The right way to teach transactional lawyers: Commercial leasing and the forgotten "dirt lawyer"

University of Pittsburgh Law Review

Volumn 62, Issue 2, 2000, Pages 335-365

  Bogart, Daniel B ^a  

^a NONE

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EID: 0034563189     PISSN: 00419915     EISSN: None     Source Type: Journal    
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References (134)

1. E.g., Karl S. Okamato, Learning and Learning To Learn By Doing: Simulating Corporate Practice in Law School, 45 J. LEGAL EDUC. 498 (1995) (lamenting "the almost complete absence of 'lawyering' courses focusing on the work of transactional attorneys"). Professor Okamato's article does a very nice job of explaining the need to teach transactional lawyering in the normal law school curriculum, and then provides a solid and creative basis for teaching these skills in a course entitled "Advanced Corporate Practice."
2. The failure of law schools to teach the most elemental aspects of transactional practice forces law firms to take over this role. E.g., JoAnne D. Ganek, Successful Development for Transactional Lawyers, in IN-HOUSE TRAINING: MAXIMIZING YOUR LAWYERS' PROFESSIONAL POTENTIAL 165 (ALI-ABA Course of Study, Feb. 18, 1994).
3. E.g., Paul Brest, The Responsibility of Law Schools: Educating Lawyers as Counselors and Problem Solvers, LAW & CONTEMP. PROBS., Summer/Autumn 1995, at 5 ("American legal education is as strong as ever in doctrine and legal analysis. But it is strikingly weak in teaching other foundational skills and knowledge that lawyers need as counselors, problem solvers, negotiators, and as architects of transactions . . . ."). There is a growing and general dissatisfaction in some quarters with the model of legal education that focuses purely on theory. Perhaps the most vocal recent judicial critic of what law schools do is Judge Harry T. Edwards, Circuit Judge, United States Court of Appeals for the District of Columbia. See generally Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992). The judge asserts that the lines of communication and understanding between law professors and lawyers are failing, although he recognizes that law professors are not alone to blame. He states: The schools should be training ethical practitioners and producing scholarship that judges, legislators, and practitioners can use. . . . But many law schools . . . have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and pedagogy. . . . While the schools are moving toward pure theory, the firms are moving toward pure commerce, and the middle ground - ethical practice - has been deserted by both. Id. at 34. Judge Edward's primary focus in this piece is law professor scholarship, and its irrelevance to what most judges and lawyers do most of the time. Id.
4. E.g., Paul Brest, The Responsibility of Law Schools: Educating Lawyers as Counselors and Problem Solvers, LAW & CONTEMP. PROBS., Summer/Autumn 1995, at 5 ("American legal education is as strong as ever in doctrine and legal analysis. But it is strikingly weak in teaching other foundational skills and knowledge that lawyers need as counselors, problem solvers, negotiators, and as architects of transactions . . . ."). There is a growing and general dissatisfaction in some quarters with the model of legal education that focuses purely on theory. Perhaps the most vocal recent judicial critic of what law schools do is Judge Harry T. Edwards, Circuit Judge, United States Court of Appeals for the District of Columbia. See generally Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992). The judge asserts that the lines of communication and understanding between law professors and lawyers are failing, although he recognizes that law professors are not alone to blame. He states: The schools should be training ethical practitioners and producing scholarship that judges, legislators, and practitioners can use. . . . But many law schools . . . have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and pedagogy. . . . While the schools are moving toward pure theory, the firms are moving toward pure commerce, and the middle ground - ethical practice - has been deserted by both. Id. at 34. Judge Edward's primary focus in this piece is law professor scholarship, and its irrelevance to what most judges and lawyers do most of the time. Id.
5. E.g., Paul Brest, The Responsibility of Law Schools: Educating Lawyers as Counselors and Problem Solvers, LAW & CONTEMP. PROBS., Summer/Autumn 1995, at 5 ("American legal education is as strong as ever in doctrine and legal analysis. But it is strikingly weak in teaching other foundational skills and knowledge that lawyers need as counselors, problem solvers, negotiators, and as architects of transactions . . . ."). There is a growing and general dissatisfaction in some quarters with the model of legal education that focuses purely on theory. Perhaps the most vocal recent judicial critic of what law schools do is Judge Harry T. Edwards, Circuit Judge, United States Court of Appeals for the District of Columbia. See generally Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992). The judge asserts that the lines of communication and understanding between law professors and lawyers are failing, although he recognizes that law professors are not alone to blame. He states: The schools should be training ethical practitioners and producing scholarship that judges, legislators, and practitioners can use. . . . But many law schools . . . have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and pedagogy. . . . While the schools are moving toward pure theory, the firms are moving toward pure commerce, and the middle ground - ethical practice - has been deserted by both. Id. at 34. Judge Edward's primary focus in this piece is law professor scholarship, and its irrelevance to what most judges and lawyers do most of the time. Id.
6. E.g., Paul Brest, The Responsibility of Law Schools: Educating Lawyers as Counselors and Problem Solvers, LAW & CONTEMP. PROBS., Summer/Autumn 1995, at 5 ("American legal education is as strong as ever in doctrine and legal analysis. But it is strikingly weak in teaching other foundational skills and knowledge that lawyers need as counselors, problem solvers, negotiators, and as architects of transactions . . . ."). There is a growing and general dissatisfaction in some quarters with the model of legal education that focuses purely on theory. Perhaps the most vocal recent judicial critic of what law schools do is Judge Harry T. Edwards, Circuit Judge, United States Court of Appeals for the District of Columbia. See generally Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992). The judge asserts that the lines of communication and understanding between law professors and lawyers are failing, although he recognizes that law professors are not alone to blame. He states: The schools should be training ethical practitioners and producing scholarship that judges, legislators, and practitioners can use. . . . But many law schools . . . have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and pedagogy. . . . While the schools are moving toward pure theory, the firms are moving toward pure commerce, and the middle ground - ethical practice - has been deserted by both. Id. at 34. Judge Edward's primary focus in this piece is law professor scholarship, and its irrelevance to what most judges and lawyers do most of the time. Id.
7. One might compare this to medicine. Medical students are forced to choose "medicine" or "surgery" specialties at the end of the basic four-year stint. A good medical school would prepare students for either type of medical practice. Similarly, transactional lawyers have argued that law school should prepare students to move into this half of law practice.
8. E.g., Okamato, supra note 1; Lynne L. Dallas, Limited-Time Simulations in Business Law Classes, 45 J. LEGAL EDUC. 487 (1995) (corporate law).
9. E.g., Okamato, supra note 1; Lynne L. Dallas, Limited-Time Simulations in Business Law Classes, 45 J. LEGAL EDUC. 487 (1995) (corporate law).
10. Okamato, supra note 1.
11. The discussion of how this might occur in the "transactional" arena is still relatively recent. We have just scratched the surface for opportunities to accomplish this within the law school curriculum. For reasons I explain later in this article, I think that Lease Law presents an ideal forum to teach good transactional practice. I found Professor Okamato's article helpful as I refined my course. I hope that this description of Lease Law will be similarly helpful to other professors in the transactional area.
12. A teacher utilizing this approach must carefully choose the "basic document." As I am prone to tell students, the term "form document," when connected to sophisticated transactions, is misleading and inaccurate. For example, although landlords begin with a form of lease, it is often so heavily modified by the end of the negotiations that it barely resembles the starting document. Therefore, I chose as the basic document a typical (if lengthy) landlord's commercial office lease, since this is a very common document and something lawyers practicing in this area see often.
13. Others have also identified the connection between a lawyer's knowledge of legal substance and negotiation outcomes. However, these scholars have not yet fully explained the pedagogical implications of this insight. Some of this work comes from law professors. E.g., Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754 (1984) (providing a feminist approach to negotiations and an insightful comparison of problem solving and adversarial models of negotiation); Denton R. Moore & Jerry Tomlinson, The Use of Simulated Negotiation to Teach Substantive Law, 21 J. LEGAL EDUC. 579 (1969). Menkel-Meadow correctly points out that "[p]rincipled negotiations in the legal context may be more complex. . . ." Menkel-Meadow, supra, at 825. She states: In addition to proposals based on the parties' underlying needs, negotiators can focus on the legal merits as a justification for a particular proposal. Indeed, negotiators are told to use "the law" or "the facts" to make arguments or justify positions in analyzing how concessions can be justified in adversarial negotiations. Id. This author then suggests, however, that where parties have "widely divergent views of the [legal] merits" of a proposal, "negotiators may find themselves involved in precisely the sort of unproductive argumentation inherent in adversarial negotiation." Id. at 826. Although Professor Menkel-Meadow is right that disagreements over the state of the law can sometimes lead to unproductive and time-wasting give and take, the good lawyer knows that a disagreement among parties to negotiation also provides the good and prepared lawyer with an opportunity to advance her client's position. Not surprisingly, some of this literature comes from those best able to discern the connection between substantive legal knowledge and negotiations: sophisticated and active practitioners. E.g., Charles A. Goldstein & Sarah L. Weber, The Art of Negotiating, 37 N.Y.L. SCH. L. REV. 325 (1992). This is precisely the type of practitioner piece termed unhelpful thirty years ago by scholars advocating survey-style negotiations courses. Infra notes 42-44 and accompanying text. For example, this piece urges lawyers to "[u]nderstand [y]our [c]lient" and to work hard to develop appropriate and effective attitudes and reputations. Goldstein & Weber, supra, at 325. Yet it contributes an important element to an understanding of negotiations: a practice based knowledge of the connection between knowledge and success. Although not written with an academic edge (which may be a good thing) the words of these two practitioners are instructive: "Your knowledge will have a direct impact on your negotiating abilities. Here, as elsewhere, knowledge is power. Your knowledge of statutes and of the common law is indispensable and is one of the most important contributions you will make to the negotiating process." [Id. at 326.] These authors use as an example the meaning of a landlord's absolute consent to assignment of the lease, and suggest that parties do not have to "squander" time and energy negotiating this provision where the law is "clear." Id. As a result, it is not necessary for landlords' attorneys to "beat to death" these provisions during the drafting and negotiating of lease agreements. By contrast, these two lawyers suggest that the landlord's duty to mitigate damages may not be so firmly resolved and explained. Id. at 326-27. They state, "In such a context, it is worth everyone's resources to delineate the parties' respective rights and obligations carefully. In the course of . . . practice, [a lawyer] will learn what must be said and what is better left unsaid." Id. at 327. Clearly, the lawyer with the greater substantive knowledge, in addition to knowledge of different negotiating techniques, is better able to determine what is "better left unsaid." It is knowledge of the consequences of saying something that should not have been said - the substantive legal consequences - that informs a good lawyer.
14. Others have also identified the connection between a lawyer's knowledge of legal substance and negotiation outcomes. However, these scholars have not yet fully explained the pedagogical implications of this insight. Some of this work comes from law professors. E.g., Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754 (1984) (providing a feminist approach to negotiations and an insightful comparison of problem solving and adversarial models of negotiation); Denton R. Moore & Jerry Tomlinson, The Use of Simulated Negotiation to Teach Substantive Law, 21 J. LEGAL EDUC. 579 (1969). Menkel-Meadow correctly points out that "[p]rincipled negotiations in the legal context may be more complex. . . ." Menkel-Meadow, supra, at 825. She states: In addition to proposals based on the parties' underlying needs, negotiators can focus on the legal merits as a justification for a particular proposal. Indeed, negotiators are told to use "the law" or "the facts" to make arguments or justify positions in analyzing how concessions can be justified in adversarial negotiations. Id. This author then suggests, however, that where parties have "widely divergent views of the [legal] merits" of a proposal, "negotiators may find themselves involved in precisely the sort of unproductive argumentation inherent in adversarial negotiation." Id. at 826. Although Professor Menkel-Meadow is right that disagreements over the state of the law can sometimes lead to unproductive and time-wasting give and take, the good lawyer knows that a disagreement among parties to negotiation also provides the good and prepared lawyer with an opportunity to advance her client's position. Not surprisingly, some of this literature comes from those best able to discern the connection between substantive legal knowledge and negotiations: sophisticated and active practitioners. E.g., Charles A. Goldstein & Sarah L. Weber, The Art of Negotiating, 37 N.Y.L. SCH. L. REV. 325 (1992). This is precisely the type of practitioner piece termed unhelpful thirty years ago by scholars advocating survey-style negotiations courses. Infra notes 42-44 and accompanying text. For example, this piece urges lawyers to "[u]nderstand [y]our [c]lient" and to work hard to develop appropriate and effective attitudes and reputations. Goldstein & Weber, supra, at 325. Yet it contributes an important element to an understanding of negotiations: a practice based knowledge of the connection between knowledge and success. Although not written with an academic edge (which may be a good thing) the words of these two practitioners are instructive: "Your knowledge will have a direct impact on your negotiating abilities. Here, as elsewhere, knowledge is power. Your knowledge of statutes and of the common law is indispensable and is one of the most important contributions you will make to the negotiating process." [Id. at 326.] These authors use as an example the meaning of a landlord's absolute consent to assignment of the lease, and suggest that parties do not have to "squander" time and energy negotiating this provision where the law is "clear." Id. As a result, it is not necessary for landlords' attorneys to "beat to death" these provisions during the drafting and negotiating of lease agreements. By contrast, these two lawyers suggest that the landlord's duty to mitigate damages may not be so firmly resolved and explained. Id. at 326-27. They state, "In such a context, it is worth everyone's resources to delineate the parties' respective rights and obligations carefully. In the course of . . . practice, [a lawyer] will learn what must be said and what is better left unsaid." Id. at 327. Clearly, the lawyer with the greater substantive knowledge, in addition to knowledge of different negotiating techniques, is better able to determine what is "better left unsaid." It is knowledge of the consequences of saying something that should not have been said - the substantive legal consequences - that informs a good lawyer.
15. Others have also identified the connection between a lawyer's knowledge of legal substance and negotiation outcomes. However, these scholars have not yet fully explained the pedagogical implications of this insight. Some of this work comes from law professors. E.g., Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754 (1984) (providing a feminist approach to negotiations and an insightful comparison of problem solving and adversarial models of negotiation); Denton R. Moore & Jerry Tomlinson, The Use of Simulated Negotiation to Teach Substantive Law, 21 J. LEGAL EDUC. 579 (1969). Menkel-Meadow correctly points out that "[p]rincipled negotiations in the legal context may be more complex. . . ." Menkel-Meadow, supra, at 825. She states: In addition to proposals based on the parties' underlying needs, negotiators can focus on the legal merits as a justification for a particular proposal. Indeed, negotiators are told to use "the law" or "the facts" to make arguments or justify positions in analyzing how concessions can be justified in adversarial negotiations. Id. This author then suggests, however, that where parties have "widely divergent views of the [legal] merits" of a proposal, "negotiators may find themselves involved in precisely the sort of unproductive argumentation inherent in adversarial negotiation." Id. at 826. Although Professor Menkel-Meadow is right that disagreements over the state of the law can sometimes lead to unproductive and time-wasting give and take, the good lawyer knows that a disagreement among parties to negotiation also provides the good and prepared lawyer with an opportunity to advance her client's position. Not surprisingly, some of this literature comes from those best able to discern the connection between substantive legal knowledge and negotiations: sophisticated and active practitioners. E.g., Charles A. Goldstein & Sarah L. Weber, The Art of Negotiating, 37 N.Y.L. SCH. L. REV. 325 (1992). This is precisely the type of practitioner piece termed unhelpful thirty years ago by scholars advocating survey-style negotiations courses. Infra notes 42-44 and accompanying text. For example, this piece urges lawyers to "[u]nderstand [y]our [c]lient" and to work hard to develop appropriate and effective attitudes and reputations. Goldstein & Weber, supra, at 325. Yet it contributes an important element to an understanding of negotiations: a practice based knowledge of the connection between knowledge and success. Although not written with an academic edge (which may be a good thing) the words of these two practitioners are instructive: "Your knowledge will have a direct impact on your negotiating abilities. Here, as elsewhere, knowledge is power. Your knowledge of statutes and of the common law is indispensable and is one of the most important contributions you will make to the negotiating process." [Id. at 326.] These authors use as an example the meaning of a landlord's absolute consent to assignment of the lease, and suggest that parties do not have to "squander" time and energy negotiating this provision where the law is "clear." Id. As a result, it is not necessary for landlords' attorneys to "beat to death" these provisions during the drafting and negotiating of lease agreements. By contrast, these two lawyers suggest that the landlord's duty to mitigate damages may not be so firmly resolved and explained. Id. at 326-27. They state, "In such a context, it is worth everyone's resources to delineate the parties' respective rights and obligations carefully. In the course of . . . practice, [a lawyer] will learn what must be said and what is better left unsaid." Id. at 327. Clearly, the lawyer with the greater substantive knowledge, in addition to knowledge of different negotiating techniques, is better able to determine what is "better left unsaid." It is knowledge of the consequences of saying something that should not have been said - the substantive legal consequences - that informs a good lawyer.
16. Others have also identified the connection between a lawyer's knowledge of legal substance and negotiation outcomes. However, these scholars have not yet fully explained the pedagogical implications of this insight. Some of this work comes from law professors. E.g., Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754 (1984) (providing a feminist approach to negotiations and an insightful comparison of problem solving and adversarial models of negotiation); Denton R. Moore & Jerry Tomlinson, The Use of Simulated Negotiation to Teach Substantive Law, 21 J. LEGAL EDUC. 579 (1969). Menkel-Meadow correctly points out that "[p]rincipled negotiations in the legal context may be more complex. . . ." Menkel-Meadow, supra, at 825. She states: In addition to proposals based on the parties' underlying needs, negotiators can focus on the legal merits as a justification for a particular proposal. Indeed, negotiators are told to use "the law" or "the facts" to make arguments or justify positions in analyzing how concessions can be justified in adversarial negotiations. Id. This author then suggests, however, that where parties have "widely divergent views of the [legal] merits" of a proposal, "negotiators may find themselves involved in precisely the sort of unproductive argumentation inherent in adversarial negotiation." Id. at 826. Although Professor Menkel-Meadow is right that disagreements over the state of the law can sometimes lead to unproductive and time-wasting give and take, the good lawyer knows that a disagreement among parties to negotiation also provides the good and prepared lawyer with an opportunity to advance her client's position. Not surprisingly, some of this literature comes from those best able to discern the connection between substantive legal knowledge and negotiations: sophisticated and active practitioners. E.g., Charles A. Goldstein & Sarah L. Weber, The Art of Negotiating, 37 N.Y.L. SCH. L. REV. 325 (1992). This is precisely the type of practitioner piece termed unhelpful thirty years ago by scholars advocating survey-style negotiations courses. Infra notes 42-44 and accompanying text. For example, this piece urges lawyers to "[u]nderstand [y]our [c]lient" and to work hard to develop appropriate and effective attitudes and reputations. Goldstein & Weber, supra, at 325. Yet it contributes an important element to an understanding of negotiations: a practice based knowledge of the connection between knowledge and success. Although not written with an academic edge (which may be a good thing) the words of these two practitioners are instructive: "Your knowledge will have a direct impact on your negotiating abilities. Here, as elsewhere, knowledge is power. Your knowledge of statutes and of the common law is indispensable and is one of the most important contributions you will make to the negotiating process." [Id. at 326.] These authors use as an example the meaning of a landlord's absolute consent to assignment of the lease, and suggest that parties do not have to "squander" time and energy negotiating this provision where the law is "clear." Id. As a result, it is not necessary for landlords' attorneys to "beat to death" these provisions during the drafting and negotiating of lease agreements. By contrast, these two lawyers suggest that the landlord's duty to mitigate damages may not be so firmly resolved and explained. Id. at 326-27. They state, "In such a context, it is worth everyone's resources to delineate the parties' respective rights and obligations carefully. In the course of . . . practice, [a lawyer] will learn what must be said and what is better left unsaid." Id. at 327. Clearly, the lawyer with the greater substantive knowledge, in addition to knowledge of different negotiating techniques, is better able to determine what is "better left unsaid." It is knowledge of the consequences of saying something that should not have been said - the substantive legal consequences - that informs a good lawyer.
17. Others have also identified the connection between a lawyer's knowledge of legal substance and negotiation outcomes. However, these scholars have not yet fully explained the pedagogical implications of this insight. Some of this work comes from law professors. E.g., Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754 (1984) (providing a feminist approach to negotiations and an insightful comparison of problem solving and adversarial models of negotiation); Denton R. Moore & Jerry Tomlinson, The Use of Simulated Negotiation to Teach Substantive Law, 21 J. LEGAL EDUC. 579 (1969). Menkel-Meadow correctly points out that "[p]rincipled negotiations in the legal context may be more complex. . . ." Menkel-Meadow, supra, at 825. She states: In addition to proposals based on the parties' underlying needs, negotiators can focus on the legal merits as a justification for a particular proposal. Indeed, negotiators are told to use "the law" or "the facts" to make arguments or justify positions in analyzing how concessions can be justified in adversarial negotiations. Id. This author then suggests, however, that where parties have "widely divergent views of the [legal] merits" of a proposal, "negotiators may find themselves involved in precisely the sort of unproductive argumentation inherent in adversarial negotiation." Id. at 826. Although Professor Menkel-Meadow is right that disagreements over the state of the law can sometimes lead to unproductive and time-wasting give and take, the good lawyer knows that a disagreement among parties to negotiation also provides the good and prepared lawyer with an opportunity to advance her client's position. Not surprisingly, some of this literature comes from those best able to discern the connection between substantive legal knowledge and negotiations: sophisticated and active practitioners. E.g., Charles A. Goldstein & Sarah L. Weber, The Art of Negotiating, 37 N.Y.L. SCH. L. REV. 325 (1992). This is precisely the type of practitioner piece termed unhelpful thirty years ago by scholars advocating survey-style negotiations courses. Infra notes 42-44 and accompanying text. For example, this piece urges lawyers to "[u]nderstand [y]our [c]lient" and to work hard to develop appropriate and effective attitudes and reputations. Goldstein & Weber, supra, at 325. Yet it contributes an important element to an understanding of negotiations: a practice based knowledge of the connection between knowledge and success. Although not written with an academic edge (which may be a good thing) the words of these two practitioners are instructive: "Your knowledge will have a direct impact on your negotiating abilities. Here, as elsewhere, knowledge is power. Your knowledge of statutes and of the common law is indispensable and is one of the most important contributions you will make to the negotiating process." [Id. at 326.] These authors use as an example the meaning of a landlord's absolute consent to assignment of the lease, and suggest that parties do not have to "squander" time and energy negotiating this provision where the law is "clear." Id. As a result, it is not necessary for landlords' attorneys to "beat to death" these provisions during the drafting and negotiating of lease agreements. By contrast, these two lawyers suggest that the landlord's duty to mitigate damages may not be so firmly resolved and explained. Id. at 326-27. They state, "In such a context, it is worth everyone's resources to delineate the parties' respective rights and obligations carefully. In the course of . . . practice, [a lawyer] will learn what must be said and what is better left unsaid." Id. at 327. Clearly, the lawyer with the greater substantive knowledge, in addition to knowledge of different negotiating techniques, is better able to determine what is "better left unsaid." It is knowledge of the consequences of saying something that should not have been said - the substantive legal consequences - that informs a good lawyer.
18. Others have also identified the connection between a lawyer's knowledge of legal substance and negotiation outcomes. However, these scholars have not yet fully explained the pedagogical implications of this insight. Some of this work comes from law professors. E.g., Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754 (1984) (providing a feminist approach to negotiations and an insightful comparison of problem solving and adversarial models of negotiation); Denton R. Moore & Jerry Tomlinson, The Use of Simulated Negotiation to Teach Substantive Law, 21 J. LEGAL EDUC. 579 (1969). Menkel-Meadow correctly points out that "[p]rincipled negotiations in the legal context may be more complex. . . ." Menkel-Meadow, supra, at 825. She states: In addition to proposals based on the parties' underlying needs, negotiators can focus on the legal merits as a justification for a particular proposal. Indeed, negotiators are told to use "the law" or "the facts" to make arguments or justify positions in analyzing how concessions can be justified in adversarial negotiations. Id. This author then suggests, however, that where parties have "widely divergent views of the [legal] merits" of a proposal, "negotiators may find themselves involved in precisely the sort of unproductive argumentation inherent in adversarial negotiation." Id. at 826. Although Professor Menkel-Meadow is right that disagreements over the state of the law can sometimes lead to unproductive and time-wasting give and take, the good lawyer knows that a disagreement among parties to negotiation also provides the good and prepared lawyer with an opportunity to advance her client's position. Not surprisingly, some of this literature comes from those best able to discern the connection between substantive legal knowledge and negotiations: sophisticated and active practitioners. E.g., Charles A. Goldstein & Sarah L. Weber, The Art of Negotiating, 37 N.Y.L. SCH. L. REV. 325 (1992). This is precisely the type of practitioner piece termed unhelpful thirty years ago by scholars advocating survey-style negotiations courses. Infra notes 42-44 and accompanying text. For example, this piece urges lawyers to "[u]nderstand [y]our [c]lient" and to work hard to develop appropriate and effective attitudes and reputations. Goldstein & Weber, supra, at 325. Yet it contributes an important element to an understanding of negotiations: a practice based knowledge of the connection between knowledge and success. Although not written with an academic edge (which may be a good thing) the words of these two practitioners are instructive: "Your knowledge will have a direct impact on your negotiating abilities. Here, as elsewhere, knowledge is power. Your knowledge of statutes and of the common law is indispensable and is one of the most important contributions you will make to the negotiating process." [Id. at 326.] These authors use as an example the meaning of a landlord's absolute consent to assignment of the lease, and suggest that parties do not have to "squander" time and energy negotiating this provision where the law is "clear." Id. As a result, it is not necessary for landlords' attorneys to "beat to death" these provisions during the drafting and negotiating of lease agreements. By contrast, these two lawyers suggest that the landlord's duty to mitigate damages may not be so firmly resolved and explained. Id. at 326-27. They state, "In such a context, it is worth everyone's resources to delineate the parties' respective rights and obligations carefully. In the course of . . . practice, [a lawyer] will learn what must be said and what is better left unsaid." Id. at 327. Clearly, the lawyer with the greater substantive knowledge, in addition to knowledge of different negotiating techniques, is better able to determine what is "better left unsaid." It is knowledge of the consequences of saying something that should not have been said - the substantive legal consequences - that informs a good lawyer.
19. Others have also identified the connection between a lawyer's knowledge of legal substance and negotiation outcomes. However, these scholars have not yet fully explained the pedagogical implications of this insight. Some of this work comes from law professors. E.g., Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754 (1984) (providing a feminist approach to negotiations and an insightful comparison of problem solving and adversarial models of negotiation); Denton R. Moore & Jerry Tomlinson, The Use of Simulated Negotiation to Teach Substantive Law, 21 J. LEGAL EDUC. 579 (1969). Menkel-Meadow correctly points out that "[p]rincipled negotiations in the legal context may be more complex. . . ." Menkel-Meadow, supra, at 825. She states: In addition to proposals based on the parties' underlying needs, negotiators can focus on the legal merits as a justification for a particular proposal. Indeed, negotiators are told to use "the law" or "the facts" to make arguments or justify positions in analyzing how concessions can be justified in adversarial negotiations. Id. This author then suggests, however, that where parties have "widely divergent views of the [legal] merits" of a proposal, "negotiators may find themselves involved in precisely the sort of unproductive argumentation inherent in adversarial negotiation." Id. at 826. Although Professor Menkel-Meadow is right that disagreements over the state of the law can sometimes lead to unproductive and time-wasting give and take, the good lawyer knows that a disagreement among parties to negotiation also provides the good and prepared lawyer with an opportunity to advance her client's position. Not surprisingly, some of this literature comes from those best able to discern the connection between substantive legal knowledge and negotiations: sophisticated and active practitioners. E.g., Charles A. Goldstein & Sarah L. Weber, The Art of Negotiating, 37 N.Y.L. SCH. L. REV. 325 (1992). This is precisely the type of practitioner piece termed unhelpful thirty years ago by scholars advocating survey-style negotiations courses. Infra notes 42-44 and accompanying text. For example, this piece urges lawyers to "[u]nderstand [y]our [c]lient" and to work hard to develop appropriate and effective attitudes and reputations. Goldstein & Weber, supra, at 325. Yet it contributes an important element to an understanding of negotiations: a practice based knowledge of the connection between knowledge and success. Although not written with an academic edge (which may be a good thing) the words of these two practitioners are instructive: "Your knowledge will have a direct impact on your negotiating abilities. Here, as elsewhere, knowledge is power. Your knowledge of statutes and of the common law is indispensable and is one of the most important contributions you will make to the negotiating process." [Id. at 326.] These authors use as an example the meaning of a landlord's absolute consent to assignment of the lease, and suggest that parties do not have to "squander" time and energy negotiating this provision where the law is "clear." Id. As a result, it is not necessary for landlords' attorneys to "beat to death" these provisions during the drafting and negotiating of lease agreements. By contrast, these two lawyers suggest that the landlord's duty to mitigate damages may not be so firmly resolved and explained. Id. at 326-27. They state, "In such a context, it is worth everyone's resources to delineate the parties' respective rights and obligations carefully. In the course of . . . practice, [a lawyer] will learn what must be said and what is better left unsaid." Id. at 327. Clearly, the lawyer with the greater substantive knowledge, in addition to knowledge of different negotiating techniques, is better able to determine what is "better left unsaid." It is knowledge of the consequences of saying something that should not have been said - the substantive legal consequences - that informs a good lawyer.
20. Others have also identified the connection between a lawyer's knowledge of legal substance and negotiation outcomes. However, these scholars have not yet fully explained the pedagogical implications of this insight. Some of this work comes from law professors. E.g., Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754 (1984) (providing a feminist approach to negotiations and an insightful comparison of problem solving and adversarial models of negotiation); Denton R. Moore & Jerry Tomlinson, The Use of Simulated Negotiation to Teach Substantive Law, 21 J. LEGAL EDUC. 579 (1969). Menkel-Meadow correctly points out that "[p]rincipled negotiations in the legal context may be more complex. . . ." Menkel-Meadow, supra, at 825. She states: In addition to proposals based on the parties' underlying needs, negotiators can focus on the legal merits as a justification for a particular proposal. Indeed, negotiators are told to use "the law" or "the facts" to make arguments or justify positions in analyzing how concessions can be justified in adversarial negotiations. Id. This author then suggests, however, that where parties have "widely divergent views of the [legal] merits" of a proposal, "negotiators may find themselves involved in precisely the sort of unproductive argumentation inherent in adversarial negotiation." Id. at 826. Although Professor Menkel-Meadow is right that disagreements over the state of the law can sometimes lead to unproductive and time-wasting give and take, the good lawyer knows that a disagreement among parties to negotiation also provides the good and prepared lawyer with an opportunity to advance her client's position. Not surprisingly, some of this literature comes from those best able to discern the connection between substantive legal knowledge and negotiations: sophisticated and active practitioners. E.g., Charles A. Goldstein & Sarah L. Weber, The Art of Negotiating, 37 N.Y.L. SCH. L. REV. 325 (1992). This is precisely the type of practitioner piece termed unhelpful thirty years ago by scholars advocating survey-style negotiations courses. Infra notes 42-44 and accompanying text. For example, this piece urges lawyers to "[u]nderstand [y]our [c]lient" and to work hard to develop appropriate and effective attitudes and reputations. Goldstein & Weber, supra, at 325. Yet it contributes an important element to an understanding of negotiations: a practice based knowledge of the connection between knowledge and success. Although not written with an academic edge (which may be a good thing) the words of these two practitioners are instructive: "Your knowledge will have a direct impact on your negotiating abilities. Here, as elsewhere, knowledge is power. Your knowledge of statutes and of the common law is indispensable and is one of the most important contributions you will make to the negotiating process." [Id. at 326.] These authors use as an example the meaning of a landlord's absolute consent to assignment of the lease, and suggest that parties do not have to "squander" time and energy negotiating this provision where the law is "clear." Id. As a result, it is not necessary for landlords' attorneys to "beat to death" these provisions during the drafting and negotiating of lease agreements. By contrast, these two lawyers suggest that the landlord's duty to mitigate damages may not be so firmly resolved and explained. Id. at 326-27. They state, "In such a context, it is worth everyone's resources to delineate the parties' respective rights and obligations carefully. In the course of . . . practice, [a lawyer] will learn what must be said and what is better left unsaid." Id. at 327. Clearly, the lawyer with the greater substantive knowledge, in addition to knowledge of different negotiating techniques, is better able to determine what is "better left unsaid." It is knowledge of the consequences of saying something that should not have been said - the substantive legal consequences - that informs a good lawyer.
21. Others have also identified the connection between a lawyer's knowledge of legal substance and negotiation outcomes. However, these scholars have not yet fully explained the pedagogical implications of this insight. Some of this work comes from law professors. E.g., Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754 (1984) (providing a feminist approach to negotiations and an insightful comparison of problem solving and adversarial models of negotiation); Denton R. Moore & Jerry Tomlinson, The Use of Simulated Negotiation to Teach Substantive Law, 21 J. LEGAL EDUC. 579 (1969). Menkel-Meadow correctly points out that "[p]rincipled negotiations in the legal context may be more complex. . . ." Menkel-Meadow, supra, at 825. She states: In addition to proposals based on the parties' underlying needs, negotiators can focus on the legal merits as a justification for a particular proposal. Indeed, negotiators are told to use "the law" or "the facts" to make arguments or justify positions in analyzing how concessions can be justified in adversarial negotiations. Id. This author then suggests, however, that where parties have "widely divergent views of the [legal] merits" of a proposal, "negotiators may find themselves involved in precisely the sort of unproductive argumentation inherent in adversarial negotiation." Id. at 826. Although Professor Menkel-Meadow is right that disagreements over the state of the law can sometimes lead to unproductive and time-wasting give and take, the good lawyer knows that a disagreement among parties to negotiation also provides the good and prepared lawyer with an opportunity to advance her client's position. Not surprisingly, some of this literature comes from those best able to discern the connection between substantive legal knowledge and negotiations: sophisticated and active practitioners. E.g., Charles A. Goldstein & Sarah L. Weber, The Art of Negotiating, 37 N.Y.L. SCH. L. REV. 325 (1992). This is precisely the type of practitioner piece termed unhelpful thirty years ago by scholars advocating survey-style negotiations courses. Infra notes 42-44 and accompanying text. For example, this piece urges lawyers to "[u]nderstand [y]our [c]lient" and to work hard to develop appropriate and effective attitudes and reputations. Goldstein & Weber, supra, at 325. Yet it contributes an important element to an understanding of negotiations: a practice based knowledge of the connection between knowledge and success. Although not written with an academic edge (which may be a good thing) the words of these two practitioners are instructive: "Your knowledge will have a direct impact on your negotiating abilities. Here, as elsewhere, knowledge is power. Your knowledge of statutes and of the common law is indispensable and is one of the most important contributions you will make to the negotiating process." [Id. at 326.] These authors use as an example the meaning of a landlord's absolute consent to assignment of the lease, and suggest that parties do not have to "squander" time and energy negotiating this provision where the law is "clear." Id. As a result, it is not necessary for landlords' attorneys to "beat to death" these provisions during the drafting and negotiating of lease agreements. By contrast, these two lawyers suggest that the landlord's duty to mitigate damages may not be so firmly resolved and explained. Id. at 326-27. They state, "In such a context, it is worth everyone's resources to delineate the parties' respective rights and obligations carefully. In the course of . . . practice, [a lawyer] will learn what must be said and what is better left unsaid." Id. at 327. Clearly, the lawyer with the greater substantive knowledge, in addition to knowledge of different negotiating techniques, is better able to determine what is "better left unsaid." It is knowledge of the consequences of saying something that should not have been said - the substantive legal consequences - that informs a good lawyer.
22. Others have also identified the connection between a lawyer's knowledge of legal substance and negotiation outcomes. However, these scholars have not yet fully explained the pedagogical implications of this insight. Some of this work comes from law professors. E.g., Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754 (1984) (providing a feminist approach to negotiations and an insightful comparison of problem solving and adversarial models of negotiation); Denton R. Moore & Jerry Tomlinson, The Use of Simulated Negotiation to Teach Substantive Law, 21 J. LEGAL EDUC. 579 (1969). Menkel-Meadow correctly points out that "[p]rincipled negotiations in the legal context may be more complex. . . ." Menkel-Meadow, supra, at 825. She states: In addition to proposals based on the parties' underlying needs, negotiators can focus on the legal merits as a justification for a particular proposal. Indeed, negotiators are told to use "the law" or "the facts" to make arguments or justify positions in analyzing how concessions can be justified in adversarial negotiations. Id. This author then suggests, however, that where parties have "widely divergent views of the [legal] merits" of a proposal, "negotiators may find themselves involved in precisely the sort of unproductive argumentation inherent in adversarial negotiation." Id. at 826. Although Professor Menkel-Meadow is right that disagreements over the state of the law can sometimes lead to unproductive and time-wasting give and take, the good lawyer knows that a disagreement among parties to negotiation also provides the good and prepared lawyer with an opportunity to advance her client's position. Not surprisingly, some of this literature comes from those best able to discern the connection between substantive legal knowledge and negotiations: sophisticated and active practitioners. E.g., Charles A. Goldstein & Sarah L. Weber, The Art of Negotiating, 37 N.Y.L. SCH. L. REV. 325 (1992). This is precisely the type of practitioner piece termed unhelpful thirty years ago by scholars advocating survey-style negotiations courses. Infra notes 42-44 and accompanying text. For example, this piece urges lawyers to "[u]nderstand [y]our [c]lient" and to work hard to develop appropriate and effective attitudes and reputations. Goldstein & Weber, supra, at 325. Yet it contributes an important element to an understanding of negotiations: a practice based knowledge of the connection between knowledge and success. Although not written with an academic edge (which may be a good thing) the words of these two practitioners are instructive: "Your knowledge will have a direct impact on your negotiating abilities. Here, as elsewhere, knowledge is power. Your knowledge of statutes and of the common law is indispensable and is one of the most important contributions you will make to the negotiating process." [Id. at 326.] These authors use as an example the meaning of a landlord's absolute consent to assignment of the lease, and suggest that parties do not have to "squander" time and energy negotiating this provision where the law is "clear." Id. As a result, it is not necessary for landlords' attorneys to "beat to death" these provisions during the drafting and negotiating of lease agreements. By contrast, these two lawyers suggest that the landlord's duty to mitigate damages may not be so firmly resolved and explained. Id. at 326-27. They state, "In such a context, it is worth everyone's resources to delineate the parties' respective rights and obligations carefully. In the course of . . . practice, [a lawyer] will learn what must be said and what is better left unsaid." Id. at 327. Clearly, the lawyer with the greater substantive knowledge, in addition to knowledge of different negotiating techniques, is better able to determine what is "better left unsaid." It is knowledge of the consequences of saying something that should not have been said - the substantive legal consequences - that informs a good lawyer.
23. Others have also identified the connection between a lawyer's knowledge of legal substance and negotiation outcomes. However, these scholars have not yet fully explained the pedagogical implications of this insight. Some of this work comes from law professors. E.g., Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754 (1984) (providing a feminist approach to negotiations and an insightful comparison of problem solving and adversarial models of negotiation); Denton R. Moore & Jerry Tomlinson, The Use of Simulated Negotiation to Teach Substantive Law, 21 J. LEGAL EDUC. 579 (1969). Menkel-Meadow correctly points out that "[p]rincipled negotiations in the legal context may be more complex. . . ." Menkel-Meadow, supra, at 825. She states: In addition to proposals based on the parties' underlying needs, negotiators can focus on the legal merits as a justification for a particular proposal. Indeed, negotiators are told to use "the law" or "the facts" to make arguments or justify positions in analyzing how concessions can be justified in adversarial negotiations. Id. This author then suggests, however, that where parties have "widely divergent views of the [legal] merits" of a proposal, "negotiators may find themselves involved in precisely the sort of unproductive argumentation inherent in adversarial negotiation." Id. at 826. Although Professor Menkel-Meadow is right that disagreements over the state of the law can sometimes lead to unproductive and time-wasting give and take, the good lawyer knows that a disagreement among parties to negotiation also provides the good and prepared lawyer with an opportunity to advance her client's position. Not surprisingly, some of this literature comes from those best able to discern the connection between substantive legal knowledge and negotiations: sophisticated and active practitioners. E.g., Charles A. Goldstein & Sarah L. Weber, The Art of Negotiating, 37 N.Y.L. SCH. L. REV. 325 (1992). This is precisely the type of practitioner piece termed unhelpful thirty years ago by scholars advocating survey-style negotiations courses. Infra notes 42-44 and accompanying text. For example, this piece urges lawyers to "[u]nderstand [y]our [c]lient" and to work hard to develop appropriate and effective attitudes and reputations. Goldstein & Weber, supra, at 325. Yet it contributes an important element to an understanding of negotiations: a practice based knowledge of the connection between knowledge and success. Although not written with an academic edge (which may be a good thing) the words of these two practitioners are instructive: "Your knowledge will have a direct impact on your negotiating abilities. Here, as elsewhere, knowledge is power. Your knowledge of statutes and of the common law is indispensable and is one of the most important contributions you will make to the negotiating process." [Id. at 326.] These authors use as an example the meaning of a landlord's absolute consent to assignment of the lease, and suggest that parties do not have to "squander" time and energy negotiating this provision where the law is "clear." Id. As a result, it is not necessary for landlords' attorneys to "beat to death" these provisions during the drafting and negotiating of lease agreements. By contrast, these two lawyers suggest that the landlord's duty to mitigate damages may not be so firmly resolved and explained. Id. at 326-27. They state, "In such a context, it is worth everyone's resources to delineate the parties' respective rights and obligations carefully. In the course of . . . practice, [a lawyer] will learn what must be said and what is better left unsaid." Id. at 327. Clearly, the lawyer with the greater substantive knowledge, in addition to knowledge of different negotiating techniques, is better able to determine what is "better left unsaid." It is knowledge of the consequences of saying something that should not have been said - the substantive legal consequences - that informs a good lawyer.
24. I say "fortunately," because, like most teachers, I probably would simply have adopted any text that might have been available. In creating my course materials, I have benefitted from the help and advice of a number of friends and colleagues. Larry I. Bogart, partner at the Atlanta law firm of Powell, Goldstein, Frazer and Murphy (and, coincidentally, my father), and John C. ("Jack") Murray, Vice President and Special Counsel of First American Title Insurance Company, each provided a wealth of materials. Professor Wilson Freyermuth of the University of Missouri at Columbia School of Law has also been generous with his time and insights, and is presently using the materials described in this article as the basis for a course he is teaching. Finally, my colleagues, first at the Drake University School of Law, and now at Chapman University School of Law, have provided the curricular support to make this course possible.
25. All textual material, documents and provisions are available online.
26. Students post their work online. I then post my critique of each assignment. I have discovered the public posting of assignments is a wonderful motivator of high quality student work-product.
27. Throughout this article, I will highlight my use of the Internet in the preparation and teaching of this course, and my reactions to this new technology. Perhaps because the rulebook for transactional teaching is still largely unwritten, and because much less exists in the way of traditional teaching materials, the Web holds extraordinary promise for professors teaching these kinds of courses. Transactions practices are document driven, and very deadline sensitive; done well, so are courses devoted to these practices. A course in which materials and assignments (and student work-product) is posted online, as and when needed, helps simulate a transactional practice. That said, people who use technology often do so in ways wholly unexpected by the creators of that technology. I found this to be very true of my use of The West Educational Network ("TWEN") and web-based technology as I created my course. TWEN and competing resources from other legal publishers are presently structured to supplement existing course materials, to provide "discussion forums." As I will describe, my course did not require any online discussion.
28. E.g.; Ralph Michael Stein, Book Review, 15 REAL EST. L.J. 94 (1986) (reviewing MARK A. SENN, COMMERCIAL REAL ESTATE LEASES: PREPARATION AND NEGOTIATION (1985)). Mr. Stein's review appeared in 1986 - a period of significant economic expansion. His description of the importance of leasing would be equally apt today: The improvement in the U.S. economy has resulted in a fair amount of commercial expansion with new shopping centers and malls springing up everywhere. As new businesses enjoy prosperity and some commercial enterprises succumb, commercial leasing of space has become often frenetic, generally lucrative, and increasingly complex. While standardized forms are available, in some areas and for some applications, for commercial space leasing, this area of legal and real estate practice usually involves negotiation, compromise, and a resultant tailor-made lease. Commercial leases are usually for periods of time considerably longer than that found in residential leases. The lessor must be protected against early abandonment of the lease, improper and possibly wasteful use of the demised premises, and tort liability, the range of which seems to be expanding exponentially. Id. at 94.
29. E.g.; Ralph Michael Stein, Book Review, 15 REAL EST. L.J. 94 (1986) (reviewing MARK A. SENN, COMMERCIAL REAL ESTATE LEASES: PREPARATION AND NEGOTIATION (1985)). Mr. Stein's review appeared in 1986 - a period of significant economic expansion. His description of the importance of leasing would be equally apt today: The improvement in the U.S. economy has resulted in a fair amount of commercial expansion with new shopping centers and malls springing up everywhere. As new businesses enjoy prosperity and some commercial enterprises succumb, commercial leasing of space has become often frenetic, generally lucrative, and increasingly complex. While standardized forms are available, in some areas and for some applications, for commercial space leasing, this area of legal and real estate practice usually involves negotiation, compromise, and a resultant tailor-made lease. Commercial leases are usually for periods of time considerably longer than that found in residential leases. The lessor must be protected against early abandonment of the lease, improper and possibly wasteful use of the demised premises, and tort liability, the range of which seems to be expanding exponentially. Id. at 94.
30. E.g.; Ralph Michael Stein, Book Review, 15 REAL EST. L.J. 94 (1986) (reviewing MARK A. SENN, COMMERCIAL REAL ESTATE LEASES: PREPARATION AND NEGOTIATION (1985)). Mr. Stein's review appeared in 1986 - a period of significant economic expansion. His description of the importance of leasing would be equally apt today: The improvement in the U.S. economy has resulted in a fair amount of commercial expansion with new shopping centers and malls springing up everywhere. As new businesses enjoy prosperity and some commercial enterprises succumb, commercial leasing of space has become often frenetic, generally lucrative, and increasingly complex. While standardized forms are available, in some areas and for some applications, for commercial space leasing, this area of legal and real estate practice usually involves negotiation, compromise, and a resultant tailor-made lease. Commercial leases are usually for periods of time considerably longer than that found in residential leases. The lessor must be protected against early abandonment of the lease, improper and possibly wasteful use of the demised premises, and tort liability, the range of which seems to be expanding exponentially. Id. at 94.
31. A good deal of a real estate lawyer's stress may be generated by commercial brokers. Assuming a five percent commission, the broker for the deal described above would earn $125,000. One can understand the broker's desire to see such a deal reach a successful conclusion.
32. TOM WOLFE, THE RIGHT STUFF (1979).
33. TOM WOLFE, THE BONFIRE OF THE VANITIES (1987).
34. TOM WOLFE, A MAN IN FULL (1998).
35. Charlie does reach an epiphany by the end of the book and, in a rather bizarre way, redeems himself. But he does not in any way manage to keep his fortune or save his complex. In the real world, even dismal failures such as "Croker Concourse" eventually become fully leased and profitable. But financial success comes long after the initial developer goes belly up and the bank takes over and sells the project. Success happens as a function of demographics, as populations move to and surround previously underdeveloped areas. Thus, a developer's dream may be realized - but not by the developer.
36. One of my favorite scenes comes toward the beginning of the book. Charlie, unable to pay his lender, flies to Atlanta to meet with the "loan workout" team at PlannersBanc. During the course of that charged meeting, Charlie comes to understand that when you fail to pay the bank, the bank is no longer your friend. This is a great passage for teaching the "Golden Rule" to the reader: "He who has the gold makes the rules." Charlie is forced to turn over virtually all of his assets, including the car he drove to the meeting, in front of his subordinates. As Wolfe tells it, the bank officer (the "Artiste") pulls no punches: "By the way, how'd you get here this morning?" Croker gave the Artiste a long death-ray stare, then said, "I drove." "What'd you drive? A BMW? The Ferrari? The customized Cadillac Seville STS? Which one?" Croker eyed him balefully but said nothing. The steam was coming back into his system. His mighty chest rose and fell with a prodigious sigh. The dark stains were inching closer, from either side of his chest, toward the sternum. Harry [the Artiste] said, "Seven company cars . . . Sell 'em." "Those cars are in constant
37. One of my favorite scenes comes toward the beginning of the book. Charlie, unable to pay his lender, flies to Atlanta to meet with the "loan workout" team at PlannersBanc. During the course of that charged meeting, Charlie comes to understand that when you fail to pay the bank, the bank is no longer your friend. This is a great passage for teaching the "Golden Rule" to the reader: "He who has the gold makes the rules." Charlie is forced to turn over virtually all of his assets, including the car he drove to the meeting, in front of his subordinates. As Wolfe tells it, the bank officer (the "Artiste") pulls no punches: "By the way, how'd you get here this morning?" Croker gave the Artiste a long death-ray stare, then said, "I drove." "What'd you drive? A BMW? The Ferrari? The customized Cadillac Seville STS? Which one?" Croker eyed him balefully but said nothing. The steam was coming back into his system. His mighty chest rose and fell with a prodigious sigh. The dark stains were inching closer, from either side of his chest, toward the sternum. Harry [the Artiste] said, "Seven company cars . . . Sell 'em." "Those cars are in constant use," said Croker. "Besides, suppose we sold 'em - to the distinct disadvantage of our operations, by the way. What are we talking about here? A couple of hundred thousand dollars." "Hey!" said the Artiste with a big smile. "I don't know about you, but I have great respect for a couple of hundred thousand dollars. Besides, your arithmetic's a little off. It's five hundred and ninety-three thousand. A thousand more insignificant items like that and we've got half a billion and plenty to spare. See how easy it is? Sell 'em." WOLFE, supra note 18, at 51. Perhaps Charlie should have known what was coming. As Wolfe tells his story, at about the time the loan workout meeting turns ugly, the chief loan officer takes off his jacket to reveal suspenders emblazoned with a skull and crossbones. WOLFE, supra note 18, at 44-45.
38. Other documents may be part of the package. In many instances, the lawyers will negotiate personal guarantees of the principals behind the tenant. In addition, lawyers increasingly negotiate letters of credit demanded by the landlord and perhaps even the landlord's lender in a variety of situations. In some instances, the tenant may obtain a right to buy the property that he leases. This option or right of refusal may be in the lease, or it may be a separate agreement.
39. Real Property, Probate and Trust is one of the largest sections of the American Bar Association. The Section includes real estate lawyers, and schedules conferences and publishes materials of interest to lawyers who do commercial leasing work. Indeed, members of that section request commercial leasing materials more often than other materials published in the real property and real estate area. Yet despite the intense interest of the bar, and the significant importance of this area of practice, there are no textbooks devoted to commercial leasing practice. I am not the only person to teach a commercial leasing course. Even without surveying law schools formally, I am aware of a number of law schools that offer the course. In each case, the instructor has been forced to create his or her own materials, given the complete dearth of commercially available texts.
40. The reader should keep in mind, however, that there presently are no casebooks devoted to this practice. Several of the Real Estate Transactions case books have chapters devoted to lease practice, but these are not sufficient to be the basis of an entire course. Each of my textual chapters appears as an individual page on my TWEN commercial leasing web page. Online publication of course materials gives the teacher tremendous flexibility to manipulate readings and resources, and gives students instant access to the materials that matter at any one moment. Like most of my readers, I have found the creation of course materials to be a process that takes many semesters. Thus, I create and add to the text pages/chapters each semester. My goal is to have a web page for each of the regular and primary paragraphs in a typical commercial lease following the order described above. I may even add a page, or modify one that I have already created, during the semester in which the course is taught. Whenever I change a page mid-semester, I let the class know that changes have been made. TWEN makes this easy, since each "forum" reflects dates that postings have changed. I can add or substitute cases to the reading, or link to newly discovered and interesting sites. Students do not need to purchase casebooks. Instead, members of the class print out textual readings, and associated cases, as and when needed for class discussion. I have not yet completed all the text pages, but I am well on my way. As to those chapters as yet undone, I have listed case opinions for students to read. I have a separate web page on TWEN listing cases and providing links to the opinions on WESTLAW. The list of cases also notes the section of the commercial lease form to which the case pertains.
41. Professor Okamato makes a similar point in his article. That piece describes a course simulating corporate practice. In explaining the benefit of simulations, Professor Okamato states, "[s]imulations provide a transitional experience in which students may apply theoretical knowledge within a context of practical relevance." Okamato, supra note 1, at 502. Practicing attorneys realize the importance of combining skills and substantive legal theory when training younger lawyers "in-house." JoAnne D. Ganek of Fried, Frank, Harris, Shriver & Jacobson states: Ask a law firm training director to describe a recent successful program, and you'll invariably hear how well the last litigation skills program went. But ask the same director about business transaction training, and you're likely to get a discouraged shrug. Transactional skills training must combine substantive law training with practical skills training, but finding the right formula is a challenge. Ganek, supra note 2, at 167.
42. Professor Okamato makes a similar point in his article. That piece describes a course simulating corporate practice. In explaining the benefit of simulations, Professor Okamato states, "[s]imulations provide a transitional experience in which students may apply theoretical knowledge within a context of practical relevance." Okamato, supra note 1, at 502. Practicing attorneys realize the importance of combining skills and substantive legal theory when training younger lawyers "in-house." JoAnne D. Ganek of Fried, Frank, Harris, Shriver & Jacobson states: Ask a law firm training director to describe a recent successful program, and you'll invariably hear how well the last litigation skills program went. But ask the same director about business transaction training, and you're likely to get a discouraged shrug. Transactional skills training must combine substantive law training with practical skills training, but finding the right formula is a challenge. Ganek, supra note 2, at 167.
43. Good transactional drafting has certain hallmarks. In practice, lawyers learn - and often the hard way - that a good provision is one that cannot be read and understood in any other way than that intended by the drafter. When critiquing student work, in writing or in class, this is the first problem that we pinpoint. A team may think that they have clearly written a provision, but very likely there will be alternate plausible readings of their language. This desire to draft toward a single understanding drives transactional lawyers to write in a style that is hardly prosaic, and instead encourages the use of long provisions, subparagraphs and numbered paragraphs, among other devices.
44. This assignment is discussed again briefly in Part III of this Article. That Part emphasizes negotiations training from a transactional viewpoint.
45. Thus, this assignment skips immediately to the conversation between Landlord and Tenant attorneys. In real life, Tenants lawyers' initial lease review would take the form of a memo to file, or a letter to Tenant (as in the earlier Tenant lease review assignment).
46. Students are required to post their work during a specific window of time. If the work is posted too early, lazier teams might simply read and work from their peer teams efforts. If posted too late, teams will have had and used more time than would be realistic.
47. I extensively discuss negotiations training in Part III, infra.
48. Retail leases typically require tenants to pay landlords a percentage of gross sales as rent. This percentage rent is never less than some fixed amount of "base rent." Occasionally, a tenant will decide to cease operations at a particular location, even before the lease has expired. In these instances, since the tenant does not continue to derive revenue from the location, the tenant will pay landlord the base rent required under the lease. This behavior is often described as "going dark," because the tenant turns out the light and closes the door. Landlords despise this behavior, of course, because it deprives the landlord of percentage rentals. Unfortunately for landlords, in the absence of specific contractual language requiring tenant to remain open for business, some courts do not read such a requirement into the lease. This issue is discussed in Patrick A. Randolph, Jr., Going Dark Aggressively, PROB. & PROP., Nov./Dec. 1996, at 6.
49. There is an "ethos" to transactional practice, and it is subtly different to that which accompanies litigation-oriented legal practice. Certainly care and thoroughness are hallmarks of legal practice, no matter what the practice area. But the nature of transactional practice, with its reams of long and complicated documents that are negotiated over time and under often short deadlines, calls for a particular kind of rushed obsessiveness. The process of blue book exams cannot and should not test for this value. Student's time is pressed; it is the worst environment to examine whether this lesson is taught and learned. Class time in substantive law courses does not accomplish this feat; students may do all the reading or none, and fear only being called upon. Finally, courses that survey negotiation technique do not really teach the necessity of care; this trait is usually reinforced when the same parties see a transaction develop over time with consequences following an error several moves later in the game. Survey courses, however, typically move from exercise to exercise with a new game beginning on a regular basis.
50. Lease work is particularly appropriate for teaching negotiations skills to entry level transactional lawyers. Although financing statements, guarantees and letters of credit may be involved (and heavily negotiated), the majority of an attorney's time will be spent negotiating the lease document. The commercial landlord/tenant lawyer therefore needs a store of knowledge primarily explaining the legal implications of provisions in a lease. This may be contrasted with loan workout practice, mergers and acquisitions and other real estate and corporate transactions, that involve a multitude of important documents.
51. Indeed, in actual practice, business people may occasionally reject the use of lawyers to negotiate their legal documents - not just the business terms - for a number of reasons, some quite cynical. This occurs precisely because some parties recognize that lawyers focus on substantive legal details that a layman may ignore. I once helped negotiate a lease with a very well-known national retailer. My firm represented the Landlord. Given the prestige and size of the Tenant, the Tenant provided Landlord with a lease form. The Tenant, however, was not represented by an attorney in the actual negotiation. Instead, the Tenant employed an individual I will name "Marge." Marge began working for the Tenant years ago when the operation was small and store locations were primarily rural. Apparently, some lawyer, in some local firm, had provided Marge with a lease, and shown Marge where to fill in the basic terms. The form addressed issues of that state's law, and was, in modern terms, woefully inadequate and incomplete. Yet, every request we made for a modification to the lease failed. No matter how reasonable and unexceptional the demand, Marge refused to change the document. Her response was simple and direct: "it's written this way for a reason - I don't know what the reason is and I don't care - take it or leave it." Clearly, exceptional leverage permitted the Tenant to take this position. Still, we asked for changes would have been acceptable if we represented the Tenant. And just as certainly, there must have been sophisticated counsel lurking in the chain of command somewhere in the labyrinths of the Tenant's corporate structure, or on some mailing list. Yet we were never able to penetrate the Marge line of defense. Marge was a screen. Her inability to rate substantive legal rights made her invaluable, and frustrated us to no end.
52. Robert Whitman makes a similar point in his article. Robert Whitman, Conducting Contract Negotiations: A Seminar on Legal Problems Exercise, 15 J. LEGAL EDUC. 72, 78 (1962). In that article, Whitman describes a course in which students were required to prepare significant research memoranda on substantive legal issues, followed by negotiation exercises involving those issues. Among the many benefits of this approach, he states, is that students "realize[] that [they] could not make a move without researching the law" and thus discovered the immediate connection between legal substance and negotiations. Id.
53. Robert Whitman makes a similar point in his article. Robert Whitman, Conducting Contract Negotiations: A Seminar on Legal Problems Exercise, 15 J. LEGAL EDUC. 72, 78 (1962). In that article, Whitman describes a course in which students were required to prepare significant research memoranda on substantive legal issues, followed by negotiation exercises involving those issues. Among the many benefits of this approach, he states, is that students "realize[] that [they] could not make a move without researching the law" and thus discovered the immediate connection between legal substance and negotiations. Id.
54. Robert E. Mathews, Negotiation: A Pedagogical Challenge, 6 J. LEGAL EDUC. 93 (1953); James J. White, The Lawyer as Negotiator: An Adventure in Understanding and Teaching the Art of Negotiation, 19 J. LEGAL EDUC. 337 (1967). Bernard Ortwein presents a nice history of this early literature in Bernard M. Ortwein, Teaching Negotiation: A Valuable Experience, 31 J. LEGAL EDUC. 108, 109-110 (1981).
55. Robert E. Mathews, Negotiation: A Pedagogical Challenge, 6 J. LEGAL EDUC. 93 (1953); James J. White, The Lawyer as Negotiator: An Adventure in Understanding and Teaching the Art of Negotiation, 19 J. LEGAL EDUC. 337 (1967). Bernard Ortwein presents a nice history of this early literature in Bernard M. Ortwein, Teaching Negotiation: A Valuable Experience, 31 J. LEGAL EDUC. 108, 109-110 (1981).
56. Robert E. Mathews, Negotiation: A Pedagogical Challenge, 6 J. LEGAL EDUC. 93 (1953); James J. White, The Lawyer as Negotiator: An Adventure in Understanding and Teaching the Art of Negotiation, 19 J. LEGAL EDUC. 337 (1967). Bernard Ortwein presents a nice history of this early literature in Bernard M. Ortwein, Teaching Negotiation: A Valuable Experience, 31 J. LEGAL EDUC. 108, 109-110 (1981).
57. E.g., Nancy A. Coleman, Teaching Theory and Practice ofBargaining to Lawyers and Students, 30 J. LEGAL EDUC. 470 (1980); Marc Galanter, Worlds of Deals; Using Negotiation to Teach about Legal Process, 34 J. LEGAL EDUC. 268 (1984); Mathews, supra note 35; Robert B. Moberly, A Pedagogy for Negotiation, 34 J. LEGAL EDUC. 315 (1984); Moore & Tomlinson, supra note 9; Ortwein, supra note 35; Cornelius J. Peck & Robert L. Fletcher, A Course on the Subject of Negotiation, 21 J. LEGAL EDUC. 196 (1968); Joel Rabinovitz, Negotiation and Drafting in a Substantive Law Course in Mergers and Acquisitions, 23 J. LEGAL EDUC. 470 (1971); Howard R. Sacks, Human-Relations Training for Law Students and Lawyers, 11 J. LEGAL EDUC. 316 (1959); Herbert L. Sherman, Jr., New Approaches in the Teaching of Collective Bargaining, 10 J. LEGAL EDUC. 105 (1957); Herbert L. Sherman, Jr., The Law Student and Collective Bargaining, 3 J. LEGAL EDUC. 445 (1951); White, supra note 35; Whitman, supra note 34; Gerald R. Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. LEGAL EDUC. 307 (1984); John S. Murray, Book Review, 40 J. LEGAL EDUC. 393 (1990) (reviewing DONALD S. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS (1989)); Michael Wheeler, The Theory and Practice of Negotiation, 34 J. LEGAL EDUC. 326 (1984) (essay reviews).
58. E.g., Nancy A. Coleman, Teaching Theory and Practice ofBargaining to Lawyers and Students, 30 J. LEGAL EDUC. 470 (1980); Marc Galanter, Worlds of Deals; Using Negotiation to Teach about Legal Process, 34 J. LEGAL EDUC. 268 (1984); Mathews, supra note 35; Robert B. Moberly, A Pedagogy for Negotiation, 34 J. LEGAL EDUC. 315 (1984); Moore & Tomlinson, supra note 9; Ortwein, supra note 35; Cornelius J. Peck & Robert L. Fletcher, A Course on the Subject of Negotiation, 21 J. LEGAL EDUC. 196 (1968); Joel Rabinovitz, Negotiation and Drafting in a Substantive Law Course in Mergers and Acquisitions, 23 J. LEGAL EDUC. 470 (1971); Howard R. Sacks, Human-Relations Training for Law Students and Lawyers, 11 J. LEGAL EDUC. 316 (1959); Herbert L. Sherman, Jr., New Approaches in the Teaching of Collective Bargaining, 10 J. LEGAL EDUC. 105 (1957); Herbert L. Sherman, Jr., The Law Student and Collective Bargaining, 3 J. LEGAL EDUC. 445 (1951); White, supra note 35; Whitman, supra note 34; Gerald R. Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. LEGAL EDUC. 307 (1984); John S. Murray, Book Review, 40 J. LEGAL EDUC. 393 (1990) (reviewing DONALD S. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS (1989)); Michael Wheeler, The Theory and Practice of Negotiation, 34 J. LEGAL EDUC. 326 (1984) (essay reviews).
59. E.g., Nancy A. Coleman, Teaching Theory and Practice ofBargaining to Lawyers and Students, 30 J. LEGAL EDUC. 470 (1980); Marc Galanter, Worlds of Deals; Using Negotiation to Teach about Legal Process, 34 J. LEGAL EDUC. 268 (1984); Mathews, supra note 35; Robert B. Moberly, A Pedagogy for Negotiation, 34 J. LEGAL EDUC. 315 (1984); Moore & Tomlinson, supra note 9; Ortwein, supra note 35; Cornelius J. Peck & Robert L. Fletcher, A Course on the Subject of Negotiation, 21 J. LEGAL EDUC. 196 (1968); Joel Rabinovitz, Negotiation and Drafting in a Substantive Law Course in Mergers and Acquisitions, 23 J. LEGAL EDUC. 470 (1971); Howard R. Sacks, Human-Relations Training for Law Students and Lawyers, 11 J. LEGAL EDUC. 316 (1959); Herbert L. Sherman, Jr., New Approaches in the Teaching of Collective Bargaining, 10 J. LEGAL EDUC. 105 (1957); Herbert L. Sherman, Jr., The Law Student and Collective Bargaining, 3 J. LEGAL EDUC. 445 (1951); White, supra note 35; Whitman, supra note 34; Gerald R. Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. LEGAL EDUC. 307 (1984); John S. Murray, Book Review, 40 J. LEGAL EDUC. 393 (1990) (reviewing DONALD S. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS (1989)); Michael Wheeler, The Theory and Practice of Negotiation, 34 J. LEGAL EDUC. 326 (1984) (essay reviews).
60. E.g., Nancy A. Coleman, Teaching Theory and Practice ofBargaining to Lawyers and Students, 30 J. LEGAL EDUC. 470 (1980); Marc Galanter, Worlds of Deals; Using Negotiation to Teach about Legal Process, 34 J. LEGAL EDUC. 268 (1984); Mathews, supra note 35; Robert B. Moberly, A Pedagogy for Negotiation, 34 J. LEGAL EDUC. 315 (1984); Moore & Tomlinson, supra note 9; Ortwein, supra note 35; Cornelius J. Peck & Robert L. Fletcher, A Course on the Subject of Negotiation, 21 J. LEGAL EDUC. 196 (1968); Joel Rabinovitz, Negotiation and Drafting in a Substantive Law Course in Mergers and Acquisitions, 23 J. LEGAL EDUC. 470 (1971); Howard R. Sacks, Human-Relations Training for Law Students and Lawyers, 11 J. LEGAL EDUC. 316 (1959); Herbert L. Sherman, Jr., New Approaches in the Teaching of Collective Bargaining, 10 J. LEGAL EDUC. 105 (1957); Herbert L. Sherman, Jr., The Law Student and Collective Bargaining, 3 J. LEGAL EDUC. 445 (1951); White, supra note 35; Whitman, supra note 34; Gerald R. Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. LEGAL EDUC. 307 (1984); John S. Murray, Book Review, 40 J. LEGAL EDUC. 393 (1990) (reviewing DONALD S. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS (1989)); Michael Wheeler, The Theory and Practice of Negotiation, 34 J. LEGAL EDUC. 326 (1984) (essay reviews).
61. E.g., Nancy A. Coleman, Teaching Theory and Practice ofBargaining to Lawyers and Students, 30 J. LEGAL EDUC. 470 (1980); Marc Galanter, Worlds of Deals; Using Negotiation to Teach about Legal Process, 34 J. LEGAL EDUC. 268 (1984); Mathews, supra note 35; Robert B. Moberly, A Pedagogy for Negotiation, 34 J. LEGAL EDUC. 315 (1984); Moore & Tomlinson, supra note 9; Ortwein, supra note 35; Cornelius J. Peck & Robert L. Fletcher, A Course on the Subject of Negotiation, 21 J. LEGAL EDUC. 196 (1968); Joel Rabinovitz, Negotiation and Drafting in a Substantive Law Course in Mergers and Acquisitions, 23 J. LEGAL EDUC. 470 (1971); Howard R. Sacks, Human-Relations Training for Law Students and Lawyers, 11 J. LEGAL EDUC. 316 (1959); Herbert L. Sherman, Jr., New Approaches in the Teaching of Collective Bargaining, 10 J. LEGAL EDUC. 105 (1957); Herbert L. Sherman, Jr., The Law Student and Collective Bargaining, 3 J. LEGAL EDUC. 445 (1951); White, supra note 35; Whitman, supra note 34; Gerald R. Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. LEGAL EDUC. 307 (1984); John S. Murray, Book Review, 40 J. LEGAL EDUC. 393 (1990) (reviewing DONALD S. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS (1989)); Michael Wheeler, The Theory and Practice of Negotiation, 34 J. LEGAL EDUC. 326 (1984) (essay reviews).
62. E.g., Nancy A. Coleman, Teaching Theory and Practice ofBargaining to Lawyers and Students, 30 J. LEGAL EDUC. 470 (1980); Marc Galanter, Worlds of Deals; Using Negotiation to Teach about Legal Process, 34 J. LEGAL EDUC. 268 (1984); Mathews, supra note 35; Robert B. Moberly, A Pedagogy for Negotiation, 34 J. LEGAL EDUC. 315 (1984); Moore & Tomlinson, supra note 9; Ortwein, supra note 35; Cornelius J. Peck & Robert L. Fletcher, A Course on the Subject of Negotiation, 21 J. LEGAL EDUC. 196 (1968); Joel Rabinovitz, Negotiation and Drafting in a Substantive Law Course in Mergers and Acquisitions, 23 J. LEGAL EDUC. 470 (1971); Howard R. Sacks, Human-Relations Training for Law Students and Lawyers, 11 J. LEGAL EDUC. 316 (1959); Herbert L. Sherman, Jr., New Approaches in the Teaching of Collective Bargaining, 10 J. LEGAL EDUC. 105 (1957); Herbert L. Sherman, Jr., The Law Student and Collective Bargaining, 3 J. LEGAL EDUC. 445 (1951); White, supra note 35; Whitman, supra note 34; Gerald R. Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. LEGAL EDUC. 307 (1984); John S. Murray, Book Review, 40 J. LEGAL EDUC. 393 (1990) (reviewing DONALD S. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS (1989)); Michael Wheeler, The Theory and Practice of Negotiation, 34 J. LEGAL EDUC. 326 (1984) (essay reviews).
63. E.g., Nancy A. Coleman, Teaching Theory and Practice ofBargaining to Lawyers and Students, 30 J. LEGAL EDUC. 470 (1980); Marc Galanter, Worlds of Deals; Using Negotiation to Teach about Legal Process, 34 J. LEGAL EDUC. 268 (1984); Mathews, supra note 35; Robert B. Moberly, A Pedagogy for Negotiation, 34 J. LEGAL EDUC. 315 (1984); Moore & Tomlinson, supra note 9; Ortwein, supra note 35; Cornelius J. Peck & Robert L. Fletcher, A Course on the Subject of Negotiation, 21 J. LEGAL EDUC. 196 (1968); Joel Rabinovitz, Negotiation and Drafting in a Substantive Law Course in Mergers and Acquisitions, 23 J. LEGAL EDUC. 470 (1971); Howard R. Sacks, Human-Relations Training for Law Students and Lawyers, 11 J. LEGAL EDUC. 316 (1959); Herbert L. Sherman, Jr., New Approaches in the Teaching of Collective Bargaining, 10 J. LEGAL EDUC. 105 (1957); Herbert L. Sherman, Jr., The Law Student and Collective Bargaining, 3 J. LEGAL EDUC. 445 (1951); White, supra note 35; Whitman, supra note 34; Gerald R. Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. LEGAL EDUC. 307 (1984); John S. Murray, Book Review, 40 J. LEGAL EDUC. 393 (1990) (reviewing DONALD S. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS (1989)); Michael Wheeler, The Theory and Practice of Negotiation, 34 J. LEGAL EDUC. 326 (1984) (essay reviews).
64. E.g., Nancy A. Coleman, Teaching Theory and Practice ofBargaining to Lawyers and Students, 30 J. LEGAL EDUC. 470 (1980); Marc Galanter, Worlds of Deals; Using Negotiation to Teach about Legal Process, 34 J. LEGAL EDUC. 268 (1984); Mathews, supra note 35; Robert B. Moberly, A Pedagogy for Negotiation, 34 J. LEGAL EDUC. 315 (1984); Moore & Tomlinson, supra note 9; Ortwein, supra note 35; Cornelius J. Peck & Robert L. Fletcher, A Course on the Subject of Negotiation, 21 J. LEGAL EDUC. 196 (1968); Joel Rabinovitz, Negotiation and Drafting in a Substantive Law Course in Mergers and Acquisitions, 23 J. LEGAL EDUC. 470 (1971); Howard R. Sacks, Human-Relations Training for Law Students and Lawyers, 11 J. LEGAL EDUC. 316 (1959); Herbert L. Sherman, Jr., New Approaches in the Teaching of Collective Bargaining, 10 J. LEGAL EDUC. 105 (1957); Herbert L. Sherman, Jr., The Law Student and Collective Bargaining, 3 J. LEGAL EDUC. 445 (1951); White, supra note 35; Whitman, supra note 34; Gerald R. Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. LEGAL EDUC. 307 (1984); John S. Murray, Book Review, 40 J. LEGAL EDUC. 393 (1990) (reviewing DONALD S. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS (1989)); Michael Wheeler, The Theory and Practice of Negotiation, 34 J. LEGAL EDUC. 326 (1984) (essay reviews).
65. E.g., Nancy A. Coleman, Teaching Theory and Practice ofBargaining to Lawyers and Students, 30 J. LEGAL EDUC. 470 (1980); Marc Galanter, Worlds of Deals; Using Negotiation to Teach about Legal Process, 34 J. LEGAL EDUC. 268 (1984); Mathews, supra note 35; Robert B. Moberly, A Pedagogy for Negotiation, 34 J. LEGAL EDUC. 315 (1984); Moore & Tomlinson, supra note 9; Ortwein, supra note 35; Cornelius J. Peck & Robert L. Fletcher, A Course on the Subject of Negotiation, 21 J. LEGAL EDUC. 196 (1968); Joel Rabinovitz, Negotiation and Drafting in a Substantive Law Course in Mergers and Acquisitions, 23 J. LEGAL EDUC. 470 (1971); Howard R. Sacks, Human-Relations Training for Law Students and Lawyers, 11 J. LEGAL EDUC. 316 (1959); Herbert L. Sherman, Jr., New Approaches in the Teaching of Collective Bargaining, 10 J. LEGAL EDUC. 105 (1957); Herbert L. Sherman, Jr., The Law Student and Collective Bargaining, 3 J. LEGAL EDUC. 445 (1951); White, supra note 35; Whitman, supra note 34; Gerald R. Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. LEGAL EDUC. 307 (1984); John S. Murray, Book Review, 40 J. LEGAL EDUC. 393 (1990) (reviewing DONALD S. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS (1989)); Michael Wheeler, The Theory and Practice of Negotiation, 34 J. LEGAL EDUC. 326 (1984) (essay reviews).
66. E.g., Nancy A. Coleman, Teaching Theory and Practice ofBargaining to Lawyers and Students, 30 J. LEGAL EDUC. 470 (1980); Marc Galanter, Worlds of Deals; Using Negotiation to Teach about Legal Process, 34 J. LEGAL EDUC. 268 (1984); Mathews, supra note 35; Robert B. Moberly, A Pedagogy for Negotiation, 34 J. LEGAL EDUC. 315 (1984); Moore & Tomlinson, supra note 9; Ortwein, supra note 35; Cornelius J. Peck & Robert L. Fletcher, A Course on the Subject of Negotiation, 21 J. LEGAL EDUC. 196 (1968); Joel Rabinovitz, Negotiation and Drafting in a Substantive Law Course in Mergers and Acquisitions, 23 J. LEGAL EDUC. 470 (1971); Howard R. Sacks, Human-Relations Training for Law Students and Lawyers, 11 J. LEGAL EDUC. 316 (1959); Herbert L. Sherman, Jr., New Approaches in the Teaching of Collective Bargaining, 10 J. LEGAL EDUC. 105 (1957); Herbert L. Sherman, Jr., The Law Student and Collective Bargaining, 3 J. LEGAL EDUC. 445 (1951); White, supra note 35; Whitman, supra note 34; Gerald R. Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. LEGAL EDUC. 307 (1984); John S. Murray, Book Review, 40 J. LEGAL EDUC. 393 (1990) (reviewing DONALD S. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS (1989)); Michael Wheeler, The Theory and Practice of Negotiation, 34 J. LEGAL EDUC. 326 (1984) (essay reviews).
67. E.g., Nancy A. Coleman, Teaching Theory and Practice ofBargaining to Lawyers and Students, 30 J. LEGAL EDUC. 470 (1980); Marc Galanter, Worlds of Deals; Using Negotiation to Teach about Legal Process, 34 J. LEGAL EDUC. 268 (1984); Mathews, supra note 35; Robert B. Moberly, A Pedagogy for Negotiation, 34 J. LEGAL EDUC. 315 (1984); Moore & Tomlinson, supra note 9; Ortwein, supra note 35; Cornelius J. Peck & Robert L. Fletcher, A Course on the Subject of Negotiation, 21 J. LEGAL EDUC. 196 (1968); Joel Rabinovitz, Negotiation and Drafting in a Substantive Law Course in Mergers and Acquisitions, 23 J. LEGAL EDUC. 470 (1971); Howard R. Sacks, Human-Relations Training for Law Students and Lawyers, 11 J. LEGAL EDUC. 316 (1959); Herbert L. Sherman, Jr., New Approaches in the Teaching of Collective Bargaining, 10 J. LEGAL EDUC. 105 (1957); Herbert L. Sherman, Jr., The Law Student and Collective Bargaining, 3 J. LEGAL EDUC. 445 (1951); White, supra note 35; Whitman, supra note 34; Gerald R. Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. LEGAL EDUC. 307 (1984); John S. Murray, Book Review, 40 J. LEGAL EDUC. 393 (1990) (reviewing DONALD S. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS (1989)); Michael Wheeler, The Theory and Practice of Negotiation, 34 J. LEGAL EDUC. 326 (1984) (essay reviews).
68. E.g., Nancy A. Coleman, Teaching Theory and Practice ofBargaining to Lawyers and Students, 30 J. LEGAL EDUC. 470 (1980); Marc Galanter, Worlds of Deals; Using Negotiation to Teach about Legal Process, 34 J. LEGAL EDUC. 268 (1984); Mathews, supra note 35; Robert B. Moberly, A Pedagogy for Negotiation, 34 J. LEGAL EDUC. 315 (1984); Moore & Tomlinson, supra note 9; Ortwein, supra note 35; Cornelius J. Peck & Robert L. Fletcher, A Course on the Subject of Negotiation, 21 J. LEGAL EDUC. 196 (1968); Joel Rabinovitz, Negotiation and Drafting in a Substantive Law Course in Mergers and Acquisitions, 23 J. LEGAL EDUC. 470 (1971); Howard R. Sacks, Human-Relations Training for Law Students and Lawyers, 11 J. LEGAL EDUC. 316 (1959); Herbert L. Sherman, Jr., New Approaches in the Teaching of Collective Bargaining, 10 J. LEGAL EDUC. 105 (1957); Herbert L. Sherman, Jr., The Law Student and Collective Bargaining, 3 J. LEGAL EDUC. 445 (1951); White, supra note 35; Whitman, supra note 34; Gerald R. Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. LEGAL EDUC. 307 (1984); John S. Murray, Book Review, 40 J. LEGAL EDUC. 393 (1990) (reviewing DONALD S. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS (1989)); Michael Wheeler, The Theory and Practice of Negotiation, 34 J. LEGAL EDUC. 326 (1984) (essay reviews).
69. E.g., Nancy A. Coleman, Teaching Theory and Practice ofBargaining to Lawyers and Students, 30 J. LEGAL EDUC. 470 (1980); Marc Galanter, Worlds of Deals; Using Negotiation to Teach about Legal Process, 34 J. LEGAL EDUC. 268 (1984); Mathews, supra note 35; Robert B. Moberly, A Pedagogy for Negotiation, 34 J. LEGAL EDUC. 315 (1984); Moore & Tomlinson, supra note 9; Ortwein, supra note 35; Cornelius J. Peck & Robert L. Fletcher, A Course on the Subject of Negotiation, 21 J. LEGAL EDUC. 196 (1968); Joel Rabinovitz, Negotiation and Drafting in a Substantive Law Course in Mergers and Acquisitions, 23 J. LEGAL EDUC. 470 (1971); Howard R. Sacks, Human-Relations Training for Law Students and Lawyers, 11 J. LEGAL EDUC. 316 (1959); Herbert L. Sherman, Jr., New Approaches in the Teaching of Collective Bargaining, 10 J. LEGAL EDUC. 105 (1957); Herbert L. Sherman, Jr., The Law Student and Collective Bargaining, 3 J. LEGAL EDUC. 445 (1951); White, supra note 35; Whitman, supra note 34; Gerald R. Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. LEGAL EDUC. 307 (1984); John S. Murray, Book Review, 40 J. LEGAL EDUC. 393 (1990) (reviewing DONALD S. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS (1989)); Michael Wheeler, The Theory and Practice of Negotiation, 34 J. LEGAL EDUC. 326 (1984) (essay reviews).
70. E.g., Nancy A. Coleman, Teaching Theory and Practice ofBargaining to Lawyers and Students, 30 J. LEGAL EDUC. 470 (1980); Marc Galanter, Worlds of Deals; Using Negotiation to Teach about Legal Process, 34 J. LEGAL EDUC. 268 (1984); Mathews, supra note 35; Robert B. Moberly, A Pedagogy for Negotiation, 34 J. LEGAL EDUC. 315 (1984); Moore & Tomlinson, supra note 9; Ortwein, supra note 35; Cornelius J. Peck & Robert L. Fletcher, A Course on the Subject of Negotiation, 21 J. LEGAL EDUC. 196 (1968); Joel Rabinovitz, Negotiation and Drafting in a Substantive Law Course in Mergers and Acquisitions, 23 J. LEGAL EDUC. 470 (1971); Howard R. Sacks, Human-Relations Training for Law Students and Lawyers, 11 J. LEGAL EDUC. 316 (1959); Herbert L. Sherman, Jr., New Approaches in the Teaching of Collective Bargaining, 10 J. LEGAL EDUC. 105 (1957); Herbert L. Sherman, Jr., The Law Student and Collective Bargaining, 3 J. LEGAL EDUC. 445 (1951); White, supra note 35; Whitman, supra note 34; Gerald R. Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. LEGAL EDUC. 307 (1984); John S. Murray, Book Review, 40 J. LEGAL EDUC. 393 (1990) (reviewing DONALD S. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS (1989)); Michael Wheeler, The Theory and Practice of Negotiation, 34 J. LEGAL EDUC. 326 (1984) (essay reviews).
71. E.g., Nancy A. Coleman, Teaching Theory and Practice ofBargaining to Lawyers and Students, 30 J. LEGAL EDUC. 470 (1980); Marc Galanter, Worlds of Deals; Using Negotiation to Teach about Legal Process, 34 J. LEGAL EDUC. 268 (1984); Mathews, supra note 35; Robert B. Moberly, A Pedagogy for Negotiation, 34 J. LEGAL EDUC. 315 (1984); Moore & Tomlinson, supra note 9; Ortwein, supra note 35; Cornelius J. Peck & Robert L. Fletcher, A Course on the Subject of Negotiation, 21 J. LEGAL EDUC. 196 (1968); Joel Rabinovitz, Negotiation and Drafting in a Substantive Law Course in Mergers and Acquisitions, 23 J. LEGAL EDUC. 470 (1971); Howard R. Sacks, Human-Relations Training for Law Students and Lawyers, 11 J. LEGAL EDUC. 316 (1959); Herbert L. Sherman, Jr., New Approaches in the Teaching of Collective Bargaining, 10 J. LEGAL EDUC. 105 (1957); Herbert L. Sherman, Jr., The Law Student and Collective Bargaining, 3 J. LEGAL EDUC. 445 (1951); White, supra note 35; Whitman, supra note 34; Gerald R. Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. LEGAL EDUC. 307 (1984); John S. Murray, Book Review, 40 J. LEGAL EDUC. 393 (1990) (reviewing DONALD S. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS (1989)); Michael Wheeler, The Theory and Practice of Negotiation, 34 J. LEGAL EDUC. 326 (1984) (essay reviews).
72. E.g., Nancy A. Coleman, Teaching Theory and Practice ofBargaining to Lawyers and Students, 30 J. LEGAL EDUC. 470 (1980); Marc Galanter, Worlds of Deals; Using Negotiation to Teach about Legal Process, 34 J. LEGAL EDUC. 268 (1984); Mathews, supra note 35; Robert B. Moberly, A Pedagogy for Negotiation, 34 J. LEGAL EDUC. 315 (1984); Moore & Tomlinson, supra note 9; Ortwein, supra note 35; Cornelius J. Peck & Robert L. Fletcher, A Course on the Subject of Negotiation, 21 J. LEGAL EDUC. 196 (1968); Joel Rabinovitz, Negotiation and Drafting in a Substantive Law Course in Mergers and Acquisitions, 23 J. LEGAL EDUC. 470 (1971); Howard R. Sacks, Human-Relations Training for Law Students and Lawyers, 11 J. LEGAL EDUC. 316 (1959); Herbert L. Sherman, Jr., New Approaches in the Teaching of Collective Bargaining, 10 J. LEGAL EDUC. 105 (1957); Herbert L. Sherman, Jr., The Law Student and Collective Bargaining, 3 J. LEGAL EDUC. 445 (1951); White, supra note 35; Whitman, supra note 34; Gerald R. Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. LEGAL EDUC. 307 (1984); John S. Murray, Book Review, 40 J. LEGAL EDUC. 393 (1990) (reviewing DONALD S. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS (1989)); Michael Wheeler, The Theory and Practice of Negotiation, 34 J. LEGAL EDUC. 326 (1984) (essay reviews).
73. E.g., Nancy A. Coleman, Teaching Theory and Practice ofBargaining to Lawyers and Students, 30 J. LEGAL EDUC. 470 (1980); Marc Galanter, Worlds of Deals; Using Negotiation to Teach about Legal Process, 34 J. LEGAL EDUC. 268 (1984); Mathews, supra note 35; Robert B. Moberly, A Pedagogy for Negotiation, 34 J. LEGAL EDUC. 315 (1984); Moore & Tomlinson, supra note 9; Ortwein, supra note 35; Cornelius J. Peck & Robert L. Fletcher, A Course on the Subject of Negotiation, 21 J. LEGAL EDUC. 196 (1968); Joel Rabinovitz, Negotiation and Drafting in a Substantive Law Course in Mergers and Acquisitions, 23 J. LEGAL EDUC. 470 (1971); Howard R. Sacks, Human-Relations Training for Law Students and Lawyers, 11 J. LEGAL EDUC. 316 (1959); Herbert L. Sherman, Jr., New Approaches in the Teaching of Collective Bargaining, 10 J. LEGAL EDUC. 105 (1957); Herbert L. Sherman, Jr., The Law Student and Collective Bargaining, 3 J. LEGAL EDUC. 445 (1951); White, supra note 35; Whitman, supra note 34; Gerald R. Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. LEGAL EDUC. 307 (1984); John S. Murray, Book Review, 40 J. LEGAL EDUC. 393 (1990) (reviewing DONALD S. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS (1989)); Michael Wheeler, The Theory and Practice of Negotiation, 34 J. LEGAL EDUC. 326 (1984) (essay reviews).
74. E.g., Mathews, supra note 35; Peck & Fletcher, supra note 36 (proposing a course consisting of a series of negotiated problems from different substantive areas; does involve at least a few transactional problems); White, supra note 35; Ortwein, supra note 35 (proposing a series of problems, including at least one real estate transactional problem). But see Moore & Tomlinson, supra note 9 (encouraging the teaching of negotiations technique in substantive law courses) (Discussed further below)).
75. E.g., Mathews, supra note 35; Peck & Fletcher, supra note 36 (proposing a course consisting of a series of negotiated problems from different substantive areas; does involve at least a few transactional problems); White, supra note 35; Ortwein, supra note 35 (proposing a series of problems, including at least one real estate transactional problem). But see Moore & Tomlinson, supra note 9 (encouraging the teaching of negotiations technique in substantive law courses) (Discussed further below)).
76. E.g., Mathews, supra note 35; Peck & Fletcher, supra note 36 (proposing a course consisting of a series of negotiated problems from different substantive areas; does involve at least a few transactional problems); White, supra note 35; Ortwein, supra note 35 (proposing a series of problems, including at least one real estate transactional problem). But see Moore & Tomlinson, supra note 9 (encouraging the teaching of negotiations technique in substantive law courses) (Discussed further below)).
77. E.g., Mathews, supra note 35; Peck & Fletcher, supra note 36 (proposing a course consisting of a series of negotiated problems from different substantive areas; does involve at least a few transactional problems); White, supra note 35; Ortwein, supra note 35 (proposing a series of problems, including at least one real estate transactional problem). But see Moore & Tomlinson, supra note 9 (encouraging the teaching of negotiations technique in substantive law courses) (Discussed further below)).
78. E.g., Mathews, supra note 35; Peck & Fletcher, supra note 36 (proposing a course consisting of a series of negotiated problems from different substantive areas; does involve at least a few transactional problems); White, supra note 35; Ortwein, supra note 35 (proposing a series of problems, including at least one real estate transactional problem). But see Moore & Tomlinson, supra note 9 (encouraging the teaching of negotiations technique in substantive law courses) (Discussed further below)).
79. Course books primarily survey negotiating techniques and styles, and only to a very limited degree address legal substance. The message of these otherwise very valuable books is clear: negotiation technique - what it is and how it should be taught - is a separate issue. I do not wish to slight any author by not mentioning his or her book here. In reviewing many, although perhaps not all, of the textbooks available in the area, it is clear to me that each possesses special strengths and areas of particular excellence and creativity. Still, some of the texts that examine negotiations technique largely separated from legal substance include: ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING COUNSELING & NEGOTIATING (1990); GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: NEGOTIATION (1994) (emphasizing nicely the newly emerging law and economics analysis called "game theory"); CHARLES B. CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT (3d ed. 1997); DONALD G. GIFFORD, LEGAL NEGOTIATION, THEORY AND APPLICATIONS (1989); STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (2d ed. 1992) (although largely a survey of negotiation concepts and approaches, contains nice explanation of the differences between deal making and dispute resolution); JOHN S. MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION (2d ed. 1996); LARRY TEPLEY, LEGAL NEGOTIATIONS IN A NUTSHELL (1992); GERALD F. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT (1983). Some books used by law faculty in their negotiations courses, although very useful for that purpose, have a more general bearing and would be appropriate in a variety of settings. See, e.g., AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY (1991) (excellent explanation and application of game theoretic basis of negotiations); ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE (1995); ROGER FISHER & WILLIAM URY, GETTING TO YES (1992); E. WENDY TRACHTE-HUBER & STEPHEN K. HUBER, MEDIATION AND NEGOTIATION: REACHING AGREEMENT IN LAW AND BUSINESS (1998) (containing both case study problems and well edited excerpts from very interesting and scholarly negotiations literature). Also, the good people at the National Institute for Trial Advocacy recognize the importance of negotiation skills in resolving disputes, and have produced a variety of materials addressing the subject. See, e.g., THOMAS F. GUERNSEY, A PRACTICAL GUIDE TO NEGOTIATION (1996); MELISSA NELKEN ET AL., PROBLEMS AND CASES IN INTERVIEWING, COUNSELING AND NEGOTIATING (1986); ABRAHAM P. ORDOVER, ALTERNATIVES TO LITIGATION (1993). Students may find books on negotiating by attorneys that, while not texts, are often useful. Still, these typically separate legal substance from technique. See, e.g., MARK K. SCHOENFIELD & RICK M. SCHOENFIELD, LEGAL NEGOTIATIONS (1988).
80. Course books primarily survey negotiating techniques and styles, and only to a very limited degree address legal substance. The message of these otherwise very valuable books is clear: negotiation technique - what it is and how it should be taught - is a separate issue. I do not wish to slight any author by not mentioning his or her book here. In reviewing many, although perhaps not all, of the textbooks available in the area, it is clear to me that each possesses special strengths and areas of particular excellence and creativity. Still, some of the texts that examine negotiations technique largely separated from legal substance include: ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING COUNSELING & NEGOTIATING (1990); GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: NEGOTIATION (1994) (emphasizing nicely the newly emerging law and economics analysis called "game theory"); CHARLES B. CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT (3d ed. 1997); DONALD G. GIFFORD, LEGAL NEGOTIATION, THEORY AND APPLICATIONS (1989); STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (2d ed. 1992) (although largely a survey of negotiation concepts and approaches, contains nice explanation of the differences between deal making and dispute resolution); JOHN S. MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION (2d ed. 1996); LARRY TEPLEY, LEGAL NEGOTIATIONS IN A NUTSHELL (1992); GERALD F. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT (1983). Some books used by law faculty in their negotiations courses, although very useful for that purpose, have a more general bearing and would be appropriate in a variety of settings. See, e.g., AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY (1991) (excellent explanation and application of game theoretic basis of negotiations); ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE (1995); ROGER FISHER & WILLIAM URY, GETTING TO YES (1992); E. WENDY TRACHTE-HUBER & STEPHEN K. HUBER, MEDIATION AND NEGOTIATION: REACHING AGREEMENT IN LAW AND BUSINESS (1998) (containing both case study problems and well edited excerpts from very interesting and scholarly negotiations literature). Also, the good people at the National Institute for Trial Advocacy recognize the importance of negotiation skills in resolving disputes, and have produced a variety of materials addressing the subject. See, e.g., THOMAS F. GUERNSEY, A PRACTICAL GUIDE TO NEGOTIATION (1996); MELISSA NELKEN ET AL., PROBLEMS AND CASES IN INTERVIEWING, COUNSELING AND NEGOTIATING (1986); ABRAHAM P. ORDOVER, ALTERNATIVES TO LITIGATION (1993). Students may find books on negotiating by attorneys that, while not texts, are often useful. Still, these typically separate legal substance from technique. See, e.g., MARK K. SCHOENFIELD & RICK M. SCHOENFIELD, LEGAL NEGOTIATIONS (1988).
81. Course books primarily survey negotiating techniques and styles, and only to a very limited degree address legal substance. The message of these otherwise very valuable books is clear: negotiation technique - what it is and how it should be taught - is a separate issue. I do not wish to slight any author by not mentioning his or her book here. In reviewing many, although perhaps not all, of the textbooks available in the area, it is clear to me that each possesses special strengths and areas of particular excellence and creativity. Still, some of the texts that examine negotiations technique largely separated from legal substance include: ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING COUNSELING & NEGOTIATING (1990); GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: NEGOTIATION (1994) (emphasizing nicely the newly emerging law and economics analysis called "game theory"); CHARLES B. CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT (3d ed. 1997); DONALD G. GIFFORD, LEGAL NEGOTIATION, THEORY AND APPLICATIONS (1989); STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (2d ed. 1992) (although largely a survey of negotiation concepts and approaches, contains nice explanation of the differences between deal making and dispute resolution); JOHN S. MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION (2d ed. 1996); LARRY TEPLEY, LEGAL NEGOTIATIONS IN A NUTSHELL (1992); GERALD F. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT (1983). Some books used by law faculty in their negotiations courses, although very useful for that purpose, have a more general bearing and would be appropriate in a variety of settings. See, e.g., AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY (1991) (excellent explanation and application of game theoretic basis of negotiations); ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE (1995); ROGER FISHER & WILLIAM URY, GETTING TO YES (1992); E. WENDY TRACHTE-HUBER & STEPHEN K. HUBER, MEDIATION AND NEGOTIATION: REACHING AGREEMENT IN LAW AND BUSINESS (1998) (containing both case study problems and well edited excerpts from very interesting and scholarly negotiations literature). Also, the good people at the National Institute for Trial Advocacy recognize the importance of negotiation skills in resolving disputes, and have produced a variety of materials addressing the subject. See, e.g., THOMAS F. GUERNSEY, A PRACTICAL GUIDE TO NEGOTIATION (1996); MELISSA NELKEN ET AL., PROBLEMS AND CASES IN INTERVIEWING, COUNSELING AND NEGOTIATING (1986); ABRAHAM P. ORDOVER, ALTERNATIVES TO LITIGATION (1993). Students may find books on negotiating by attorneys that, while not texts, are often useful. Still, these typically separate legal substance from technique. See, e.g., MARK K. SCHOENFIELD & RICK M. SCHOENFIELD, LEGAL NEGOTIATIONS (1988).
82. Course books primarily survey negotiating techniques and styles, and only to a very limited degree address legal substance. The message of these otherwise very valuable books is clear: negotiation technique - what it is and how it should be taught - is a separate issue. I do not wish to slight any author by not mentioning his or her book here. In reviewing many, although perhaps not all, of the textbooks available in the area, it is clear to me that each possesses special strengths and areas of particular excellence and creativity. Still, some of the texts that examine negotiations technique largely separated from legal substance include: ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING COUNSELING & NEGOTIATING (1990); GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: NEGOTIATION (1994) (emphasizing nicely the newly emerging law and economics analysis called "game theory"); CHARLES B. CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT (3d ed. 1997); DONALD G. GIFFORD, LEGAL NEGOTIATION, THEORY AND APPLICATIONS (1989); STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (2d ed. 1992) (although largely a survey of negotiation concepts and approaches, contains nice explanation of the differences between deal making and dispute resolution); JOHN S. MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION (2d ed. 1996); LARRY TEPLEY, LEGAL NEGOTIATIONS IN A NUTSHELL (1992); GERALD F. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT (1983). Some books used by law faculty in their negotiations courses, although very useful for that purpose, have a more general bearing and would be appropriate in a variety of settings. See, e.g., AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY (1991) (excellent explanation and application of game theoretic basis of negotiations); ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE (1995); ROGER FISHER & WILLIAM URY, GETTING TO YES (1992); E. WENDY TRACHTE-HUBER & STEPHEN K. HUBER, MEDIATION AND NEGOTIATION: REACHING AGREEMENT IN LAW AND BUSINESS (1998) (containing both case study problems and well edited excerpts from very interesting and scholarly negotiations literature). Also, the good people at the National Institute for Trial Advocacy recognize the importance of negotiation skills in resolving disputes, and have produced a variety of materials addressing the subject. See, e.g., THOMAS F. GUERNSEY, A PRACTICAL GUIDE TO NEGOTIATION (1996); MELISSA NELKEN ET AL., PROBLEMS AND CASES IN INTERVIEWING, COUNSELING AND NEGOTIATING (1986); ABRAHAM P. ORDOVER, ALTERNATIVES TO LITIGATION (1993). Students may find books on negotiating by attorneys that, while not texts, are often useful. Still, these typically separate legal substance from technique. See, e.g., MARK K. SCHOENFIELD & RICK M. SCHOENFIELD, LEGAL NEGOTIATIONS (1988).
83. Course books primarily survey negotiating techniques and styles, and only to a very limited degree address legal substance. The message of these otherwise very valuable books is clear: negotiation technique - what it is and how it should be taught - is a separate issue. I do not wish to slight any author by not mentioning his or her book here. In reviewing many, although perhaps not all, of the textbooks available in the area, it is clear to me that each possesses special strengths and areas of particular excellence and creativity. Still, some of the texts that examine negotiations technique largely separated from legal substance include: ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING COUNSELING & NEGOTIATING (1990); GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: NEGOTIATION (1994) (emphasizing nicely the newly emerging law and economics analysis called "game theory"); CHARLES B. CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT (3d ed. 1997); DONALD G. GIFFORD, LEGAL NEGOTIATION, THEORY AND APPLICATIONS (1989); STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (2d ed. 1992) (although largely a survey of negotiation concepts and approaches, contains nice explanation of the differences between deal making and dispute resolution); JOHN S. MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION (2d ed. 1996); LARRY TEPLEY, LEGAL NEGOTIATIONS IN A NUTSHELL (1992); GERALD F. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT (1983). Some books used by law faculty in their negotiations courses, although very useful for that purpose, have a more general bearing and would be appropriate in a variety of settings. See, e.g., AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY (1991) (excellent explanation and application of game theoretic basis of negotiations); ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE (1995); ROGER FISHER & WILLIAM URY, GETTING TO YES (1992); E. WENDY TRACHTE-HUBER & STEPHEN K. HUBER, MEDIATION AND NEGOTIATION: REACHING AGREEMENT IN LAW AND BUSINESS (1998) (containing both case study problems and well edited excerpts from very interesting and scholarly negotiations literature). Also, the good people at the National Institute for Trial Advocacy recognize the importance of negotiation skills in resolving disputes, and have produced a variety of materials addressing the subject. See, e.g., THOMAS F. GUERNSEY, A PRACTICAL GUIDE TO NEGOTIATION (1996); MELISSA NELKEN ET AL., PROBLEMS AND CASES IN INTERVIEWING, COUNSELING AND NEGOTIATING (1986); ABRAHAM P. ORDOVER, ALTERNATIVES TO LITIGATION (1993). Students may find books on negotiating by attorneys that, while not texts, are often useful. Still, these typically separate legal substance from technique. See, e.g., MARK K. SCHOENFIELD & RICK M. SCHOENFIELD, LEGAL NEGOTIATIONS (1988).
84. Course books primarily survey negotiating techniques and styles, and only to a very limited degree address legal substance. The message of these otherwise very valuable books is clear: negotiation technique - what it is and how it should be taught - is a separate issue. I do not wish to slight any author by not mentioning his or her book here. In reviewing many, although perhaps not all, of the textbooks available in the area, it is clear to me that each possesses special strengths and areas of particular excellence and creativity. Still, some of the texts that examine negotiations technique largely separated from legal substance include: ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING COUNSELING & NEGOTIATING (1990); GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: NEGOTIATION (1994) (emphasizing nicely the newly emerging law and economics analysis called "game theory"); CHARLES B. CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT (3d ed. 1997); DONALD G. GIFFORD, LEGAL NEGOTIATION, THEORY AND APPLICATIONS (1989); STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (2d ed. 1992) (although largely a survey of negotiation concepts and approaches, contains nice explanation of the differences between deal making and dispute resolution); JOHN S. MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION (2d ed. 1996); LARRY TEPLEY, LEGAL NEGOTIATIONS IN A NUTSHELL (1992); GERALD F. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT (1983). Some books used by law faculty in their negotiations courses, although very useful for that purpose, have a more general bearing and would be appropriate in a variety of settings. See, e.g., AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY (1991) (excellent explanation and application of game theoretic basis of negotiations); ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE (1995); ROGER FISHER & WILLIAM URY, GETTING TO YES (1992); E. WENDY TRACHTE-HUBER & STEPHEN K. HUBER, MEDIATION AND NEGOTIATION: REACHING AGREEMENT IN LAW AND BUSINESS (1998) (containing both case study problems and well edited excerpts from very interesting and scholarly negotiations literature). Also, the good people at the National Institute for Trial Advocacy recognize the importance of negotiation skills in resolving disputes, and have produced a variety of materials addressing the subject. See, e.g., THOMAS F. GUERNSEY, A PRACTICAL GUIDE TO NEGOTIATION (1996); MELISSA NELKEN ET AL., PROBLEMS AND CASES IN INTERVIEWING, COUNSELING AND NEGOTIATING (1986); ABRAHAM P. ORDOVER, ALTERNATIVES TO LITIGATION (1993). Students may find books on negotiating by attorneys that, while not texts, are often useful. Still, these typically separate legal substance from technique. See, e.g., MARK K. SCHOENFIELD & RICK M. SCHOENFIELD, LEGAL NEGOTIATIONS (1988).
85. Course books primarily survey negotiating techniques and styles, and only to a very limited degree address legal substance. The message of these otherwise very valuable books is clear: negotiation technique - what it is and how it should be taught - is a separate issue. I do not wish to slight any author by not mentioning his or her book here. In reviewing many, although perhaps not all, of the textbooks available in the area, it is clear to me that each possesses special strengths and areas of particular excellence and creativity. Still, some of the texts that examine negotiations technique largely separated from legal substance include: ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING COUNSELING & NEGOTIATING (1990); GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: NEGOTIATION (1994) (emphasizing nicely the newly emerging law and economics analysis called "game theory"); CHARLES B. CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT (3d ed. 1997); DONALD G. GIFFORD, LEGAL NEGOTIATION, THEORY AND APPLICATIONS (1989); STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (2d ed. 1992) (although largely a survey of negotiation concepts and approaches, contains nice explanation of the differences between deal making and dispute resolution); JOHN S. MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION (2d ed. 1996); LARRY TEPLEY, LEGAL NEGOTIATIONS IN A NUTSHELL (1992); GERALD F. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT (1983). Some books used by law faculty in their negotiations courses, although very useful for that purpose, have a more general bearing and would be appropriate in a variety of settings. See, e.g., AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY (1991) (excellent explanation and application of game theoretic basis of negotiations); ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE (1995); ROGER FISHER & WILLIAM URY, GETTING TO YES (1992); E. WENDY TRACHTE-HUBER & STEPHEN K. HUBER, MEDIATION AND NEGOTIATION: REACHING AGREEMENT IN LAW AND BUSINESS (1998) (containing both case study problems and well edited excerpts from very interesting and scholarly negotiations literature). Also, the good people at the National Institute for Trial Advocacy
86. Course books primarily survey negotiating techniques and styles, and only to a very limited degree address legal substance. The message of these otherwise very valuable books is clear: negotiation technique - what it is and how it should be taught - is a separate issue. I do not wish to slight any author by not mentioning his or her book here. In reviewing many, although perhaps not all, of the textbooks available in the area, it is clear to me that each possesses special strengths and areas of particular excellence and creativity. Still, some of the texts that examine negotiations technique largely separated from legal substance include: ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING COUNSELING & NEGOTIATING (1990); GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: NEGOTIATION (1994) (emphasizing nicely the newly emerging law and economics analysis called "game theory"); CHARLES B. CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT (3d ed. 1997); DONALD G. GIFFORD, LEGAL NEGOTIATION, THEORY AND APPLICATIONS (1989); STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (2d ed. 1992) (although largely a survey of negotiation concepts and approaches, contains nice explanation of the differences between deal making and dispute resolution); JOHN S. MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION (2d ed. 1996); LARRY TEPLEY, LEGAL NEGOTIATIONS IN A NUTSHELL (1992); GERALD F. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT (1983). Some books used by law faculty in their negotiations courses, although very useful for that purpose, have a more general bearing and would be appropriate in a variety of settings. See, e.g., AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY (1991) (excellent explanation and application of game theoretic basis of negotiations); ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE (1995); ROGER FISHER & WILLIAM URY, GETTING TO YES (1992); E. WENDY TRACHTE-HUBER & STEPHEN K. HUBER, MEDIATION AND NEGOTIATION: REACHING AGREEMENT IN LAW AND BUSINESS (1998) (containing both case study problems and well edited excerpts from very interesting and scholarly negotiations literature). Also, the good people at the National Institute for Trial Advocacy recognize the importance of negotiation skills in resolving disputes, and have produced a variety of materials addressing the subject. See, e.g., THOMAS F. GUERNSEY, A PRACTICAL GUIDE TO NEGOTIATION (1996); MELISSA NELKEN ET AL., PROBLEMS AND CASES IN INTERVIEWING, COUNSELING AND NEGOTIATING (1986); ABRAHAM P. ORDOVER, ALTERNATIVES TO LITIGATION (1993). Students may find books on negotiating by attorneys that, while not texts, are often useful. Still, these typically separate legal substance from technique. See, e.g., MARK K. SCHOENFIELD & RICK M. SCHOENFIELD, LEGAL NEGOTIATIONS (1988).
87. Course books primarily survey negotiating techniques and styles, and only to a very limited degree address legal substance. The message of these otherwise very valuable books is clear: negotiation technique - what it is and how it should be taught - is a separate issue. I do not wish to slight any author by not mentioning his or her book here. In reviewing many, although perhaps not all, of the textbooks available in the area, it is clear to me that each possesses special strengths and areas of particular excellence and creativity. Still, some of the texts that examine negotiations technique largely separated from legal substance include: ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING COUNSELING & NEGOTIATING (1990); GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: NEGOTIATION (1994) (emphasizing nicely the newly emerging law and economics analysis called "game theory"); CHARLES B. CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT (3d ed. 1997); DONALD G. GIFFORD, LEGAL NEGOTIATION, THEORY AND APPLICATIONS (1989); STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (2d ed. 1992) (although largely a survey of negotiation concepts and approaches, contains nice explanation of the differences between deal making and dispute resolution); JOHN S. MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION (2d ed. 1996); LARRY TEPLEY, LEGAL NEGOTIATIONS IN A NUTSHELL (1992); GERALD F. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT (1983). Some books used by law faculty in their negotiations courses, although very useful for that purpose, have a more general bearing and would be appropriate in a variety of settings. See, e.g., AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY (1991) (excellent explanation and application of game theoretic basis of negotiations); ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE (1995); ROGER FISHER & WILLIAM URY, GETTING TO YES (1992); E. WENDY TRACHTE-HUBER & STEPHEN K. HUBER, MEDIATION AND NEGOTIATION: REACHING AGREEMENT IN LAW AND BUSINESS (1998) (containing both case study problems and well edited excerpts from very interesting and scholarly negotiations literature). Also, the good people at the National Institute for Trial Advocacy recognize the importance of negotiation skills in resolving disputes, and have produced a variety of materials addressing the subject. See, e.g., THOMAS F. GUERNSEY, A PRACTICAL GUIDE TO NEGOTIATION (1996); MELISSA NELKEN ET AL., PROBLEMS AND CASES IN INTERVIEWING, COUNSELING AND NEGOTIATING (1986); ABRAHAM P. ORDOVER, ALTERNATIVES TO LITIGATION (1993). Students may find books on negotiating by attorneys that, while not texts, are often useful. Still, these typically separate legal substance from technique. See, e.g., MARK K. SCHOENFIELD & RICK M. SCHOENFIELD, LEGAL NEGOTIATIONS (1988).
88. Course books primarily survey negotiating techniques and styles, and only to a very limited degree address legal substance. The message of these otherwise very valuable books is clear: negotiation technique - what it is and how it should be taught - is a separate issue. I do not wish to slight any author by not mentioning his or her book here. In reviewing many, although perhaps not all, of the textbooks available in the area, it is clear to me that each possesses special strengths and areas of particular excellence and creativity. Still, some of the texts that examine negotiations technique largely separated from legal substance include: ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING COUNSELING & NEGOTIATING (1990); GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: NEGOTIATION (1994) (emphasizing nicely the newly emerging law and economics analysis called "game theory"); CHARLES B. CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT (3d ed. 1997); DONALD G. GIFFORD, LEGAL NEGOTIATION, THEORY AND APPLICATIONS (1989); STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (2d ed. 1992) (although largely a survey of negotiation concepts and approaches, contains nice explanation of the differences between deal making and dispute resolution); JOHN S. MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION (2d ed. 1996); LARRY TEPLEY, LEGAL NEGOTIATIONS IN A NUTSHELL (1992); GERALD F. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT (1983). Some books used by law faculty in their negotiations courses, although very useful for that purpose, have a more general bearing and would be appropriate in a variety of settings. See, e.g., AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY (1991) (excellent explanation and application of game theoretic basis of negotiations); ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE (1995); ROGER FISHER & WILLIAM URY, GETTING TO YES (1992); E. WENDY TRACHTE-HUBER & STEPHEN K. HUBER, MEDIATION AND NEGOTIATION: REACHING AGREEMENT IN LAW AND BUSINESS (1998) (containing both case study problems and well edited excerpts from very interesting and scholarly negotiations literature). Also, the good people at the National Institute for Trial Advocacy recognize the importance of negotiation skills in resolving disputes, and have produced a variety of materials addressing the subject. See, e.g., THOMAS F. GUERNSEY, A PRACTICAL GUIDE TO NEGOTIATION (1996); MELISSA NELKEN ET AL., PROBLEMS AND CASES IN INTERVIEWING, COUNSELING AND NEGOTIATING (1986); ABRAHAM P. ORDOVER, ALTERNATIVES TO LITIGATION (1993). Students may find books on negotiating by attorneys that, while not texts, are often useful. Still, these typically separate legal substance from technique. See, e.g., MARK K. SCHOENFIELD & RICK M. SCHOENFIELD, LEGAL NEGOTIATIONS (1988).
89. Course books primarily survey negotiating techniques and styles, and only to a very limited degree address legal substance. The message of these otherwise very valuable books is clear: negotiation technique - what it is and how it should be taught - is a separate issue. I do not wish to slight any author by not mentioning his or her book here. In reviewing many, although perhaps not all, of the textbooks available in the area, it is clear to me that each possesses special strengths and areas of particular excellence and creativity. Still, some of the texts that examine negotiations technique largely separated from legal substance include: ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING COUNSELING & NEGOTIATING (1990); GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: NEGOTIATION (1994) (emphasizing nicely the newly emerging law and economics analysis called "game theory"); CHARLES B. CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT (3d ed. 1997); DONALD G. GIFFORD, LEGAL NEGOTIATION, THEORY AND APPLICATIONS (1989); STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (2d ed. 1992) (although largely a survey of negotiation concepts and approaches, contains nice explanation of the differences between deal making and dispute resolution); JOHN S. MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION (2d ed. 1996); LARRY TEPLEY, LEGAL NEGOTIATIONS IN A NUTSHELL (1992); GERALD F. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT (1983). Some books used by law faculty in their negotiations courses, although very useful for that purpose, have a more general bearing and would be appropriate in a variety of settings. See, e.g., AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY (1991) (excellent explanation and application of game theoretic basis of negotiations); ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE (1995); ROGER FISHER & WILLIAM URY, GETTING TO YES (1992); E. WENDY TRACHTE-HUBER & STEPHEN K. HUBER, MEDIATION AND NEGOTIATION: REACHING AGREEMENT IN LAW AND BUSINESS (1998) (containing both case study problems and well edited excerpts from very interesting and scholarly negotiations literature). Also, the good people at the National Institute for Trial Advocacy recognize the importance of negotiation skills in resolving disputes, and have produced a variety of materials addressing the subject. See, e.g., THOMAS F. GUERNSEY, A PRACTICAL GUIDE TO NEGOTIATION (1996); MELISSA NELKEN ET AL., PROBLEMS AND CASES IN INTERVIEWING, COUNSELING AND NEGOTIATING (1986); ABRAHAM P. ORDOVER, ALTERNATIVES TO LITIGATION (1993). Students may find books on negotiating by attorneys that, while not texts, are often useful. Still, these typically separate legal substance from technique. See, e.g., MARK K. SCHOENFIELD & RICK M. SCHOENFIELD, LEGAL NEGOTIATIONS (1988).
90. Course books primarily survey negotiating techniques and styles, and only to a very limited degree address legal substance. The message of these otherwise very valuable books is clear: negotiation technique - what it is and how it should be taught - is a separate issue. I do not wish to slight any author by not mentioning his or her book here. In reviewing many, although perhaps not all, of the textbooks available in the area, it is clear to me that each possesses special strengths and areas of particular excellence and creativity. Still, some of the texts that examine negotiations technique largely separated from legal substance include: ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING COUNSELING & NEGOTIATING (1990); GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: NEGOTIATION (1994) (emphasizing nicely the newly emerging law and economics analysis called "game theory"); CHARLES B. CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT (3d ed. 1997); DONALD G. GIFFORD, LEGAL NEGOTIATION, THEORY AND APPLICATIONS (1989); STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (2d ed. 1992) (although largely a survey of negotiation concepts and approaches, contains nice explanation of the differences between deal making and dispute resolution); JOHN S. MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION (2d ed. 1996); LARRY TEPLEY, LEGAL NEGOTIATIONS IN A NUTSHELL (1992); GERALD F. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT (1983). Some books used by law faculty in their negotiations courses, although very useful for that purpose, have a more general bearing and would be appropriate in a variety of settings. See, e.g., AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY (1991) (excellent explanation and application of game theoretic basis of negotiations); ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE (1995); ROGER FISHER & WILLIAM URY, GETTING TO YES (1992); E. WENDY TRACHTE-HUBER & STEPHEN K. HUBER, MEDIATION AND NEGOTIATION: REACHING AGREEMENT IN LAW AND BUSINESS (1998) (containing both case study problems and well edited excerpts from very interesting and scholarly negotiations literature). Also, the good people at the National Institute for Trial Advocacy recognize the importance of negotiation skills in resolving disputes, and have produced a variety of materials addressing the subject. See, e.g., THOMAS F. GUERNSEY, A PRACTICAL GUIDE TO NEGOTIATION (1996); MELISSA NELKEN ET AL., PROBLEMS AND CASES IN INTERVIEWING, COUNSELING AND NEGOTIATING (1986); ABRAHAM P. ORDOVER, ALTERNATIVES TO LITIGATION (1993). Students may find books on negotiating by attorneys that, while not texts, are often useful. Still, these typically separate legal substance from technique. See, e.g., MARK K. SCHOENFIELD & RICK M. SCHOENFIELD, LEGAL NEGOTIATIONS (1988).
91. Course books primarily survey negotiating techniques and styles, and only to a very limited degree address legal substance. The message of these otherwise very valuable books is clear: negotiation technique - what it is and how it should be taught - is a separate issue. I do not wish to slight any author by not mentioning his or her book here. In reviewing many, although perhaps not all, of the textbooks available in the area, it is clear to me that each possesses special strengths and areas of particular excellence and creativity. Still, some of the texts that examine negotiations technique largely separated from legal substance include: ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING COUNSELING & NEGOTIATING (1990); GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: NEGOTIATION (1994) (emphasizing nicely the newly emerging law and economics analysis called "game theory"); CHARLES B. CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT (3d ed. 1997); DONALD G. GIFFORD, LEGAL NEGOTIATION, THEORY AND APPLICATIONS (1989); STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (2d ed. 1992) (although largely a survey of negotiation concepts and approaches, contains nice explanation of the differences between deal making and dispute resolution); JOHN S. MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION (2d ed. 1996); LARRY TEPLEY, LEGAL NEGOTIATIONS IN A NUTSHELL (1992); GERALD F. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT (1983). Some books used by law faculty in their negotiations courses, although very useful for that purpose, have a more general bearing and would be appropriate in a variety of settings. See, e.g., AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY (1991) (excellent explanation and application of game theoretic basis of negotiations); ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE (1995); ROGER FISHER & WILLIAM URY, GETTING TO YES (1992); E. WENDY TRACHTE-HUBER & STEPHEN K. HUBER, MEDIATION AND NEGOTIATION: REACHING AGREEMENT IN LAW AND BUSINESS (1998) (containing both case study problems and well edited excerpts from very interesting and scholarly negotiations literature). Also, the good people at the National Institute for Trial Advocacy recognize the importance of negotiation skills in resolving disputes, and have produced a variety of materials addressing the subject. See, e.g., THOMAS F. GUERNSEY, A PRACTICAL GUIDE TO NEGOTIATION (1996); MELISSA NELKEN ET AL., PROBLEMS AND CASES IN INTERVIEWING, COUNSELING AND NEGOTIATING (1986); ABRAHAM P. ORDOVER, ALTERNATIVES TO LITIGATION (1993). Students may find books on negotiating by attorneys that, while not texts, are often useful. Still, these typically separate legal substance from technique. See, e.g., MARK K. SCHOENFIELD & RICK M. SCHOENFIELD, LEGAL NEGOTIATIONS (1988).
92. Course books primarily survey negotiating techniques and styles, and only to a very limited degree address legal substance. The message of these otherwise very valuable books is clear: negotiation technique - what it is and how it should be taught - is a separate issue. I do not wish to slight any author by not mentioning his or her book here. In reviewing many, although perhaps not all, of the textbooks available in the area, it is clear to me that each possesses special strengths and areas of particular excellence and creativity. Still, some of the texts that examine negotiations technique largely separated from legal substance include: ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING COUNSELING & NEGOTIATING (1990); GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: NEGOTIATION (1994) (emphasizing nicely the newly emerging law and economics analysis called "game theory"); CHARLES B. CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT (3d ed. 1997); DONALD G. GIFFORD, LEGAL NEGOTIATION, THEORY AND APPLICATIONS (1989); STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (2d ed. 1992) (although largely a survey of negotiation concepts and approaches, contains nice explanation of the differences between deal making and dispute resolution); JOHN S. MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION (2d ed. 1996); LARRY TEPLEY, LEGAL NEGOTIATIONS IN A NUTSHELL (1992); GERALD F. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT (1983). Some books used by law faculty in their negotiations courses, although very useful for that purpose, have a more general bearing and would be appropriate in a variety of settings. See, e.g., AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY (1991) (excellent explanation and application of game theoretic basis of negotiations); ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE (1995); ROGER FISHER & WILLIAM URY, GETTING TO YES (1992); E. WENDY TRACHTE-HUBER & STEPHEN K. HUBER, MEDIATION AND NEGOTIATION: REACHING AGREEMENT IN LAW AND BUSINESS (1998) (containing both case study problems and well edited excerpts from very interesting and scholarly negotiations literature). Also, the good people at the National Institute for Trial Advocacy recognize the importance of negotiation skills in resolving disputes, and have produced a variety of materials addressing the subject. See, e.g., THOMAS F. GUERNSEY, A PRACTICAL GUIDE TO NEGOTIATION (1996); MELISSA NELKEN ET AL., PROBLEMS AND CASES IN INTERVIEWING, COUNSELING AND NEGOTIATING (1986); ABRAHAM P. ORDOVER, ALTERNATIVES TO LITIGATION (1993). Students may find books on negotiating by attorneys that, while not texts, are often useful. Still, these typically separate legal substance from technique. See, e.g., MARK K. SCHOENFIELD & RICK M. SCHOENFIELD, LEGAL NEGOTIATIONS (1988).
93. Course books primarily survey negotiating techniques and styles, and only to a very limited degree address legal substance. The message of these otherwise very valuable books is clear: negotiation technique - what it is and how it should be taught - is a separate issue. I do not wish to slight any author by not mentioning his or her book here. In reviewing many, although perhaps not all, of the textbooks available in the area, it is clear to me that each possesses special strengths and areas of particular excellence and creativity. Still, some of the texts that examine negotiations technique largely separated from legal substance include: ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING COUNSELING & NEGOTIATING (1990); GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: NEGOTIATION (1994) (emphasizing nicely the newly emerging law and economics analysis called "game theory"); CHARLES B. CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT (3d ed. 1997); DONALD G. GIFFORD, LEGAL NEGOTIATION, THEORY AND APPLICATIONS (1989); STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (2d ed. 1992) (although largely a survey of negotiation concepts and approaches, contains nice explanation of the differences between deal making and dispute resolution); JOHN S. MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION (2d ed. 1996); LARRY TEPLEY, LEGAL NEGOTIATIONS IN A NUTSHELL (1992); GERALD F. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT (1983). Some books used by law faculty in their negotiations courses, although very useful for that purpose, have a more general bearing and would be appropriate in a variety of settings. See, e.g., AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY (1991) (excellent explanation and application of game theoretic basis of negotiations); ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE (1995); ROGER FISHER & WILLIAM URY, GETTING TO YES (1992); E. WENDY TRACHTE-HUBER & STEPHEN K. HUBER, MEDIATION AND NEGOTIATION: REACHING AGREEMENT IN LAW AND BUSINESS (1998) (containing both case study problems and well edited excerpts from very interesting and scholarly negotiations literature). Also, the good people at the National Institute for Trial Advocacy recognize the importance of negotiation skills in resolving disputes, and have produced a variety of materials addressing the subject. See, e.g., THOMAS F. GUERNSEY, A PRACTICAL GUIDE TO NEGOTIATION (1996); MELISSA NELKEN ET AL., PROBLEMS AND CASES IN INTERVIEWING, COUNSELING AND NEGOTIATING (1986); ABRAHAM P. ORDOVER, ALTERNATIVES TO LITIGATION (1993). Students may find books on negotiating by attorneys that, while not texts, are often useful. Still, these typically separate legal substance from technique. See, e.g., MARK K. SCHOENFIELD & RICK M. SCHOENFIELD, LEGAL NEGOTIATIONS (1988).
94. Course books primarily survey negotiating techniques and styles, and only to a very limited degree address legal substance. The message of these otherwise very valuable books is clear: negotiation technique - what it is and how it should be taught - is a separate issue. I do not wish to slight any author by not mentioning his or her book here. In reviewing many, although perhaps not all, of the textbooks available in the area, it is clear to me that each possesses special strengths and areas of particular excellence and creativity. Still, some of the texts that examine negotiations technique largely separated from legal substance include: ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING COUNSELING & NEGOTIATING (1990); GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: NEGOTIATION (1994) (emphasizing nicely the newly emerging law and economics analysis called "game theory"); CHARLES B. CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT (3d ed. 1997); DONALD G. GIFFORD, LEGAL NEGOTIATION, THEORY AND APPLICATIONS (1989); STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (2d ed. 1992) (although largely a survey of negotiation concepts and approaches, contains nice explanation of the differences between deal making and dispute resolution); JOHN S. MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION (2d ed. 1996); LARRY TEPLEY, LEGAL NEGOTIATIONS IN A NUTSHELL (1992); GERALD F. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT (1983). Some books used by law faculty in their negotiations courses, although very useful for that purpose, have a more general bearing and would be appropriate in a variety of settings. See, e.g., AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY (1991) (excellent explanation and application of game theoretic basis of negotiations); ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE (1995); ROGER FISHER & WILLIAM URY, GETTING TO YES (1992); E. WENDY TRACHTE-HUBER & STEPHEN K. HUBER, MEDIATION AND NEGOTIATION: REACHING AGREEMENT IN LAW AND BUSINESS (1998) (containing both case study problems and well edited excerpts from very interesting and scholarly negotiations literature). Also, the good people at the National Institute for Trial Advocacy recognize the importance of negotiation skills in resolving disputes, and have produced a variety of materials addressing the subject. See, e.g., THOMAS F. GUERNSEY, A PRACTICAL GUIDE TO NEGOTIATION (1996); MELISSA NELKEN ET AL., PROBLEMS AND CASES IN INTERVIEWING, COUNSELING AND NEGOTIATING (1986); ABRAHAM P. ORDOVER, ALTERNATIVES TO LITIGATION (1993). Students may find books on negotiating by attorneys that, while not texts, are often useful. Still, these typically separate legal substance from technique. See, e.g., MARK K. SCHOENFIELD & RICK M. SCHOENFIELD, LEGAL NEGOTIATIONS (1988).
95. In one of the few exceptions, Moore and Tomlinson explicitly suggest teaching substantive labor law and negotiations technique. See Moore & Tomlinson, supra note 9. See also Rabinovitz, supra note 36. The Moore and Tomlinson piece is both valuable, and bizarrely dated. On the one hand, the article correctly notes that students often learn substantive law more effectively in the competitive context of negotiations exercises. And, presaging literature that followed a number of years later, they observed that this approach helped cure students of their "curiously lop-sided attitude toward the problem-solving aspect of law practice" - that is, the incorrect assumption that cooperation and mediation is ineffective as a method of resolving disputes. Moore & Tomlinson, supra note 9, at 579. On the other hand, despite these contributions, that article contains some of the most unusual and explicitly sexist blather one might find in a law review, let alone in one of the few peer review journals in the legal discipline (The Journal of Legal Education). The authors report that, at one point during their course, they asked one of the female law students in the class to enter into her negotiations "acting sexy." They explain themselves as follows: One of the actors was a female. She was shifted from side to side during subsequent mediation sessions in an effort to discover whether her sex had any impact upon the mediation process. Contrary to the expectations of the instructors, her presence, even when she was instructed to act "sexy" had no apparent impact on the outcome of the process. Id. at 583 n.8. This article was written in 1969. I would not recommend this experiment today.
96. In one of the few exceptions, Moore and Tomlinson explicitly suggest teaching substantive labor law and negotiations technique. See Moore & Tomlinson, supra note 9. See also Rabinovitz, supra note 36. The Moore and Tomlinson piece is both valuable, and bizarrely dated. On the one hand, the article correctly notes that students often learn substantive law more effectively in the competitive context of negotiations exercises. And, presaging literature that followed a number of years later, they observed that this approach helped cure students of their "curiously lop-sided attitude toward the problem-solving aspect of law practice" - that is, the incorrect assumption that cooperation and mediation is ineffective as a method of resolving disputes. Moore & Tomlinson, supra note 9, at 579. On the other hand, despite these contributions, that article contains some of the most unusual and explicitly sexist blather one might find in a law review, let alone in one of the few peer review journals in the legal discipline (The Journal of Legal Education). The authors report that, at one point during their course, they asked one of the female law students in the class to enter into her negotiations "acting sexy." They explain themselves as follows: One of the actors was a female. She was shifted from side to side during subsequent mediation sessions in an effort to discover whether her sex had any impact upon the mediation process. Contrary to the expectations of the instructors, her presence, even when she was instructed to act "sexy" had no apparent impact on the outcome of the process. Id. at 583 n.8. This article was written in 1969. I would not recommend this experiment today.
97. In one of the few exceptions, Moore and Tomlinson explicitly suggest teaching substantive labor law and negotiations technique. See Moore & Tomlinson, supra note 9. See also Rabinovitz, supra note 36. The Moore and Tomlinson piece is both valuable, and bizarrely dated. On the one hand, the article correctly notes that students often learn substantive law more effectively in the competitive context of negotiations exercises. And, presaging literature that followed a number of years later, they observed that this approach helped cure students of their "curiously lop-sided attitude toward the problem-solving aspect of law practice" - that is, the incorrect assumption that cooperation and mediation is ineffective as a method of resolving disputes. Moore & Tomlinson, supra note 9, at 579. On the other hand, despite these contributions, that article contains some of the most unusual and explicitly sexist blather one might find in a law review, let alone in one of the few peer review journals in the legal discipline (The Journal of Legal Education). The authors report that, at one point during their course, they asked one of the female law students in the class to enter into her negotiations "acting sexy." They explain themselves as follows: One of the actors was a female. She was shifted from side to side during subsequent mediation sessions in an effort to discover whether her sex had any impact upon the mediation process. Contrary to the expectations of the instructors, her presence, even when she was instructed to act "sexy" had no apparent impact on the outcome of the process. Id. at 583 n.8. This article was written in 1969. I would not recommend this experiment today.
98. Of the survey courses described in the Journal of Legal Education, the following apparently contained at least one transactional exercise: Peck & Fletcher, supra note 36, at 200 (nice discussion of lease negotiation exercise); Ortwein, supra note 35, at 118 (one real estate problem); Moberly, supra note 36, at 317-18 (real estate). Peck and Fletcher, in general, evidence an appropriate sensitivity of the unique aspects of transactional negotiation. See Peck & Fletcher, supra note 36, at 199-200.
99. Of the survey courses described in the Journal of Legal Education, the following apparently contained at least one transactional exercise: Peck & Fletcher, supra note 36, at 200 (nice discussion of lease negotiation exercise); Ortwein, supra note 35, at 118 (one real estate problem); Moberly, supra note 36, at 317-18 (real estate). Peck and Fletcher, in general, evidence an appropriate sensitivity of the unique aspects of transactional negotiation. See Peck & Fletcher, supra note 36, at 199-200.
100. Of the survey courses described in the Journal of Legal Education, the following apparently contained at least one transactional exercise: Peck & Fletcher, supra note 36, at 200 (nice discussion of lease negotiation exercise); Ortwein, supra note 35, at 118 (one real estate problem); Moberly, supra note 36, at 317-18 (real estate). Peck and Fletcher, in general, evidence an appropriate sensitivity of the unique aspects of transactional negotiation. See Peck & Fletcher, supra note 36, at 199-200.
101. Of the survey courses described in the Journal of Legal Education, the following apparently contained at least one transactional exercise: Peck & Fletcher, supra note 36, at 200 (nice discussion of lease negotiation exercise); Ortwein, supra note 35, at 118 (one real estate problem); Moberly, supra note 36, at 317-18 (real estate). Peck and Fletcher, in general, evidence an appropriate sensitivity of the unique aspects of transactional negotiation. See Peck & Fletcher, supra note 36, at 199-200.
102. See supra note 38 and accompanying text.
103. White, supra note 35, at 353 (emphasis in the original).
104. I am not the first or only lawyer to argue that law schools emphasize a litigation orientation in instruction. Peter Sviglia, in the first line to his book, Exercises in Commercial Transactions, states "[l]aw schools, for the most part, train students to be litigators." PETER SIVIGLIA, EXERCISES IN COMMERCIAL TRANSACTIONS 3 (1995). He neatly distinguishes the commercial (transactional) lawyer's "thought process" from the litigator's: a commercial lawyer is an architect of relationships, not their destroyer. Id. See also Robert S. Redmount, The Transactional Emphasis in Legal Education, 26 J. LEGAL EDUC. 253, 261 (1974).
105. I am not the first or only lawyer to argue that law schools emphasize a litigation orientation in instruction. Peter Sviglia, in the first line to his book, Exercises in Commercial Transactions, states "[l]aw schools, for the most part, train students to be litigators." PETER SIVIGLIA, EXERCISES IN COMMERCIAL TRANSACTIONS 3 (1995). He neatly distinguishes the commercial (transactional) lawyer's "thought process" from the litigator's: a commercial lawyer is an architect of relationships, not their destroyer. Id. See also Robert S. Redmount, The Transactional Emphasis in Legal Education, 26 J. LEGAL EDUC. 253, 261 (1974).
106. I am not the first or only lawyer to argue that law schools emphasize a litigation orientation in instruction. Peter Sviglia, in the first line to his book, Exercises in Commercial Transactions, states "[l]aw schools, for the most part, train students to be litigators." PETER SIVIGLIA, EXERCISES IN COMMERCIAL TRANSACTIONS 3 (1995). He neatly distinguishes the commercial (transactional) lawyer's "thought process" from the litigator's: a commercial lawyer is an architect of relationships, not their destroyer. Id. See also Robert S. Redmount, The Transactional Emphasis in Legal Education, 26 J. LEGAL EDUC. 253, 261 (1974).
107. I am not the first or only lawyer to argue that law schools emphasize a litigation orientation in instruction. Peter Sviglia, in the first line to his book, Exercises in Commercial Transactions, states "[l]aw schools, for the most part, train students to be litigators." PETER SIVIGLIA, EXERCISES IN COMMERCIAL TRANSACTIONS 3 (1995). He neatly distinguishes the commercial (transactional) lawyer's "thought process" from the litigator's: a commercial lawyer is an architect of relationships, not their destroyer. Id. See also Robert S. Redmount, The Transactional Emphasis in Legal Education, 26 J. LEGAL EDUC. 253, 261 (1974).
108. This is not to say that these books do not contain individual transaction based problems or components. E.g., BASTRESS & HARBAUGH, supra note 38, at 86 (problem requiring interview and counseling of commercial lender client). Other books similarly have non-litigation problem sets and examples. However, the problem in Bastress & Harbaugh is a good example of how these texts separate substance from technique, even when treating transactional fact sets. The problem notes, only in passing, that the reader has "review[ed]" Article 9 of the Commercial Code as a precursor to the meeting. Id. This review is essential and it would be in the nuances of the review that a transactional attorney would begin to perceive negotiating strategies, and similarly, interviewing necessities.
109. This is not to say that these books do not contain individual transaction based problems or components. E.g., BASTRESS & HARBAUGH, supra note 38, at 86 (problem requiring interview and counseling of commercial lender client). Other books similarly have non-litigation problem sets and examples. However, the problem in Bastress & Harbaugh is a good example of how these texts separate substance from technique, even when treating transactional fact sets. The problem notes, only in passing, that the reader has "review[ed]" Article 9 of the Commercial Code as a precursor to the meeting. Id. This review is essential and it would be in the nuances of the review that a transactional attorney would begin to perceive negotiating strategies, and similarly, interviewing necessities.
110. A lawyer's negotiations are different than the businessperson's, precisely because of the negotiations' substantive law underpinnings. It is the indeterminacy of the law that often frustrates law students. Yet it is the ambiguity of legal outcome that often forms the basis of effective negotiating technique. This is an important lesson, but it is not taught in the present regime.
111. See White, supra note 35, at 347 (articles by lawyers tended to explain only "what 'works' and when it works").
112. Id. at 347 n.18.
113. Id.
114. Certainly the good students manage to keep up with material, or at least master it by the exam. Yet, there is sometimes little in the classroom indicating that law students view reading the assigned material as a professional responsibility, or that they have truly inculcated such lawyer values. That students in their third year are already tired of the law school "grind" and traditional courses only amplifies the effect. As useful as a survey of techniques may be, and as energizing, they are rarely intellectually challenging in the way of a heavy substantive course (for example, securities, bankruptcy, etc.). This energy drain in the final year of school further detracts from the successful indoctrination of lawyerliness. Indeed, those few writers who do suggest at least some negotiation training in substantive law courses routinely acknowledge that this addition helps keep advanced classes interesting and staves off third year boredom. E.g., Dallas, supra note 5, at 487-88 ("My foray into simulations did not result from a conscious effort to create a simulation, but grew out of my effort to enhance the students ' understanding of substantive materials. . . ."); Rabinovitz, supra note 36, at 470 (noting that there was "little evidence that students were willing to work very hard in traditionally structured law school courses"); Moore & Tomlinson, supra note 9, at 579 ("students . . . develop an almost intuitive 'feel' for the substantive law" as a result of this approach). A common insight of scholars who have written about negotiations courses - including those largely responsible for the survey approach - is that students become emotionally involved in these courses. E.g., White, supra note 35, at 35-53; Peck & Fletcher, supra note 36, at 199. If this is so, then one can readily see that embedding negotiations exercises in substantive law courses may enhance the students' zeal for mastering the substance. In practice, there is no exam waiting to test substantive knowledge and motivate the practitioner. Instead, it is the lawyer's realization that substance matters that drives lawyers to meaningfully advance his or her knowledge after graduation. A course that combines substantive law learning with a succession of transactional exercises - such as commercial leasing - is ideally suited to teaching these aspects of transactional practice.
115. Certainly the good students manage to keep up with material, or at least master it by the exam. Yet, there is sometimes little in the classroom indicating that law students view reading the assigned material as a professional responsibility, or that they have truly inculcated such lawyer values. That students in their third year are already tired of the law school "grind" and traditional courses only amplifies the effect. As useful as a survey of techniques may be, and as energizing, they are rarely intellectually challenging in the way of a heavy substantive course (for example, securities, bankruptcy, etc.). This energy drain in the final year of school further detracts from the successful indoctrination of lawyerliness. Indeed, those few writers who do suggest at least some negotiation training in substantive law courses routinely acknowledge that this addition helps keep advanced classes interesting and staves off third year boredom. E.g., Dallas, supra note 5, at 487-88 ("My foray into simulations did not result from a conscious effort to create a simulation, but grew out of my effort to enhance the students ' understanding of substantive materials. . . ."); Rabinovitz, supra note 36, at 470 (noting that there was "little evidence that students were willing to work very hard in traditionally structured law school courses"); Moore & Tomlinson, supra note 9, at 579 ("students . . . develop an almost intuitive 'feel' for the substantive law" as a result of this approach). A common insight of scholars who have written about negotiations courses - including those largely responsible for the survey approach - is that students become emotionally involved in these courses. E.g., White, supra note 35, at 35-53; Peck & Fletcher, supra note 36, at 199. If this is so, then one can readily see that embedding negotiations exercises in substantive law courses may enhance the students' zeal for mastering the substance. In practice, there is no exam waiting to test substantive knowledge and motivate the practitioner. Instead, it is the lawyer's realization that substance matters that drives lawyers to meaningfully advance his or her knowledge after graduation. A course that combines substantive law learning with a succession of transactional exercises - such as commercial leasing - is ideally suited to teaching these aspects of transactional practice.
116. Certainly the good students manage to keep up with material, or at least master it by the exam. Yet, there is sometimes little in the classroom indicating that law students view reading the assigned material as a professional responsibility, or that they have truly inculcated such lawyer values. That students in their third year are already tired of the law school "grind" and traditional courses only amplifies the effect. As useful as a survey of techniques may be, and as energizing, they are rarely intellectually challenging in the way of a heavy substantive course (for example, securities, bankruptcy, etc.). This energy drain in the final year of school further detracts from the successful indoctrination of lawyerliness. Indeed, those few writers who do suggest at least some negotiation training in substantive law courses routinely acknowledge that this addition helps keep advanced classes interesting and staves off third year boredom. E.g., Dallas, supra note 5, at 487-88 ("My foray into simulations did not result from a conscious effort to create a simulation, but grew out of my effort to enhance the students ' understanding of substantive materials. . . ."); Rabinovitz, supra note 36, at 470 (noting that there was "little evidence that students were willing to work very hard in traditionally structured law school courses"); Moore & Tomlinson, supra note 9, at 579 ("students . . . develop an almost intuitive 'feel' for the substantive law" as a result of this approach). A common insight of scholars who have written about negotiations courses - including those largely responsible for the survey approach - is that students become emotionally involved in these courses. E.g., White, supra note 35, at 35-53; Peck & Fletcher, supra note 36, at 199. If this is so, then one can readily see that embedding negotiations exercises in substantive law courses may enhance the students' zeal for mastering the substance. In practice, there is no exam waiting to test substantive knowledge and motivate the practitioner. Instead, it is the lawyer's realization that substance matters that drives lawyers to meaningfully advance his or her knowledge after graduation. A course that combines substantive law learning with a succession of transactional exercises - such as commercial leasing - is ideally suited to teaching these aspects of transactional practice.
117. Certainly the good students manage to keep up with material, or at least master it by the exam. Yet, there is sometimes little in the classroom indicating that law students view reading the assigned material as a professional responsibility, or that they have truly inculcated such lawyer values. That students in their third year are already tired of the law school "grind" and traditional courses only amplifies the effect. As useful as a survey of techniques may be, and as energizing, they are rarely intellectually challenging in the way of a heavy substantive course (for example, securities, bankruptcy, etc.). This energy drain in the final year of school further detracts from the successful indoctrination of lawyerliness. Indeed, those few writers who do suggest at least some negotiation training in substantive law courses routinely acknowledge that this addition helps keep advanced classes interesting and staves off third year boredom. E.g., Dallas, supra note 5, at 487-88 ("My foray into simulations did not result from a conscious effort to create a simulation, but grew out of my effort to enhance the students ' understanding of substantive materials. . . ."); Rabinovitz, supra note 36, at 470 (noting that there was "little evidence that students were willing to work very hard in traditionally structured law school courses"); Moore & Tomlinson, supra note 9, at 579 ("students . . . develop an almost intuitive 'feel' for the substantive law" as a result of this approach). A common insight of scholars who have written about negotiations courses - including those largely responsible for the survey approach - is that students become emotionally involved in these courses. E.g., White, supra note 35, at 35-53; Peck & Fletcher, supra note 36, at 199. If this is so, then one can readily see that embedding negotiations exercises in substantive law courses may enhance the students' zeal for mastering the substance. In practice, there is no exam waiting to test substantive knowledge and motivate the practitioner. Instead, it is the lawyer's realization that substance matters that drives lawyers to meaningfully advance his or her knowledge after graduation. A course that combines substantive law learning with a succession of transactional exercises - such as commercial leasing - is ideally suited to teaching these aspects of transactional practice.
118. Certainly the good students manage to keep up with material, or at least master it by the exam. Yet, there is sometimes little in the classroom indicating that law students view reading the assigned material as a professional responsibility, or that they have truly inculcated such lawyer values. That students in their third year are already tired of the law school "grind" and traditional courses only amplifies the effect. As useful as a survey of techniques may be, and as energizing, they are rarely intellectually challenging in the way of a heavy substantive course (for example, securities, bankruptcy, etc.). This energy drain in the final year of school further detracts from the successful indoctrination of lawyerliness. Indeed, those few writers who do suggest at least some negotiation training in substantive law courses routinely acknowledge that this addition helps keep advanced classes interesting and staves off third year boredom. E.g., Dallas, supra note 5, at 487-88 ("My foray into simulations did not result from a conscious effort to create a simulation, but grew out of my effort to enhance the students ' understanding of substantive materials. . . ."); Rabinovitz, supra note 36, at 470 (noting that there was "little evidence that students were willing to work very hard in traditionally structured law school courses"); Moore & Tomlinson, supra note 9, at 579 ("students . . . develop an almost intuitive 'feel' for the substantive law" as a result of this approach). A common insight of scholars who have written about negotiations courses - including those largely responsible for the survey approach - is that students become emotionally involved in these courses. E.g., White, supra note 35, at 35-53; Peck & Fletcher, supra note 36, at 199. If this is so, then one can readily see that embedding negotiations exercises in substantive law courses may enhance the students' zeal for mastering the substance. In practice, there is no exam waiting to test substantive knowledge and motivate the practitioner. Instead, it is the lawyer's realization that substance matters that drives lawyers to meaningfully advance his or her knowledge after graduation. A course that combines substantive law learning with a succession of transactional exercises - such as commercial leasing - is ideally suited to teaching these aspects of transactional practice.
119. And it may simply be that transactional lawyers are not prevalent, either among law professors generally or among negotiations teachers in particular. I do not have empirical evidence to support this assertion, but it is my suspicion. In his review of Donald Gifford's Legal Negotiation: Theory and Application, John Murray explicitly recognized that the focus of many course designers is litigation. See Murray, supra note 36. Negotiations teachers seem more likely to be litigators than deal makers. Although by no means uniform, many of the authors providing valuable contributions to negotiations pedagogy indicate, unintentionally perhaps, a prejudice against the transactional aspect of practice. One author explains that he confines his course "largely to the negotiation of disputes. I leave out the negotiation of deals per se and stick to negotiation of the kinds of disputes which make up the grist of legal practice." Galanter, supra note 36, at 270. Interestingly, Galanter's article makes a strong and useful contribution, notwithstanding his disavowal of transactional practice. He recognizes that negotiation is no "universal language" and that different styles may be prevalent in different substantive and practice areas. He explains that his goal is to "fit this general negotiation core to the context of a particular bargaining arena." Id. at 272. Certainly, negotiations of disputes make up the overwhelming majority of negotiations faced by litigators in practice. But the average transactional lawyer, although confronted with disputes that must be negotiated regularly, negotiates initial business relationships prior to emergence of disputes. If done well, effective negotiations that account for the needs of all the parties at the table may preclude or at least lessen the likelihood of an eventual "dispute." To say that dispute resolution negotiations make up the "grist" of what lawyers do ignores half the lawyers who practice. Another scholar explains that a major goal of negotiation technique courses is to "educate students about the role of negotiation in society, and the role lawyers play in avoiding and settling disputes as well as litigating them." Moberly, supra note 36, at 317. In fairness to Professor Moberly, he may have had transactional lawyers and lawyering in mind when he explained that negotiations technique may be used to avoid disputes. After all, negotiations at the outset of a loan, for example, may, if well done, help avoid the loan workout dispute later in time. However, a reasonable reading of this article does not lead one to see an emphasis on transactional practice. Again, while the sentiment is noble and worthwhile - informing students of the place of negotiations in society - the statement reveals an odd blind spot: lawyers do not just avoid, settle and litigate disputes; lawyers help explore and negotiate the initial creation of wealth that later may or may not erupt in some dire dispute. This author is not alone in suggesting that law schools develop a greater focus on transactional practice, and to try to persuade law faculty to look beyond what is often a litigation orientation. E.g., Redmount, supra note 43, at 261 ("The transactions in lawyers offices are as important to the character and study of law as the policies and actions of courts and administrative bodies."). This absence of transactional lawyers from negotiations teaching may be responsible for reinforcing the view I hear expressed by both students and faculty from time to time that transaction practice is largely a matter of preparing forms.
120. And it may simply be that transactional lawyers are not prevalent, either among law professors generally or among negotiations teachers in particular. I do not have empirical evidence to support this assertion, but it is my suspicion. In his review of Donald Gifford's Legal Negotiation: Theory and Application, John Murray explicitly recognized that the focus of many course designers is litigation. See Murray, supra note 36. Negotiations teachers seem more likely to be litigators than deal makers. Although by no means uniform, many of the authors providing valuable contributions to negotiations pedagogy indicate, unintentionally perhaps, a prejudice against the transactional aspect of practice. One author explains that he confines his course "largely to the negotiation of disputes. I leave out the negotiation of deals per se and stick to negotiation of the kinds of disputes which make up the grist of legal practice." Galanter, supra note 36, at 270. Interestingly, Galanter's article makes a strong and useful contribution, notwithstanding his disavowal of transactional practice. He recognizes that negotiation is no "universal language" and that different styles may be prevalent in different substantive and practice areas. He explains that his goal is to "fit this general negotiation core to the context of a particular bargaining arena." Id. at 272. Certainly, negotiations of disputes make up the overwhelming majority of negotiations faced by litigators in practice. But the average transactional lawyer, although confronted with disputes that must be negotiated regularly, negotiates initial business relationships prior to emergence of disputes. If done well, effective negotiations that account for the needs of all the parties at the table may preclude or at least lessen the likelihood of an eventual "dispute." To say that dispute resolution negotiations make up the "grist" of what lawyers do ignores half the lawyers who practice. Another scholar explains that a major goal of negotiation technique courses is to "educate students about the role of negotiation in society, and the role lawyers play in avoiding and settling disputes as well as litigating them." Moberly, supra note 36, at 317. In fairness to Professor Moberly, he may have had transactional lawyers and lawyering in mind when he explained that negotiations technique may be used to avoid disputes. After all, negotiations at the outset of a loan, for example, may, if well done, help avoid the loan workout dispute later in time. However, a reasonable reading of this article does not lead one to see an emphasis on transactional practice. Again, while the sentiment is noble and worthwhile - informing students of the place of negotiations in society - the statement reveals an odd blind spot: lawyers do not just avoid, settle and litigate disputes; lawyers help explore and negotiate the initial creation of wealth that later may or may not erupt in some dire dispute. This author is not alone in suggesting that law schools develop a greater focus on transactional practice, and to try to persuade law faculty to look beyond what is often a litigation orientation. E.g., Redmount, supra note 43, at 261 ("The transactions in lawyers offices are as important to the character and study of law as the policies and actions of courts and administrative bodies."). This absence of transactional lawyers from negotiations teaching may be responsible for reinforcing the view I hear expressed by both students and faculty from time to time that transaction practice is largely a matter of preparing forms.
121. And it may simply be that transactional lawyers are not prevalent, either among law professors generally or among negotiations teachers in particular. I do not have empirical evidence to support this assertion, but it is my suspicion. In his review of Donald Gifford's Legal Negotiation: Theory and Application, John Murray explicitly recognized that the focus of many course designers is litigation. See Murray, supra note 36. Negotiations teachers seem more likely to be litigators than deal makers. Although by no means uniform, many of the authors providing valuable contributions to negotiations pedagogy indicate, unintentionally perhaps, a prejudice against the transactional aspect of practice. One author explains that he confines his course "largely to the negotiation of disputes. I leave out the negotiation of deals per se and stick to negotiation of the kinds of disputes which make up the grist of legal practice." Galanter, supra note 36, at 270. Interestingly, Galanter's article makes a strong and useful contribution, notwithstanding his disavowal of transactional practice. He recognizes that negotiation is no "universal language" and that different styles may be prevalent in different substantive and practice areas. He explains that his goal is to "fit this general negotiation core to the context of a particular bargaining arena." Id. at 272. Certainly, negotiations of disputes make up the overwhelming majority of negotiations faced by litigators in practice. But the average transactional lawyer, although confronted with disputes that must be negotiated regularly, negotiates initial business relationships prior to emergence of disputes. If done well, effective negotiations that account for the needs of all the parties at the table may preclude or at least lessen the likelihood of an eventual "dispute." To say that dispute resolution negotiations make up the "grist" of what lawyers do ignores half the lawyers who practice. Another scholar explains that a major goal of negotiation technique courses is to "educate students about the role of negotiation in society, and the role lawyers play in avoiding and settling disputes as well as litigating them." Moberly, supra note 36, at 317. In fairness to Professor Moberly, he may have had transactional lawyers and lawyering in mind when he explained that negotiations technique may be used to avoid disputes. After all, negotiations at the outset of a loan, for example, may, if well done, help avoid the loan workout dispute later in time. However, a reasonable reading of this article does not lead one to see an emphasis on transactional practice. Again, while the sentiment is noble and worthwhile - informing students of the place of negotiations in society - the statement reveals an odd blind spot: lawyers do not just avoid, settle and litigate disputes; lawyers help explore and negotiate the initial creation of wealth that later may or may not erupt in some dire dispute. This author is not alone in suggesting that law schools develop a greater focus on transactional practice, and to try to persuade law faculty to look beyond what is often a litigation orientation. E.g., Redmount, supra note 43, at 261 ("The transactions in lawyers offices are as important to the character and study of law as the policies and actions of courts and administrative bodies."). This absence of transactional lawyers from negotiations teaching may be responsible for reinforcing the view I hear expressed by both students and faculty from time to time that transaction practice is largely a matter of preparing forms.
122. And it may simply be that transactional lawyers are not prevalent, either among law professors generally or among negotiations teachers in particular. I do not have empirical evidence to support this assertion, but it is my suspicion. In his review of Donald Gifford's Legal Negotiation: Theory and Application, John Murray explicitly recognized that the focus of many course
123. And it may simply be that transactional lawyers are not prevalent, either among law professors generally or among negotiations teachers in particular. I do not have empirical evidence to support this assertion, but it is my suspicion. In his review of Donald Gifford's Legal Negotiation: Theory and Application, John Murray explicitly recognized that the focus of many course designers is litigation. See Murray, supra note 36. Negotiations teachers seem more likely to be litigators than deal makers. Although by no means uniform, many of the authors providing valuable contributions to negotiations pedagogy indicate, unintentionally perhaps, a prejudice against the transactional aspect of practice. One author explains that he confines his course "largely to the negotiation of disputes. I leave out the negotiation of deals per se and stick to negotiation of the kinds of disputes which make up the grist of legal practice." Galanter, supra note 36, at 270. Interestingly, Galanter's article makes a strong and useful contribution, notwithstanding his disavowal of transactional practice. He recognizes that negotiation is no "universal language" and that different styles may be prevalent in different substantive and practice areas. He explains that his goal is to "fit this general negotiation core to the context of a particular bargaining arena." Id. at 272. Certainly, negotiations of disputes make up the overwhelming majority of negotiations faced by litigators in practice. But the average transactional lawyer, although confronted with disputes that must be negotiated regularly, negotiates initial business relationships prior to emergence of disputes. If done well, effective negotiations that account for the needs of all the parties at the table may preclude or at least lessen the likelihood of an eventual "dispute." To say that dispute resolution negotiations make up the "grist" of what lawyers do ignores half the lawyers who practice. Another scholar explains that a major goal of negotiation technique courses is to "educate students about the role of negotiation in society, and the role lawyers play in avoiding and settling disputes as well as litigating them." Moberly, supra note 36, at 317. In fairness to Professor Moberly, he may have had transactional lawyers and lawyering in mind when he explained that negotiations technique may be used to avoid disputes. After all, negotiations at the outset of a loan, for example, may, if well done, help avoid the loan workout dispute later in time. However, a reasonable reading of this article does not lead one to see an emphasis on transactional practice. Again, while the sentiment is noble and worthwhile - informing students of the place of negotiations in society - the statement reveals an odd blind spot: lawyers do not just avoid, settle and litigate disputes; lawyers help explore and negotiate the initial creation of wealth that later may or may not erupt in some dire dispute. This author is not alone in suggesting that law schools develop a greater focus on transactional practice, and to try to persuade law faculty to look beyond what is often a litigation orientation. E.g., Redmount, supra note 43, at 261 ("The transactions in lawyers offices are as important to the character and study of law as the policies and actions of courts and administrative bodies."). This absence of transactional lawyers from negotiations teaching may be responsible for reinforcing the view I hear expressed by both students and faculty from time to time that transaction practice is largely a matter of preparing forms.
124. NITA - the National Institute for Trial Advocacy - produces numerous trial advocacy training materials. These materials are used in teaching many of the nations law students basic trial skills.
125. In the real estate field, lawyers often observe that developers are risk preferring salesmen so good at persuasion that they come to believe their own propaganda. Lenders, by contrast, focus on the bottom line and are usually risk averse - often with distinctly bureaucratic personalities. Attorneys who are effective at representing lenders learn that certain styles are not only more effective in the actual negotiation, but are complementary to the personalities of their clients. There are lender clients who typically demand that their lawyers "Just Say No": the lawyer is instructed to say no to just about every demand of the borrower.
126. Robert B. Moberly, in a fine piece describing a survey approach to negotiations pedagogy, notes that one important goal of a negotiations survey course is "to develop student competence and effectiveness in this fundamental skill, utilizing . . . [among other features] detailed critiques of student performances . . . ." Moberly, supra note 36, at 316 (emphasis added).
127. I do not discount the need to evaluate performance. Rather, I merely want a more honest acceptance of the relative value of a performance orientation to negotiations classes, when this element, in the transactional field, has a somewhat different character. I agree with Professor Bernard Ortwein that law school does provide the opportunity to critique style; something that actual practice rarely provides in a formal manner. Ortwein, supra note 35, at 114 ("Exposing students to the Negotiation Process while in the academic setting presents an atmosphere conducive to thoughtful analysis with direct impartial criticism of the student's performance rarely available to the practicing attorney."). I would not overstate this point, however. Supervising lawyers have a stake in the development of their charges, and there are plenty of attorneys who train their associates well with a careful eye on negotiating style. The problem for transactional lawyers is often that the first time out of the gate is unobserved. A litigation attorney serving as second chair may be observed by her supervising lawyer while carrying out a cross examination or voir dire. Although a transactional lawyer (in the real estate field, for example) may accompany a more senior lawyer many times before handling a closing alone, when that time comes, there is likely no senior attorney in the room watching.
128. That dramatic skills are less (but not un-) important to the transactional lawyer should be obvious. Imagine a real estate partner training a young associate. The following is not likely: "Bill, when you suggested that the seller confirm receipt of that wire transfer, you lacked gusto. Next time, move up real close to that speaker phone, lower your voice, and kick some butt."
129. I am not the only person whose grandmother, in the same tone, used to say "Don't jump in puddles!" The admonition to law students to take care will probably, without more, be received with the same appreciation as I did my grandmother's statement those many years ago.
130. Real estate law accounts for a significant portion of legal malpractice. One unfortunate reason is simply that lawyers with no real expertise seem quite willing to engage in the occasional real estate transaction, assuming that it is nothing more than filling in forms.
131. Although not the norm, some authors do explain the importance of document review. See SCHOENFIELD & SCHOENFIELD, supra note 38, at 361-80. Not surprisingly, this aspect of actual practice is most often recognized, as here, by practicing attorneys. And even though that book makes this critical contribution, it does not do so within a substantive law framework, instead relying on a nonsubstance specific survey.
132. I have occasionally asked students whether they proofread work before they hand it in. The answer - uniformly - is yes. And yet what a student understands to be thorough proofreading is quite different from the expectation of their future attorney employers. Students, even the best students, usually explain that they read the work product slowly, perhaps out loud, in an attempt to catch mistakes. I then show them what a lawyer does prior to sending out this documentation: I hold up a ruler (and a copy of a mortgage or other long document) and proceed to show how a lawyer in practice will actually read his or her own work product line by line. I also explain that nothing makes a lawyer, or that lawyer's firm, look more stupid and incompetent than misspelled words and incomplete or incomprehensible sentences. (Finally, I admit that I was a prime offender in my first years.)
133. See supra Part II.
134. One can find a nice explanation of the comparative advantage good transactional lawyers bring to their clients in a recent casebook by professors Robin Malloy and James Smith. ROBIN PAUL MALLOY & JAMES CHARLES SMITH, REAL ESTATE TRANSACTIONS: PROBLEMS, CASES AND MATERIALS 11-14 (1998).