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Lawyering > Final Exam > Flashcards

Final Exam Flashcards

1
Q

What is inquiry mode?

A

Learning

Definition: open-ended curiosity and interest in exploring things regardless of the consequences

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2
Q

What is persuasion mode?

A

Manipulation

Definition: thinking and talking that manipulates a situation.

Cons: treat others as types rather than individuals, listening for ammunition, manipulative or controlling

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3
Q

What are the 6 steps of diagnosis?

A
  1. recognizing and defining problem
  2. preparing: gathering and evaluating info
  3. generating options
  4. evaluating options
  5. deciding
  6. acting
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4
Q

What is Convergent thinking?

A

Narrowing and inquiry to find a single right answer
ex) multiple choice

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5
Q

What is Divergent thinking?

A

Broadening the inquiry by thinking in several directions at once to find more answers or strategies
ex) how many uses for a brick can you think of

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6
Q

Active Listening

A

Definition: ability to listen well by encouraging communication w/o asking questions

Inhibitors: embarrassing/traumatic info, fear of sharing info that undermines their case

Facilitators: building a trusting relationship, comfortable environment, nonverbal communication

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7
Q

What is the purpose of Client Interviewing?

A
  • Form attorney-client relationship
  • learn the client’s goals
  • learn as much as the client knows about the facts
  • reduce the clients anxiety w/o being unrealistic
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8
Q

How is a Client Interview Organized?

A
  1. brief opening
  2. info gathering: broad to narrow questioning
  3. identify client goals: what do they want to accomplish/prevent?
  4. Form preliminary strategy: start generating solutions
  5. Closing: Are you hired, next steps, finances
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9
Q

Crafting Client Interview Questions (Dispute)

A
  • ask all the questions to find the story in the facts
  • ask questions that would reveal what arguments the other side might make
  • explore for other evidence
  • evaluate the client’s value as a witness in court
  • ask whether the client has talked to anyone else about this
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10
Q

Crafting Client Interview Questions (Transaction)

A
  • learn the posture of the deal so far
  • learn the parties’ interests
  • ask whether the client has talked about this problem with another lawyer
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11
Q

Crafting Client Interview Questions (General)

A
  • raw facts and client’s source of knowledge
  • all the details
  • questions to prevent the 3 disasters
  • pieces of paper
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12
Q

What are the 3 big disasters in Client Interviewing?

A
  1. Accepting a client who creates a conflict of interest
  2. missing a statute of limitation or other deadline that extinguishes or compromises the client’s rights
  3. not taking emergency action to protect a client who is threatened with immediate harm
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13
Q

Organizing Client Interview Questions

A
  1. Get a general sense of the case then move to more detailed exploration
  2. separate topics
  3. for each topic go broad to narrow, ending with probing questions
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14
Q

Formulating Client Interview Questions

A
  • phrase questions carefully
  • a good question does not confuse, provoke resistance, or distort memory
  • probe for more info with active listening and body language
  • one question at a time
  • NO LEADING QUESTIONS, create potential for false answers
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15
Q

What are the types of fee agreements?

A
  • by the hour
  • flat rate
  • contingency
  • working with retainers (initial or perpetual)
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16
Q

Problems with Client Interviewing

A
  • ethics: confidentiality, avoiding perjury, preserving evidence
  • distraught client
  • handling private/embarrassing material
  • client fabrication
  • when the client wants a prediction on the spot
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17
Q

In what ways can a client fabricate?

A
  • unconscious reconstruction of memory
  • semiconscious fudging
  • conscious lying
18
Q

Cognitive Interviewing Techniques

A

Techniques:
- reinstate context (return to the scene)
- tell me everything
- recall the event in different orders
- changing perspective

Structuring Fact Gathering:
- open-ended narration stage: don’t interrupt
- probing questions stage
- review stage: confirm/clarify understanding

19
Q

6 Steps of Decision Making in Client Counseling

A

Part 1: Preparation
1. identify the problem
2. gather and evaluate information and raw materials
3. generate options
4. evaluate each potential solution (pros, cons, outcomes)

Part 2: Counseling
5. Go through steps 1-4 w client and ask them to choose the best option
6. act on the option they choose

20
Q

Predicting Outcomes of Each Potential Solution

A
  • Pros and Cons
  • Best, worst, most likely
  • finances (transaction costs, expected value, time value of money)
21
Q

Motivations for ADR

A
  1. save time and money
  2. “better” processes - more responsive to needs of participants
  3. “better” results - outcomes serve real needs
  4. enhancing community involvement
  5. broadening access to justice
  6. protecting turf
22
Q

Client Meeting

A
  1. mood + setting
  2. beginning the meeting
  3. discussing the options
  4. asking the client to decide
23
Q

What are Interests?

A

needs, desires, fears, things one cares about or wants

24
Q

What are rights?

A

independent standards that demonstrate the legitimacy of a party’s position

25
Q

What are powers?

A

the ability to coerce someone to do something they would not otherwise do, coercion without resorting to enforcement of legal rights

26
Q

What are positions?

A

initial stance or demand based on your interests, rights, or powers

27
Q

What are the sources of powers?

A

Economic: resources the party can bring to bear on the transaction

Social: within geographic, fraternal, religious, communities

Psychological: desire, fears, anger, emotions and their impact

Political: ability to influence politics through people

Expertise: of the lawyer and/or client in the knowledge or skills at hand

Moral: appeals to fairness or morality

28
Q

BATNA

A

Best Alternative To Negotiated Agreement

What your client already has available to walk away to

  • review assessment of both parties’ interests, rights, and powers
  • generate options for ATNA
  • consider what options the client can undertake on their own
  • identify the rights the client could assert before a tribunal
  • identify the client’s leverage or ways to use power to coerce
29
Q

Bottom Line

A

what is the minimum your client would accept

what is the maximum your client would offer

(rather than resort to BATNA)

30
Q

Adversarial Approach

A
  • bargaining as a zero-sum game with limited resources that must be distributed between parties
  • focus on rights and power (shadow of the law) DISPUTE
31
Q

Problem-Solving Approach

A
  • focuses on interests
  • each side is assumed to bring something of value that could benefit each side
  • solutions that meet interests of all parties
32
Q

How is Mediation different from Negotiation?

A
  • third party involved
  • discussion is facilitated
  • may not be directly communicating with other party
33
Q

What are the key components/elements of Mediation?

A
  • non-binding
  • neutral third party seeks to help resolve dispute or plan transaction
  • voluntary OR court mandated
  • 1+ mediators
  • private and confidential
34
Q

Key Tasks of a Mediation

A
  1. Agreeing to Mediate
  2. Understanding the problems with a focus on interests
  3. generating options
  4. reaching agreement
  5. implementing the agreement
35
Q

Facilitative v. Evaluative

A

Distinction: Is the mediator providing their opinion or not?

Evaluative Actions:
- assessing strengths/weaknesses of case
- predicting court outcomes
- suggesting options
- advising parties to make or accept particular offers
- pressing parties to settle

36
Q

Joint Session v. Private Caucus

A

Private Pros:
- sharing confidential info w mediator
- help party realistically assess options
- help a party identify their interests
- managing emotions inhibiting agreement

Private Cons:
- perception of unfairness if caucusing time is unequal
- info lost in translation
- potential loss of perspective
- may inhibit group brainstorming

37
Q

Opening Statement

A
  • better explain your trial position
  • lower hostility
  • power of apology
  • be respectful and matter-of-fact

Balance of creating positive and cooperative atmosphere with convincing that you have a substantial chance of prevailing at trial

38
Q

Arbitration

A
  • mini trial
  • binding
  • private proceeding based on parties’ agreement to arbitrate
  • based more on statutes and case law
39
Q

Alternative

A

Option that already exists that your client can walk away to if an agreement is not reached

40
Q

Outcome

A

What realistically could result from the negotiation or mediation process

(best, worst, most likely)

Lawyering (1 decks)

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