Law Commons^™

Pedr Is Important For Culture Change In Courts, John Lande

Faculty Blogs

This post highlights a report by the Institute for the Advancement of the American Legal System, Change the System, Change the Culture: Top 10 Cultural Shifts Needed to Create the Courts of Tomorrow. One of the recommended cultural shifts is “Dig Deep, Earlier: Lawyers need to develop a deep understanding of their case early in the process.”

What Makes Lawyers Happy? – And How Can You Help?, John Lande

Faculty Blogs

This post summarizes Lawrence Krieger and Kennon Sheldon’s impressive study, What Makes Lawyers Happy?: A Data-Driven Prescription to Redefine Professional Success. They write, “[T]he current data show that the psychological factors [related to subjective well-being] seen to erode during law school are the very factors most important for the well-being of lawyers. Conversely, the data reported here also indicate that the factors most emphasized in law schools – grades, honors, and potential career income, have nil to modest bearing on lawyer well-being.”

Tips For Lawyers Who Want To Get Good Results For Clients And Make Money, John M. Lande

Faculty Blogs

This post suggests that lawyers do the following to help clients achieve their goals: Understand your clients’ interests. Pay attention to what’s really important in your cases, not just the law or winning. Recognize the importance of emotions – especially yours. Get to know your counterpart lawyer. Make a habit of preparing to resolve matters at the earliest appropriate time. Be prepared to negotiate more than you might expect. Get help from mediators when needed. Be prepared to advocate hard and smart.

Introducing The 'New Handshake' To Expand Remedies And Revive Responsibility In Ecommerce, Amy J. Schmitz

Faculty Publications

There was a time when individuals would meet in person to make purchases and do deals. They would discuss the terms, assess the trustworthiness and character of their contracting partners, and conclude the deal with a handshake. The handshake helped ensure the enforcement of the deal without need for the rule of law or legal power. That handshake was one’s bond — it was a personal trust mark. With the emergence of eCommerce, however, that handshake has nearly disappeared along with the sense of responsibility it inspired. Accordingly, this article discusses how this has impacted consumers’ access to remedies regarding …

Taking Advantage Of Opportunities In Litigotiation, John M. Lande

Faculty Publications

This article is partially based on a study in which I interviewed respected lawyers about their negotiation processes in pretrial litigation. I asked these lawyers about their negotiation procedures generally, and I asked them to describe the last case they settled, starting with the first interaction with their clients in the matter. Although this article focuses on negotiation in the litigation context, some lawyers presumably use analogous procedures in transactional matters.

Planning Is Critically Important For Early Dispute Resolution, John Lande

Faculty Blogs

This post pushes back against a complaint by lawyers that early mediation is a waste of time. Attempts to settle cases early in litigation can be wasteful if the lawyers haven’t properly prepared and planned the process. Some people think that “early” means that lawyers should try to resolve the ultimate issues right after all the parties have appeared in litigation. This post uses the term “early” as a shorthand for “earliest appropriate time.” To be ready to settle at the earliest appropriate time, lawyers should promptly learn the parties’ interests and the critical facts, reasonably anticipate the likely decision …

Great Value Of Students Playing Clients In Multi-Stage Simulations, John Lande

Faculty Blogs

This post describes the great results when I used multi-stage simulations in negotiation and family law dispute resolution courses. To simulate real life, I developed several simulations that started from the first client interview. I included other stages, such as (1) negotiating retainer agreements, (2) identifying additional information needed, (3) getting to know counterpart lawyers, (4) researching and negotiating about the law, (5) negotiating dispute resolution clauses, (6) preparing for negotiation with clients and counterpart lawyers, and (7) negotiating the ultimate issues. Students playing lawyers got especially valuable experiences because the students playing clients identified so strongly with their roles.

Everything I Know About Dispute Resolution Is Wrong – Especially What You Say About It, John Lande

Faculty Blogs

This post describes an extremely provocative discussion in a session at the ABA Section of Dispute Resolution conference.

Illusions Of Competence, John Lande

Faculty Blogs

This post riffs on BARBRI’s “State of the Legal Field Survey” reporting that “71 percent of 3L law students believe they possess sufficient practice skills. In contrast, only 23 percent of practicing attorneys who work at companies that hire recent law school graduates believe recent law school graduates possess sufficient practice skills.” Making it personal, I asked readers if they would be confident that a recent law graduate would do a good job in handling a garden-variety legal case of theirs. I wouldn’t.

Minimizing Unnecessary Violence In Litigation And Other Dispute Resolution Processes, John Lande

Faculty Blogs

This post responds to a response to my post, Litigation as Violence. My fellow-blogger Jen Reynolds argued, “We in ADR should not undervalue, when analyzing the dispute resolution landscape, the regulatory function of litigation in the United States.” I agreed with Jen’s statement, noting that we sometimes too-glibly criticize the legal system without acknowledging the benefits it produces, which we often take for granted. This post provides a balanced assessment of litigation from Professor Cardi as well as my writing.

Litigation As Violence, John Lande

Faculty Blogs

The article describes the “litigation response syndrome” – adverse consequences merely from being engaged in litigation. Sometimes lawyers and law professors treat litigation as if was just a game, insensitive to the pain it causes to litigants and others swept up in it, possibly including the lawyers themselves. Cardi argues that before proceeding in litigation, lawyers and litigants should be prepared for the toll it may take.

We Need A Better Consensus About Negotiation Theory, John M. Lande

Faculty Blogs

This post advocates redefining the scope of negotiation to include the interactions leading up to the final negotiation. Legal matters often involve a stream of negotiations, not merely a single event at the end of a process. It also recommends focusing on the process of reaching agreement, not only the process of resolving disputes, including processes of reaching agreement where there is little or no dispute. It also suggests disaggregating traditional models and analyzing key variables separately instead of thinking in terms of two discrete, coherent models.

Problems With The System Of Negotiation Models, Part 2, John M. Lande

Faculty Blogs

This part describes two actual negotiations to illustrate problems with the traditional system of two negotiation models. These cases don’t fit neatly into either model.

Problems With The System Of Negotiation Models, Part 1, John M. Lande

Faculty Blogs

The current framework relies primarily on two models – positional and interest-based negotiation. This is not only a foundation of negotiation theory, but it is key to theory of lawyering, mediation, collaborative law, dispute system design and other areas of dispute resolution, other disciplines, as well as popular culture.

What Is (A)Dr About?, John M. Lande

Faculty Blogs

Description of the prompt what is ADR about? Part of the definitional problem is that we usually focus on small slices of a case, typically at the end, rather than looking at cases holistically. But that’s not how parties and lawyers typically experience them. Lawyers live with cases from their first contact with their clients about the problems. Parties start to deal with their conflicts even earlier than that.

Family Lawyering With Planned Early Negotiation, John M. Lande

Faculty Publications

Whether you know it or not, you may already be using planned early negotiation (PEN). As the term suggests, this process involves planning to negotiate your cases at the earliest appropriate time. Normally you can be ready to negotiate long before you are ready for trial.

This article summarizes PEN procedures based on interviews with excellent lawyers about how they handle their cases. For example, one lawyer said that he “prepares for settlement from day one of the lawsuit” and that he engages in a “constant process of evaluating the claim” throughout the litigation. Planning to negotiate from the outset …