Lawyering Concepts and Terms Flashcards
1
Q
Blooms Taxonomy
A
–> Remembering, Understanding, Applying, Analyzing, Evaluating, Creating –>
2
Q
The role of excellent judgment
A
“valuable opinions” and “good decisions”
3
Q
Judgment
A
knowing what to do and say-or what to not do or say-to improve a situation or prevent it from getting worse
4
Q
Effective Lawyering Questions to Know When Interviewing
A
- What did the client say that they wanted?
- What did the client say that they did NOT want?
- Did the client express any underlying feelings or emotions?
- Did the client express any underlying values?
5
Q
Effective Lawyering to DO When Interviewing
A
- Diagnose, predict, and strategize
- Think divergently, not just convergently
- Work to solve the current problem and prevent future problems
- Advocate both FOR and WITH the client
6
Q
Diagnosing, predicting, and strategizing
A
- Recognizing the problem
- Preparing the information before the interview
- Generating multiple options
- Evaluate options and potential solutions
- Decide the most likely and most effective strategies
- Explaining the predictions to the party/parties to implement strategy
7
Q
Client Interview Organization
A
(1) A brief opening
(2) Gathering information from Client (first open-ended, then detailed, then review last)
(3) Identify the client’s goals (what do they want to accomplish & prevent?)
(4) Form a preliminary strategy (generate possible solutions)
(5) Closing (agreement that the client is or is not hiring you and an agreement concerning each party’s next steps)
8
Q
Crafting Questions
A
- Ask for the raw facts and client’s knowledge
- Ask for all of the details
- Ask what questions are needed to prevent: (a) a conflict of interest, (b) missing a statute of limitations or other deadline, (c) not taking emergency action to protect a client who is threatened with immediate harm
- Ask about “pieces of paper” (not “documented”)
9
Q
In a transaction
A
- Learn the posture of the deal
- Learn the parties’ interests
- Ask whether client has talked to anyone else
10
Q
Cognitive interviewing
A
- Reinstate Context (help client return to the scene)
- Tell Everything (Urge client to report everything they can remember)
- Recall the Event in Different Orders (start with thing that impressed individual the most)
- Change Perspectives (recount the incident from perspective of another person who was there)
11
Q
Fact Gathering
A
- Establish rapport
- Open-ended narration (don’t interrupt)
- Probing questions stage (significant details with specific questions)
- Review (confirm understanding)
12
Q
Interviewing Witnesses Types
A
Friendly, Neutral, Hostile
13
Q
Problems in Witness Interviewing
A
- Handling yourself ethically
- Getting neutral or hostile witnesses to cooperate
- Finding out everything the witness knows
14
Q
Witness Interviewing
A
(1) Will my question/statement tell this witness to testify to something false?
(2) Will my question/statement send a message to the witness that I want him to testify to something I know is false?
(3) Is there a reason for my next question/statement?
(4) Am I asking the question/statement in the manner least likely to harm the witness’s testimony?
15
Q
To get accurate information:
A
- Ask for broad recall first, then detailed question
- Use word choices to preserve neutrality
- Order question to the likely pattern of witness memory
16
Q
Interviewing Neutral and Hostile Witnesses
A
- Make a good impression; don’t alienate the witness (be respectful and make yourself likeable)
- Learn what you can through inquiry and maintain an open mind
- Point out witness’s inconsistencies in a principled way
- Preserve evidence with a written and signed witness statement
17
Q
Witness Interviewing Structure
A
- Interview the witness asap
- Decide what you need to know before the interview
- Sequence the topics you will ask about
- Isolate the witness during the interview
- Build a relationship with the witness
- Conduct a cognitive interview if possible
- Ask for raw facts and source knowledge (no conclusions)
- Ask for all the details
- Ask if witness has talked to anyone else
- If hostile, find out why
- Be careful about friendly witnesses (need precision)
- If asking witness to change their inaccurate story, do so in a principled way
- If not, note all of the self-impeaching things the witness says
- If appropriate take a written statement
18
Q
To help a client make a decision
A
- Weighing the advantage, costs, risks, and odds of success with various options
- Clarity in explaining options to help them decide
- In transactions: how can we help accomplish their goal with minimal cost and risk?
- In disputes: a conflict is at issue and litigation is an option or may already be underway
19
Q
For organizations as a client
A
- Know as much as you can about client’s business or industry
- Understand the different interests of organizations and competing interests
- Remember that client is the organization and NOT the individuals who work there
20
Q
Transactional Counseling
A
- Answer specific questions as they arise
- Assist the client in business planning
- Counseling the client in the early stages to completion
21
Q
Dispute Counseling
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- Prelitigation conversations about the pros and cons of potential processes in light of the client’s goals (negotiation, mediation, arbitration, and litigation)
- Representation in each category (is it necessary ?)
22
Q
Steps of Decision Making
A
(1) Preparation (identify, gather, generate, evaluate)
(2) Counseling and Presentation (what is the best option for the client?)
23
Q
Challenges to Client Counseling
A
- Creating options beyond the immediately obvious ones
- Working out each option with predictions and odds
- Providing clarity in communications with client
- Being empathetic in a professional way
24
Q
Structuring Transaction Options
A
- What do you want to gain?
- What should we try to do to make sure that you get it?
- How does the transaction fit into future plans?
- If uncertain, ask to imagine possible effects and consequences of transaction
- Likely goals that will minimize taxes or legal liability in the transaction
25
Structuring Dispute Options
- If client suffered a loss, are they interested in damages, prevention of future losses, favorable judgment, punishment for defendant, or a combination?
- If client is being sued/prosecuted, do they want a public victory to clear name or a technical victory through negotiation/pre-trial motions?
26
Predicting Outcomes
- Think of the pros and cons
- Conveying predictions clearly and specifically (no waffling, add necessary qualifications, recognize predictions and how they may evolve, be frank (even if bad news), and provide reasons for predictions)
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Predictive Continuums
- Probable: Best possible outcome/Most likely outcome/Worst possible outcome
- Reasonable: Best possible/Best unsurprising/Most likely/Worst unsurprising/Worst possible
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Financial Considerations for Generating Outcomes
- Transactional Costs & Expense -- incurred in pursuing this option
- Expected Value
- Time Value of Money (inflation over time)
29
Desirable and Undesirable Effects of Possible Outcomes
- Would confrontation harm client's relationships?
- Would continued conflict cause too must stress/turmoil for client?
- Could litigation compound harm?
- Could a verdict provide public vindication thats important to client?
- Is socially-acceptable vengeance important to client (is it legal)?
- If frequent litigant or attractive target for litigation, does client consider forcing plaintiff to trial to be important to discourage this impression?
- In crim. cases where there is a plea, what problems could result in conviction?
- Does client want to maximize gain or pursue values like fairness and generosity?
30
Adapting Client's Tolerance for Risk
- Predict possible outcomes
- Quantify various outcomes
- Consider qualitative results
- What is client's tolerance for risk?
- Decision trees for helping client select options
31
Developing Solutions
- Be creative in combining facts and law to find solutions
- Consider inclusive solutions
- Don't limit to solely legal solutions (take into account human needs)
- Exercise good judgment and common sense
32
Life Cycle of a Dispute
(1) What is the dispute?
(2) At what point did the dispute arise?
(3) Can it be resolved informally?
(4) Does it require a formal process?
(5) Will the proposed action escalate dispute?
(6) What legal and non-legal options are available?
(7) What would good judgment and common sense advise?
33
Dispute Resolution Continuum
- Consensual Processes (parties resolve dispute) --> Negotiation & Mediation
- Adjudicatory Processes (third party resolves dispute) --> Arbitration & Trial
34
Client Motivations for Alternative Processes
(1) saving time & money
(2) "better" processes allow for more openness and flexibility of unique needs
(3) achieving "better" results to serve needs of participants or society
(4) enhancing community involvement to dispute resolution process
(5) broadening access to "justice"
(6) protecting turf for oneself, institution, or profession
35
Mood Setting
- Be an active listener
- Be respectful (no patronizing or talking down)
- Consider how to explain legal concepts/terms
- Ignore own emotion needs, be patient and allow enough time
- Provide empathy (be supportive and understanding)
- Face harsh facts professionally (not unrealistically optimistic)
- Use appropriate seating arrangement
36
Beginning The Meeting W/ Client
- Let client know decision you are asking them to make
- Explain your role and help evaluate costs, advantages, risks, and chance of success so they can make a decision
- Make sure to understand client's goals and make sure they haven't changed --> adapt if needed
- Describe any facts or aspects of law that will dominate the decision
- Warn client of pre-mature judgment and encourage an open-mind
- Outline and discuss options (ask client if they want more options)
37
Discussing Options
- Encourage client to problem solve w/ you
- Seek client's input and insights
- Be clear on what success or loss would mean in the options
- Be clear on the costs of the options
- If client wants recommendations, make sure it based on what the client actually wants
- Do not assume the "unsophisticated" client wants recommendations and the "sophisticated" client does not
- Do not cut self off from brainstorming
38
Allowing Client to Decide Among Options
- Allow client time to decide w/ flexible timeline
- Determine if client's stated goal is real preference and if not explore paths to what they really want
- Address cognitive biases or illusions that drive negative decision making
- Help client let go of "sunk costs"
39
Interests
THE WHY --> Needs, desires, concerns, fears -- the things one cares about or wants
40
Common Interests
Resolving matter promptly, maximizing financial position, developing or maintaining long-term relationships, addressing psychological needs, etc.
41
Rights
the LEGAL ability of the party to do something (ex. suing, speaking out about bad experiences, etc.)
42
Common Rights
Formal legal rules --> case law, statutes, regulations; contracts between parties; socially acceptable standards of behavior like seniority, equality, etc.
43
Dispute Resolution Negotiation Rights
bargaining "in the shadow of the law" where legal claims and defenses could be raised in court and procedural rights
44
Transactional Negotiation Rights
Not necessarily in the shadow of the law, but law provides context such as how to frame options legally available to the parties or that reflect common business practices
45
Power
LEVERAGE; the ability to get someone to do something they do not want to do (ex. the appealing plaintiff with a good story of overcoming something); common assertions of power can include aggression or withholding benefits that derive from a relationship
46
Adversarial Negotiation Approach
- Bargaining as a zero-sum game w/ limited resource that must be distributed between the two parties (focusing on rights and power)
- The tougher negotiator tries to win and the conciliatory one loses (like a competition)
47
Problem-Solving Negotiation Approach
- Identifying the needs and interests of all parties involved rather than competing
- Generating and evaluating solutions to meet the interests of all parties
48
BATNA (Best Alternative to a Negotiated Agreement)
- Dispute Resolution: What can happen instead of negotiation?
- Transactional: What other possible deals or opportunities are available if this transaction falls through?
- Improve a client's BATNA by taking a hybrid of adversarial and problem-solving approaches
49
Lawyer's Roles/Responsibilities in Negotiation
Roles: evaluator, advisor, negotiator, drafter
Responsibilities: keeping the client as decision maker, avoiding false states of material fact, avoiding failure to disclose material fact necessary to prevent assistance in criminal/fraud act, protecting confidentiality, avoid malpractice
50
Positions
THE WHAT; What does each person want/need to have?
51
Types of Interests
- financial
- performance
- psychological
- reputational
- relationship interests
- freedom/liberty
- basic human needs (security, economic well-being, sense of belonging, etc.)
52
Assessing Parties' Rights
Dispute Resolution: Evaluate legal and factual strengths and weaknesses and possible outcomes if were to go to trial
Transactional: Considering business practices or industry customs and past dealings
53
Types of Power
- Economic: resource party can bring to bear on transaction
- Social: within communities
- Psychological: desires, fears, anger, or other emotions AND their impact
- Political: ability to influence public officials, decision-makers, or opinion-makers
- Expertise: of the lawyer or client in the knowledge or skills at hand in the transaction or resolution of the dispute
- Moral: appeals to fairness and morality
54
How to Shift Power Dynamic in Negotiation
(1) Use party's own power to increase power
(2) Assert rights, such as through litigation
(3) Reduce the perception of powerlessness & prepare for psychological power plays
(4) Use information to increase power through investigations, formal discovery, and informal interviews
55
Final Preparations for Negotiation
(1) Determine what authority you have been given (and what amount of authority would fit the current situation
(2) Consider benefits of limiting authority
(3) Consider downsides of confining limitations or of lacking meaningful authority
(4) Would a structured settlement add value for client?
56
Why We Litigate
- Win/Lose Competition Culture
- Ego
- Emotion
- Impact on Stakeholder's Career (job, salary, bonus)
- Cognitive Barriers
- History of Handling Disputes
- Cases That Should be Litigated
57
To Determine BATNA
- Reviewing assessment of paries' interests, rights, and powers
- Generating options for possible alternative to a negotiated agreement
- Considering options client untake on their own without other party being involved
- Identifying the rights the client could assert before a tribunal
- Identifying the client's leverage or ways to use power to coerce
- Ask for BATNA: "Which walkaway points meet client's top priorities?"
58
Determining Client's Bottom Line
- What is the minimum amount client would accept?
OR
- What is the maximum amount client would offer?
59
Questions to Consider for Negotiation
- Does client want to preserve/maintain personal or working relationship?
- What impact will the chosen negotiation approach have on client's psychological or reputational interests?
- How strong or weak is client's rights-based BATNA (such as legal claim)?
- How strong or weak is client's powers-based BATNA (such as resources to prolong or coerce)?
- How important is a definitive ruling to your client?
60
Crafting an Adversarial Negotiation Plan
- Goal: Maximize client's gain and minimize losses
- Identify: your opening offer, the bottom line, the target point, concession points willing to make
- Do the same for the other party as well
61
Crafting a Problem-Solving Negotiation Plan
- Goal: find solutions that will integrate both sides resources or increase their available so that mutually agreeable solution is more likely
- Brainstorm: interests & sources of value for both parties, differences in the interests & sources of value that may be used for trades, non-competitive similarities (where parties agree) that can be used for settlement, ways to expand existing resources
62
Gathering, Disclosing, and Concealing Information
- What information do you want to obtain from other party to understand positions and interests (and how)?
- What information do you want to voluntarily disclose as strategy for plan?
- What information do you want to conceal (can it be concealed?, does the other party have access to it anyway?, will acknowledging damaging facts increase position strength?, will disclosure facilitate the negotiation?)?
63
Planning Agenda
- What issues do you want to address and in what order?
- Negotiate by phone, email, in-person (and where)?
- What external or internal deadlines are you facing for completing the negotiation?
- Will delay help develop case or harden opposing side's position?
64
Adapting Strategy
Best way to prepare for new information is to know and understand other side --> Prepare for their possibilities
65
Mediation
Non-binding process, where a third party, aspiring to be impartial, seeks to help others resolve or settle a dispute or plan a transaction
66
Elements of Mediation
- Voluntary or court-mandated
- One or more mediators preside
- Attended by parties and/or their representatives
- Private
- Confidential
67
Takes to be Accomplished in Mediation
(1) Agreeing to Mediate
(2) Understanding the problems (and interests)
(3) Generating options
(4) Reaching agreement
(5) Implementing the agreement
68
Evaluative Approach to Mediation
- Mediator proves opinion/input on the issue
- Assesses strengths and weaknesses of case
- Predicting court outcomes
- Suggesting options
- Advising parties to make/accept offers
- Pressing parties to settle
69
Private Caucus in Mediation
- Uses of Private Caucus: sharing confidential info with mediator, helping party more realistically assess options, helping a party identify their interests, managing emotions that are inhibiting agreement
- Challenges to Private Caucus: perception of unfairness if time is not equal, possible errors in shared information (lost in translation), potential loss of perspective-taking between parties, may inhibit broad-problem, group brainstorming
70
Facilitative Approach to Mediation
- Mediator does not provide opinion/input
- Controls process but allows parties to explore interests and feelings to reach agreement
- Mediator encourages parties to make own decisions
- Mediator helps promote settlement by allowing parties to communicate
71
Joint Sessions in Mediation
- Disputing parties and/or lawyers meets in person or remotely with the mediator and all sides discuss together
72
Arbitration
- Formal process outside of court
- Neutral third party is the arbitrator and their decision ("award") is binding
- Parties may either agree to arbitration or be contractually bound to arbitrate
- Arbitration used to be cost-effective, but is now similar to a "mini-trial"
