Frank W Elliott
Texas A&M University School of Law
Texas Wesleyan Law Review, Vol. 11, pp. 7-30 (2004)
For many years, law schools have based most of their «practical» instruction on the adversary system’s last choice: trials and appeals. First year students are taught how to write an appellate brief and how to make an appellant argument. Maybe this is good, since the odds are that any given student will never again write a brief or make such an argument. After the first year of law school, students are swept into trial advocacy courses, mock trial competitions, and appellate advocacy competitions: learning how to influence the minds of jurors and appellate judges. We all know that these activities do more than train advocates, and that is fine, but when less than five percent of all filed civil cases go to trial, we believe that some of the practical emphasis should be on the cases that do not go to trial or even on problems that do not reach the level of a law suit. Most disputes are settled at some stage of the process. Some are even settled after trial or appeal. Why not include the study of how to represent a client in a settlement process as a regular part of the law school curriculum: learning how to influence the minds of other parties?
This paper will guide the reader through the legal settlement process stage by stage but will first show an opposing «twitch» that comes from the traditional law school training noted above, emphasized by television and motion picture portrayals of lawyers: zealous advocates in a trial setting (read: warrior) with fights to the finish, flags waving, and trumpets blaring the Deguello. Of course, few people consider the reason for those showings on commercial media. Quiet discussions between lawyers, the back and forth process in mediations or conferences concerning the wording of a contract do not make lively, exciting entertainment that would draw viewers and win awards. But they do make up the day to day existence of the vast majority of lawyers.
Once the «twitch» has been calmed, this paper will show ways to really be a zealous advocate for a client in negotiation, mediation, and other settlement procedures. This paper will also show the process of how to persuade, influence, and convince others without injury and how to be a zealous advocate in order to obtain the best result for your client.
There is art in persuasion, and there is science. The art is sometimes referred to as emotional intelligence and is exemplified by heroes such as Abraham Lincoln, Winston Churchill, and Clarence Darrow. The art and power of rhetoric in trial advocacy can be taught and is backed by science composed of years of jurisprudential research and writing. The art and power of negotiation and settlement advocacy can also be taught and is backed by a science composed of a
solid multi-disciplinary base of research and writing.