Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money
by John Lande
This book is written primarily for lawyers who want to improve their effectiveness. Whether you’re a solo practitioner or in a mid- to large-sized firm, you negotiate all the time. This guide shows how you can be more successful using Planned Early Negotiation (PEN).
The strategies in this book can help you become a more effective negotiator, which can increase your professional satisfaction, generate good will, relieve stress, and increase your effective billing rates with creative fee arrangements. The book includes advice from interviews of outstanding lawyers who handle all kinds of cases.
But this book is not only about negotiation — it outlines a general approach to practicing law. This book will help you:
- Build strong relationships with your clients
- Choose billing systems that maximize both your interests and your clients’ interests
- Develop effective working relationships with the other side and minimize unnecessary conflict
- Increase your confidence when you negotiate
- Manage problems that commonly arise in negotiation
- Use experts and other professionals effectively
- Improve your negotiation skills throughout your career
PEN focuses on building good professional relationships with your clients and the other side to help clients more efficiently and avoid getting stuck in unproductive games.
Most cases never go to trial. Most are settled late and in an unplanned, disorganized manner.
Many lawyers are afraid to suggest negotiation because they’re afraid it makes their cases look weak. They are trapped in a “prison of fear” that harms clients who would benefit from negotiating early instead of settling on the courthouse steps. This book offers you a way to escape from this prison of fear.
With PEN, you serve your clients’ interests by planning to negotiate from the outset. Litigation is still possible, but it isn’t the first step.
This book is based on research on mediation and Cooperative and Collaborative Practice. It suggests that lawyers take the initiative to jointly manage their cases. This involves exchanging the information you need to settle instead of waiting to respond to courts or mediators. It suggests procedures to plan constructive negotiations – and deal with problems that commonly arise.
PEN is not appropriate in every case but when it is, it provides you a way to satisfy many clients and make money by using your time more efficiently.
In addition to lawyers in private practice, others can also benefit:
- Corporate and government counsel can use it to manage their dockets.
- Bar associations and courts can use it in CLE programs.
- Professionals such as mediators can use it to work with lawyers better.
- Legal clients can use it to work more effectively with their lawyers.
- Law school instructors can use it in negotiation and lawyering courses.
- Law students can get a practical perspective about legal practice.
The American Bar Association published the book, which includes a CD with numerous practical forms. Here are links to the table of contents and a detailed summary of the book. For more information and to order the book, click here.
“All lawyers should read Lawyering with Planned Early Negotiation, whether you are in solo practice or a mega-firm or anywhere in between. Lande provides practical advice about developing good working relationships with your clients and the other side, which can make a huge difference for you and your clients. Since most cases settle, lawyers need to be savvy negotiators and this book will help you negotiate good deals. You can use many of these techniques even in cases that you don’t negotiate.”
Talbot “Sandy” D’Alemberte
President Emeritus, Florida State University
Former President, American Bar Association
“Lawyering provides the full picture of what the legal profession needs today–a “how to” book about efficiently resolving disputes at the earliest possible stage. For lawyers who sincerely care about their clients’ needs, it is a must read. It is a practical reference guide filled with real stories of methods that lawyers use in civil practice today. Lande provides helpful guidance for sophisticated lawyers and novices alike. This concise, easy-to-read volume provides the tools 21st Century lawyers need to deliver successful results for their clients.”
Former President and CEO
CPR: International Institute for Conflict Prevention & Resolution
“This is an invaluable introduction to Planned Early Negotiation, which includes, but is not limited to, Collaborative Law, Cooperative Law, and Settlement Counsel. This is an important lawyering activity that law schools generally ignore. Lande’s book is the perfect way to fill this gap in educating law students. It is clear, systematic, and comprehensive. Seamlessly blending theory and practice, it would make a splendid supplement to a variety of ADR and other courses.”
Leonard L. Riskin
Chesterfield Smith Professor of Law
University of Florida Levin College of Law
Litigation, Less Bleak: Planning for Early Negotiation Could Be a Boon to Both Clients and Lawyers, Illumination, Spring / Summer 2011.
James E. McGuire, All About Doing Good While Doing Well, New England Chapter of Association for Conflict Resolution Newsletter, Spring 2011.
Margaret M. Huff, Lawyering with Planned Early Negotiation, Tennessee Bar Association, August 2011.
Jan Frankel Schau, Lawyering with Planned Early Negotiation, International Academy of Mediators Mediation Newsletter, March 2012 (reprinted in the Los Angeles Daily Journal, Friday, March 16, 2012).
Joan Stearns Johnsen, Planned Early Negotiations-Another Tool to Resolve Disputes, Dispute Resolution Journal, November 2011- January 2012.
John Sturrock, Getting in Early and Doing it by the Book Can Reap Rewards, The Scotsman, May 14, 2012.
F. Peter Phillips, Lande’s Disconcertingly Excellent Book, Business Conflict Blog, Sept. 4, 2012.
The major changes in the second edition are based on a study of legal negotiation that I conducted, A Framework for Advancing Negotiation Theory: Implications from a Study of How Lawyers Reach Agreement in Pretrial Litigation, 16 Cardozo Journal of Conflict Resolution 1 (2014), which was awarded the inaugural Mangano Dispute Resolution Achievement Award.
Before conducting this study, I had accepted the two traditional models of negotiation – positional and interest-based – which I summarized in Chapter 5 of the first edition. The more I looked at the data, however, the more I realized that the traditional theory is confusing and counterproductive.
With some reluctance, I suggested replacing the traditional model with a flexible framework for analyzing negotiations. Unlike the traditional theory, which assumes that the two models are coherent combinations of several variables that are highly correlated with each other, the proposed framework separates the variables and does not assume that they are correlated—or that there are only two extreme values for each variable.
The variables in the framework include (1) the communication process used, (2) whether parties are concerned about the other side’s interests, (3) whether parties try to create value, (4) the friendliness of the interactions, (5) the source of norms, and (6) the use of power. In the second edition, Chapter 5 briefly summarizes the traditional models but focuses primarily on the variables in the framework.
The second edition also makes explicit a point that was implicit in the first edition—namely, that many lawyers are what I call “Nike lawyers”: they just do it. They regularly use planned early negotiation, which they simply consider to be good legal practice. For these lawyers, PEN techniques have become second nature and not something that they consciously or systematically define.
I have used this book as the required text for courses on Negotiation; Family Law Dispute Resolution; and Interviewing, Counseling, and Negotiation. Colleagues at other schools have used it as well. Students really appreciate the practical and concise chapters as well numerous appendixes with handy forms and checklists.
The courses emphasize that negotiation of the ultimate issues in cases necessarily unfold from the preceding events, beginning with the first lawyer-client interviews. In real life, lawyers normally don’t “parachute” into negotiations just before the end, and all the intervening events are likely to affect the negotiation significantly. In addition, the relationship between counterpart lawyers is likely to have an important effect on the negotiation.
To give students a more realistic feeling of how lawyers handle cases, students engage in multi-stage simulations in which lawyers interview clients, develop relationships with their counterpart lawyers, plan for negotiation, and then ultimately conduct negotiations with their clients and counterparts. These simulations dramatically improve students’ learning experiences, which they describe in papers analyzing those experiences. Of course, instructors should tailor their courses to fit their teaching goals and constraints.
The teacher’s manual includes several course syllabi, multistage simulations, and other teaching materials.
The teacher’s manual can be downloaded on this password-protected webpage. Instructors can email me to get the password as well as a review copy of the book.
Articles by John Lande Related to the Book
Why and How Businesses Use Planned Early Dispute Resolution, 13 Univ. of St. Thomas Law Journal (forthcoming) (with Peter W. Benner).
Taking Advantage of Opportunities in “Litigotiation,” Dispute Resolution Magazine, Summer 2015, at 40.
Family Lawyering with Planned Early Negotiation: How to Get Good Results for Clients and Make Money, Family Advocate, Winter 2015, at 12.
Good Pretrial Lawyering: Planning to Get to Yes Sooner, Cheaper, and Better, 16 Cardozo Journal of Conflict Resolution 63 (2014).
A Framework for Advancing Negotiation Theory: Implications from a Study of How Lawyers Reach Agreement in Pretrial Litigation, 16 Cardozo Journal of Conflict Resolution 1 (2014).
Escaping From Lawyers’ Prison of Fear, 82 UMKC Law Review 485 (2014).
How Corporations Can Resolve Disputes Sooner, Cheaper, and Better, Corporate Disputes Magazine, April-June 2014, at 28. You can download the article by subscribing to the magazine for free by clicking here and then clicking on “downloads.”
Lessons from “Teaching Students to Negotiate Like a Lawyer,” 15 Cardozo Journal of Conflict Resolution 1 (2013).
Teaching Students to Negotiate Like a Lawyer, 39 Washington University Journal of Law and Policy 109 (2012).
How Advocates Can Manage Cases Better, And Get Good Results, With ‘Planned Early Negotiation,’ 29 Alternatives to the High Cost of Litigation 161 (2011).
How Neutrals Can Provide Early Case Management of Construction Disputes, JAMS Global Construction Solutions, Spring 2011, at 6.
Getting Good Results for Clients by Building Good Working Relationships with “Opposing Counsel,” 33 University of La Verne Law Review 107 (2011).
The Movement Toward Early Case Handling in Courts and Private Dispute Resolution, 24 Ohio State Journal on Dispute Resolution 81 (2008).
Planned Early Dispute Resolution Resources
The American Bar Association Section of Dispute Resolution created a Planned Early Dispute Resolution (PEDR) Task Force, which John Lande chaired. The Task Force produced a PEDR User Guide for business parties and lawyers, which is available at the PEDR Task Force website. The User Guide was co-sponsored by the American Arbitration Association (AAA), International Institute for Conflict Prevention and Resolution (CPR), and Judicial Arbitration and Mediation Service (JAMS). The website also includes generic powerpoint presentations and a speaker’s guide for giving talks about PEDR to business and legal audiences. There is also a short podcast produced for the ABA Section of Litigation.