Jim Holbrook: A Law Professor Explores the Power of Storytelling to Resolve Conflicts

Jim Holbrook has led a peripatetic, evenrestless, professional existence. Yet it could be argued that hisvaried work experience has played an essential role in forging hisskills as a gifted, empathetic presence in the classroom, as well ashis reputation as one of the most widely sought-after and respectedmediators and arbitrators in Utah.

A clinical professor of law at the U of U(as an adjunct since 1992, and full-time since 2002), Holbrookcurrently teaches mediation, negotiation, arbitration, and clientcrisis management courses. This semester, for the first time, he isalso teaching a Perspective course for first-year students called Lawand Storytelling. But regardless of subject, his approach to teachingremains constant: “I want to build students’ confidence in theirabilities to recognize and resolve problems,” he says.

Introduction to Negotiation

After graduating from the U of U lawschool in 1974, Holbrook (with encouragement from legendary lawprofessor John Flynn), applied for and got a one-year clerkship withChief Judge Willis Ritter in the U.S. District Court for Utah. He thenwent into private practice for three years. Feeling the need for newchallenges, in 1978 he took a position in the U.S. Attorney’s Office.In 1980, he returned to private practice in a boutique trial practicefirm. Two years later, he accepted a position as corporate counsel forthe Intermountain Power Agency, which was then in the process ofconstructing a massive coal-fired power plant in Millard County.

“They were negotiating the downsizing ofthe plant from four generating units to two units (from roughly $12billion to $6 billion) and that experience introduced me to negotiationin a very focused way,” Holbrook recalls. “I became captivated by theprocess of negotiation.” And although there was a dearth of literatureon legal negotiation, Holbrook took the negotiation concepts he foundin marketing and sales literature and in the then-newly published book,Getting to Yes (authored by two professors at the Harvard UniversityNegotiation Project) and applied them to the power plant negotiationand later to his law practice. The nascent field of legal negotiationwas fast becoming Holbrook’s passion — and it wasn’t long before otherstook note.

“I did some writing about negotiation andtaught several Continuing Legal Education courses about it,” Holbrooksays. “And that gave me some visibility in the field. I was asked by ayoung lawyer to be a mediator for a mediation company that he wasforming. Although I knew nothing about mediation, after being exposedto it, I knew it suited my personality and intellect.”

For the next 10 years, Holbrook immersedhimself in the subject of alternate dispute resolution, or ADR, both asa practitioner and as a theorist. He read all the literature he couldfind on the topic, gave regular CLEs, and mediated and arbitratedhundreds of disputes. In the early 1990s, he began teaching ADR at theU of U College of Law as an adjunct professor. In 2002, he applied forand was hired to fill an open slot at the college as a clinicalprofessor. After 28 years as a downtown trial lawyer, he embarked on asecond career as a full-time academic. He describes the position as anideal fit with his interests. “Between myself and [fellow professors]Michele Straube and Linda Smith, we have as many ADR courses andclinical opportunities as any law school of our size in the country,”he says proudly.

Holbrook identifies three advantages tohis dual existence as a teacher and practitioner. First, he relishesthe opportunity to impart practical skills to students who are about toembark on a legal career. “These are concepts I know are practical,” hesays. “It’s fascinating to see how excited students get when they startto grasp how powerful these tools are.” Second, he finds teachingparticularly useful as he researches new concepts. “From time to time,I co-teach a negotiation course in the Department of Communication.It’s immensely valuable because it reinforces my appreciation of therole of communication in negotiation,” he says. And finally, he gets touse these new concepts when he serves as a mediator and arbitrator.

Conflict Stories

Warming to his topic, Holbrook returns tothe subject of teaching in the communication department, and morespecifically, what he has learned by teaching students in anotherdiscipline. “Len Hawes (a communication professor) and I haveidentified a new kind of negotiation called ‘performative.'”

Holbrook defines performative negotiationas “a high-conflict dance”in which the parties tell their conflictstories without really listening to one another. “There are goodreasons why people construct these types of conflict stories,” he says.”They provide the storyteller the chance to tell a story in a way thatblames the other person and puts the storyteller in a position of beingthe victim or the hero.” With help from a third-party neutral, though,he believes that most parties are more willing to listen to andunderstand the other person’s side of the conflict, which improves theodds of an acceptable resolution using other kinds of negotiation.

As Holbrook began to reflect on therelationship between conflict and narrative, he was struck by therealization that a course on law and storytelling would be useful tolaw students who often are immersed in studying legal doctrine. Asfortune would have it, about the time he was contemplating a class ofthis type, the Quinney College was in need of a new Perspective coursefor first-year students. Holbrook’s course proposal was accepted, andhe is currently teaching a new Storytelling and the Law class. “It’sgreat to see how excited students are about the subject,” he effuses.

Megan DePaulis is one of those excitedstudents. She says Storytelling and the Law provides a valuablecontrast to her doctrinal classes. “This has been a great way for me toget to know more of my classmates and be enriched by their experiences.It also allows conflict to be aired in a healthy way, and for us todisagree with each other civilly — an important skill to have as alawyer.”

DePaulis also explains that the classprovides a contrast because it involves writing a series of shortpapers instead of reading cases to learn legal rules. “We take storyand narrative for granted when we read cases for other classes, eventhough they are embedded in every single case. It’s a little bit likefinally talking about the bones that the case is hanging on.”

One of Holbrook’s stated goals for thecourse is to encourage students to adopt a nuanced view of legalpractice — not simply as application of black-letter rules but insteadas a constellation of colorful interpersonal relationships and helpfulsocial interactions. DePaulis believes he has succeeded in that goal.”Instead of seeing every case simply as an ‘issue,’ it’s really helpfulfor me to see the connection between the person and the issue. This iseven how I would begin to solve a problem now, by determining what theclient wants as a solution. Then I would look at the law and see if itfits with what the person wants from the process, determine whether itis a reasonable expectation, and advise the client accordingly.”

DePaulis further believes that the courseis providing her with the skills that will allow her to approach clientrepresentation more objectively. “I think I already had a lot ofempathy for others’ problems, and this class is actually helping meremain more neutral because I am learning to construct stories frommultiple sides. Otherwise, it’s too easy for me personally to beentirely blinded by my client’s story and not maintain any objectivity,which is bad for me personally and professionally, and also would bebad for my client because I wouldn’t be able to anticipate arguments.It’s been refreshing to reflect on how lawyers are part of the storyand what that means.”

Alice Ristroph, an associate professor oflaw at the U, also has taken note of Holbrook’s approach to teaching.”Many law school courses are doctrinal, in the sense that they usecases to develop and teach formal legal rules,” she says. “Doctrinesare important, but they are certainly not everything. For many types oflegal practice, interpersonal communication and negotiation skillsmight matter much more to a lawyer’s day-to-day success than knowledgeof doctrinal subtleties. I think of Jim as teaching — and demonstrating— the human side of legal practice.”

Academic Pursuits

It’s perhaps fitting, given Holbrook’s combination of social skills and far-reaching interests, that hisreputation as a speaker and presenter extends to locales as far-flungas Oregon and Great Britain. On the strength of his poetry and prose,which are inspired by his combat experiences in Vietnam, he wasrecently invited to speak on the topic of “Artistic and SpiritualResponses to War & Peace” at the William Stafford Symposium atLewis & Clark College in Portland. In July, he will present a paper entitled “Transforming Conflict Narratives into Dialogue inPerformative Negotiation” at a storytelling conference in London.

He has also been invited by Dean Hiram Chodosh of the Quinney College to help with the new edition ofChodosh’s book on mediation in India. “The Dean and I are interested inmany of the same mediation concepts, so naturally I’m immensely pleasedto be invited to participate in his project,” Holbrook says.

And there’s more — he has persuaded thelaw school to offer a pre-trial practice course this fall (which he andadjunct professors will teach) which will focus on practical skillsincluding drafting pleadings, conducting written discovery,interviewing witnesses, taking depositions, drafting dispositivemotions, and negotiating settlements. “It will be extremely practical,”he says, noting that his fellow clinical professors Bonnie Mitchell andBill Richards offered such a class several years ago. “It was immensely time-consuming for the instructors, but it was fully subscribed andstudents loved it,” he says. At the end of the course, students alsohad a portfolio of pre-trial practice documents they had prepared toshow to law firm recruiters.

Ristroph, whose office is located nearHolbrook’s, says his generosity goes beyond offering guidance tostudents. “I’m very glad to have an office just a few doors away fromJim’s. He has often shared teaching ideas and classroom exercises withme, and those practical resources are very useful to a rookieprofessor. He also sets a great example to junior faculty in that he’svery committed to teaching and very hardworking (I’ve run into him atthe office on many a weekend). He combines a strong work ethic withgentleness and good humor — and that makes him a wonderful role model.”