July 3, 2014

Should Negotiations Be A Mandatory Law School Course?

Negotiating is an essential skill for a lawyer (or most anybody else, for that matter). You would therefore be entirely correct to assume that it is ordinarily taught during law school. But in my experience, it is far from required, and that is a shame.

The negotiating basics seem obvious: ask for more than you really expect, be persuasive, sound sincere when you say you will happily pursue other options if settlement is not possible, and the like. But the process is elusive at times. Reading your adversary can also be daunting, as can be knowing how to close gaps and bring seeming irresolute matters to an acceptable compromise. Worst of all, sometimes it seems there is no way of knowing whether you are doing a fabulous job or if you've just sold the farm for pennies.

When I was in law school many, many years ago, negotiations was an elective course that nobody I knew seemed to be taking, that no professors ever seemed to recommend, and that certainly never interested me. It was only 2 credits and was always offered at awkward times.

Besides, negotiating? Feh, I'm in law school, I'll take lawyerly classes. Of course, being a law student meant that I only knew a small fraction of what I thought I knew. It also meant I had no idea that I had no idea. So I graduated without the slightest idea about how negotiating factored into a lawyer's communications. Not just with my adversaries, but with counsel for other parties seemingly on the same side as my client, and, most importantly, with my own client.

In my 18 plus years of lawyering, I have handled criminal matters and civil cases that span from civil rights to all sorts of personal injury (both sides of the fence), various types of commercial cases, and even commercial real estate and trademark trials. Bit by bit, I've learned how to read other people's positions, how to gauge where they are most and least likely to compromise, and how to best get there.

Perhaps more importantly, I have learned that negotiating is a constant. In my own practice, I have found that my clients are often negotiating with me, staking out positions that are less a reflection of their actual position than a posture designed to persuade me to seek more. This is not a negative statement; I respect the thinking that lies behind the strategy. On the other hand, it is critical that our relationship with our clients allows us both the intimacy and clinical detachment to understand what they are really saying.

Similarly, I have come to learn that, in a way, all our communications with adversaries are part of the negotiation. They set the tone for future discussions and provide a basis for later, more meaningful conversations. If you believe that lawyers ought not to put on their negotiating hat until they are in "negotiations," then you do not fully understand the process.

Let me be clear about: I am not holding myself out as any kind of expert. I am absolutely certain that I have probably made enough mistakes to fill a book. My point is that I have steadily improved as a negotiator, and am always trying to get better.

It is a critical skill for litigators, and one I wish I had a better grasp of when I passed the bar. If law schools are supposed to help prepare students for the actual practice of law (I know, I know, but isn't that at least part of what they pretend to do?), then teaching basic negotiating skills and how to think about "Getting to Yes" ought to be a fundamental part of the curriculum.


  1. This applies to all fields.. I realized fairly quickly out of college that my education had not given me any practical business or negotiating prep. One of the many reasons I have a deep appreciation for the practice of law!

    1. Chiara -- Nobody I know learned the basics of negotiating in school. Some learned it at home (my maternal grandfather haggled over everything everywhere. Funny now, embarrassing then), and the rest pick it up on the job. Given that negotiating and advocacy are really two sides of the same coin, the need to impart some core skills before we're entrusted with too much responsibility seems obvious.