Tis one of the least fun seasons of the year for faculty: Time to grade stacks of exams and papers. While it is exciting to see signs that some of our wards have learned a lot from our instructional efforts, it is depressing to see evidence raising doubts that we inhabit the same galaxy as some of our students.
Tis also a season of instructional renewal. Faculty reflect on what did or didn’t work well in the past semester and plan courses for the coming semester.
In that spirit of renewal, this post suggests a cool assignment that you can add to your courses that is fairly easy to administer and should have significant educational benefits in helping students to learn about real-world practice. For faculty looking to do empirical research about the subjects covered in their courses, this also provides an opportunity to collect valuable data.
The assignment is for students to interview lawyers, write summaries of the interviews, and then discuss them in class. There are many ways you can do this, as described below. But first, let me tell you what prompted this idea.
Following Missouri’s Tower of Babel symposium on improving negotiation theory, David Matz and Adrian Borbély wrote an article for the forthcoming symposium issue of our Journal of Dispute Resolution arguing that too little negotiation theory is based on detailed analyses of actual negotiations. I wrote a comment agreeing with them and suggesting, among other things, that academics interview negotiators to collect and analyze detailed accounts. Then it occurred to me that law students could do this as course assignments. I am particularly interested in research about negotiation, though you could use the same process to do interviews about mediation, arbitration, or other DR procedures.
Assignment to Interview Lawyers about Actual Negotiations
Negotiation instructors could require each student to interview a lawyer for up to an hour about a recent negotiation. You could set the parameters of the assignment in terms of the types of cases negotiated, questions to ask lawyers, and content of the summaries. These assignments could be fairly short papers that count for a small portion of a grade or longer papers that count for more. Indeed, if you want to make this a bigger part of students’ learning, you could require students to do several interviews.
This assignment would have several benefits. First, it would give students experience learning about actual negotiations that lawyers have conducted, advancing the goal of preparing students for real-world practice. Second, students would get a chance to practice interviewing, a difficult and critically-important generic skill. Lawyers regularly interview people about sensitive matters and must develop rapport to get the candid information they need. Third, it would give students a chance to practice protecting confidentiality. Students would need to assure the lawyers they interview that they would not disclose certain matters, and then students would convey key information in their assignments while avoiding disclosure of unauthorized or unnecessary information.
Also, doing interviews and discussing them is a heck of a lot of fun.
If all the students in a course interview lawyers about a negotiation as prescribed in an assignment, this would make for rich class discussions about general patterns as well as variations that they learned about. Indeed, you could refer to these interviews in multiple classes as you cover particular issues.
If students are assigned to interview lawyers about a wide range of types of cases, you might enlist the alumni relations office in your school to help recruit lawyers to be interviewed. This should be a fairly easy “ask” as you would not be asking alumni for money, only an hour of their time to talk about their favorite subjects – themselves and their work. This could make your deans happy as a way to increase alumni involvement in your school. If you are teaching a course in a specialized area, you might use a listserv or other network to identify lawyers to interview.
Students could conduct interviews in person, by phone, or by video. I especially like phone interviews because this avoids travel time and I can type notes into my computer while I am talking on speaker phone.
You can specify the questions in more or less detail. If the interview protocol includes relatively few questions, students have a lot of freedom to follow the conversation wherever it leads and develop their own questions based on the particular facts of the case and their interests. Alternatively, you could provide a more detailed protocol to make sure that everyone asks certain questions for comparison between cases. In any event, the protocols presumably would be “semi-structured” so that students can ask follow-up questions as appropriate.
To give an example of a detailed set of questions, I asked the following questions in a recent study. You probably wouldn’t want to require students to ask all these questions and you might use other ones. But this list will give you some ideas about things that you might have students ask about.
- when the negotiation began
- who initiated the negotiation
- why the negotiation was initiated at that time
- the time period between the first communication until final agreement
- whether the subject previously knew the lawyer for the other party
- how well the lawyers got along
- if the lawyers’ relationship affected the negotiation process or outcome
- if the parties directly participated in the negotiation
- what the lawyers communicated about the negotiation with the client
- how the subjects prepared for the negotiation
- how much of the negotiation was conducted by phone, email, letter, or in person
- if both sides identified their interests or goals early in the negotiation
- what the subjects thought were the main goals of each side
- if there was any negotiation about the litigation process itself (such as discovery, timing, information sharing, or motions)
- if there was a series of offers and counter-offers, and if so, how many times the parties exchanged offers
- what was the first offer or demand from each side
- what was the final agreement
- why the parties accepted the agreement that they did (as opposed to some other possible agreement)
- the extent, if any, that the resolution was based on expectations about the likely result in court or typical settlements in similar cases
- whether the subjects thought that the settlement was appropriate
- how satisfied they felt about the negotiation process
- how typical this negotiation was compared with their other recent two-sided negotiations of this type of case.”
Some of these questions require speculation and attribution of others’ beliefs, so one should interpret the responses cautiously. But even so, they can be helpful in understanding the lawyers’ perspectives.
You have a lot of freedom in specifying the requirements for students’ papers summarizing the interviews. The papers could be relatively short and the students might describe a few major insights. On the other extreme, you could require students to provide detailed accounts of the case and address particular issues relevant to your teaching objectives. Of course, you can require students to complete the assignment at various times during a semester and allocate different weights that it would contribute to the overall grade.
Source of Data for Your Scholarship
Many law faculty are curious about how people act in real life legal situations, as distinct from principles from black letter law, theoretical analyses, anecdotes, “common sense,” etc. They are tempted to do some empirical research, which they often assume requires surveys with large samples. Not so.
As explained in this handy little post, What Me – A Social Scientist?, this is a common misconception. Moreover, doing good survey research is much, much, much harder than most novices realize – and is likely to produce less valid data than they expect.
The good news is that you can do very valuable research involving relatively small samples of semi-structured interviews like the ones described above. Of course, it can take a fair bit of time to conduct and write up even a small number of interviews. If you have your class conduct these interviews, it would require much less of your time. You would need to give students detailed instructions and scrutinize their reports to check for problems, but you could devote most of your time to analyzing their reports.
Using Good Research Practices
Before proceeding, you should consult with the institutional review board (IRB) at your school to make sure that you comply with its requirements for human subject research.
If you do not plan to use students’ interview reports for publications or presentations, there’s a good chance that you won’t need to get specific approval for your plan to have students conduct the interviews. Even if not, it is still a good idea to follow good research practices of obtaining informed consent, protecting confidentiality, and managing data etc.
If you do plan to use students’ reports for publications or presentations (or you think that you might want to do so), you will need to go through your school’s IRB process. I have had good experiences with this process, which takes a little time and planning.
You probably would need to take some training in research ethics. (At my school, this can be done completely online at one’s convenience.) To get IRB approval, presumably you will need to develop a research plan (describing what data you want to collect and how you will collect it), a solicitation to subjects (describing their involvement so that they can provide informed consent), and your research instrument (listing the questions you plan to ask).
You might consider whether to collaborate with others in such a research project. You may know of colleagues in your school or elsewhere who have research experience and an interest in your subject. This can really help in designing your research and interpreting your data.
If you assign a class to conduct interviews as described above, I would love to know about it. And I would be happy to review your plans and give advice if you like.