LAWYER BARGAINING SYLLABUS
Course # Law-651-001
Thursdays 6:30 p.m.-9:10 p.m.
Spring 2014
Room: 526
Professor Susan Orlando Liu
sliu@american.edu
susan@susanorlandoliu.com
susanorlandoliu@gmail.com
202-746-2049
(October 30, 2013)
Class
#
1
DATE
SUBJECT
ASSIGNMENTS FOR CLASS
JANUARY
9TH
Introduction and
Orientation to Course;
Overview of Bargaining
Contexts and Processes;
Mediation
Getting to Yes (entire book to be
completed prior to 1st class)
2
JANUARY
16TH
Introduction to
Negotiation Theories and
the Bargaining Process
Text, Chapters 2, 4 and 5
Client Counseling and Decision
Making
#1 HSN/OCN Pre-simulation
Journal Due Monday January
20th at 6 pm via email)
3
JANUARY
23RD
Bargaining Strategies
and Styles
Text, Chapter 8
In class Simulated
Negotiation:
#1 HSN/OCN
4
5
JANUARY
30TH
FEBRUARY
6TH
Negotiation Planning and
Information Exchange
Text, Chapter 12
Text, Chapter 14 pages 257-268
Debrief: #1 HSN/OCN
Simulated Negotiation: #2
Jones/Perry (To Be Recorded
with Results Due Monday
February 3rd at 6 pm)
Negotiation Planning and
Offer Exchange
Text, Chapter 11
Text, Chapter 14, pages 268-270
and 278-280
Debrief: #2 Jones Perry
Due: #1 HSN/OCN Journals
CLASS DATE
6
FEBRUARY
13TH
SUBJECT
Negotiation Planning
Negotiating Tactics and
Techniques
ASSIGNMENTS FOR CLASS
Text, Chapter 12, App A-17, A18
Text, Chapter 10
Due: #2 Jones/Perry Journals
In Class Negotiation
7
8
Simulated Negotiation: #3
Klare v. Journal
(To Be Recorded/Negotiated with
Results due Monday February
17th at 6 pm)
Text, Chapter 14
FEBRUARY
20TH
Offer Exchange,
Persuasion
FEBRUARY
27TH
Debrief: #3 Klare v
Journal
No Class –Student
Meetings
TIMES AND ROOM NUMBER(S)
(TBD)
Simulated Negotiation: #4
Whitmore v Rice
(To Be Recorded/Negotiated with
Results due Monday March 3rd at
6 pm)
9
MARCH 6TH
Offer Exchange;
Counteroffers,
Concessions, Narrowing
the Differences and
Closure
Debrief: #4 Whitmore
Rice
10
11
MARCH 20TH
Negotiating in the Family
Context
(MARCH 13TH
SPRING
BREAK)
In Class simulation and
Debrief: #5 Bloch
MARCH 27TH
Ethics in Negotiation
Text, Chapter 14, Getting to Yes
Due: #3 Klare Journals
Simulated Negotiation: #5 Jane
Bloch v Henry Bloch
(Pre-Negotiation Journal due
Monday March 17th at midnight
by email)
Getting to Yes
Due: #4 Whitmore Rice Journal
In Class simulation:
#6 DONs
2
#6 DONS simulation to be
distributed. (Pre-Negotiation
Journal due Monday March 24th
at midnight by email)
Text, Chapter 9, and review
Chapters 2, 4 and 5
Due: #5 Bloch Journals
#
DATE
SUBJECT
ASSIGNMENT
12 APRIL
3RD
Debrief: #6 DONs
Text, Chapter 9
13 APRIL
10TH
Negotiating in Mediation
Text, Chapter 16
Due: #6 DONS Journals due
Landlord Tenant Mediation
(State v. Washington)
(Pre-negotiation Journals
Due Monday March 14th by midnight
by email)
14 APRIL
17TH
LAST
CLASS
Plea Bargaining in Criminal
Cases
In Class simulation:
#7 State v. Washington
(Simulation and Debrief to be
Done in Class)
Text, Chapter 19
Due: #7 State v Washington
Complete JournalApril 24th by 6 pm by mail slot or
email by arrangment
REQUIRED TEXTS
1. Getting to Yes, Fisher, Ury & Patton, Ed. (Penguin Books)
2. Legal Counseling, Negotiating and Mediating: A Practical Approach 2 nd
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)
3
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.
4
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
o Approximately 1 and 1/3 pages per journal entry.
o 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
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
6
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
the result?
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?
7
III. Post-Class Entry
1. 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?
2. 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?
3. 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?
4. 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?
5. 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?
6. 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?)
7. 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.
8. Analysis: How has my analysis been informed by the negotiation issues discussed
in class and by the readings?
9. 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?
8