Inside the 3L Litigation Immersion – Complaints and Negotiations
Hannah Shtein is a 3L from Milwaulkee, Wisconsin. She’s blogging about her experience in W&L’s fall litigation skills immersion, one of the key components of the School’s innovative third-year curriculum.
“I find the negotiations practice to be the most helpful part of immersion so far. It’s an exercise in understanding human behavior, which is essential to lawyering but also broadly applicable to any career (e.g. making a sale) or personal relationship (e.g. managing conflicting schedules), so it’s helpful to be able to practice such an essential soft skill in a classroom setting, without actually having $20,000 on the line.”
8:30-3:00pm – Submitting, Discussing, and Amending Complaints and Counterclaims
Our complaints are due Wednesday morning by 8:00am. Lots of students are a little frazzled by this assignment, largely because we don’t know what to expect. How long should the complaint be, how many claims should we assert, should we draw on the cases in our research packet or will they not be applicable until later, etc? I, like other students, have some experience with complaint drafting from my summer internship at a District Attorney’s office, but this is different because we are making a complaint “from scratch”, rather than using a form complaint and/or working with a familiar area of law (for instance, my internship dealt only with criminal law in domestic violence cases, so most complaints were very similar to one another).
I talk to several other students who share my sentiment that this process feels a little rushed, and she relates an important point from her small section professor—that this is an exercise in understanding process as well as substance. Of course, part of what we’re learning is how to incorporate substantive claims into a complaint, but part of it is also understanding that drafting a complaint in an area of law with which I’m not familiar will feel rushed if I attempt to do it in one night. So it’s an opportunity to understand that this would be a mistake in the “real” (job) world, without having to learn the hard way by making that mistake in our careers.
The assignment for that night is to file an answer or counterclaim (depending on which side we are representing), and to respond to discovery requests. For the discovery, we are given hypothetical requests for documents and information (e.g. one request asks to provide a factual basis for the claims in my complaint), and are to respond either by producing the documents or objecting if we decide an objection is applicable. For instance, some students object to the factual basis request by arguing that it’s redundant because it’s already in the complaint.
12:45-4pm – Negotiation Theory and Exercises
After submitting our discovery responses, we spend most of the day talking about negotiation strategy, and practicing drills with our small sections.
Professor Moliterno gives a presentation on negotiation tactics, and lays the groundwork for the drills by providing a basic framework on how to approach it: we should always be considering why the other party wants what it wants, and finding ways to address the underlying interest, rather than focusing only on their immediate request. For instance, a person’s client may have an emotional reason for making a certain request, and understanding that reason may mean that you can come up with an alternative solution that suits the opposing party’s needs but is also workable for your client.
We see this in practice when we break into small groups to work on negotiation drills. We rotate through several partners, each side receiving information regarding what their client will settle for (e.g. a monetary amount, or a certain amount of visitation in a custody case). In a family law problem we are given, for example, the opposing party’s client insists on having custody every Sunday, but my client also prefers Sunday. However, talking with my opposing counsel reveals that our clients want Sunday custody for different reasons that are not in opposition to one another (his client would like to take her son to church in the mornings, while my client would like to watch football with him, which does not start until later in the day), so we are able to come up with an arrangement in which we split the day in half.
Our homework that night is to use the skills we’ve practiced to come up with a negotiation strategy for our client (the same client and opposing counsel we’ve been working with throughout the week). Again, we receive information regarding what sort of settlement our respective clients will take (my client wants either $20,000 in back pay, or to be reinstated to her job with an apology and certain contractual obligations on the part of her employer).
8:30-12:00pm – Negotiation with Opposing Counsel in Employment Discrimination Cases
After having talked with our clients the night before, we are assigned a thirty minute time slot to meet with opposing counsel to attempt to negotiate a settlement. My opposing counsel and I have a good rapport, and we decide to sit down before our scheduled negotiation to get a better idea of what our clients want before we have to talk numbers and contractual terms. We both decide that we want this to be a painless process and that we would ideally like to avoid a trial, so when it comes time for our actual negotiation, we end up settling fairly quickly because neither of us draws a hard line. Because we met beforehand, we have a better idea of our clients’ and each others’ expectations, so instead of arguing about why our clients want what they want, we are able to start throwing numbers out until we find one that works for both of us. Professor Moliterno, who supervises our negotiation and takes notes for later feedback, tells us that our negotiation took much less time than most people’s (we use only seven of our assigned thirty minutes).
Once the negotiation is over, we briefly meet with our clients to tell them whether we were able to settle, and our clients let us know if they are happy with the settlement, or would like to go to trial to obtain a better result. My client is pleased, because I was able to have the other side pay her the $20,000 she asked for (she’s somewhat of a busybody employee, so I chose not to attempt to get her reinstated—but don’t tell her that!).
1:15-2:00pm – Debrief Negotiations
Once everyone has had their negotiation, we meet in small groups with the professors who observed our negotiations and discuss our results. My opposing counsel and I are one of few groups who were able to settle—other groups share that they had a more difficult time agreeing with their opposing party about what their clients deserved, while my opposing counsel and I spent almost no time discussing each party’s claims, and just started discussing numbers right away.
Overall, I find the negotiations practice to be the most helpful part of immersion so far. It’s an exercise in understanding human behavior, which is essential to lawyering but also broadly applicable to any career (e.g. making a sale) or personal relationship (e.g. managing conflicting schedules), so it’s helpful to be able to practice such an essential soft skill in a classroom setting, without actually having $20,000 on the line.
Despite our relative ease in coming to a settlement, this jurisdiction (aka immersion rules) still requires us to go to trial, so the next phase of immersion is trial preparation (which naturally means public speaking—I’m nervous).