Everyone knows that lawyers should carefully assess their cases at the earliest appropriate time. In cases that are or might be litigated, lawyers often focus primarily or exclusively on estimating the expected court outcome (aka the BATNA value).
The LIRA book provides guidance for more thorough and systematic case assessments, including values for tangible costs and especially intangible costs and interests, which lawyers often ignore or don’t carefully consider. It describes how to combine these factors in developing bottom lines, and suggests how lawyers can work with clients to develop realistic assessments, goals, and strategies for litigation, negotiation, and mediation.
In other words, good lawyering. And techniques that mediators can use too.
The book focuses on civil litigation but the process can be adapted for criminal cases and transactional matters.
This semester, I have given a lot of presentations as a guest speaker in classes and CLE programs, some of which have been recorded and are posted here.
I just recorded two videos you might want to use in your courses next semester.
Helping Clients Using LIRA Techniques is especially appropriate for lawyering and ADR survey courses, though you might want to use it in negotiation or mediation courses too. It describes lawyers’ ethical duties to help clients make decisions and provides an overview of LIRA techniques. It mostly focuses on civil litigation, but also discusses how to use LIRA in criminal and transactional cases. It includes a brief advice for students to undertake continuous self-directed learning based on the Building a Better Bar Report. Here’s the powerpoint with links to resources which you might provide after students watch the video. December 2020. 43 minutes.
They Should Call It Negotiation School, Not Law School is a good way to start a negotiation course or the negotiation unit in an ADR survey course. It begins describing the hidden curriculum in law schools, which implies that legal doctrine based on appellate litigation is the central focus of legal work and largely ignores clients’ interests and negotiation. To correct this misimpression, it shows how lawyers use negotiation in virtually everything that they do. It describes the traditional negotiation models and recommends focusing on the variables comprising the models. It provides a brief overview of LIRA techniques and advises developing good relationships with clients and counterpart lawyers. It includes advice about participating in negotiation competitions and engaging in self-directed learning. Here’s the powerpoint with links to resources which you might provide after students watch the video. December 2020. 32 minutes.
Most schools will be operating fully or partially online next semester, and you might use these videos as materials for asynchronous instruction. After students watch the videos, you could discuss them with your class or invite me to do so.
If you want to give your students more useful tools than the traditional negotiation and mediation models, you might assign Concepts That Can Help Practitioners Help Parties Make Decisions in Disputes which identifies specific variables from the models to help practitioners (and students) communicate more clearly and to better plan, perform, and analyze their actions. This post summarizes the ACR / CUNY program described below and includes a video of the program. Many students wouldn’t have the patience to watch the two-hour discussion, but some might be interested to hear how these concepts can be used to address a wide range of issues that practitioners actually encounter in practice.
Here are videos of two CLE programs you or your students might want to watch.
They Should Call it Negotiation School, Not Law School. Straus Institute for Dispute Resolution at Pepperdine Caruso School of Law. Conversation with Sukhsimranjit Singh and Peter Robinson. November 2020. 1 hour, 41 minutes.
Helping Disputing Parties Make Decisions About What’s Really Important. Association for Conflict Resolution of Greater New York and CUNY Dispute Resolution Center at John Jay College. This program describes problems with traditional “bundled” negotiation and mediation models and suggests using unbundled variables instead. Here’s the powerpoint for the talk and a blog post based on the conversation. The presentation lasts 50 minutes, followed by more than an hour of Q&A. December 2020. 2 hours, 7 minutes.
