October 13, 2006
Negotiating Law and Literature
Posted by Usha Rodrigues

As a proud holder of a Comparative Literature degree, I’m often asked whether I want to teach a law and literature class someday. The answer is: I’m still trying to figure out what such a class should look like. The old Billy Budd/Merchant of Venice/the Trial model doesn’t do much for me, probably because I’m not a litigator. Portrayals of trials are interesting, but removed from what I do.

My ideal law and lit. class would somehow focus on narratives. The major insight I got from my graduate study was how fundamental narrativizing—storytelling, in plain English—is to human experience. The stories we tell about ourselves are how we understand the world and our place in it. Litigator as storyteller is a familiar trope: the jury is presented with two conflicting narratives and chooses between them. But the relationship of narrative to transactional work has been little explored.

In my experience, negotiations are all about storytelling. I know, you’d expect that they’d be all about leverage. I often represented the classic “little guy” vendor trying to do a deal with a much bigger company. You’d think that the “big guy” would just tell the little guy, “Look, this is our offer, take it or leave it.” Not really. Most of the negotiation was about justifying one’s position, which came down to telling a good story. For example, suppose we’re arguing over whether a contract should have a cap on damages and if so, how much. The conversation won’t be about strong-arming. It might be about horse-trading (who is this more important to, and what will that side give up for it). It might be about which party was better able to bear the risk. In either case, each side would construct a contextual narrative, weaving its business model and the parties’ ongoing relationship into the larger context of the deal, attempting to tell a compelling story that makes its preferred outcome the most reasonable one. Surprisingly, narratives may matter in deals as much as in trials.

All of which is very interesting, to me at least. But doesn’t really tell me what my law and literature class should look like…

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