Craver Charles B.-Legal Negotiation Process and Techniques
Craver Charles B.-Legal Negotiation Process and Techniques
Craver Charles B.-Legal Negotiation Process and Techniques
PROCESS AND
TECHNIQUES
BY CHARLES B. CRAVER
FREDA H. ALVERSON PROFESSOR
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
WASHINGTON, D.C.
1
PREFACE
Professor Craver has made presentations on EFFECTIVE LEGAL
NEGOTIATION AND SETTLEMENT and ALTERNATIVE DISPUTE RESOLUTION to
over eighty-five thousand legal practitioners in over forty
states, the District of Columbia, Canada, England, Mexico,
Austria, Germany, Puerto Rico, Turkey, and China. He is the Freda
H. Alverson Professor of Law at the George Washington University
Law School, where he regularly teaches a course on Legal
Negotiating. He was formerly associated with Morrison & Foerster
in San Francisco, where he specialized in employment and
litigation practice.
CONTENTS
Page
INTRODUCTION 5
COMMUNICATION EXERCISE 6
A. Basic Areas 9
B. Assumptions 9
C. Establishment of Aspiration Level 9
D. Planning Strategy and Tactics 11
E. Must Develop Strategy that Will Result in Final
Offer Opponent Will be Tempted to Accept 11
F. Must Always Remember Best Alternative to a
Negotiated Agreement 11
X. ETHICAL CONSIDERATIONS 34
INTRODUCTION
The art of legal negotiating concerns skills rarely taught in
traditional law school curricula, even though practicing
attorneys regularly encounter situations that require various
forms of negotiation. While the negotiation process is clearly
applicable to lawsuit settlements, contractual undertakings,
business transactions, and so forth, it is easy to ignore its
application to other equally important areas of law practice.
__________
COOPERATIVE/PROBLEM-SOLVING COMPETITIVE/ADVERSARIAL
1. Status Factors:
b. Educational background.
2. Experience Factors:
a. Personal skill.
b. Negotiating experience.
2. Sources of Information:
3. Problems of Interpretation:
4. Verification Mechanisms:
7. Intransigence.
8. Straight-forwardness.
c. Counter-measures:
4. Probing Questions.
6. Range Offers.
7. Settlement Brochure.
9. "Nibble" Technique.
17. Uproar.
c. Counter-measures:
c. Counter-measures:
X. ETHICAL CONSIDERATIONS
A. Attorneys are obligated to represent clients zealously,
within the bounds of professional propriety.
APPENDIX A
Sexual Harassment Exercise
GENERAL INFORMATION
Last year, Jane Doe was a first year law student at the
Yalebridge Law School, which is part of Yalebridge University, a
private, non-sectarian institution. Ms. Doe was a student in
Professor Alexander Palsgraf's Tort Law class.
Last June, Ms. Doe received her first year law school
grades. She received one "A", two "A-", one "B+", and one "D",
the latter grade pertaining to her Tort Law class. She
immediately went to see Professor Palsgraf to ask him about her
low grade. He said that he was sorry about her "D", but
indicated that the result might well have been different had she
only acquiesced in his previous request for sexual favors.
Ms. Doe then had Professor Irving Prosser, who also teaches
Tort Law at Yalebridge, review her exam. He said that it was a
"most respectable paper" which should certainly have earned her
an "A-" or "B+", and possibly even an "A".
It is now early August, and Ms. Doe will begin her second
year of law school in several weeks.
39
CONFIDENTIAL INFORMATION -- JANE DOE
Professor Palsgraf fears that Ms. Doe may ask for his
resignation from the Yalebridge Law School, and he would rather
lose everything before he would forfeit his Yalebridge position.
Should you agree to have Professor Palsgraf resign his Yalebridge
professorship, you must deduct 500 points.
APPENDIX B
GENERAL INFORMATION -- RODRIGUEZ v. DOUGLAS CHEMICAL COMPANY
APPENDIX C
Arrow, K., Mnookin, R., Ross, L., Tversky, A. & Wilson, R.,
Barriers to Conlict Resolution (1995)
Latz, M., Gain the Edge: Negotiating to Get What You Want (2004)
49
Lax, D. & Sebenius, J., 3-D Negotiation (2006)
Madonik, B., I Hear What you Say, But What Are You Telling Me
(2001)
Pinkley R. & Northcraft, G., Get Paid What You’re Worth (2000)
Stark, P. & Flaherty, J., The Only Negotiating Guide You’ll Ever
Need (2003)