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Final Exam Flashcards

1
Q

What are the skills that a lawyer should have?

A

Listen attentively
Promptly respond
Legal/professional speech
Tact/Diplomacy
Work cooperatively

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2
Q

What is the KNH-RW Problem Solving Method?

A
  1. Question
  2. Recognize a problem; define it
  3. Gather and evaluate information
  4. Generate a range of options
  5. Evaluate options
  6. Decide
  7. Act
  8. Reflect; critique
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3
Q

What are the ABA Model rules pertaining to attorney-client relationships?

A

1.4 - Communications
1.2 - Scope of Representation and Allocation of Authority

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4
Q

What are the approaches to attorney client roles?

A

Traditional Model
Client-centered model

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5
Q

What are the hallmarks of the traditional model of client representation?

A

Passive client, authoritative attorney

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6
Q

What are the hallmarks of a client-centered model of client representation?

A

Client provides creativity and superior knowledge of facts, acting as decision-maker; attorney controls structure of process and provides advice.

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7
Q

What are the active listening skills?

A

Paraphrase
Inquire
Acknowledge
Empathize
Note nonverbal cues

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8
Q

What are the model rules pertaining to interviewing?

A

Rule 3.3 - Candor Toward the Tribunal
Rule 4.3 - Dealing with unrepresented persons

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9
Q

What are some techniques used for interviewing?

A

Move from open-ended to narrow questions
Avoid leading questions
Avoid compound questions
Ask for raw facts/details
Investigate source of knowledge

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10
Q

What are some things to avoid while interviewing?

A

Legalese
Overpromising results
Jumping to conclusions
Confirmation bias

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11
Q

What are the model rules pertaining to client counseling?

A

Rule 2.1 - Advisor
Rule 1.4 - Communications
Rule 1.0(e), (h) Terminology
Rule 1.2 - Scope of Representation/Authority

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12
Q

What are four challenges in client counseling?

A

Creating options
Working out each option precisely
Clarity with clients
Helpful professional affect

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13
Q

What are the two approaches to negotiation?

A

Adversarial/positional bargaining
Problem-solving/interest bargaining

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14
Q

What are the hallmarks of interest bargaining in negotiation?

A

Separate people from the problem
Focus on interest, not positions
Invent multiple options looking for mutual gains before deciding what to do
Insist that the result be based on an objective standard

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15
Q

What are the terms to know for negotiation?

A

Best alternative to negotiated agreement (BATNA)
Worst alternative to negotiated agreement (WATNA)
Reservation point
Target point
Bargaining Range
Bargaining authority

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16
Q

What should be a part of your preparation for mediation?

A

Should you have an opening statement, and who should give it?
What information should be kept confidential and what information should be shared with the mediator?
What is the mediator’s style?

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17
Q

What are the common approaches to mediation by the mediator?

A

Evaluative (broad/narrow) and facilitative (broad/narrow)

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18
Q

What are the hallmarks of the evaluative mediator?

A

They are mostly focused on legal issues, and will give opinions on the relative strength of each party’s legal claim. They are also very results and positionally oriented, and will commonly provide suggestions to the parties as to how they should proceed.

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19
Q

What are the hallmarks of the facilitative mediator?

A

They are mostly focused on the interests of the parties. They will commonly not give evaluations of relative legal claim strength, and will commonly not provide any solutions to the parties. They will however ask deep, probing questions to parties to attempt to discern their underlying interests, and to allow the parties to discern them as well.

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20
Q

What is negotiation?

A

Negotiation is an ADR technique used as alternative to litigation. It involves two parties directly negotiating on an issue without the presence of a third party neutral.

21
Q

What is mediation?

A

Mediation is an ADR technique used as an alternative to litigation. It involves two parties negotiating, usually through attorney representatives, with the facilitation of a third-party neutral.

22
Q

What is arbitration?

A

Arbitration is the ADR technique most similar to litigation. It involves two parties presenting fact issues before an arbitrator who will make a final and binding decision at the end of the process.

23
Q

What is Med-arb?

A

A hybrid of mediation and arbitration. Parties will begin at mediation and if settlement isn’t reached, they will proceed to arbitration.

24
Q

What is Arb-med?

A

A hybrid of arbitration and mediation. Parties will begin with arbitration and after the fact presentation by both parties, they will move to mediation. Arbitrator’s award will only be disclosed if parties do not reach settlement through mediation.

25
What are the 4 steps identified by Bryan Stevenson in "American Justice"
1. Get proximate to the problem. 2. Change the narrative 3. Stay hopeful 4. Do uncomfortable things
26
What is witness coaching?
Witness coaching is conduct by a lawyer that alters a witness's story about the events in question.
27
What are the different types of witness coaching?
Grade 1 - Knowing overt inducement Grade 2 - Knowing covert inducement Grade 3 - Unknowing, unintentional inducement
28
What are the 4 techniques for witness interviewing?
1. Reinstate context 2. Tell everything 3. Recall the event in different orders 4. Change perspectives
29
What are the 4 stages in fact-gathering?
1. Introductory Stage 2. Open-ended narration stage 3. Probing stage 4. Review stage
30
What are the five habits of cross-cultural lawyering in Bryan and Koh?
1. Degrees of Separation and Connection 2. Rings in Motion 3. Parallel Universes 4. Red Flags and Remedies 5. The Camel's Back
31
What does "Degrees of Separation and Connection" from Bryan and Koh's 5 habits mean?
identifying and analyzing the distance between me and my client
32
What does "Rings in Motion" from Bryan and Koh's 5 habits mean?
identifying and analyzing how cultural differences and similarities influence the interactions between the client, the legal decision makers, the opponents, and the lawyer
33
What does "Parallel Universes" from Bryan and Koh's 5 Habits mean?
Identify alternative explanations for client's behavior
34
What does "Red Flags and Remedies" from Bryan and Koh's 5 habits mean?
Focus on cross-cultural communication, identify some tasks i normal attorney-client interaction that may be particularly problematic in cross-cultural encounters as well as alerting lawyers to signs of communication problems.
35
What does "The Camel's Back" from Bryan and Koh's 5 habits mean?
Once the breaking point has been reached in an attorney-client relationship, the lawyer should try to identify why the interaction derailed and take corrective actions or plan for future corrective action.
36
What are cognitive biases?
A systematic pattern of deviation from the norm or rationality in judgment based on the subjective reality a person creates from their own perceptions. These are generally unconscious.
37
What are the types of interests?
1) Financial 2) Performance 3) Psychological needs 4) Reputational 5) Relationship 6) Liberty 7) Basic human needs
38
What is the BATNA?
Best alternative to negotiated agreement
39
What is the WATNA?
Worst alternative to negotiated agreement
40
What is the reservation point?
The lowest or highest point someone will accept in negotiations
41
What is the target point?
The best desired outcome
42
What is the bargaining range?
The difference between the reservation points for both parties.
43
What is bargaining authority?
How much authority an attorney or other representative has to make deals for their client.
44
What are the essential elements for a client counseling plan?
- Small talk to further rapport - Restate confidentiality - Brief review of facts - Confirm goals, ask to weigh interests in situation. - State openness to questions, explain how important their understanding is - Explain results of research - Explain how research pertains to client - Go into options - Emphasize client is decision-maker, these are my recommendations - Make sure to clearly and explicitly go through pros and cons of each option - Ask for questions, explain as needed
45
What should you say about confidentiality to a client?
"Everything we talk about is privileged, with the exception of if you tell me you're going to commit a crime, or if you try to use my services to commit a crime"
46
How should you go about generating options?
First step is to generate as many feasible options as possible, then evaluate them through lens of client goals and interests. Don't need to discard options that are directly contradictory to client goals/interests, if absolutely necessary.
47
How should you explain results of research and how it applies to your client?
Avoid legalese and overly complicated explanations, the client doesn't need to know minutiae. If legalese is necessary, make sure to explain in layman's terms after.
48
How should you explain your options to client?
First, emphasize that client is decision-maker. Emphasize openness to questions. Emphasize importance of understanding by client. Go through each option individually. Explain pros and cons as it relates to the client's interests/goals. Ensure understanding before going on to next option. When all options presented, ask for questions, emphasize these are just my recommendations, emphasize again they are the decision-maker, offer to make appointment over next few weeks (unless urgent) to give them time to think.

Lawyering (1 decks)

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