I was really pleased to meet Randall Kiser at a recent conference. I was very impressed by his important study (co-authored with Martin Asher and Blakeley McShane), Let’s Not Make a Deal: An Empirical Examination of Decision Making in Unsuccessful Negotiations. The top-line finding was that in 85.5% of cases, parties went to trial when one of the parties would have been better off to accept the other side’s last offer. Plaintiffs received an award less than or equal to the defendant’s last offer in 61.2% of the cases and defendants were ordered to pay more than the plaintiff’s last demand in 24.3% of the cases.
Randy is the principal analyst at DecisionSet®, which consults with lawyers and law firms to improve their effectiveness. He has written several books including Beyond Right and Wrong: The Power of Effective Decision Making For Attorneys and Clients and How Leading Lawyers Think: Expert Insights Into Judgment and Advocacy.
He just came out with an excellent new book, Soft Skills for the Effective Lawyer, continuing his work to help lawyers do and be the best they can. He defines soft skills as including “intrapersonal and interpersonal competencies such as practical problem solving, stress management, self-confidence, initiative, optimism, interpersonal communication, the ability to convey empathy to another, the ability to see a situation from another’s perspective, teamwork, collaboration, client relations, business development, and the like” (quoting Susan Daicoff).
He presents research showing that legal clients especially value these skills in lawyers. Much research on lawyers, such as the Institute for the Advancement of the American Legal System’s “Foundations of Practice” study, shows that many practicing lawyers also highly value these skills – often much more than the skills we generally emphasize in law school.
Many readers of this blog would recognize these as precisely the skills we focus on in our theory, teaching, and practice. The chapters deal with self-awareness, self-development, social proficiency, wisdom, leadership, and professionalism. Each of these subjects include quite a number of specific skills.
The book synthesizes a great deal of research on psychology and lawyers, citing numerous empirical studies. Teachers probably wouldn’t assign this as a required reading, but it would be useful as a recommended reading for law students who want to get a head-start on honing skills that they will really need after graduation. It would also be of interest to faculty and administrators for decisions about what to emphasize in their courses and academic support activities. Scholars interested in this subject would find this book of particular value.
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Best Practices for Legal Education 
Negotiation gets a bad rap, but this review put a different gloss on the process. I think it would behoove many of us to read Kiser’s books, as even those of us who don’t do much formal negotiating in our practices (such as my immigration clinical practice) seem to have much to gain from the information he has accumulated and presented.
Thanks very much for your kind comment, Irene.
Although the book discusses negotiation a little, it primarily focuses on skills relevant to lawyering generally.
First–thank you to the blog for inviting me to comment this month.
Prof. Lande’s post reviewing this book makes an important point about the place of “soft skills” in the curriculum. I hope nobody would need to see any more evidence about the kind of skills that clients–from the General Counsel at major corporations to individuals–want their lawyers to have. Prof. Landes cites the Foundations of Practice” study. Here’s another interesting study from Clark Cunningham.
http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1672&context=jdr
Second, given how well established it is that clients want their lawyers to have these skills, we have to think about why we in law schools aren’t routinely teaching them in a way that results in students graduating with a minimum level of competency in, for lack of a better phrase, dealing with humans.
It never works to look at something new and say “where can we fit this in the law school curriculum?” We got where we are because of accretion without evaluation and pruning.
Better to ask,”what do we want students to know and be able to do when they graduate?” and then build out a curriculum from there.
In that process, we can find time for the kind of skills Prof. Landes and Mr. Kiser recommend as well as the business skills they will need to manage their practices and stay out of financial trouble.
Other professional schools manage to do this–but as I note at the end, no one can be completely successful.
Many medical schools actually require passing an exercise where a fourth year student is given a file and asked to “counsel” a standardized patient (actor trained to improvise in this situation). The session is observed by two faculty and a failing score delays graduation. Of course that’s the end point of four years of training where students are both instructed and then evaluated in their interactions with patients. This is separate and apart from knowledge or medical skills.
Business schools are even more invested in soft-skills training with many developing pre-orientation programs that cover topics like cultural competency, negotiation skills, and writing a professional email or text.
But whatever training a professional school provides, the reality is that just like some people are better teachers than others, some people will always have better “soft skills.” (Tacit knowledge has a role here-everyone isn’t starting from the same place).
Also, no matter what professional schools teach, there will always be complaints about “youth today” and their lack of manners, casual dressing habits, and poor communication skills. A lot of that is because as always “youth today” come into the work force as beginners. By definition, they are not yet performing at the level one would expect as a seasoned professional.
It’s also inevitable that culture changes. This generation of new professionals is kind, thoughtful, intelligent, and hard working–just not always in ways that are immediately familiar. They have no idea how offensive it is to keep looking at a phone while a client is describing how his marriage fell apart. Ask them, and they will tell you it would be equally rude not to respond quickly to the texts coming in.
This transition from a single generation environment (school) to a multi-generation environment (work) is the challenge of all professional education. Many if not most of our students will have very little life or work experience when they graduate, but must immediately play important roles in some of the most important issues in their clients, customers, and patients’ lives. (we all know that the more life or work or service experience they have, the more successful their beginning years will be).
No matter how hard we try, none of us can teach experience. It’s why finding a mentor who can provide feed-back is so helpful. Along those lines, I sometimes recommend Steve Arneson’s, “What Your Boss Really Wants From You”–it’s more targeted to the workplace than to representing clients, but has similarly valuable information for the new professional.
But we in legal education can do better than we have been to make sure all students, not just those who seek out experiential learning experiences, acquire some competence in the soft skills they will all need. As Prof. Landes explains,recommending Mr. Kiser’s book is a good place to start. You might also look at what your business school has already put together–it could be an opportunity for collaboration.
Both John and Jennifer have given me much to think about and new sources for me to peruse! I also Know that my really thoughtful colleagues over at our Career and Professional Development office would love to recommend these resources as well to students whom they assist throughout the three years of law school.