Traditional legal education has contemplated a practice world that no longer exists, if it ever did. In this mythical world, lawyers function essentially as warrior champions, battling their adversaries. Thus, law schools train students in the primary weapon of that form of warfare- critical analysis and rhetoric. “Case analysis,” which dominates the conventional curriculum, is the embodiment of these skills.
The realities of contemporary law practice collide with this mythos. The vast majority of disputes do not entail even the filing of a lawsuit. And for disputes that do trigger litigation, only a handful of them go to trial. The phenomenon of resolution of a dispute through trial, which is the presumptive field of play in conventional legal education, is now approaching the vanishing point.
What remains absent, or nearly so, from our educational program is the study of the skills that are demanded of the practicing lawyer in a practice world where disputes abound but no one goes to trial.
We will step into that void in the conventional law school curriculum in this seminar. Among our topics will be the idea of “conflict resolution advocacy,” the growing phenomenon of “Collaborative Lawyering,” and some of the various “interest-based” negotiation models. Our readings may also address some related topics, including the use of “settlement counsel” by corporations in litigation, restorative justice alternatives to incarceration in the criminal law context, and the rise of self-represented litigants.