming a more persuasive, ethical negotiator. COURSE DESIGN
This course is premised on the belief that there are principles, models and theories of lawyer negotiation that are critical to an understanding of negotiating skills. The readings and discussions in this course will attempt to expose you to this body of knowledge. However, the only way to understand the theories and skills is to actually practice it so this course each student will be given the opportunity to practice these skills by negotiating simulated cases against and/or with other students in the course.
Students will be required to conduct seven (7) negotiations. For four of the simulations, three pairs of students will have their negotiations recorded on a DVD for purposes of self or peer evaluation and critique. Classes will include the review and analysis of selected portions of the recorded negotiations done by students themselves during the week before class. The simulations will be varied and are designed to expose you to a number of different contexts of lawyer activity and areas of law. The other four simulations will be done in class.
COURSE REQUIREMENTS 1. The required course readings are set out in the course syllabus and students are expected to read and be familiar with the assigned materials for purposes of class
discussion and for fulfilling the journal requirement.
2. Approximately every other week students will be assigned a new case for
negotiation and will be assigned an opposing lawyer with whom the negotiation will be conducted. Each negotiation requires preparation, some of it substantial. Four of the seven negotiations will occur outside of class, and each team will schedule their negotiation independently. During the semester, every student will have the opportunity to record on a DVD for one simulation at the clinic offices. Prior to recording on a DVD at the clinic offices, the entire class will be provided with a detailed on-site orientation. Students are responsible for setting up the video time in advance of the deadlines.
Note: The video room is closed evenings (6:00 pm) & weekends. 3. THE JOURNAL REQUIREMENT
One of the requirements of this course is the keeping of a reflective journal, reflecting your preparation and analysis of most of the simulated negotiations to which you are assigned.
The journal should be a document through which you describe and analyze your goals and preparation for each negotiation, assess your performance with respect to those goals, and integrate what you have learned in light of the class discussions and the readings.
You are required to make a journal entry for each of the simulations before and after each simulated negotiation you conduct, as well as after the simulation is discussed in class.
Prior to each simulation, you are expected to make a journal entry discussing your goals and your plans for achieving them. After the simulation, you are to write a reflective evaluation of your performance for your journal. After we complete our review of each simulation in class, you will have one more week to complete your analysis, incorporating what you learned about your performance from the class discussion and reading. This round of journal entries should reflect substantial effort at exploring and discussing the interrelationship between the simulation, issues and theories discussed in class, and the assigned readings.
There is a limit of four (4) pages for each journal (approximately one and a third pages for each section of the journal). Your journal entries are due according to the deadlines outlined in the syllabus. Complete Journals include pre-negotiation, post negotiation and post debrief journal:
Single-spaced, Four (4) page maximum
Approximately 1 and 1/3 pages per journal entry.
Minimum of Four (4) citations per Complete Journal from “Legal Counseling, Negotiating, and Mediating” and/or “Getting to Yes”.
Cite exact page numbers for references (footnotes preferred).
4. Grading: 75% Journals and 25% Class participation.
Grades are not based on your performance in the simulations themselves, or the results that are achieved. I want to encourage you to experiment with different ideas and techniques in the negotiations without fear of failure or concern about grades. The focus of evaluation will be on your preparation and analysis of your preparation, the description and analysis of your performance in the negotiation session, reflection on the negotiation experience and performance, as well as your participation in class discussions and reflections on the discussions and readings, as expressed in the journal.
5. Because the good faith participation of all members of the class is essential for this teaching method to work, you are expected to come to every class, to participate in class discussions and to have done each simulation prior to the time it is discussed in class. Failure to do so will have a substantial impact on your grade in the course. Unavoidable absences should be communicated to me as far in advance as is possible. 6. While there is a significant amount of preparation time required, if each student and the professor live up to their respective responsibilities, it should be an enjoyable learning experience for all.
JOURNAL CONTENT SUGGESTIONS 1. Pre-Simulation Entry 1. Preparation: What steps have I taken to prepare for this session with opposing counsel? What research or planning did I do? Have I explored and adequately articulated the most effective themes and theories available to me? Based on this exploration and evaluation, what is the most effective theme to present?
2. Information: What information do I need from my opponent and what information that I have do I need to protect? How will I obtain the information I need? What questions will I ask? (Those questions should be set out in the journal.) What choices
do I have in the kinds of questions I ask and which questions will yield the most information? How will I protect information from being disclosed? How will I respond to questions seeking information I want to protect? (Like the questions you plan to ask, these responses should also be set out in the journal.)
3. Goals: What are my client's underlying needs and what are my opponent's? What interests are essential, important or desirable for my client and my opponent? What interests are shared, independent or conflicting with my opponent? What is my BATNA? What is my opponent’s BATNA? What are possible solutions to achieve my client’s goals?
4. Strategy/Style: What negotiation model do I wish to adopt and why is it the most appropriate for this negotiation? How can I be most persuasive? What style do I wish to adopt? Why that style and not another one? What negotiation strategy and style do I expect my opponent to adopt?
5. Offers: Should I make the first offer? What will it be? Will I gain or lose anything by making the first offer? What did I consider in deciding to make the first offer or to obtain the first offer from my opponent? What is my bargaining range? What is my opponent's range? What is my target point and resistance point? What are my opponent’s target point and resistance point? What is the order of offers I anticipate from my opponent? What commitment points do I want to establish and how will I justify them? What leverage points do I foresee both for me and for my opponent? How will I neutralize my opponent's leverage? What concessions am I willing to make and how will I justify them?
II. Post-Simulation Entry 1. The Bargaining Process: Provide an overview of the entire negotiation.
2. Preparation/Theme: In light of my performance, what could I have done better to prepare? To what extent did the negotiation go as I expected? What explains the difference? What was my theme? How effective was it?
3. Information: Did I get the information I needed to refine my bargaining position? Did I leak information I wanted to protect? How could I have better controlled the flow of information? What kinds of questions did I use to obtain information? How effective were they? Did I obtain information that my opponent wanted to protect? What did I do to keep my opponent from obtaining information I wanted to protect?
4.Agenda: Who controlled the agenda of the negotiation? Did my pre-planned agenda anticipate what actually occurred in the negotiation? How did the agenda contribute to
5. Strategy: Did my overall negotiation plan work? How could it have been different/better? What tactics did I employ and to what success? In what ways did my opponent's goals and strategies surprise me?
6. Persuasion: Was my case theory persuasive? Was I effective in persuading my opponent? Did I use threats or inducements to persuade my opponent? What other available resources did I use to persuade my opponent?
7. Style and Model of Negotiation: Describe the style and model employed by each negotiator. Was my negotiation style and model effective or not, and why? Was my opponent's style and model effective? Why? Were the styles and models utilized by each side complementary or clashing? Were the style and model I employed complementary or inconsistent? How did this influence the negotiation?
8. The Bargaining Process Revisited: Offers: Who made them? When? Why? Concessions: Describe the timing & pattern of concessions. Convergence: How did it occur?
10. Ethics: Did any ethical issues arise? Should I have anticipated them? How did I deal with them? What was the relationship between any ethical issues that arose and the result?
11. Results/Progress: To what extent did the results I achieved satisfy my client's needs and goals? Am I satisfied with them? Have I progressed in my ability to negotiate? What do I need to do in order to improve? What did I learn from this simulation?
Negotiation Planning: Was I familiar with facts and law? Were my strategies and tactics reasonably designed to the situation set out in the fact pattern? How well prepared was each party based on his/her performance and his/her apparent strategy?
Relationship between the negotiating parties: Describe word choice, attitude, tone, implied and explicit communication. Did this contribute to or detract from achieving client’s best interests?
Flexibility in Deviating from Plan or adapting strategy: Did I respond and adapt to the negotiation as it unfolded? Did my strategy and tactics seem scripted or otherwise pre-planned in a way that did not work effectively in the context of the actual negotiation? Did I adapt my strategy based on new information or unforeseen moves by opposing party/team?
Outcome of Negotiation: Did the outcome serve my client’s needs? Was the outcome better than my BATNA? Did I effectively advocate my client’s interests? Was this the best solution out of all available options that were available? Was it legitimate—no one feels taken? Was it realistic---commitments are realistic, clear and operational? Did outcome result in enhanced working relationship or an agreement to negotiate further?
Self Analysis: If you faced a similar situation tomorrow, what would you do the same what would you do differently? How well did your strategy work in relation to the outcome?
Negotiating Ethics: Did either side violate an ethical standard of the legal profession (Misrepresent a material fact? Exceed settlement authority? Invent self-serving material facts?)
References: The analysis in the post-class entry should include specific references to the required and/or recommended textbooks as well as negotiation theory, process, skills and ethics discussed in class.
Analysis: How has my analysis been informed by the negotiation issues discussed in class and by the readings?
Results and Progress: Have I achieved the results to the satisfaction of my client and what do I need to do to improve the results for my client in future simulations?