Lawyering Flashcards
Model Rules of Professional Conduct 4-1.4
A lawyer shall
1. keep the client reasonably informed about the status of the matter
2. promptly comply with reasonable requests for information.
MRPC Preamble
A lawyer has a special responsibility for the quality of justice.
MRPC 3.3
A lawyer shall not knowingly
1. make a false statement of law to the tribunal or fail to correct a false statement of material fact or law previously made to the tribunal.
3. Offer evidence that the lawyer knows to be false
Cognitive interview strategies
Restate the context
Instruct them to tell every detail
Restate why it’s important you know everything
Tell them why you’re taking notes
Have them retell from another perspective or in a different order
How to identify your client’s interests
Ask open ended questions
What do you need to feel satisfied?
What is the desired outcome and why is it important?
Take a guess and let them correct
Have them try to guess the other sides interests
Stages of client interview
- Prep
- Intro (rapport)
- Open-ended phase
- Information gathering
- Probing phase
- review phase
- goal identification
- preliminary strategy
- closing
How to handle client fabrication?
Emphasize the only way you can help is if they tell the truth
Press for precise details
Ask leading questions to get the client to see the absurdity (you’re telling me ___?)
You can withdraw working for them
Witness Interviewing Best Practices
interview as soon as possible
Decided what you need to know before beginning
^ from disco, informal disco, and jury instructions.
Three ways to organize facts
- Legal elements
- Chronology
- Story model
What is the difference between advice and counsel?
Advice is the direct answer to a legal question.
Counsel is helping the client decide the right decision to make.
What are interests?
Interests are the needs, desires, concerns, fears of the party. The things that a client cares about and wants.
What are rights
Rights are independent standards that demonstrate the legitimacy or fairness of a parties’ position. Can be legal or otherwise.
What are powers
Power is the ability to coerce someone to do something they would not otherwise do.
Can be coercion without resorting to enforcement of legal rights.
Can be asserted by being aggressive or withholding benefits that may be derived from a relationship.
Adversarial approach to negotiation
Negotiation based on the distribution of limited resources (zero sum).
Each party takes the approach that they are entitled to something.
Focuses on legal rights and powers.
Problem solving approach to negotiation
negotiation based on the integration of the resources each side brings to the table so that each side is better off after negotiations.
Solution generating and evaluating approaches.
BATNA WATNA
If BATNA is better than the deal or any deal the opposing party is willing to make, that party should leave the table.
Brainstorm sources of value.
Consider non-competitive similarities.
Consider expanding existing resources (think about other interests)
MRPC 1.2(a)
A lawyer may take such action on behalf of the client as is implied ley authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter.
MRPC 4.1 and comment 2
Factual misrepresentations are not permitted during negotiations, however puffery is.
Seven types of interests
- Financial
- Performance (of K)
- Psychological needs
- Reputation
- Relationship
- Liberty (criminal?)
- Basic human needs (catch all. pride, sense of belonging, etc.)
Why is the initial offer so important?
It is an anchoring point.
Must have reasoning and support or else it is meaningless and you will lose credibility.
What things lead to credibility?
Specificity
Justification
Consequences
Tips for obtaining info from the other side during negotiation
Broad questions
Active listening
Probing questions
Using silence
What is mediation?
Involves a third party who acts as a neutral person who works to help resolve dispute or transaction.
Non-binding process.
Most are conducted in caucuses.
What is the difference between mediation and negotiation?
Mediation involves a third party neutral to assist the parties in reaching an agreement.
Negotiation involves direct communication.
Both are non binding processes.
Mediator’s role
Help parties talk
Transmit information in a way that is conducive to problem solving
Maintain order
Help parties understand problems, issues, and solutions
Act as a reality check
Think creatively and expand solution pool
MRPC 17.06
Any communication made during alternative dispute resolution shall be kept confidential. No statement shall be admissible as evidence or subject to discovery.
Mediation procedure steps
- Mediation agreement
- opening statement
- identify relevant issues
- parties present and exchange information in more detail as needed to move towards resolution.
- develop options to meet interests/needs
- parties negotiate and choose among options
- Draft an agreement if reached solution
Six advantages of client centered lawyering
- Layers are human and make mistakes (active client can help catch)
- Clients often know more about their own needs and problems than lawyers do.
- the participatory model promotes the dignity of clients (responsible for his choices)
- Reduces client’s anxiety because the client is not in the dark
- Protects integrity of professionals by removing them from a paternal role
- Invites personal contract in a society becoming increasingly impersonal
