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This Article describes an alternative model for the process of legal counseling, a model applicable to a very common counseling experience ignored by the conventional Interviewing and Counseling texts—the experience of obtaining negotiating and settlement authority from a client. Counseling is, of course, a basic lawyering skill taught in law school clinics and in simulation courses. It is one of the most critical elements of good lawyering, and it is a skill which can be taught, and taught through the use of models. Every lawyering skills book available includes instruction about effective counseling. But when one reviews the available models for counseling, one finds a very interesting phenomenon: The texts explore in considerable detail the techniques and strategies involved in counseling clients about making choices. The choices might be binary ("you take the offer, or we go to trial"), or the choices might be more than two ("we can draft you a straightforward will, or instead put most of your property into a life estate, or alternatively you could create a living trust, or maybe you'll want to do an irrevocable trust"), but the ultimate goal of the counseling considered in the skills texts is to assist a client to decide satisfactorily among finite alternatives. The existing counseling models suggest protocols and meeting structures with that comparative, decision-focused end in mind. Much of client counseling is precisely that kind of activity, and the traditional models work well in that context. But a substantial part of client counseling does not involve weighing and choosing among discrete alternatives. Often, a lawyer must meet with a client not to review options on the table, but to anticipate future negotiations and to create new options. By definition, there are no alternatives to choose between or among, because the bargaining has not yet begun. But a client meeting is still necessary, in order to determine what kind of authority the client will give to the lawyer to negotiate, and to determine what kinds of offers or demands to make. It is still a counseling meeting, although a different kind of counseling meeting. The Article calls this special kind of counseling "pre-negotiation counseling." It is an awkward phrase, perhaps, but it does capture the moment in time when this kind of meeting will occur. We might refer to this activity as "authority counseling," but that phrase seems a bit narrow given the goals of this endeavor. It is counseling tied directly to negotiation, but it is separate from the negotiation process because it involves a meeting between the lawyer and the client to determine what the client wishes to occur. Not surprisingly, many of the same considerations will apply in this process as that within the standard models, but not all will apply. In several respects pre-negotiation counseling will be distinctly different. It therefore seems important to offer an alternative model for pre-negotiation counseling. The civil clinic at Boston College Law School has used this alternative model for close to 20 years, and it has become a common and accepted distinction for the faculty and for the students. The pre-negotiation structure arose because students encountered confusion and difficulty in attempting to employ the standard model to the pre-negotiation context. This article develops the structure of the alternative model, and defends it from some anticipated criticism. It contrasts the pre-negotiation model to the pioneering and "standard" model of client counseling developed in Lawyers as Counselors and its predecessors. It shows the following discrete alterations from the standard model: First, the goal of the meeting is very different in pre-negotiation counseling. No longer is the goal of the meeting to learn a client's decision about some important matter. Instead, the goal is to learn what a client's bottom line will be, either in an absolute sense or in a provisional sense. The meeting may also decide upon an appropriate opening demand in an upcoming negotiation. Second, the order of discussion of the client's alternatives will be different. In the conventional model where a lawyer seeks a decision from her client, the lawyer is indifferent about the order in which various alternatives are discussed, and deliberately so, in order to maintain a neutral presentation. In pre-negotiation counseling, a particular order is necessary. The lawyer must first describe the "default" setting, so that a client can appreciate new alternatives that will be developed in the meeting. Discussion of new alternatives cannot precede discussion of the default setting. Third, the use of comparisons is more subtle and more infrequent in the pre-negotiation counseling model. A comparison between generic alternatives (say, "trial" versus "settlement") will be fruitless in this setting, because a concept like "settlement" encompasses an entire range of very good possibilities and very bad possibilities. The comparisons will come, but only when the lawyer has moved to consider possible acceptable settlements. Fourth, once a lawyer has obtained an acceptable settlement idea from a client, she will have to press her client to see if a less favorable settlement package would be unacceptable. That act of pressing shows where the clients' "bottom line" authority is. Accomplishing this inquiry is a delicate matter, as the Article explains. Whether one should try to achieve a true "bottom line" is a complicated question covered here as well. After describing the model with these four variations from traditional counseling, the Article defends it in light of some expected criticisms. The most substantial worry about pre-negotiation client is its seeking from the client some finite "bottom line" authority, which is precisely its aim. Critics may worry that obtaining a bottom line is either illusory as a practice or unfair to the client's interests, or both. The Article accepts the criticisms as fair descriptively, but thoughtful counselors can accommodate them.


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6 Sep 2022
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  • Subject
    • Law and Society

    • Legal Education

    • Legal Ethics and Professional Responsibility

    • Legal Writing and Research

    • Litigation

  • Journal title
    • Clinical Law Review

  • Volume
    • 13

  • Pagination
    • 541-571

  • Date submitted

    6 September 2022

  • Keywords