Tuesday, October 9, 2007
Continuing our series of responses from various legal luminaries to the question: What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine:
James C. Freund (Of Counsel, Skadden, New York; Author, Anatomy of a Merger (1975); Lawyering: A Realistic Approach to Legal Practice (1979); Legal-Ease: Fresh Insights Into Lawyering (1984); The Acquisition Mating Dance and Other Essays on Negotiating (1987); Advise and Invent: The Lawyer As Counselor-Strategist and Other Essays (1990); and Smart Negotiating: How to Make Good Deals in the Real World (1993)):
As a lawyer, I used to do deals, mostly mergers and acquisitions. Since my retirement a decade ago, I've been mediating disputes that arise out of other people's deals.
The lawyers who attempt to settle disputes through negotiation (including by mediation) are usually litigators. For reasons contained in a recent article [James C. Freund, Calling All Deal Lawyers – Try Your Hand at Resolving Disputes, 62 Bus.Law. 37 (2006)], I think that deal lawyers may often be more effective at the task, but the bulk of them shun this activity ("not my job").
My sense is that in most law schools, litigation is viewed as the gold standard for resolving disputes, and the gladiators who try the cases are the students' role models. This may be appropriate for determining constitutional rights, but to my mind it misses the mark in the world of commerce.
The best way to resolve business disputes that don't affect life or liberty is through reaching negotiated compromise resolutions – based on business judgment, risk analysis and the assessment of probabilities – rather than "outsourcing" the company's fate to judges, juries and arbitrators.
So I urge law schools to motivate and educate their students accordingly. Elevate the negotiated resolution of commercial disputes to equal footing with those all-or-nothing courtroom edicts and just as worthy of a client's esteem. Teach your students – as I did for many years as an adjunct professor – how to reach responsible compromise solutions that avoid litigation. And incentivize those who don't intend to be litigators that it's very much their business also.
For all the posts in the series, see here.