Eyes off the Runway: How to Prevent Piracy in Fashion

By Yaseen Eldik and Megan Michaels

“I am not interested in shock tactics. I just want to make beautiful clothes.” -Oscar De La Renta

 Fashion is an ubiquitous force in daily life. What to wear—and certainly what not to—is a deliberate choice for most individuals—a choice that inevitably forms a part of one’s identity. This manner of self-expression plays an ineluctable role in how one presents oneself socially and how one is perceived by others.1 As humans subconsciously and consciously react to visual cues, they judge others based on the clothing they wear. The Oxford English Dictionary captures the ambidexterity of the word “fashion”: it is to “make, build, shape; [so] in [a] wider sense, [it includes] visible characteristics [and] appearance [which can be] said both of material and of immaterial things.”2 This definition recognizes that fashion is a form of art.”3

Why then, have fashion designs been denied the same protection under United States’ intellectual property laws that other art forms, such as painting, sculpture, and even architecture, have been granted? The most common argument is that copyright law does not extend to fashion because clothing is strictly a “useful article”4 that serves the purpose of covering and protecting one’s body, and copyright does not protect utilitarian works.5 Others argue that fashion trends are fleeting and are recycled too often in order to warrant any period of protection.6 However, these and similar arguments do not adequately address the present text of the newest legislative proposal, the Innovative Design and Protection and Piracy Prevention Act (IDPPPA).

Fashion is a critical component of the United States economy and one of the most pervasive features of American culture; and as such, every designer and consumer is affected by the implications of this debate. Therefore, the United States must amend its current statutes or propose new regulations to grant property rights to designers and legal protection to their original ideas. This article intends to present to proponents and critics of design protection, a framework for reaching an agreement. Reframing the debate can help achieve a level of consensus such that a design copyright bill, like the IDPPPA, can be passed successfully. This article will examine the current laws that provide limited rights to designers in the United States. It will then evaluate the arguments that are made against the extension of copyright law proposed in the IDPPPA. Finally, the article will demonstrate the negative effect that the lack of design right has on the American economy, contrast the domestic legal regime with the European landscape, and recommend amendments to U.S. law based on European precedent.

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*Yaseen Eldik and Megan Michaels are second year JD students at Harvard Law School.

1The Value of Style, Psych. Today (July 1, 2005), http://www.psychologytoday.com/articles/200507/the-value-style.
2Fashion, Oxford English Dictionary, http://www.oed.com.ezp-prod1.hul.harvard.edu/view/Entry/68389?rskey=1MFaOV&result=1#eid (last visited Sept. 25 2014).
3Art is “The expression or application of creative skill and imagination, typically in a visual form such as painting, drawing, or sculpture, producing works to be appreciated primarily for their beauty or emotional power.” Art, Oxford English Dictionary, http://www.oed.com.ezp-prod1.hul.harvard.edu/view/Entry/11125?rskey=tgrlPJ&result=1&isAdvanced=false#eid (last visited Sept. 25 2014).
4Useful article is defined in 17 U.S.C.S. § 101 as one with “an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”
5Boyds Collection v. Bearington Collection, Inc., 360 F. Supp. 2d 655, 661, (M.D. Pa. 2005).
6See Xiao, Emma Yao, Note, The New Trend, Protecting, American Fashion Designs Through National Copyright Measures, 28 Cardozo Arts & Ent. L.J. 417, 436 (2011).



How Obama Can Be “Tuff” in Syria

By Robert C. Bordone and Alonzo Emery

We haven’t been able to shake the image: 20 year-old Michael Brandon Hill enters a packed elementary school in Decatur, Georgia armed with an AK-47 assault rifle.  He seems determined to make the start of the school year a day of grief, tragedy and death. Amazingly, the school bookkeeper, Antoinette Tuff intervenes by using listening and dialogue to negotiate the terms of peaceful resolution.  The incident all captured during a taped 911 phone call.

When President Obama phoned Tuff to applaud her fortitude on that August day, Tuff alluded to the President’s example, saying to him, “I learned from the best.”

The President could actually learn a great deal from Tuff, especially as he decides how to respond to the Syrian crisis. Although the local community context Tuff found herself in and the geopolitical one faced by the President differ in important ways, essential lessons from Tuff’s harrowing experience can inform how we face this conflict and the inevitable conflicts we encounter in the future.

Build affiliation. At first glance, Hill and Tuff shared little in common. Barriers of race, gender, age, and life station divided them, not to mention the gulf separating a heavily armed man from a defenseless school employee. Still Tuff found a way to connect to Hill’s humanity. Instead of shutting Hill out by building a wall around herself, she did the opposite, saying, “Don’t feel bad, baby.  My husband just left me after 33 years. I am sitting with you and talking with you about it.  I’ve got a son that’s multiple disabled.”

In the face of conflict – and especially in the face of a gunman poised to kill – we understandably forget the humanity of our counterpart and what we might share in common.  At the height of her terror, Tuff built affiliation with her captor, “My mother was a Hill”, that opened Michael Hill to exploring solutions other than gunfire and mass murder.  Although Hill was the proximate cause of the problem that day, Tuff engaged him as a joint problem solver.

Despite the deafening beat of war drums, President Obama might consider how best to listen carefully through the din and use what he learns to build the type of affiliation that can lead to a more peaceful solution. The President can look to ongoing talks with world leaders as opportunities to build affiliation with those who can use their leverage with the ruling Syrian regime.  By avoiding ultimatums and fiery rhetoric, the President can learn from Antoinette Tuff by framing his engagement with other leaders as an invitation to bringing a shared problem to an acceptable end.

Build them a step, build them a golden bridge. There is a common saying in China: “For people to descend from the stage, you must provide a step.”  The allusion is to the stage of conflict and the provision of an exit for its protagonists. Western experts in conflict resolution offer similar advice, using the evocative image of building a golden bridge for your negotiation counterpart to cross to the same side. Without providing the step, without the bridge, parties become entrenched and conflict escalates.

In Decatur, Antoinette Tuff told Hill with astonishing composure: “We are not going to hate you, baby…it is a good thing you are giving up.” Thus, Hill could step down from the heights of conflict and cross a bridge to something that seemed crucially different than failure.

The people of Syria do not enjoy the luxury of time. If there is to be an alternative to direct military conflict, the global community must act quickly to find a step from which Assad and his supporters can descend and a bridge toward something worth saying ‘yes’ to.  As Tuff’s example suggests, this is not an exercise in weakness or a bridge to impunity; rather it is a strategic move to accomplish a limited but critical goal: the end of civilian casualties. In the end, both Hill and Assad must answer for their crimes.

As the U.S. weighs its options in Syria and continues to build strategy to persuade world leaders, President Obama can “learn from the best” in Antoinette Tuff by extracting two valuable lessons from her heroism: Create a sense of affiliation with those influencing the outcome. Build a golden bridge that allows the other to end conflict swiftly. Lessons learned from Tuff might fare as well in Damascus as they did in Decatur.


Robert C. Bordone is the Thaddeus R. Beal Clinical Professor of Law and the Director of the Harvard Negotiation and Mediation Clinical Program at Harvard Law School. Alonzo Emery is a Lecturer on Law and Clinical Instructor at Harvard Law School.


Resolving Third-Party Objections to Arbitral Subpoenas Under the Federal Arbitration Act: A Suggested Approach

courtroomBy Peenesh Shah*

I. Introduction

Under Section 7 of the Federal Arbitration Act, arbitrators are empowered to subpoena third parties. When a subpoenaed third party objects, however, courts are enlisted to resolve the objection—and, when appropriate, to enforce the subpoena. Should these courts allow arbitrators to manage such disputes at the outset, considering the objection only after an arbitrator has ruled unfavorably to the objecting party? This approach is not clearly the norm under the FAA, but it is nevertheless appropriate under a fair reading of the FAA and the Federal Rules of Civil Procedure. Moreover, it is advantageous from a policy standpoint.

II. Statutory Framework

Section 7 of the FAA grants arbitrators the power to “summon . . . any person . . . as a witness.”[1] This provision further allows arbitrators to enforce such a summons “in the same manner provided by law for securing the attendance of witnesses or their punishment for neglect or refusal to attend in the courts of the United States.”[2]

Accordingly, Federal Rule of Civil Procedure 45, which deals with subpoenas in traditional litigation, also governs a Section 7 summons, or arbitral subpoena. Rule 45 protects subpoena recipients by precluding the issuing party from imposing an undue burden.[3] The rule also allows, and sometimes requires, courts to quash subpoenas under certain circumstances.[4] Finally, the Rule specifies that a court must quash a subpoena if it subjects a person to undue burden or requires disclosure of privileged matter.[5]

III. Objections to Third-Party Arbitral Subpoenas: Not “Ripe” Until a Party Seeks Judicial Enforcement

Despite Section 7’s provision allowing enforcement in the “same manner” as litigation subpoenas,[6] arbitral subpoenas operate differently from litigation subpoenas. Importantly, an arbitrator’s subpoena is not self-enforcing,[7] meaning that an objecting non-party recipient need not comply, leaving the requesting party to seek judicial enforcement.[8] The FAA does not require objecting third parties to move to quash,[9] but it is unclear whether they may be allowed to do so.[10] Nothing in the statute expressly requires courts to hear such motions to quash,[11] though perhaps a court must do so because an arbitrator’s subpoena is governed by Rule 45.

Yet, precisely because an arbitrator’s subpoena is not self-enforcing, such a dispute is arguably not “ripe” until the arbitrator seeks to enforce it over the non-party’s objections. Because a federal court may only hear “ripe” disputes,[12] a court should refuse to hear a motion to quash until a party to the arbitration petitions the court to compel compliance.

That is, the arbitrator should hear the objection in the first instance, and if his (non-binding) determination is not to sustain it, he should then move to compel. At that time, a court would make a de novo ruling on the objection. Full judicial review, in a form analogous to interlocutory appeal, allows a court to benefit from the arbitrator’s knowledge of the merits while maintaining protection of third-party rights.

IV. Why Adopt This Approach?

As a general matter, this approach is advisable for some of the same reasons that administrative law often imposes an analogous exhaustion requirement—specifically, promoting judicial efficiency and protecting the authority of the body deciding the merits.[13]

More importantly, the arbitrator is uniquely competent to resolve objections that often raise issues closely related to the merits of the dispute. Two common grounds for challenging a discovery subpoena under Rule 45 are relevance and privilege, both of which require reference to the underlying dispute. In typical litigation, for example, relevance[14] is inextricably related to the pleadings,[15] suggesting that in arbitration, these objections are best resolved by the arbitrator. Similarly, when privilege[16] is invoked in litigation, a court will balance the need for the subpoenaed information against the public interest protected by the privilege.  This balancing inquiry will necessarily reference the merits of a dispute.[17] To be fair, courts may be better positioned, for reasons of consistency and accountability, to properly protect the interests underlying various privilege doctrines; nevertheless, courts would certainly benefit from an arbitrator’s insight into the merits and the evidentiary needs of the dispute.

V. Statutory Authority for The Suggested Approach Under FAA

The FAA does not clearly proscribe the suggested approach. Some trial courts have adopted this approach,[18] while others have heard motions to quash in the first instance.[19] The issue is complicated by the common practice of taking these disputes to court on cross-motions to quash and compel,[20] a practice which suggests a generally held assumption that a court may hear a motion to quash in the first instance.

Of course, the suggested approach requires that arbitral subpoenas not be self-enforcing, which seems statutorily inappropriate in view of Section 7’s provision that, upon petition, a court may punish a person for contempt if the person neglects or refuses to comply with the arbitral subpoena.[21]

However, this provision should be read as allowing a court to punish for contempt only after issuing an order compelling compliance. This reading comports with the framework of Rule 45, which provides certain excuses allowing a person to ignore a subpoena.[22] The rule allows a person commanded to produce documents to reply to a subpoena with a written objection,[23] which excuses obeying the subpoena.[24] Similarly, the rule excuses production of electronically stored information from sources that are not reasonably accessible.[25] A requesting party may respond to these excuses by asking the court to compel compliance,[26] not unlike the FAA’s approach for compelling compliance with arbitral subpoenas.

Thus, Rule 45 establishes a framework where, if the court has the power to compel compliance, punishment for contempt may occur only after exercise of that compulsion power.[27] Reading Section 7 as mimicking this framework—requiring a successful petition to compel before a person may be punished for contempt—makes good sense. Indeed, the Fourth Circuit seems to have adopted this interpretation, holding that the recipient of an arbitral subpoena is under no obligation to challenge the subpoena,[28] implying that the person cannot be punished for contempt if he does nothing.

VI. Current Trends

Despite some earlier decisions in which the court ruled on relevance,[29] the emerging consensus is deference to arbitrators on this question.  The Sixth Circuit has noted the limited nature of a court’s power to disturb an arbitrator’s judgment as to relevance.[30] The Eighth Circuit has stated that second-guessing an arbitration panel’s judgment as to materiality is “antithetical to the well-recognized federal policy favoring arbitration, and compromises the panel’s presumed expertise in the matter at hand.”[31] The Northern District of Georgia has ruled that the determination of materiality to the underlying dispute belongs to the arbitrator.[32]

As discussed above, a court has a greater role to play in resolving privilege objections. Accordingly, even as courts seem willing to defer to arbitrators on relevance, some are more active in their review of questions of privilege.[33] Others, however, have deferred to arbitrators on this point.[34]

VII. Conclusion

The FAA intends to encourage and foster effective arbitration. The proposed scheme serves this goal by broadening the implementation of arbitrators’ power to subpoena third parties. Because the scheme is not contrary to the text of the FAA, its adoption need not wait for legislative action. While the proposed approach has already been accepted in some measure, arbitral outcomes would benefit from further judicial adoption.

*Peenesh Shah is a student at The University of Texas School of Law. He will receive his Juris Doctor degree in May 2010. Thanks to Professor Alan S. Rau for guidance and helpful comments.

[1] 9 U.S.C. § 7 (2006) (emphasis added).

[2] Id.

[3] See Fed. R. Civ. P. 45(c)(1).

[4] See Fed. R. Civ. P. 45(c)(3).

[5] See Fed. R. Civ. P. 45(c)(3)(A)(iii)-(iv).

[6] See 9 U.S.C. § 7 (2006).

[7] See Unif. Arbitration Act § 17 cmt. 8 (2000).

[8] Id.

[9] COMSAT Corp. v. NSF, 190 F.3d 269, 276 (4th Cir. 1999) (“once subpoenaed by an arbitrator the recipient is under no obligation to move to quash the subpoena”).

[10] See infra note 19.

[11] See Odfjell ASA v. Celanese AG, 348 F. Supp. 2d 283, 288 (S.D.N.Y. 2004) (“the FAA nowhere explicitly gives a person subpoenaed to an arbitration the right to move in a federal district court to quash the subpoena”).  But see infra note 19.

[12] See U.S. Const. art. III. For an analysis of the constitutional and prudential dimensions of ripeness, see Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U. Chi. L. Rev. 153 (1987). The arguments presented here, however, are of equal force regardless of whether one views ripeness as a constitutional or prudential matter.

[13] For an excellent discussion of these policy concerns, see McCarthy v. Madigan, 503 U.S. 140, 144-46 (1992) (“The exhaustion doctrine also acknowledges the commonsense notion of dispute resolution that [a decision-maker] ought to have an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court.”).

[14] Though Rule 45 does not discuss relevance as grounds for objection, courts tend to incorporate, either explicitly or implicitly, the Rule 26(b)(1) standard into Rule 45’s undue burden test. See 9 James Wm. Moore et al., Moore’s Federal Practice ¶ 45.03[1] (3d ed. 2009); Fed. R. Civ. P. 26(b)(1); see also Sterling Merch., Inc. v. Nestle, S.A., 2008 U.S. Dist. LEXIS 31938 (D.P.R. Apr. 15, 2008) (applying the Rule 26 relevance standard to a motion to quash, under Rule 45, a subpoena for imposing an undue burden); Syposs v. United States, 181 F.R.D. 224, 226 (W.D.N.Y. 1998) (“The reach of a subpoena issued pursuant to Fed. R. Civ. P. 45 is subject to the general relevancy standard applicable to discovery under Fed. R. Civ. P. 26(b)(1).”); Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 591 (Kan. 2003) (“Fed. R. Civ. P. 45 does not include relevance as an enumerated reason for quashing a subpoena. It is well settled, however, that the scope of discovery under a subpoena is the same as the scope of discovery under Rule 26(b). . .”).

[15] See, e.g., Bariteau v. Krane, 206 F.R.D. 129, 131 (W.D. Ky. 2001) (finding, in traditional litigation, after examining the individual claims in the plaintiff’s complaint, that materials requested by subpoena were relevant), Barkan v. Dunkin’ Donuts, Inc., 2008 U.S. Dist. LEXIS 34608 (D.R.I. Apr. 28, 2008) (quashing a subpoena as overly broad where plaintiff pleaded two theories of damages, but one was disallowed, and the request did not specify which materials were relevant to liability, or which materials were relevant to which damage theory).

[16] Unlike the relevance requirement, the privilege exception is expressly contained in Rule 45. Fed. R. Civ. P. 45(c)(3)(A)(iii). However, it is important to recognize that Rule 26 is also operative – a person seeking to avoid a subpoena on this basis may obtain a protective order under Rule 26(c). See Moore et al., supra note 14, ¶ 45.30. Also, the standards of privilege under Rule 45 and Rule 26 may overlap. See Mannington Mills, Inc. v. Armstrong World Indus., 206 F.R.D. 525, 529 (D. Del. 2002) (“A nonparty moving to quash a subpoena, in essence, is the same as moving for a protective order that such discovery not be allowed.”).

[17] See In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 613-614 (E.D. Va. 2008) (declining to reach the merits of the privilege claim asserted by non-parties in response to a subpoena, because the court in which the action was pending was better positioned to determine whether the information requested by subpoena was privileged as it pertained to claims and defenses associated with that action).

[18] E.g., Fed. Ins. Co. v. Law Offices of Edward T. Joyce, P.C., 2008 U.S. Dist. LEXIS 20713 (N.D. Ill. Mar. 13, 2008) (motion to quash third-party subpoena based on irrelevance, privilege, over-breadth, and timeliness raised issues that should not be decided by a court in the first instance, but rather by arbitrator). Notably, the Supreme Court of California has recently adopted an approach very similar to what this paper suggests, albeit in a case governed by California’s arbitration statute, which uses language somewhat broader than what is found in the FAA. See Berglund v. Arthroscopic & Laser Surgery Center of San Diego, L.P., 187 P.3d 86 (Cal. 2008).

[19] See, e.g., Integrity Ins. Co. v. American Centennial Ins. Co., 885 F. Supp. 69, 71-72 (S.D.N.Y. 1995) (noting that “the court may also consider a petition to quash; there is no requirement that a petition to compel be made first,” citing Commercial Metals Co. v. International Union Marine Corp., 318 F. Supp. 1334 (S.D.N.Y. 1970)), abrogated on other grounds by Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210, 215 (2d Cir. 2008).

[20] See, e.g., Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210, 214 (2d Cir. 2008).

[21] 9 U.S.C. § 7 (2006).

[22] Fed. R. Civ. P. 45(e) (a person may be punished for contempt if he, “having been served, fails without adequate excuse to obey the subpoena”) (emphasis added).

[23] Fed. R. Civ. P. 45(c)(2)(B).

[24] See Moore et al., supra note 14, ¶ 45.41[2][b]; see also Bariteau v. Krane, 206 F.R.D. 129, 131-32 (W.D. Ky. 2001) (noting the prevailing view that timely objection to a subpoena constitutes adequate excuse, and denying motion to hold subpoena subject in contempt, but also issuing order to compel compliance with same subpoena, and advising serving party that he may renew motion for contempt upon noncompliance with said order).

[25] Fed. R. Civ. P. 45(d)(1)(D).

[26] Fed. R. Civ. P. 45(c)(2)(B)(i), 45(d)(1)(D).

[27] Indeed, there is some authority, though not a consensus, that an order compelling compliance is a general prerequisite to an order punishing for contempt. See Moore et al., supra note 14, ¶ 45.62[3].

[28] See COMSAT Corp. v. NSF, 190 F.3d 269, 276 (4th Cir. 1999).

[29] See Oceanic Transport Corp. v. Alcoa S.S. Co., 129 F. Supp. 160, 161 (D.N.Y. 1954) (vacating subpoena served on third party witness in arbitration proceeding, noting that “it is a fact that when the statute imposed upon the District Court the duty to determine whether or not to compel the attendance of a witness and his production of papers, it imposed upon the Court the duty to determine whether or not the proposed evidence is material.”); see also Reuters Ltd. v. Dow Jones Telerate, 231 A.D.2d 337, 344-45 (N.Y. App. Div. 1st Dep’t 1997) (reversing, under New York state law, lower court’s granting of a motion to compel an arbitral subpoena on a non-party because requested materials were relevant to the theory raised in the arbitration).

[30] American Fed’n of TV & Radio Artists v. WJBK-TV, 164 F.3d 1004, 1010 (6th Cir. 1999) (finding error where the district court had refused to enforce a subpoena against a third party because the requested material was irrelevant); see also Meadows Indem. Co. v. Nutmeg Ins. Co., 157 F.R.D. 42, 44 (M.D. Tenn. 1993) (refusing to second guess an arbitration panel’s determination as to relevance when denying non-party’s motion for protective order filed in response to an arbitration panel’s subpoena).

[31] Sec. Life Ins. Co. of Am. v. Duncanson & Holt (in Re Sec. Life Ins. Co. of Am.), 228 F.3d 865, 871 (8th Cir. 2000) (affirming an order enforcing a subpoena issued by an arbitration panel, ruling that whether or not the subject was determined to be a party to the arbitration was irrelevant).

[32] Festus & Helen Stacy Found., Inc. v. Merrill Lynch, Pierce Fenner, & Smith Inc., 432 F. Supp. 2d 1375, 1380 (N.D. Ga. 2006) (referencing Sixth and Eighth Circuit opinions in a ruling compelling two non-party objectors to comply with subpoenas issued in arbitration).

[33] See Festus & Helen Stacy Found., Inc. v. Merrill Lynch, Pierce Fenner, & Smith Inc., 432 F. Supp. 2d 1375, 1380 (N.D. Ga. 2006) (directing relevance objections to arbitrator, but issuing a finding, after reviewing the provided motions and briefs, that the confidentiality concerns were not sufficiently compelling to excuse non-party from compliance with subpoena); Integrity Ins. Co. v. American Centennial Ins. Co., 885 F. Supp. 69, 73 (S.D.N.Y. 1995) (ruling on non-party’s privilege objection because the issue would “doubtless resurface at the arbitration hearing”; held, privilege did not protect requested information), abrogated on other grounds by Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210, 215 (2d Cir. 2008).

[34] See Odfjell ASA v. Celanese AG, 348 F. Supp. 2d 283, 288 (S.D.N.Y. 2004) (non-party objections on the grounds of privilege “should first be heard and determined by the arbitration panel before whom the subpoena is returnable, and hence, even assuming arguendo that this Court has jurisdiction to consider the motion to quash, the motion must be dismissed at this stage as unripe”); Odfjell ASA v. Celanese AG, 2005 U.S. Dist. LEXIS 729 (S.D.N.Y. Jan. 15, 2005) (same non-party in same underlying case sought to obtain confidentiality order broader than that which was granted by arbitration panel, but the court refused to “disturb the decision of the arbitration panel not to issue a protective order . . . . The panel’s decision is entitled to considerable deference, given the panel’s hands-on familiarity with the case and with the confidentiality issues here presented.”); Odfjell ASA v. Celanese AG, 380 F. Supp. 2d 297, 298 (S.D.N.Y. 2005) (same non-party, same underlying case, but here, the court determined that the arbitration panel had abused its discretion in not allowing non-party to present certain evidence supporting a claim of privilege; rather than ruling on the issue itself, however, the court remanded the issue to the arbitration panel to have the excluded evidence heard).

Originally published to HNLR Online on Mar. 25, 2010.

New Perspectives in Negotiation: A Therapeutic Jurisprudence Approach

scales_gavel2By Andrew F. Amendola*

I. Introduction

The field of law is experiencing a gradual evolutionary movement, as practitioners eschew the traditional adversarial approach in favor of cooperative methods which produce more beneficial, integrative outcomes.  Recently, interdisciplinary collaborations between the fields of law and social science have endeavored not only to optimize substantive outcomes, but also to create a more therapeutic experience for the parties involved.  This involves determining the psychological, emotional, and physical effects certain legal processes exact on attorneys as well as clients, and adjusting those processes to reduce adverse consequences in those areas.  For legal practitioners, this therapeutic approach can help reduce stress, job dissatisfaction, and other problems associated with the practice of law.  For clients, optimized resolutions and minimized adverse psychological effects are achieved through the attorney’s increased receptivity to their client’s interests, and greater client involvement, which acts as an empowering tool, enhancing the client’s overall well-being.  The result is a more gratifying interaction and overall improved satisfaction with outcomes.

II. The Adversarial Style

The methodology of negotiation has long been associated with aggressively adversarial tactics.  This competitive, attacking, often ego-driven style, known as the adversarial style, is characterized by hard-bargaining, aggressive techniques.  Most adversarial negotiators view the process as a zero-sum, win/lose prospect, and opposing counsel as a warrior opponent in a battle of wits.[1]

The adversarial negotiator’s typical approach involves making high demands, stretching facts, attempts to outmaneuver the opponent, intimidation, and an unwillingness to make concessions.[2] Some lawyers advocate this style, professing its effectiveness in increasing their clients’ gains and avoiding exploitation.[3] It does in fact have numerous advantages; in certain negotiating situations such as pure commodity purchases, lowest-bid transactions, and primarily distributive bargains,[4] the adversarial approach produces optimal results.[5]

The adversarial approach is not the optimal method for all situations, however.  The adversarial style can create tension, mistrust, and misunderstanding, and can often result in fewer settlements, lower joint gains, and provoke costly retaliation from the opponent.[6] It also tends to remove the client from the negotiation equation, which may result in the attorney’s placement of monetary goals above such interests as happiness, well-being and respect (which may be of greater importance to the client).[7] Furthermore, an attorney’s adversarial approach can lead to declining professionalism, overzealous advocacy, and violations of the ethics codes.[8]

Studies by Andrea Kupfer Schneider found that over the past twenty-five years adversarial styles have become more extreme, and are perceived by other lawyers as less effective: “effective negotiators exhibit certain identifiable skills . . . . [A] negotiator who is assertive and empathetic is often perceived as more effective.  The study also reveals distinctive characteristics of ineffective negotiators, who are more likely to be stubborn, arrogant, and egotistical.”[9] Additionally, Kupfer found that “over 50% of the adversarial bargainers were ineffective. . . . As these negotiators become more irritating, more stubborn, and more unethical, their effectiveness ratings drop . . . . As adversarial bargainers became nastier in the last 25 years, their effectiveness ratings have dropped.”[10]

In addition to these results-based disadvantages, the adversarial style of negotiation presents numerous problems that affect the psychological and physical well-being—as well as the effectiveness—of both the attorney and the client.  The adversarial approach is often characterized as “attacking.”[11] When an individual feels attacked, a neurological reaction takes place.  In the brain, the hippocampus induces a heightened sense of alertness (described as the “fight or flight” reaction), affecting the prefrontal lobe in a manner that shuts down executive functioning.[12] This reaction causes extreme stress and anxiety.[13] The amygdala, when stimulated in this way, causes the release of certain stress hormones, including cortisol, which “heightens the senses, dulls the mind, and steals energy resources from working memory and the intellect so that such energy may be used to prepare the individual to fight or run.”[14] High levels of cortisol also produce distraction, mental errors, and “impairment in the ability to remember and process information.”[15]

A. The Source of the Adversarial Mentality

The American legal system is undoubtedly based on the concept of adversarialism.[16] Attorneys generally have been found to possess pre-existing personality traits related to competitive behavior such as dominance, leadership, a heightened need for attention, decreased interest in the emotional concerns and needs of others, and a lower tolerance for assuming subordinate roles.[17] A majority of law students enter law school with the same personality traits as other professionals, but go through a substantial psychological transformation during the first year.[18] The sense of competition inherent in the law school experience causes significant changes in students’ attitudes, values, and motivations, reduces students’ desire for cooperation, and diminishes overall personal well-being.[19] The common teaching style instills in law students the binary, win/lose mindset that naturally gravitates toward the adversarial negotiation style.[20]

B. Effects of an Adversarial Approach on The Client

There are many aspects of the legal process which may produce a strongly negative reaction in the client.  These aspects are called psychological soft spots.[21] For example, sometimes the legal issue confronted by the client—which brought her to seek an attorney’s services in the first place—or the process of reminiscing and openly discussing the issue can cause the client to experience anger, anxiety, fear, stress, or sadness.[22] These feelings may manifest themselves in the form of psychological resistance, minimization, rationalization, denial, or a host of other psychological defense mechanisms,[23] inhibiting the attorney/client relationship, preventing the attorney from learning the full extent of the client’s concerns, goals, and needs, and consequently preventing the attorney from proposing an appropriate course of action to resolve the issue.[24]

Clients are typically in the midst of extremely stressful circumstances when they seek attorneys’ counsel, whether regarding criminal matters, contract disputes, divorces, etc., and often experience physical or emotional pain, guilt, regret, frustration and hatred of their circumstances.[25] The adversarial perspective fails to address these feelings because it operates in a binary, win/lose fashion.[26] This failure may result in less than optimal results and decreased client contentment with the services rendered.[27]

C. Effects of an Adversarial Approach on The Attorney

The adversarial approach tends to promote egocentric behavior and a lack of balance between personal and professional lives.  This often leads to unhealthy levels of stress, feelings of isolation, absence of meaning, and ultimately to the rendering of inadequate or inappropriate legal counsel.[28] Professor Susan Daicoff notes that attorneys’ sense of dissatisfaction with their profession may be due to an overall decline in professionalism fostered by an increasingly adversarial ideology.[29]

These feelings of professional dissatisfaction unsurprisingly also affect attorneys’ quality of work, impairing work productivity and interfering with relationships with colleagues and clients.[30]

The adversarial mindset can cause attorneys to misread their clients’ needs; “[o]ften clients have needs and interests that cannot be addressed through litigation or through an adversarial perspective.”[31] The adversarial approach encourages attorneys to “transform complex, human situations into a dry set of facts that fit into legal rules.”[32] Locked into a win/lose mentality, the adversarial attorney is incapable of assessing the client’s true needs, maximizing value, or addressing underlying sources of dispute.[33]

III. Developments in Negotiation

Negotiation need not be a deleterious process.  In fact, it has the potential to be a healing process which brings disputing parties together to discuss and analyze their differences, resolve conflict, and reconcile disagreement.[34] Numerous alternatives to the adversarial approach have developed in the field of negotiation, many of which appear to be evolving toward a more therapeutic result for all parties involved.  Among these approaches are the cooperative style, integrative bargaining, and collaborative lawyering.  These styles are not mutually exclusive, and often different styles can be used in combination during a negotiation to achieve optimal results.

A. Cooperative Style

Cooperative negotiation can be described as an exploration searching for a mutually acceptable resolution.[35] The cooperative negotiator “communicates to establish a common ground, emphasizes shared values and objectives, and demonstrates a genuine interest in the other side.”[36] A cooperative negotiator generally presents realistic and reasonable opening demands, offers concessions equal to or greater than those offered by the other side, readily shares information, asks many questions to ascertain the other side’s needs, interests, and concerns (through open questioning and active listening), and makes fair, objective statements of facts.[37]

While the cooperative style lends itself to a less confrontational process, it is vulnerable to exploitation.  If matched against an adversarial negotiator, the cooperative party will openly share information, including the weaker aspects of their position.  The adversarial opponent will accept this information, offer nothing in return, and use that information against the cooperative party.[38] When presented with a cooperative opponent, an adversarial negotiator will often “increase their demands and expectations about what they will be able to obtain.”[39]

B. Integrative Bargaining

The integrative negotiator focuses more on “interests” than “positions,” using both competitive and cooperative tactics to expand the pool of resources available to the negotiation, in her attempt to capitalize on “opportunities to create additional value in a phase of the negotiation that will satisfy parties in addition to the negotiator and the client,”[40] essentially allowing all parties to reach a more advantageous resolution than might have been previously possible.

However, critics contend that in negotiations of more limited scope, such as those with primarily distributive issues of contention, often value-creating options do not exist.  In such situations, “rigidly adhering to an integrative framework despite situational factors that do not promote the generation of added value is potentially done to the detriment of the client.”[41]

C. Collaborative Lawyering

The collaborative style of negotiation directly involves both attorneys and their clients, and sometimes incorporates other relevant professionals (e.g. financial advisors, social workers, etc.) in the process.[42] Its objective is “to change the context for negotiation itself, and to provide a strong incentive for early, collaborative, negotiated settlement without resorting to litigation.”[43]

Although each party retains separate, independent counsel, the process differs from traditional negotiation in a number of ways.  First, clients actively participate in the process and retain ultimate decision-making authority.  Second, both parties openly share all information relevant to the dispute.  Third, both parties agree that their current attorneys will be disqualified from representing them in litigation should negotiations fail to reach resolution.  Additionally, any litigation pending at the time negotiation is commenced must be suspended during the process.  Also, the threat of litigation may not be used to coerce settlement.  Fourth, any necessary experts (e.g. financial advisors, accountants, counselors) are jointly retained by the parties.  Finally, both parties must agree to act in good faith to reach a mutually beneficial settlement.[44] Similarly, the participating attorneys, though remaining advocates for their clients, are committed to “keep[ing] the process honest, respectful, and productive on both sides.”[45]

Proponents of the movement suggest that it expedites resolution, reduces legal costs, leads to more integrative resolutions, and enhances both personal and commercial relationships.[46] Lawyers who practice Collaborative Lawyering derive more satisfaction from their work, experience less stress, and have more satisfying relationships with their clients.[47]

Collaborative Lawyering is not without its disadvantages, however.  There are concerns that the process may violate the ethical requirement to zealously represent a client’s interests.  Also, because the collaborative method is based on communication and trust, parties are vulnerable to deception and manipulation.  Furthermore, since the participating attorneys are disqualified from representing those same clients in litigation of that disputed matter, there exists a potential for coercion to settle.

IV. Therapeutic Jurisprudence

Therapeutic Jurisprudence is the “study of the role of the law as a therapeutic agent,” focusing on “the law’s impact on emotional life and psychological well-being.”[48] The movement represents the idea that the law—including the rules of law, legal procedures, and the roles of legal actors—serves as a social force, producing both behaviors and consequences, the effect of which may be interpreted as therapeutic or anti-therapeutic.  It strives to maximize awareness of this fact and attempts to apply the law in a more therapeutic fashion while maintaining the integrity of other legal values such as due process and justice.[49] Incorporating theories and treatment ideas from such fields as psychiatry, psychology, clinical behavioral sciences, social work, and criminology, inter alia,[50] Therapeutic Jurisprudence encourages lawyers to “attempt to create the most beneficial and emotionally satisfactory solution given a particular client’s interests and circumstances,” thus providing a therapeutic outcome.[51] Since its original application to mental health law, Therapeutic Jurisprudence has also been applied to family law,[52] tort law, criminal law, and contract law.[53]

V. A Therapeutic Jurisprudence Application to Negotiation

The emerging styles in negotiation, and the practice of law generally, may be viewed as an evolution toward a more therapeutic process for the parties involved.  A Therapeutic Jurisprudence approach which takes into consideration clients’ interests, needs, and concerns, coupled with a dedication to problem-solving, professionalism, and civility, increases the probability of success in negotiations: “[w]hen lawyers are able to maximize their problem-solving skills balancing assertiveness and empathy, they are more effective on behalf of their clients.”[54]

Clients also play a more substantial, participatory role in the negotiation process under the Therapeutic Jurisprudence model.[55] Attorneys more frequently consult with their clients during the process, exchanging information and devising strategies.[56] Also, rather than dictating whether a settlement offer is optimal, attorneys advise whether the proposed offer is fair compared to the expected outcome at trial, and reasonable in light of the previously-ascertained interests and needs of the client.  This effort can have a significant impact on the client’s satisfaction with the resolution and the legal counsel received.[57]

Therapeutic Jurisprudence is certainly not a cure-all for adversarialism.  There are still many uncertainties and problems surrounding its application.  For example, Professor Christopher Slobogin has contended that Therapeutic Jurisprudence terminology may be too vaguely defined,[58] and its effects too difficult to measure accurately.  Furthermore, conflicts may arise in balancing Therapeutic Jurisprudence with other important factors such as the client’s constitutional concerns, the attorney’s ethical concerns with regard to confidentiality and conflicts of interest, zealous representation, avoidance of paternalism, and attaining therapeutic outcomes for a client without producing anti-therapeutic outcomes for others.[59]

VI. Conclusion: A Measured Approach

A complete transformation to a Therapeutic Jurisprudence model might prove inefficient, wholly ineffective, and ultimately contrary to our traditional notions of justice.  It is important to consider that Therapeutic Jurisprudence need not be an all-or-nothing endeavor; small, measured changes to current negotiation techniques could significantly affect the field in positive ways.  To have the greatest impact and stamina, this change must be initiated early.  Law school clinical programs represent an excellent opportunity to experiment with Therapeutic Jurisprudence approaches to negotiation.  Within the professional legal community, CLE programs, trade magazines, and professional associations could promote more therapeutic approaches to negotiation and report feedback from participating practitioners.

Given the limited effectiveness of the adversarial style, and the trend in negotiation (and legal practice) toward more therapeutic processes, it appears inescapable that subsequent approaches will incorporate elements of the social sciences.  While the integration of law and social science leaves many questions, the interdisciplinary concept does not necessitate that social science theories immediately assume the authoritative position of legal doctrine.  Such theories may simply aid attorneys in tempering their approach and shifting their focus at times in order to represent clients more effectively.  Clients in turn will benefit from a more satisfactory experience, efficient service, and more appropriate, long-lasting resolutions of conflict.  Consequently, attorneys may experience increased job satisfaction, lower levels of stress, and improved morale, and the public perception of the legal profession may return to the level of prestige it commanded in earlier times.[60]

*Andrew F. Amendola is an attorney and author residing in Connecticut. He received his Juris Doctor degree in 2009 from the University of Connecticut School of Law.

[1] See Julie Macfarlane, Dispute Resolution Readings and Case Studies 175 (2d ed. 2003) (explaining the way many adversarial negotiators view their role in the process).

[2] Id.

[3] See Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style, 7 Harv. Negot. L. Rev. 143, 146–47 (2002) [hereinafter “Shattering Negotiation Myths”].

[4] The Negotiation Academy, Collaborative Negotiation Strategy, available at http://www.negotiationtraining.com.au/articles/negotiating-collaboratively/.

[5] A seminal study on the effectiveness of negotiation approaches used by lawyers confirmed that an attorney can be very effective or very ineffective within the constraints of either the adversarial or cooperative methods.  Gerald R. Williams, Legal Negotiation and Settlement 18–19 (1983). However, there are more effective cooperative than effective adversarial negotiators.  Id. at 49.

[6] Macfarlane, supra note 1, at 175.

[7] Andrea Kupfer Schneider, Building a Pedagogy of Problem-Solving: Learning to Choose Among ADR Processes, 5 Harv. Negot. L. Rev. 113, 128–29 (2000) [hereinafter “Building a Pedagogy of Problem-Solving”].

[8] See, e.g., John G. Koetltl, U.S. District Judge for the Southern District of New York, From the Bench, 23 Litigation 3 (1997); Stuart Taylor Jr., Sleazy in Seattle, Am. Law., Apr. 1994.

[9] Shattering Negotiation Myths, supra note 3, at 147–48.

[10] Id.

[11] See Macfarlane, supra note 1, at 171, 172.

[12] Bruce Winick, Therapeutic Jurisprudence and the Role of Counsel in Litigation, 37 Cal. W. L. Rev. 105, 110 (2000).

[13] Id.

[14] Id.

[15] Id.

[16] See, e.g., Urska Velikonja, Making Peace and Making Money: Economic Analysis of the Market for Mediators in Private Practice, 72 Alb. L. Rev. 257, 260 (2009) (“[t]he United States, on the other hand, has relied on an adversarial system of judicial dispute resolution, where each side presents its case and a jury decides the winner.”).

[17] Susan Daicoff, Lawyer, Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism, 46 Am. U. L. Rev. 1337, 1353–55, 1403 (1997).

[18] See, e.g., Connie J. A. Beck, Bruce D. Sales, & G. Andrew H. Benjamin, Lawyer Distress: Alcohol-Related Problems and Other Psychological Concerns Among a Sample of Practicing Lawyers, 10 J.L. & Health 1 (1996).  The authors explain that certain psychological distress symptoms “are not exhibited when the lawyers enter law school, but emerge shortly thereafter and remain, without significant abatement, well after graduation from law school.”  Id. at 2.  The authors also note that in a 1986 study prelaw students did not show significant elevations of psychological distress when tested in the summer prior to law school entry.  Yet, within two months of beginning law school the students’ psychological distress was found to be significantly elevated.  Depending on the group (first, second, or third year), the authors found that 17–40% of the law students fell above the cutoff on symptoms relating to depression.  Of these same students, 20–40% also fell above this cutoff on symptoms relating to obsessive-compulsiveness, interpersonal sensitivity, anxiety, hostility, and paranoid ideation in addition to social alienation and isolation.  A similar pattern was found in law school alumni two years post-graduation.  On a global measure of distress (GSI), the authors found that 17.9% of these lawyers fell above the cutoff for the non-patient normal population mean. In comparing the students at their third year of law school and then two years post-graduation, the study found that symptoms present during the third year had not diminished significantly during the lawyers’ first two years of practice. Id. at 4; Lawrence S. Krieger, Institutional Denial About the Dark Side of Law School, and Fresh Empirical Guidance for Constructively Breaking the Silence, 52 J. Legal Educ. 112, 113 (2001–02).  Additionally, Dr. Andrew Benjamin found that students

[b]ecome much less healthy soon after entering law school.  For example, our research data (and subsequent replications by others) have revealed that before entering law school, only four percent of students suffered from depression, a figure expected from any normal population.  During the first year of law school, about 20% of the students developed depression.  By the third year of law school, 40% of the law students had developed statistically significant levels of depressive symptoms.

Andrew Benjamin, The Role of Law School in Producing Psychological Distress Revisited, available at http://www.law.fsu.edu/academic_programs/humanizing_lawschool/images/benjamin.pdf.

[19] See generally Krieger, supra note 18; Lawrence S Krieger, What We’re Not Telling Law Students and Lawyers That They Really Need to Know: Some Thoughts-in-Action Toward Revitalizing the Profession From the Roots, 13 J.L. & Health 1 (1998–99); Lawrence S. Krieger, Psychological Insights: Why Our Students and Graduates Suffer, and What We Might Do About It, 1 J. Ass’n. of Legal Writing Directors 259 (2002); Kennon M. Sheldon & Lawrence S. Krieger, Does Legal Education Have Undermining Effects on Law Students? Evaluating Changes in Motivation, Values, and Well-Being, 22 Behav. Sci. & L. 261 (2004) (presenting and discussing empirical evidence of the psychological effect law school has on students).

[20] Krieger, supra note 18, at 117.

[21] Bruce J. Winick & David B. Wexler, The Use of Therapeutic Jurisprudence in Law School Clinical Education: Transforming the Criminal Law Clinic, 13 Clinical L. Rev. 605, 610–11 (2006).

[22] Id. at 610.

[23] Id. at 610–11.

[24] Id. at 610.

[25] See Leonard L. Riskin, Mindfulness in the Law and ADR: The Contemplative Lawyer: On the Potential Contributions of Mindfulness Mediation to Law Students, 7 Harv. Negot. L. Rev. 1, 13 (2002).

[26] See Harold Abramson, Problem-Solving Advocacy in Mediations: A Model of Client Representation, 10 Harv. Negot. L. Rev. 103, 118–19 (2005).

[27] See Building a Pedagogy of Problem-Solving, supra note 7, at 128–29.

[28] See Riskin, supra note 25, at 8.  Approximately 20% of attorneys are extremely dissatisfied with their jobs.  Moreover, 19% of attorneys suffered from depression (as opposed to 3–9% in the general population), and 15–18% suffered from substance abuse (as opposed to 10–13% in the general population).  Daicoff, supra note 17, at 1347.  Lawyers also have higher rates of anxiety, divorce, and substance abuse than both the general population and members of other professions.  Id.

[29] Id. at 1334–45.  Daicoff found that

[t]he vast majority of commentators generally agree that the level of “professionalism” displayed by attorneys has declined dramatically in the last twenty-five years. They point to the following as evidence: (1) a decline in civility and courteous conduct between lawyers, an increase in unethical or uncivil behavior among lawyers and judges, frequent lapses of appropriate ethical and professional conduct, and increasingly aggressive, competitive, and money-oriented legal battles, fought with a “win at all costs” approach; (2) increased competition and pressure to win—and the underlying theory that law has become a “business” rather than a profession, placing a heightened emphasis on materialism and money; (3) a decline in attorney and client loyalty to the law firm; (4) frequent and abrupt dissolutions and reconstitutions of large law firms; (5) an increase in aggressive lawyer advertising; and (6) a perceived general decline in lawyers’ values, ideals, and morals.


[30] See Riskin, supra note 25, at 13.

[31] Id.

[32] Id.

[33] Id. at 16–17.

[34] See Winick, supra note 12, at 112–13.

[35] Colleen M. Hanycz, Trevor C. W. Farrow & Frederick H. Zemans, The Theory and Practice of Representative Negotiation 254 (2007).

[36] Id.

[37] Id. at 255.

[38] Julian Webb et al., Lawyers’ Skills 2007–2008 154 (2007).

[39] Id.

[40] Hanycz et al., supra note 35, at 45.

[41] Id. at 46.

[42] Julie Macfarlane, Experiences of Collaborative Law: Preliminary Results from the Collaborative Lawyering Research Project, 2004 J. Disp. Resol. 179, 180 (2004).

[43] Id. at 186.

[44] Douglas C. Reynolds & Doris F. Tennant, Collaborative Law—An Emerging Practice, 45 B.B.J. 12, 12 (2001).

[45] Pauline H. Tesler, Collaborative Law 7 (2001).

[46] Macfarlane, supra note 42, at 186.

[47] Id. at 190–92.

[48] David Wexler, Therapeutic Jurisprudence: An Overview, 17 T.M. Cooley L. Rev. 125 (2000).

[49] Id.at 125.  Bruce Winick summarized the impetus behind the Therapeutic Jurisprudence movement stating that

[o]nce it is understood that rules of substantive law, legal procedures, and the roles of various actors in the legal system such as judges and lawyers have either positive or negative effects on the health and mental health of the people they affect, the need to assess these therapeutic consequences . . . thus emerges as an important objective in any sensible law reform effort.

Bruce J. Winick, Therapeutic Jurisprudence Applied: Essays on Mental Health Law 4 (1997).

[50] Wexler, supra note 48, at 129.

[51] Building a Pedagogy of Problem-Solving, supra note 7, at 120.

[52] Id.

[53] Christopher Slobogin, Therapeutic Jurisprudence: Five Dilemmas to Ponder, 1 Psychol. Pub. Pol’y & L. 193 (1995).

[54] Shattering Negotiation Myths, supra note 3, at 197.

[55] Winick, supra note 12, at 117–18.

[56] Id.

[57] Id. at 118.

[58] See generally Slobogin, supra note 53.  Slobogin contends that

to measure the therapeutic effect of a given rule . . . therapeutic jurisprudence relies on social science theory and research—in particular, mental health and behavioral work . . . . [These disciplines] may frequently be unable to provide [Therapeutic Jurisprudence] with much useful information for two reasons, one which is general in nature and one which is more specific to [Therapeutic Jurisprudence].  First, social science has often proved inadequate to the task of investigating legal assumptions.  Second, even if this general concern can be overcome, the types of empirical questions [Therapeutic Jurisprudence] asks may be particularly difficult to answer.  Consequently, [Therapeutic Jurisprudence] may be confronted with another dilemma: To the extent it grows dependent on social science data it may rest on shaky foundations, but to the extent it does not it loses its allure.

Id. at 204.  There are also additional concerns that reliance on social science data and standards of evaluations may be misapplied: those attempting to apply the research may not be abreast of newly emerging, relevant literature; users of social science may misinterpret the findings or apply them in the wrong context; lawyers and judges may unduly emphasize social science findings to justify their arguments or conclusions; and social science findings may become a superficial, pseudo-authoritative justification used to mask political or value-laden decisions.  Barbara A. Babb, An Interdisciplinary Approach to Family Law Jurisprudence: Application of an Ecological and Therapeutic Perspective, 72 Ind. L.J. 775, 796 (1997).

[59] Slobogin, supra note 53, at 211–18.

[60] See Amy E. Black & Stanley Rothman, Shall We Kill All the Lawyers First?: Insider and Outsider Views of the Legal Profession, 21 Harv. J.L. & Pub. Pol’y 835, 850 (1998).  In noting the degradation of public opinion toward lawyers, the authors stated that

[p]olls conducted by Louis Harris and Associates, for example, reveal a decline in public perception of the prestige of the legal profession.  For decades, pollsters at the Harris organization have asked random samples of adult Americans to rate the prestige of a variety of occupations.  Each profession is slotted as having “very great prestige,” “considerable prestige,” “some prestige,” or “hardly any prestige at all.”  In 1977, almost 75 percent of respondents believed the legal profession had either very great or considerable prestige . . . .  Twenty years later, public opinion has changed dramatically.  A near majority (47 percent) of respondents to the same question in an April 1997 survey ranked the legal profession as having either some or hardly any prestige at all.


Originally published to HNLR Online on Jan. 27, 2010.

Decisional Errors – On the Field, On the Bench, In Negotiations

fullscreen-capture-1112009-82720-pmbmpThe Question is Not Whether Humans Make Decisional Errors, But How to Compensate for Them

By Donald R. Philbin, Jr.

ESPN recently dubbed baseball umpire Tim McClelland’s missed calls in Game 4 of the American League playoffs as “the worst umpiring performance at an Angels games since Leslie Nielsen in ‘The Naked Gun.’1 While his mistakes were not outcome determinative, they rekindled calls for the use of instant replay.

Those of us who have spent time with disputants were not surprised.  As New York Yankee Derek Jeter put it: “Umpires are human.  They make mistakes sometimes.”2 We routinely anticipate errors and design systemic checks to identify and address them.  Appellate courts and appellate arbitration panels, like instant replay, owe their existence to the need for second (or third) looks.

In fact, the ultimate second-looker famously analogized the roll of judges to umpires in his confirmation hearings.  Chief Justice John G. Roberts of the United States Supreme Court said, “Judges are like umpires . . . Umpires don’t make the rules; they apply them.”3

In a takeoff from Malcolm Gladwell’s best-selling book Blink, Professor Chris Guthrie drilled into judicial error rates in Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1 (2007).  There, law professors asked a large group of trial judges to respond to a three question survey at a judicial conference. Each question has an intuitive, snap answer (a “blink”) and another analytical answer that might be the result of a reasoned opinion. Perhaps unfairly, the questions were not application of law to fact questions that judges might face at work, but analytical quizzes reminiscent of the SAT:

1.       A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost?  5 (not 10) cents

2.       If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets?  5 (not 100) minutes

3.       In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half the lake? 47 (not 24) days

The authors reported a 1.23 mean, but parties unable to settle out of court may be more interested in the fact that 31% of the responding judges did not get any of the questions right. There may be inherent problems with this and any survey. The judges may not have put much effort into the break-time quiz at their information packed conference and the questions do not approximate what they are asked to do on the bench. But that is little consolation to those on the “wrong end” of a judgment they forced by not making their own deal in mediation.

Another major study concluded that even parties advised by experienced litigators are not above error.4 Comparing actual trial results with rejected pre-trial settlement offers in more than 4,500 cases and 9,000 settlement decisions made during a 44-year period, the study found that 61% of plaintiffs and 21% – 24% of defendants obtained an award at trial that was the same or worse than the result that could have been achieved by accepting their opponent’s pre-trial settlement proposal. Yet while plaintiffs tend to make more errors in their estimates more frequently, defendants do so with greater severity. When a plaintiff misses the mark, she is only off by an average $43,100. The defendant misses less frequently, but the verdict is 26 times the last offer when he does: $1,140,000.

Psychologists have long taught us that people with exactly the same information reach different conclusions.  Buyers rarely want to pay as much as sellers demand, whether negotiating the sale of a house, car, or lawsuit.  It’s largely a matter of assigned position. But the magnitude of the decisional error is telling.  Subjects asked to price a generic coffee cup for sale assigned it a value of $7.12. Buyers initially offered $2.88 for the same cup – 2.5 times less.4

These studies confirm and quantify what we know intuitively:  people (including umpires, judges, litigants, and others) make mistakes and when litigants are wrong, sometimes they are very wrong. The barrier preventing resolution may not be that litigants can’t see the same solution; it may be that they cannot see the same problem.

Mediation is a commonly used to debias positional assumptions that lead to impasse.  The reality is that we reactively devalue everything our enemy says, even if it would be helpful to us – “that can’t be good for us, or they would not have offered it.”  In fact, a Cold War experiment quantified the magnitude of this reactive devaluation bias. Soviet leader Gorbachev made a proposal to reduce nuclear warheads by one-half, followed by further reductions over time.  Researchers attributed the proposal to President Reagan, a group of unknown strategists, and to Gorbachev himself.  The surprise was not that the group reacted differently to the same proposal depending on its source, but the wide range of difference. When attributed to the U.S. President, 90% reacted favorably. That dropped marginally when attributed to the third-party (80%), but in half (44%) when attributed to the Soviet leader.5

So the surprise is not that an umpire missed a call, it’s how to deal with it systemically.  Like litigants, baseball stakeholders have options, and a quick appellate ruling from the pressbox may be the most expedient here since the full record is easily available.


Donald R. Philbin, Jr. is an attorney-mediator, negotiation consultant, arbitrator, and Adjunct Professor at Pepperdine University School of Law — Straus Institute for Dispute Resolution. For more info, see http://www.adrtoolbox.com/.

1 Caple, Jim, Umpire errors a real embarrassment, ESPN.com, Oct. 20, 2009, available at http://sports.espn.go.com/mlb/playoffs/2009/columns/story?columnist=caple_jim&id=4581598


3 Bruce Weber, The Deciders: Umpires v. Judges, N.Y. Times, July 11, 2009, at WK1, available at http://www.nytimes.com/2009/07/12/weekinreview/12weber.html?_r=1.

4 Randall L. Kiser, et. al, Let’s Not Make A Deal: An Empirical Study Of Decision-Making In Unsuccessful Settlement Negotiations, 5 J. Empirical Legal Studies 551-91 (Sept. 2008), available at http://www3.interscience.wiley.com/cgi-bin/fulltext/121400491/HTMLSTART.

5 Donald R. Philbin, Jr., The One Minute Manager Prepares for Mediation: A Multidisciplinary Approach to Negotiation Preparation, 13 Harv. Negot. L. Rev. 249 (2008), available at http://adrtoolbox.com/docs/HNLR_Philbin.pdf

Originally published to HNLR Online on Nov. 1, 2009.

Power and Trust in Negotiation and Decision-Making: A Critical Evaluation

handsBy Yan Ki Bonnie Cheng

I. Introduction

This paper critically evaluates the impact of power and trust on negotiation and decision-making.* “[A] basic fact about negotiation, which could well be easily forgotten, is that [one is] dealing not with abstract representatives of the ‘other side’, but with human beings.” It is therefore unsurprising that human phenomena like power and trust should have a significant influence in the process. These phenomena, however, are broad, complex, and often defined so abstractly that their importance may escape our attention. This paper therefore advocates a more nuanced understanding of power and trust in negotiation and decision-making. Before this is attempted, two major concepts negotiation and decision-making – will be explained.

Negotiation takes place in a variety of contexts. Thompson defines it as “an interpersonal decision-making process necessary whenever we cannot achieve our objectives single-heartedly.” Looking at international negotiation specifically, Kremenyuk proposes three paradigms to capture what he views as an evolving concept – negotiation as “part of a bigger strategy,” “a means of communication,” and “a decision-making process.” This paper will evaluate the impact of power and trust in these different contexts but will focus on negotiation as a decision-making mechanism.

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