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A Lawyer’s Job: Making Deals Outside the Courthouse

New LAW requirement stresses negotiations, not courtroom combat

Six business-garbed people huddle at a table in a third-floor room, the Prudential Center’s crown peeking over the horizon out the window. An executive from medical supplier Boston Scientific Corp. (BSC) grills his five-person legal team on his best option for dealing with Medinol, a husband-and-wife stent maker in Israel. BSC wants in on the burgeoning stent business; should the company buy Medinol outright or just sign a contract with the Israeli firm to supply stents for BSC to sell?

The lawyers walk the businessman through the labyrinth of upsides and risks attending each option. The exec bluntly assesses the Israelis—“I don’t think they’re as savvy as we are. They’re two inventors; I call them eggheads”—and hints that BSC also is interested in partnering with a domestic stent maker. He asks if he can cut a deal with Medinol and then scrap it if his talks with the American firm bear fruit.

“You want to walk away from the contract?” Tessa Stillings asks. “I’m saying I want to keep my options open,” her client replies. Daniel Johnston warns him, “If you’ve already signed a contract with Medinol, then you’d be in breach of that contract.” So what, says the businessman: “Contacts get breached every day.” Then Tyler Payne drops the f-word: “Entering negotiations for a contract while intending to breach it comes somewhere close to fraudulent business. We’re morally obligated not to advise that.”

The business deal you just read about was real. The lawyers and client were not. The former were actually first-year students at the BU School of Law; their “client” was Ameen Haddad (LAW’98), a lawyer for tech giant Oracle. In classrooms throughout the Sumner M. Redstone Building on a frigid January morning last week, LAW alumni role-played either BSC or Medinol executives for almost two dozen student groups, the school’s entire first-year class. The exercise was part of Lawyering Lab, a new, mandatory, one-week program giving hands-on experience in negotiating and deal-making, which are as common as breathing in a lawyer’s job.

The lab centered on a real-life contract signed between BSC and Medinol in 1995. That deal soured when the Israeli firm charged BSC with stealing its stent technology. BSC countersued, claiming Medinol dragged its feet in supplying its stents. In 2005, BSC paid Medinol $750 million, and surrendered its ownership share in the latter, to settle the suits.

The LAW students’ task: redraft the contract to produce a durable deal, and one in each client’s best interest.

This is a far cry from the dazzling courtroom theatrics displayed by TV and cinematic legal eagles. But in real life, lawyers rarely play Perry Mason before judges and juries. “Most lawyers—like me, for instance—never set foot in a court,” says Kent Coit, professor of the practice of law and a Lawyering Lab organizer. “They’re involved in transactional planning and advising clients about anticipating what could happen in a relationship.” (Before BU, Coit worked on mergers and acquisitions for three decades at the Boston office of Skadden, Arps, Slate, Meagher & Flom.)

Even the Perry Masons of the world do such work. Naomi Mann has been a litigator “since I walked out of law school, and I’ve spent a majority of my time not in the courtroom.” Instead, says Mann, a LAW associate clinical professor and another lab organizer, she earned her pay as most attorneys do: counseling clients and drafting the settlements that conclude the majority of civil cases.

LAW students still practice litigation through moot (mock) court. The Lawyering Lab provides the same hands-on experience in negotiation and deal-making—the “universal lawyering skills” all practicing attorneys need, says Frederick Tung, professor of law and the lab’s third organizer. Yet law schools historically have ignored practical experience in those universal skills. “You can do very well in a contracts course and not have ever seen a contract, ever,” Mann says. “You would never have somebody graduate from medical school, practicing as a doctor, never having practiced on patients before.”

The Washington, DC–based Association of American Law Schools doesn’t track how many schools have versions of the Lawyering Lab, but Executive Director Judith Areen is aware of similar programs at Harvard and Georgetown, and she lauds such “new approaches to better prepare students for their legal studies and their careers.”

As for Haddad’s students, they wound up negotiating a supply contract with another student team representing Medinol. Daniel Johnston says the Lawyering Lab did “a great job” exposing students to real lawyering. Teammate Stillings agrees. “Normal first-year law classes do not delve deeply in to the practice of law,” she says, adding that one classmate confided she’s now interested in transactions law rather than litigation after the lab.

The exercise also taught Stillings a conciliatory strategy the textbooks don’t discuss. When the Medinol team began the negotiations with an aggressive posture, she says, she brought out some cookies—“which I think broke the ice and made the event a little more lighthearted.”

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Rich Barlow

Rich Barlow can be reached at barlowr@bu.edu.

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