Transcript International Lawyering Skills

International Lawyering Skills
Prof. Gary Chodorow
Beijing Foreign Studies University
2005-2006 Semester II
Class 1
Becoming a Lawyer:
A. Course Introduction
B. Professionalism
A. Course Introduction
B. Professionalism
1. Reflective Practitioner of Law
2. Some Things Effective Ls Know
Reflective Practitioner of Law
1. Professionals also have way of thinking
to solve problems filled with uncertainty.
2. This way of thinking is allows the
professional to reflect while acting.
Some Things Effective Ls Know
Good Judgment is Critical
1. Good judgment is the ability to know
what actions are most likely to solve
problems.
L’s Job Is to Find Way for C to Gain Control
over the Situation
1. C wants control.
Effective Ls Work to Achieve Specific Goals
1. C’s goal is ultimate goal.
2. L helps clt get there by focusing on
correct strategic goals.
Success in the Practice of Law Depends on
Efficient Work Habits
1. Must bill a lot of hours to make firm happy.
2. Must make every hour count to make C happy
with bill.
Thorough Preparation is Essential
1. Motto for this course is “plan, do, reflect.”
2. Ls ratio of preparation to performance is
easily 15 or 20:1.
Everything Revolves Around Facts
Gather Facts
from C
Use Facts
counsel C
analyze facts
from
elsewhere
negotiate
persuade
ct
Assumptions Can Sabotage Good
Lawyering
1. When Ls make assumptions, they & their Cs
can get hurt.
2. Make an assumption only:
• Where a temporary assumption needed because
truth cannot yet be ascertained & work must
proceed in the meantime.
• Where cost of investigating truth high & cost of
incorrect assumption low.
3. Any assumption should be explicit not
unconscious.
L Must Be Able to Switch Between Inquiring
and Persuasion Modes
1. Persuasion mode = Act to manipulate a
situation.
2. Inquiry mode = Interest in exploring things
regardless of the consequences.
Persuasion Mode:
Inquiry Mode:
Q: Could you tell me
Q: Didn’t the lab tests
show this tire disintegrates everything you know
at 90 miles per hour?
about how this tire was
tested?
Q: And didn’t your
Q: What were the results
company advertise this
tire as suitable for use on of those tests?
police cars?
Q: What did the
Q: Police sometimes have advertisements say
to chase criminals at high about using the tire on
police cars?
speeds, don’t they?
Numbers Matter
1. Ls work often involves reallocating $.
Overlawyering Can Be as Damaging as
Underlawyering
1. Don’t kill the deal by overlawyering.
Summary
1. Good Judgment is Critical
2. L’s Job Is to Find Way for C to Gain Control over
the Situation
3. Effective Ls Work to Achieve Specific Goals
4. Success in the Practice of Law Depends on
Efficient Work Habits
5. Thorough Preparation is Essential
6. Everything Revolves Around Facts
7. Assumptions Can Sabotage Good Lawyering
8. L Must Be Able to Switch Between Inquiring and
Persuasion Modes
9. Numbers Matter
10.Overlawyering Can Be as Damaging as
Underlawyering
Class 2
Chapter 3. Lawyering for & with the C
Chapter 4. Lawyering as Problem-Solving
Chapter 3. Lawyering for and with
the C
1. § 3.2. Participatory v. Traditional Models
of Lawyering
2. § 3.3. Who Decides What?
3. § 3.4-5 What Cs Dislike about Ls /
Avoiding These Problems
4. § 3.6 Confidentiality
§ 3.2. Participatory v. Traditional
Models of Lawyering
1. Traditional Model: Views L as C’s
champion, C as helpless. L more likely to
define goals of representation & to do
work independently.
2. Participatory Model: Views L as C’s ally.
Treats C as effective collaborator. L more
likely to dig deeper to find C’s goals & to
work collaboratively with C.
How Problems Are Identified
Traditional Model
Participatory Model
1. Legal problems C
aware of &
articulates.
1. Same
2. Legal problems C
unaware of or
doesn’t articulate.
3. Non-legal problems
bearing on legal
problem.
4. Non-legal
consequences of
legal problem.
What Facts Does L Gather?
Traditional Model
Participatory Model
1. Facts related to legal
merits.
2. Facts related to C &
adversary’s theory of
case
3. Facts unrelated to
legal merits but
relevant to
negotiating.
1.
2.
3.
4.
Same
Same
Same
Facts unrelated to
merits but relevant to
counseling (e.g., C’s
feelings).
L Emotionally Involved?
Traditional Model
Participatory Model
1. No
1. Yes, within limits.
C’s Role in Solving the Problem
Traditional Model
Participatory Model
Passive, helpless,
need’s L’s protection:
Active, capable
collaborator:
1. Answer L’s questions;
Listen to L’s advice
– Brainstorm together
about facts and
strategies.
Office Set-Up
Traditional Model
Participatory Model
C sits in small chair in
front of L’s big desk. L
sits in bigger chair.
Sit together at table.
Rationale for Using Participatory
Model
1. C may give L good ideas, catch L’s
mistakes.
2. Promote C’s dignity by making C
responsible for own choices.
3. Reduce C’s anxiety because C not kept
in dark.
4. L freed from burden of paternalistic role.
When Use Traditional Model?
1. Start with participatory model.
2. Switch if C wants to reduce anxiety by
giving problem to professional & thinking
about it as little as possible.
Own Experience
1. Q: Recall interactions have you had with
professionals (doctor, L, dentist, auto
mechanic):
– Was it participatory or traditional?
– Were you satisfied or not with the
relationship? Why?
§3.3 Who Decides What?
U.S. law:
1. C decides:
– Goals of representation
– Accept offer of settlement.
– Criminal case:
•
•
•
Plead guilty or not guilty
Waive jury trial
Testify in own defense
U.S. law (cont’d):
1. L decides “technical & legal tactical issues”
such as
–
–
–
–
–
where to sue
theory of case
what evidence to submit
which witnesses to call
what arguments to make
2. Still, L required by MRPC to consult w/C on
such issues.
1. Consultation w/C wise:
– C may have helpful info.
– C may see negative impact of tactics on her
or 3P.
– C may be reluctant to pay.
§ 3.4-5. What Cs Dislike about Ls /
Avoiding These Problems
1. Ls ignore C by failing to respond promptly to
inquiry / L fails to ask C’s opinion about how to
proceed / L fails to inform C of status of case /
L doesn’t keep promises.
2. L neglects case.
3. L inaccurately predicted the case outcome or
timing.
4. L failed to disclose fees & costs in advance.
6.
7.
8.
9.
L speaks in legal jargon.
L is condescending.
L talks too much & listens too little.
Disrespectful by making C wait or
interrupting meeting.
10. L doesn’t seem to care.
1. Q: L jokes in China?
2. What do they show about what Cs dislike
about Ls?
Some Reasons Cs Dislike Ls Can’t
Be Controlled
1. L mistrusted in part because Ls play whatever
role & manipulate whatever laws their Cs’
interests demand.
2. Public sees defense L in criminal case as
obstructing search for truth by requiring govt to
prove case beyond a reasonable doubt &
advising C not to testify.
3. Public associates Ls w/some bad moments—
divorce, dispute w/IRS, bankruptcy.
§ 3.6. Confidentiality
MRPC §1.6: L shall not reveal info relating to
C representation unless:
1.C gives informed consent;
2.Disclosure is impliedly authorized in order
to carry out the representation; or
3.L reasonably believes it’s necessary to:
a. Prevent reasonably certain death or
substantial bodily harm;
b. Protect L in a fee dispute, malpractice
action, or ethics investigation; or
c. Comply with a court order.
MRPC § 3.3:
1. If C testifies falsely & refuses to confess
the falsity to ct, L must take “remedial
measures, including, if necessary,
disclosure to” ct.
2. If C has or intends to engage “in criminal
or fraudulent conduct relating to the
proceeding,” L must do same.
Chapter 4. Lawyering as ProblemSolving
1. § 4.1 Solving Professional Problems
2. § 4.2 Strategic Styles
3. § 4.3 “The Inclusive Solution”
§ 4.1 Solving Professional
Problems
Most of L’s thinking consists of:
1. Diagnosing what is happening now or
past.
2. Predicting what will happen in future.
3. Strategy creation & implementation to
control what happens in future.
6 Steps of Professional Creativity
1. Problem Identification: notice & define
the problem.
2. Gathering & evaluating raw materials:
Identify the causes, obstacles, history,
symptoms, and significance of the
problem.
3. Solution generation: Brainstorming.
More on Brainstorming—Steps:
1. Clearly state the problem where everyone can
refer to it. State the time limit.
2. Explain 4 basic rules of brainstorming:
a. No judgments, evaluations or comments
should be made about any suggestion.
b. All ideas, even absurd or impractical ones,
are welcome – try to avoid self-criticism.
c. The aim is to identify as many solutions to
problem as possible.
d. Participants are encouraged to combine
ideas and to ‘piggyback’ on others’ ideas.
3. Record ideas accurately.
4. Solution evaluation: Critically evaluate
advantages & disadvantages of each
solution.
4. Decision: Choose among solutions.
5. Action.
Exercise
1. Group of 4 choose a problem on campus
(not necessarily legal).
2. Go through each step of problem-solving
(except action) to come up with a strategy
for how your group can remedy the
problem.
3. Appoint a secretary to record what
happened at each step.
§ 4.2 Strategic Styles
1. Strategy = Plan for resolving a problem
favorably to C.
2. Tactic = A smaller piece of a strategy.
More…..
Class 3—Becoming a L (cont’d)
1. Chap. 5—Communication Skills
1. Chap. 6—Multicultural Lawyering
Chap. 5—Communication Skills
Good Listener
1. plenty of eye
contact
2. no fidgeting
3. uncrossed legs
4. leaning forward
5. open hands
6. a few nods and ahhas
7. a couple of smiles
8. take notes
Poor Listener
1. sit down cross legged
2. slight slump into chair
3. generally keep your
arms crossed
4. little eye contact
5. look at clock once
6. look at your watch
once
7. frown a lot
8. fidget with keys or
fingernails
No
One-Word Conversation
Exercise
1. Divide up into groups of 3
2. One volunteer from group to be story
teller. Tell a story (in English) about 4
minutes long about anything.
3. Go down hall for a minute to prepare
your story. Don’t listen in to classroom!
Wait til I ask you to return.
Chap. 6—Multicultural Lawyering
1. §6.2 How Cultural Differences Can
Matter in Lawyering
Tidbits from Malcolm Gladwell,
Blink: The Tipping Point (2005)
Wendy Levinson on Dr-Patient Conversations:
1. Wendy Levinson recorded hundreds of drpatient conversations. ½ drs never sued;
other ½ sued at least 2x.
2. Characteristics of never sued:
a. Spent more time w/each patient.
b. Made more “orienting” comments, like
“First I’ll examine you, and then we will
talk the problem over.”
c. More likely to engage in active listening.
d. No difference in amount or quality of info
they gave patients.
Nalini Ambady Listens to Dr-Patient
Conversations:
1. Took 40-second slices of Levinson’s
tapes, distorted them so can’t hear
words, just dr’s intonation, pitch, rhythm.
2. Ranked tapes for warmth, hostility,
dominance, anxiousness.
3. Drs tended to be in non-sued group if
voice sounded less dominant and more
concerned.
Paul Ekman on facial expressions:
1. He showed photographs of men &
women making a variety of distinctive
facial expressions to subjects in Japan,
Brazil, Argentina, tribes in Far East
jungles.
2. Everywhere people agreed on what
those expressions meant.
Class 4
Interviewing:
1. Chapter 7: Memory & Cognitive
Interviewing
2. Chap 8: Interviewing the C
Factors Affecting Accuracy of
Memories
Observation:
1. Length of time witness exposed to event.
2. Did conditions interfere with observation?
3. What witness doing at time of event.
4. Whether witness a careful observer in general
or of this type of event.
5. Whether witness under stress at time.
6. Witness’ own self-interest, expectations,
preconceptions.
Retention:
1. Amount of time passed since event.
2. Past experience with aspects of the
event.
3. Unconscious transference: Blending of
memories from different events.
4. Contamination of memory by conduct of
other people.
5. Contamination of memory by witness’
own conduct.
Jonathan W. Schooler on “verbal
overshadowing”:
1. Brain’s left hemisphere thinks in words;
right thinks in pictures.
2. Compare 2 groups:
•
•
Group A: Sees “suspect” & later IDs him in
line-up.
Group B: In between, also verbal describes
“suspect” to 3P.
3. Group B more inaccuracies because
verbal memory displaces image memory.
Retrieval
1. How Qs asked.
Juries & Eye-Witness Testimony
1. Fallacy that a confident witness is a
reliable witness.
2. Fallacy that witness who remembers
details about peripheral matters more
accurately remembers facts in issue.
“Cognitive Interviewing” Techniques
to Help Witness Remember
1.
2.
3.
4.
Reinstate context.
“Tell me everything.”
Recall events in different order.
Change perspectives.
4 Stages of a Cognitive Interview
1. Introductory Stage
a. Goals: Put wit at ease, build rapport.
b. Methods:
i. Explain wit’s importance cuz he knows
facts.
ii. Ask background Qs to show As are
easy.
2. Open-Ended Narration Stage
a. Goal: Learn broad outlines of story.
Identify topics that need to be probed
later.
b. Methods:
i. L reintates context & asks “tell me
everything” question.
ii. L listens to whole story with minimal
interruptions.
iii. L notes topics to be probed later.
3. Probing Stage
a. Goal: Exhaust wit’s memory on each
important topic.
b. Method:
a. Return to each important topic you’ve
identified.
b. Use cognitive interview techniques to
encourage details from wit.
c. Order your questions like a “funnel.”
Start with open-ended
questions.
funnel
Work your way towards
closed-ended (leading)
questions.
4. Review Stage
a. Goal: Let wit know you’ve understood
and give wit an opportunity to add/correct
details.
b. Repeat your understanding of important
info, telling wit he can add/correct details.
Chapter 8. Interviewing the C
1.
2.
3.
4.
§ 8.1. C Intv as Problem-Solving
§ 8.2. Organization of an Intv
§ 8.3. Questions
§ 8.4. Special Problems in C Intv
C Intv as Problem Solving
Purposes of C Interview:
1. Learn AMAP about facts.
2. Learn C’s goals.
3. Tentatively describe solutions.
4. Form A-C Relationship.
a.
b.
c.
d.
Build rapport.
Educate C.
Help C deal with stressful situation.
Enter into a representation agreement.
Intv Dynamics
Why C May Not Communicate Well
1. Embarrassment—confess that problem
out of control; discuss personal issues;
discuss mistakes.
2. Stressed about case, possible legal fees.
3. C afraid to tell any facts that may
undermine his case.
4. Class, cultural, age, language barriers.
5. Memory problems.
How L Can Facilitate C Communication
1. Show understanding, sympathy &
respect.
2. Active listening.
3. Nonverbal communication.
4. Try participatory model of lawyering.
5. Ask well-organized questions.
6. Note taking.
Class 5—Interviewing (cont’d)
1. Organizing the Intv (cont’d)
2. Some Difficulties in the Intv
Organization of an Interview
1.
2.
3.
4.
5.
6.
7.
8.
Schedule appointment
Preparing for intv
Ice-breaking
Problem identification
Information gathering
Goal identification
Preliminary strategy
Closing
1. Schedule Appointment
a.
b.
c.
d.
Set time
Give directions to office
Tell C of any consultation fee
Reminds C to bring any relevant
documents
e. Found out basic information about C &
matter—for preparation stage.
2. Prepare for Intv
a. Brief legal research
b. Brief factual investigation on C & her
business for ice-breaking & better
understanding case
•
•
Google
Lexis
c. Neat office or conference room.
d. Dress well.
e. Avoid interruptions.
Exercise
Secretary’s Message:
“Made appointment for Greg Lucchino of the
Vipers. Wants to discuss his right as a minority
shareholder to block a company’s improper action
which will hurt the business & injure his
reputation.”
---------------------------------------------------------You know Lucchino is the star of the local Vipers
baseball team & has done ads for a local retail
electronics chain, “Video Insights.”
Step 3. Ice-Breaking
a. Goals:
i. Put C at ease.
ii. Begin to build rapport.
iii. Expand L’s information base.
b. Methods:
i. Escort C to/from waiting room.
ii. Small talk (e.g., weather, any trouble getting
to office or parking, intro law office, casual
inquiry about how referred; shared common
experience or acquaintance; something
uncontroversial in news).
iii. Get acquainted (e.g., hometown; college;
C’s profession)
c. How Long? Take cue from C.
Exercise
You are a L assigned to represent a 17-year-old
accused of breaking into old widow’s home &
robbing her. Before going to jail to intv C, you
review the ct & police department information,
learning that C is from middle-class family and has
2 prior juvenile violations for possession & sale of
narcotics. His family has “disowned” him 1 year
ago, after those incidents. C was placed by ct in
special boarding school for troubled youth, ran
away just before this robbery. C admitted to police
beating the widow & taking her $ to buy drugs. She
is hospitalized.
Example
Message from Secretary:
I set an appointment for John Vincent, VP for
commercial loans at First National Bank. He
approved loans totaling $150,000 to Chase
Construction Co. The Bank took a security interest
in certain of Chase’s heavy construction
equipment. Now, Chase has sold this equipment to
Western Machine Co. Vincent is concerned about
the possible loss to the bank.
In preparing for intv, you learn that Federal bank
examiners have been “nosing around” the Bank’s
commercial loan department.
4. Problem Identification
a. Ask C to explain legal concern
•
•
E.g., “How can I help you?” or “Let’s talk about what
brings you here today.”
(Ask differently if you already know something about
the problem).
b. Listen to answer with minimum interruptions.
Remember that participatory model listens for:
•
•
•
Legal problems C articulates.
Legal problems C unaware of or doesn’t articulate.
Nonlegal problems impacting on legal problems.
Exercise
The International Joint Venture
(Handout)
5a. Information Gathering—OpenEnded Narration Stage
Goal: Learn broad outlines of story. Identify
topics that need to be probed later.
Method:
i. For cognitive intvs: L reintates context
& asks “tell me everything” question.
ii. L actively listens to whole story with
minimal interruptions.
iii. L notes topics to be probed later.
5b. Information Gathering—Probing
Stage
Goal: Exhaust wit’s memory (for cognitive
intv) or knowledge (other intv) on each
important topic.
Method:
a. Good time to discuss confidentiality if C
inexperienced at hiring Ls.
b. Return to each important topic you’ve
identified.
c. For cognitive intv: Use cognitive intv
techniques to encourage details from wit.
d. Order your questions like a “funnel.”
Example of how to discuss confidentiality:
1. “Before we go further, I should explain
that the law requires me to keep
confidential what you tell me. I can’t
repeat what you tell me to anybody else
without your permission. There are some
minor exceptions, such as if you tell me
that you plan to kill someone.
The confidentiality allows you to tell me
everything important about your case,
both good and bad. The more I know, the
better I can represent you.”
Some Things to Probe For
a. Details: who, what, where, when, why,
how?
b. How did you learn that? (Identify wit).
c. Do you or anybody else have related
documents? (Find evidence)
In litigation:
d. What will C & opponent’s theory of the case
likely be?
e. Has C talked with anybody else about this
subject (possible witness for or against C).
In transaction:
f. History/current posture of transaction.
g. Parties’ interests.
Questions to avoid “3 disasters”:
h. Conflict of interest.
i. Missing statute of limitations, appeal
deadline, or other deadline.
j. Failure to protect C from immediate
harm.
Examples
INTERVIEWING: PROBING THROUGH
“FUNNEL” QUESTIONS
*LANDLORD-TENANT CASE*
(Handout)
5b. Information Gathering—Review
Stage
Goal: Let wit know you’ve understood and
give wit an opportunity to add/correct
details.
Method: Repeat your understanding of
important info, telling wit he can
add/correct details.
6. Goal Identification
1. Transaction: C wants deal to take certain
shape.
2. Dispute: C may want compensation for
loss, prevention of a loss, vindication,
revenge.
3. How important is timing & economy to
C?
4. E.g.: “What are the ingredients of an
ideal/bad outcome? … How would [each
ingredient] affect you?”
7. Preliminary Strategy
a. Begin generating possible solutions
(altho probably can’t decide on strategy
til do more fact/law investigation).
b. Preliminarily assess these solutions, and
explain what further legal/factual
investigation necessary before solutions
become clearer.
Exercise
The Legal Malpractice Case
(See Handout)
8. Closing
a. Mutual decision about representation.
b. Tell C how best to contact you. Tell C
role of anybody else in firm who will work
on case.
c. Next steps for L & C—clear schedule
i. C sign rep agrt & pay retainer.
ii. C not speak w/others about issue being
litigated.
iii. C gather documents & info.
iv. L do factual/legal investigation.
Exercise: Divorce, Custody, and
Sexual Preference (Handout)
Mutual decision about representation:
a. Your decision:
i. Can you provide competent representation?
ii. Your personal & professional preferences.
Exercise (cont’d)
b. Fees:
i.
Fee arrangements
–
–
–
–
Hourly Fee
Flat Fee
Contingent Fee—illegal in criminal & domestic
relations cases.
% of Value of Transaction
ii. Before begin work, get a retainer (except
contingent fee cases) & sign a
representation agreement.
Class 6—Interviewing Witnesses
§9.1: How Wit Intv Differs from C Intv
§9.2: Ethical Issues
------ Stages of Wit Intv
§9.5: Who Should Interview the Wit?
§9.1: How Wit Intv Differs from C
Intv
C Intv -- L’S GOALS -- Wit Intv
1. Learn facts
2. Learn C’s goals.
3. Tentatively describe
solutions.
4. Form L-C Relationship:
build rapport; educate
C; reach
representation
agreement.
1. Learn facts
2. Alter wit’s memory.
3. Learn how to bolster or
attack wit’s credibility.
4. Make a lasting good
impression.
5. Preserve evidence.
C’s Goals ------------------- Wit’s Goals
1. Win
2. Learn tentative
solutions to problem.
3. Form L-C
Relationship: Build
rapport; be educated;
get help in dealing
with stressful
situation; reach
representation
agreement.
1. Help a party win?
Friendly, hostile,
neutral.
2. Avoid getting in
middle of dispute.
3. Avoid inconvenience
of intv, dep, trial.
4. Avoid
embarrassment &
damage to credibility
during crossexamination.
§9.2: Ethical Issues
What is the policy behind the rules?
1. MRPC 4.2 (Krieger p.108)
2. MRPC 4.3 (Krieger p. 109)
Witness Coaching
1. Wit intvs are necessary in adversary
system.
2. Wit coaching serves some valid
purposes.
3. What witness coaching is permissible
under the rules of professional conduct
and as a matter of morality? (Exercise
#1)
Types of Adversary Behavior
Information Sought:
1. Facts supporting theory of case.
2. Facts contradicting or limiting wit’s story
3. Facts impeaching the wit’s memory,
perception or sincerity.
Goals:
1. Withdrawal of wit‘s statement
2. Modification of wit‘s statement
3. Agreement of wit not to cooperate with
other party.
Coercive or confrontational techniques
1. Confronting wit with inconsistencies /
other versions of story
2. Pressing wit for modifications of
statement
3. Use of cross-examination style questions
4. Threats made to wit
5. Condescending/patronizing attitude
6. Other confrontational techniques (e.g.,
withholding positive feedback,
interruption, argumentative tone)
Deceptive techniques:
1. Misrepresentation or nondisclosure of
facts or law
2. Misrepresentation or nondisclosure of
C’s goals or L’s goals
3. Other deceptive techniques: slanted or
biased word choice; feigned naivete;
understatements and exaggerations of
positive and negative consequences
Manipulative techniques—asking questions:
1. Strategic use of closed questions
2. Strategic use of leading questions (on
matters of substance)
3. Strategic use of active listening
techniques
Manipulative techniques--use of motivational
statements/devices:
1. Identity of interests ("we're in this together")
2. Empathic statements
3. Statements suggesting the possibility of
avoiding testimony
4. Statements personalizing the client
5. Statements sharing inside information
6. Use of prefatory statements ("lectures") before
asking risky questions
7. Other motivational devices (e.g., humor or
politeness)
Manipulative techniques: sequencing
interview:
1. Introductory statement: what tone was
set and what was disclosed?
2. Strategic sequencing of interview to
control agenda
Stages of the Wit Interview
Stages of Intv:
1. Schedule appointment
2. Preparing for intv
3. Opening / Ice-breaking
4. Information gathering
5. Closing
Schedule Appointment
1. Intv quickly before memory degrades,
opposing P creates good impression, or
memory is contaminated by others.
2. Accommodate wit on time & place of intv.
3. For neutral or hostile wit, maybe don’t
call ahead.
Preparing for Intv:
1. Research witness--likely friendly, neutral, hostile?
2. Research ways to create rapport (e.g., same
church or hobby or alma mater as L or C).
3. Plan topics to cover during intv (Exercise #2). If
you can research these topics in advance, you can
ask better questions during intv:
a. Facts related to legal merits.
b. Facts related to C & adversary’s theory of
case
c. Facts unrelated to legal merits but relevant to
negotiating.
4. Decide on tactics to use:
a. Order of questions
b. How to win over wit to your side
or reduce hostility
c. How to deal with problems
(refusal to talk; very old wit;
doesn’t speak English).
Class 7
Wit Intvs (cont’d)
Assessment of Class’ L-C Intvs
Review--Stages of Wit Intv
1.
2.
3.
4.
5.
Schedule appointment
Preparing for intv
Opening / Ice-breaking
Information gathering
Closing
Opening / Ice-Breaking
1. Isolate wit.
2. No leisurely ice-breaking with neutral or
hostile witness.
–
–
But rapport still important.
Sprinkle 3-4 sympathetic things about C or yourself
into conversation as naturally as possible.
3. Opening--See sample opening on
Krieger p. 118. Basic goals:
•
•
Show respect for wit (apologize for taking time;
explains that wit’s knowledge is important)
Show L open-minded (want to know true facts)
3. How would you deal with a wit who
refuses to talk?
Info Gathering Stage
1. Must balance possibly conflicting goals:
– Wait to ask potentially offensive Qs until
build rapport.
– Wit may cut off intv prematurely so ask
important Qs early.
2. If wit is hostile, found out why—maybe
use it at trial for impeachment.
3. Get all contact info so you can locate wit
at time of trial.
4. If wit friendly, explain importance of
knowing good & bad facts.
5. If you don’t believe wit, choose to either:
a. Ask wit to change the story; or
b. Say nothing now, but later impeach at trial.
Closing
1. Take a written statement on the spot.
(See Krieger p.124 for format). Freezes
witnesses memory so can’t be
manipulated as easily by others, but if it
is manipulated, you can later impeach.
§9.5: Who Should Conduct
the Intv?
Problem: L can’t testify at trial.
Solutions:
1. Investigator
•
•
Ad: Can testify; maybe less intimidating than
L.
Disad: If unfamiliar with facts & law, may do
less complete job.
2. Other L:
•
•
Ad: Can testify.
Disad: Like invesigator, may do incomplete
job.
3. You do intv with tape recorder or ct
reporter:
•
•
Ad: Can impeach wit without testifying.
Disad: Wit may be frightened into silence.
4. You do intv with non-L from your firm:
•
•
Ad: Non-L can testify
Disad: 2-on-1 may frighten wit into silence;
added expense.
Assessment of L-C Intvs
1. Feedback from Students
2. Video Clips
– What’s good? What needs improvement?
– Why? Consistent w/text & lectures?
– If needs improvement, how?
Class 8
Intro to Counseling
Counseling as 6-Step Problem Solving
Plant Closing Example
In-Depth Look at Counseling as 6-Step
Problem Solving
Intro to Counseling
1. Counseling = ?
2. Steps:
•
•
Prepare = ID C’s goals & develop 2+
potential solutions that may, to varying
degrees, accomplish those goals.
Explain potential solutions so C can choose
among them.
Transactional Counseling
1. E.g.:
– Business wants to know how to structure
deal, how to minimize taxes, or how to
minimize legal liability.
– Family wants to plan an estate or buy a
home.
Varying Degrees of Formality
1. Advice to C over Phone:
•
•
•
•
Take careful notes of facts C tells you.
Review your understanding of facts w/C for
accuracy.
If need to research law, tell C when you will
call back.
Take careful notes of advice you give. Keep
in C file.
2. Counseling about a Transaction in
Formation Stage:
• Process described on Krieger
p.218.
Dispute Resolution Counseling
1. E.g., whether to file a lawsuit; whether to
offer or accept a settlement.
2. Several methods of dispute resolution:
a. Negotiate—w/no intention of suing; before
suing; after suing.
b. Arbitrate.
c. Mediate.
Counseling as
6-Step Problem Solving
1. ID the problem: How to best meet C’s goals &
preferences.
2. Gather & evaluate info & raw materials: Research
law; gather facts thru intvs & investigation.
3. Generate potential solutions: Brainstorm. Be
creative.
4. Evaluate each potential solution: advantages,
costs, risks, odds of success. Be precise &
practical.
5. Choose best solution: Help C choose by
explaining clearly; balance empathy & detached
analysis.
6. Act on solution chosen.
The Plant Closing.
Example of Counseling
1. ID the problem: How to best meet C’s
goals & preferences.
•
•
•
Intv C: What are ingredients of ideal (worst)
outcome? How would each ingredient affect
you?
Here, ideal outcome is keep job, preserving
income, sense of community, job
satisfaction..
Here, worst outcome is losing job & being
too old to find or re-train for equivalent job.
2.
Gather & evaluate info & raw materials:
Research law; gather facts thru intvs &
investigation.
a. Law:
i. State plant closing statute: Must give e’es
120 days notice before terminating them;
otherwise, e’r liable for triple unpaid wages.
ii. Worker Adjustment & Retraining Act:
Similar to state statute but less severe.
iii. COBRA: E’r must arrange for continued
coverage under its health ins plan, but at
e’e cost.
iv. State unemployment compensation: Pays
1/3 wages for up to 6 mo. if e’e looking but
unable to find new job.
2. Gather & evaluate info (cont’d):
b. Facts—relevant to e’e buyout:
i. Zoning: Industrial only
ii. Many nearby plants have closed & found no
buyers.
iii. Owner still owes property tax even if plant
closed. Some nearby owners have defaulted on
taxes, preferring to let gov’t foreclose rather than
paying.
iv. Plant equipment useable for 10 yrs more.
Unclear if e’r can find buyer.
v. Product: continually in demand; modest profit;
this plant has good reputation among customers.
2. Gather & evaluate info (cont’d)
b. Facts—relevant to e’e buyout (cont’d):
vi. No e’e has significant savings or
mgt/finance/marketing experience.
vii. Corp is exclusively profit-minded, operates no
other plant in state.
3. Generate potential solutions: Brainstorm.
Be creative.
a. Get corp to obey state plant closing statute.
b. Help e’es with COBRA & UI rights.
c. Use protest, lobbying, media to get
Congress or state legislature to adopt
remedial legislation.
d. Find way for e’es to buy & operate plant.
4. Evaluate each potential solution:
advantages, costs, risks, odds of success.
Be precise & practical.
a. Get corp to obey state plant closing statute:
– Advantages: e’es get 120 days pay, not just 30
days offered by corp.
– Risk: State statute maybe unconstitutional (small
chance given the caselaw & triple penalties for
unpaid wages if corp loses)
– Cost: Ranging from a few hrs legal fees if corp
agrees to pay to very high sum if corp challenges
statute in ct.
– Odds of success: Very high.
b. Help e’es with COBRA & UI rights.
– Advantages: Temporary benefits.
– Risks: None.
– Costs: A few hours to research & inform e’es
of rights.
– Odds of success: Very high.
c. Use protest, lobbying, media to get
Congress or state legislature to adopt
remedial legislation.
–
–
–
–
Advantages:
Risks:
Costs:
Odds of success: Very low because state
also has strongest plant closing statute in
nation, & any new statute probably wouldn’t
be retroactive.
d. Find way for e’es to buy & operate plant.
1. Be precise & practical:
1. Need $ to buy plant.
2. Need mgt/marketing/financial expertise.
3. Need transition plan to avoid losing customers &
suppliers.
4. Corp may be willing to sell cheap or lend $ to e’es
because (a) not easy to find other buyer for plan
& equipment, (b) otherwise corp would need to
continue paying property taxes indefinitely, (c)
might create good PR for corp, (d) could avoid
paying out cash under state plant closing statute.
5. Local gov’t may be willing to assist to avoid
reduced tax revenue if (a) e’s unemployed; and
(b) property taxes unpaid.
d. Find way for e’es to buy & operate plant
(cont’d).
– Advantages: Would achieve e’e goals of
keeping job (income, sense of community,
job satisfaction).
– Risks:
•
•
If e’es become owners, their could be conflict
between efficient & inefficient e’es, since profit
affected.
Other problems?
– Costs: ?
– Odds of success: ?
5. Choose best solution: Help C choose by
explaining clearly; balance empathy &
detached analysis.
– Review and discuss steps 1-4 w/Cs:
•
•
•
•
C goals
Key law & facts
Solutions generated: See preface on p.229.
Solutions evaluated.
– Cs decide to pay to develop a business plan
to see if e’e buyout is feasible.
– Cs decide on backup plan to pursue options
a & b.
In-Depth Look at Counseling as 6Step Problem Solving
1. ID the problem = How Best to
Meet C’s Goals & Preferences
1. Method for goal identification:
a. Ask Qs in value-neutral way.
b. Rank C’s “goals” = what C hired you to get.
1. Basic Qs: What are ingredients of ideal
(worst) outcome? How would each
ingredient affect you & others?
2. Transactional goals: What do you want to
gain out of this tx? What should we try to
make sure you get? How does this tx fit
into your overall plans for the future?
– Commonly wish to minimize taxes & legal
liability.
4. Dispute Resolution Goals: Money?
Injunction? Legislation? Vindication?
Revenge?
a.
Rank C’s “preferences” = something C wants
you to do or not do in pursuing goals. E.g.:
i. Avoid disrupting relationship C considers important.
ii. Avoid calling Aunt Sally as a witness
iii. Avoid trial because…
•
•
iv.
v.
vi.
vii.
viii.
Opponent opportunity to impugn C’s character at trial.
Stressful.
Avoid taking too much time off from job
Gain or avoid publicity
Minimize L fees & costs
Tolerance or intolerance for risk.
If C is target for litigation, maybe refuse to settle to
show not a “soft touch”
3. Generate potential solutions:
Brainstorm. Be creative.
1. It’s not enough to read statutes (e.g., e’e
buyout wouldn’t be mentioned).
2. It helps to gain & talk to people
w/practical experience.
4. Evaluate each potential solution:
advantages, costs, risks, odds of
success. Be precise & practical.
Best
possible
Best
unsurprising
10%
odds
20%
odds
$200,000
net
$160,000
net
Most
Worst
likely unsurprising
50%
odds
$100,000
net
20%
odds
$0
net
Worst
possible
10%
odds
-$40,000
net
20,000 + 32,000 + 50,000 + 0 - 4,000 = $98,000
Stating the Odds of Success:
1. Don’t imply more precision than you know
(e.g., maybe say 10% increments, not
“67%”).
2. Predictions should be frank &
disinterested—don’t “sugar coat” them to
make C feel better or get C to hire you.
Stating the Odds of Success (cont’d)
3. Like writing a predictive memo…
i. Don’t waffle (e.g., “maybe you’ll win”).
ii. OK to qualify your prediction where facts or
law or law application to facts unclear.
iii. Where facts unclear, can make
recommendation to investigate further,
considering the cost of investigation.
Calculating Odds of Success:
Legal Elements Chart
Legal
Elements of
Battery &
Cites.
Offensive or
harmful
contact.
Giles v.
Smith (Del.
1992).
Factual
Proposition
Evidence &
Source
Complainant—
Def shouted at
me to leave his
apartment, & he
hit me.
Def—I didn’t hit
her.
Pl testified…
Def
testified…
Witness: “I
heard def
shout.”
Inferences
Between
Evidence &
Proposition
Complainant:
People shout
when
enraged;
enraged
people tend to
be violent.
1. Direct evidence = Directly shows
existence or nonexistence of fact in issue.
2. Circumstantial evidence = Only
indirectly shows existence or
nonexistence of a fact in issue—i.e., the
fact finder can only infer the existence or
nonexistence of the fact.
3. Inference = A fact or judgment deduced
from other facts through logic or common
sense (i.e., through generalizations).
Inferences are built on generalizations. They
are subject to attack cuz generalizations
aren’t always true. Try attacking these
inferences:
1. Evidence: Joe drove toward the doctor’s
office at 120 k.p.h. Inference: Joe was in
a hurry to get to his doctor’s appointment.
2. Evidence: Complainant testified, “Def
yelled at me to leave his apartment, & he
hit me.” Inference: People shout when
enraged; enraged people tend to be
violent.
Calculating the Odds of Success (cont’d)
0. Prediction should take into account the Ls’
reputations.
1. Prediction should take into account the
likeability of the parties
2. Prediction should take into account the
decision maker’s point of view & practices.
3. Judge
4. Jury
Calculating Damages—P.I. Case
1. “Special damages”: economic losses proximately caused
by injury
a.
b.
c.
d.
e.
f.
Medical expenses: must be reasonably necessary; cost must
be reasonable; incurred or reasonably certain to be incurred
Loss of earnings: prove by prior earnings and current
abandonment of work; loss based on gross earnings;
defendant can prove capability of continued work and
preexisting conditions as offset.
Loss of earning capacity -- can recover even if no lost earnings
because loss of capacity is an injury independent of pecuniary
benefits
Loss of enjoyment of life
Future life care expenses
Future losses must be discounted to present value
2. Property damages
3. General Damages: pain and suffering (needn't
be denominated as such); simply a "fair and
reasonable" sum for compensation.
4. Mental anguish:
1. Must be medically diagnosable and medically significant
2. In cases of outrageous conduct, where anguish is
foreseeable, one can infer anguish
5. Causation issues
1. Mitigation: plaintiff must take reasonable steps to
mitigate injury (including surgery if reasonable)
2. Aggravation of preexisting injury that is natural
consequence of tort is element of damages.
Physician malpractice may be recoverable from def
since natural consequence of injury
6. Punitive Damages:
– Purpose: punish def.
– Neg not enuf. In CA, avail if def malice,
fraud, or oppression.
Using Jury verdict reporting services to
estimate damages:
a. Juries in different communities have
different tendencies.
b. Can look at representative sample of
reported jury verdicts to estimate verdict in
your case.
c. Find on Lexis: Source: Legal > States
Legal - U.S. > Indiana > Jury Instructions &
Verdicts > Indiana Jury Verdict Reporter.
d. Criticism: Rely on Ls to report verdicts, but
Ls tend to only report verdicts that make
them look good.
Sample Jury Verdict Report
Plasterer v. Allstate
Case No: 49D13-9708-CT-1180
Verdict Date: February 28, 2001
Date of Publication: May, 2001
TOPIC: Uninsured Motorist - Hit and run interstate
driver sends plaintiff into a ditch, leading to a
purported brain injury.
RESULT: Verdict: $ 50,000 for plaintiff.
STATE: Indiana
COURT: County - Marion, Superior
JUDGE: Huston
PLAINTIFF ATTORNEY(S): …
DEFENDANT ATTORNEY(S): …
FACTS: Cheryl Plasterer, age 43, traveled on I-70 in Henry
County on 1-16-94. At that time, an unknown hit and run
tractor-trailer, sideswiped her car, sending it off the road and
into a ditch. In the crash, the car may or may not have flipped,
but in any event, Plasterer hit her head on the windshield.
Besides assorted soft-tissue symptoms, she has primarily
complained of a permanent closed head injury. A psychologist,
Odie Bracey, Indianapolis, recognized cognitive impairment
and a diminished IQ, all per testing. Particularly, he found
plaintiff, a college graduate, limited in performing executivetype tasks. She had been employed in administration with
Goodwill Industries. The record does not reflect incurred
medicals, her claim focusing on the long-term effects of the
brain injury.
As the tortfeasor was uninsured, Plasterer presented a UM
claim against her insurer, Allstate, first proceeding to an
arbitration panel. It found her claim exceeded the $ 100,000
policy limits. Allstate disagreed and pursuant to the "good
hands" insurance policy, it sued Plasterer for a declaration of
rights.
Thus the matter progressed to trial, insurer contesting
the purported brain injury of its insured. For purposes of
this trial, the parties were realigned, such that Plasterer
was plaintiff and Allstate was defendant. Allstate employed
an IME psychiatrist, Dr. Frederick Unverzagt, Indianapolis,
who thought little of Bracey's testing and methods. Instead,
Unverzagt found no cognitive disorder, noting particularly
that plaintiff had not lost consciousness at the scene. He
also focused on Plasterer's lengthy history of emotional
disorders, concluding she was malingering.
The only issue for the jury would be plaintiff's damages.
The verdict was in the sum $ 50,000, followed by a
consistent judgment. The record reflects it has been paid,
the parties also settling a bifurcated bad faith count. While
deliberating, the jury had asked for a copy of the police
report.
Adjustment to Damages
1. Prejudgment interest
2. Factor in possibility that judgment may not be
enforceable because def could go bankrupt or
hide assets.
3. (Of course, before going to trial, you’ll want to
investigate whether def has assets or
insurance to cover potential verdict).
Adjustment to Damages (cont’d)
Assign a Present Value to Future Income:
PV = FV
(1+i)n
PV: present value
FV: future value
i: interest rate per period
n: number of periods in which interest is
compounded (e.g., annually, quarterly)
Taxes
1. Compensatory damages for physical
injury or property loss are not taxed.
2. Compensatory damages for emotional
distress are taxed unless the distress
was the result of physical injury.
3. Damages for b/k, compensation for lost
income, & punitive damages are taxable.
Class 9
In-Depth Look at Counseling as ProblemSolving (cont’d)
Counseling Meeting:
Mood, Setting, L’s Affect
Steps in Meeting
Special Problems in Counseling
In-Depth Look at Counseling as
Problem-Solving (cont’d)
Calculating Costs
1.
2.
L fees—not paid by losing party
Court fees—not paid by losing party:
a.
b.
c.
d.
3.
4.
5.
6.
7.
8.
9.
Filing fee
Witness fee
Jury fees
Appeal fee
Service of process
Expert witnesses
Depositions
Private investigator
Exhibit preparation.
Photocopying, Travel, Long Distance Telephone,
Translations, Obtaining Medical Records, Lexis
Cost of enforcing judgment
Assess Value of Intangibles
1.
Assess value of intangibles (delay in receiving
payment, C time & effort required, days off work,
stress, emotional impact, reputation impact, indirect
financial impact, political impact, interpersonal impact,
moral impact, public relations impact, risk aversion).
2.
These intangible not easy to convert into dollar values,
but they must somehow be factored into your
assessment.
3.
One way to do this is to ask yourself how much you
would pay for a magic potion to make these problems
(e.g., bad publicity) disappear. If the answer is $5, then
add that to the cost of litigation.
Mood, Setting, L’s Affect
1. Involve the C to have a genuine conversation.
2. Give C helpful respect.
3. Consider in advance how you will explain legal
concepts and terminology
4. Ignore your own emotional needs.
5. Explain the options neutrally.
6. Give the C empathy.
7. Face the harsh facts
8. Use an appropriate seating arrangement.
Steps in Counseling Meeting
1. Introduction
2. Assess both parties’ interests, rights,
power
3. Brainstorm about list of options
4. Evaluate each option
5. Help C to decide by comparing the
options.
1. Introduction
1. Review the purpose of the meeting:
a. What decision C needs to make
b. Why it’s important
2. Explain C’s role:
a. Why it’s C’s decision
b. How L can help by explaining for each option the
advantages, costs, risks, odds of success.
c. C & L collaborate in making a decision.
d. L willing to fight for C no matter what C’s decision
is.
2. Assess both parties’ interests,
rights, power
1. To assess rights, refer to legal elements charts
& rights chart showing strengths/weaknesses
of each party’s case:
a. Discuss elements at issue for each claim/affirmative
defense.
b. Discuss evidence for each element at issue (if any
unknowns, note them) to make educated guess
whether party w/burden of proof can carry that
burden.
c. Now, you can summarize for C the strengths &
weaknesses of each P’s case.
3. Brainstorm About List of Options
a. Even if previously brainstormed about
the options, at a minimum
1. give a list of the options
2. asking C to refrain from judging options
prematurely (before evaluate them).
3. Ask if C sees additional options.
4. Evaluate Each Option
A. Order to discuss options:
1.Can ask C which she prefers to discuss
1st.
2.Discussion of litigation should usually
precede discussion of ADR (negotiation,
arbitration, mediation) because ADR takes
place in the “shadow of the law.”
B.
Explain the 5 scenarios:
Worst
possible
Worst un- Most Likely
surprising
Best unsurprising
Best
possible
….
…
• Claim for breach of duty ….
of protection: C loses
MTD (on issue of
whether lock is part of
program of security), lose
on appeal.
• Defense to unpaid rent
of implied warranty of
habilitability: C wins
60% reduction in unpaid
rent.
….
…
…
50 % odds of this
scenario.
…
…
Explain your calculations of
• the damages for each scenario.
• costs for each scenario.
• the intangibles for each scenario.
• the netl value of each option & the lawsuit.
Worst
possible
Worst unsurprising
Most
Likely
Best unsurprising
Best possible
Damages
….
…
1….
2….
3….
….
….
Costs
…
…
1…
2...
…
…
1…
2…
Intangibles
Net value
…
…
-$15,000
…
…
…
Discuss the procedures for litigation.
Summarize the advantages & risks &
unknowns of litigation.
Once you have discussed all options, ask C
again whether sees any additional
options
5. Help C to Decide by Comparing
the Options.
1. Best if can options compare side-by-side.
2. It may be too sudden to ask C, “What’s your
decision?”
a. Instead ask, “Do you have any initial thoughts
about which options you prefer?”
b. You can if there are any options C prefers to
rule out.
c. You can ask what advantages and
disadvantages C sees in each option.
d. Whenever C expresses a preference, ask
“why?”
1.
Best to deflect or defer C request for recommendation
because:
a. C may be silenced by pressure to agree w/you or by relief
that decision made.
b. C may argue with you or find new L.
c. Lose opportunity to brainstorm for better options.
d. Lose opportunity to better understand C goals / preferences
that C couldn’t articulate earlier.
e. May lose opportunity to confirm that best choice being
made.
f. This way, C won’t later wonder why u didn’t choose other
option (especially if u weren’t successful).
4. Ask C to Decide
1. If no urgency, give C time to think about
it. Make “soft” deadline to discuss
decision.
Special Problems in Counseling
1. When C’s Goals Can’t Be Accomplished
2. When L Suspects C Has Unarticulated
Goals
3. When C Makes a Decision L Considers
Unwise
4. Ethical Issues in Counseling
When C’s Goals Can’t Be
Accomplished
1. Begin by saying you have disappointing
news.
2. Explain in detail why goal can’t be
accomplished.
3. Listen to C’s reaction & empathize.
4. Develop a plan for handling the situation.
When L Suspects C Has
Unarticulated Goals
1. Ask C why he wants goals he articulates.
2. ID & acknowledge fear, confusion, anger
in C. Help C find out why feels that way.
3. Ask C what he’d like his life to be like in
3-4 months once drama of this moment
is over.
When C Makes a Decision L
Considers Unwise
1. Don’t lecture or argue w/C. Find out why
C decided this way (e.g., different risk
tolerance than you or disagrees with your
predictions).
2. OK to say you’re worried about some
aspect of C’s choice.
3. Make clear ou’ll act faithfully on whatever
decision C makes.
Class 10
Intro to Neg
Context of Neg
Basic Neg Strategies
L-C Relationship
Intro to Neg
What is Neg?
1. Not adjudication—parties themselves
must consent to the outcome for it to be
operative.
2. Transaction negotiation v. dispute
resolution negotiation.
Context of Neg
1. Interests = Goals & Preferences.
2. Rights = Legal rights, contract rights,
standard practices in industry, concepts
of fairness in community.
3. Power = Ability to coerce (other than by
rights), such as by creating bad publicity
or using economic power.
Basic Neg Strategies
1. Competitive: Designed to undermine the
other negotiator’s confidence in his
bargaining position & to enter into an
agreement less advantageous to his C
than he would have agreed prior to the
negotiation.
– Tactics: high demands, threats, hiding info
from other party, conceding only reluctantly.
2. Cooperative: Use of fair, reasonable and
accommodative tactics to get other side
to respond in kind.
– Tactics: Reasonable opening offer,
arguments based on fairness, making
concessions to encourage other side to
reciprocate, develop a relationship of trust &
goodwill.
3. Problem-Solving: Attempt to identify &
exploit opportunities for joint gain in
negotiations.
a. Must have “integrative bargaining context.”
b. Tactics: Avoid establishing initial positions
and, instead, seek to address the parties’
underlying interests.
Tactics, Strategy, Style
1. “Tactic” = specific
neg behavior L
uses.
2. “Neg Strategy” =
series of tactics.
3. “Style” =
negotiator’s
personal style.
Style in Hi-Context v. Low-Context
Cultures
1. Low-Context: Focus mostly on words &
literal meaning. (U.S., Germany)
2. Hi-Context: Focus mostly on how
statement is said. (Japan, Arab
countries).
2 Scenes Illustrating Style v. Strategy:
• Banana Computers wants to lease space
in Chestnut Mall
• Bev: young L for Banana Computers.
• Dan: middle-aged L for Chestnut Mall.
• Banana just pioneered a new generation
of PCs and needs to expand quickly to
seize the competitive advantage.
Q: What is the style & strategy in each
scene?
Important to Distinguish Style v. Strategy:
 A cooperative style can mitigate the
disadvantages of competitive tactics
(possibility of deadlock, premature
breakdown of negotiation, ill will,
distrust).
B. Don’t let cooperative style fool you into
giving concessions believing other
negotiator is using cooperative tactics to
reach fair negotiated solution.
Paperclip Exercise
1. Divide into groups of 6 players. Each group has 80
clips.
2. Goal is to maximize your own # of clips:
3. Rules:
– Any talking must be in English.
– Pile in middle (# of players x 2) – 2 = 10.
– Play 4 rounds. Each round lasts 1 minute.
– During each round, each person can take as many
clips from the pile as they like.
– At end of each round, you can replenish pile by
doubling the # of clips that remain in the pile (e.g., if
1 left, add 2).
Responding to Other P’s Neg
Strategy
1. To be successful, cooperative & problemsolving strategies require other P to
adopt similar strategy.
2. Dilemma: By adopting such a strategy,
you are vulnerable to exploitation to
competitive behavior.
The Prisoner’s Dilemma
Jones
Not Confess
Smith
Confess
Not Confess S= 1 yr
J = 1 yr
S =15 yr
J = ½ yr
Confess
S = 7 yr
J = 7 yr
S = ½ yr
J = 15 yr
L-C Relationship
C
C
L
L
1. C has right to make important
substantive decisions, such as whether
to make or accept offers.
– C decision whether the accept offer. MRPC
1.2.
– C decides objectives of representation. Id.
– L must consult w/C re: means of pursuing
those objectives. Id.
2. Quality of neg’d agreement is measured by
extent to which it meets C’s interests (goals
& preferences).
3. C’s decision about accepting or rejecting a
settlement offer should be fully informed.
– L must keep C “reasonably informed
about the status of a matter.” MRPC
1.4(a)
– L must “explain a matter to the extent
reasonably necessary to permit the C to
make informed decisions.” MRPC 1.4(b).
4. L has a “boundary-role conflict”: Loyalty
to C conflicts with own interests as
negotiator to…
a. Maintain a professional relationship with
other side’s L.
b. Efficiently use own time.
c. Maximize attorney’s fees.
5. Cyclical process of C counseling & neg.
b. L assesses
importance of
new info
a. Neg,
including info
exchange
between
parties.
c. L counsels C
to adjust goals
& preferences
accordingly.
Phases of the Neg Process
1.
2.
3.
4.
5.
6.
Neg planning & preparation.
Orientation & positioning
Initial proposals.
Information exchange.
Narrowing the differences.
Closure.
Class 11
Phase 1: Neg Planning & Preparation
Identify Parties’ Interests
Assess Parties’ Rights
Identify & Rank Parties’
Interests:
1.
2.
3.
4.
5.
6.
7.
Financial
Performance Interests
Psychological Needs
Reputational Interests
Relationship Interests
Liberty Interests
Basic Human Needs
How Identify Interests of Other
Party?
1. Ask other party & L.
2. Your C may know.
3. Ask 3Ps or other Ls who have dealt with
the other party.
4. Other fact investigation methods.
Example of Investigating Interests
to Create a Neg Strategy
Scene:
• Dan = L for Chestnut Mall
• Maria = CEO of Mall
• Counseling session about how to
negotiate lease with Banana Computers.
Question:
• What neg strategies does this dialogue
about interests suggest?
Assess Parties’ Rights
Legal Elements Charts
Legal
Element &
Cites.
Factual
Proposition
Evidence &
Source
Charts for:
• Each claim (include remedies)
• Each affirmative defense
Inferences
Between
Evidence &
Proposition
1. Then, for each claim & affirmative
defense, consider each side’s strengths
& weaknesses (law, evidence,
application of law to evidence)
Interests May Be More Important
than Rights
E.g., RIM v. NTP
Class 12: Neg Planning (cont’d)
Identify Parties’ Interests
Assess Parties’ Rights
------------------------Assess Parties’ Power
Determine Each Party’s BATNA
Prepare for Problem-Solving: Identify Integrative
Potential
Prepare a Competitive Strategy
Prepare for Cooperative Strategy: Objective
Standards
Choosing Effective Neg Tactics
L’s Authority to Neg
Assess Parties’ Power
1.
2.
3.
4.
5.
Economic
Social
Psychological
Political
Expertise
Consider impact of time.
How Can the Power Relationship
Be Changed?
1. Increase own power (e.g., enter into
alliances).
2. Assert rights.
3. Reduce perception of powerlessness.
4. Information is power, so investigate.
Determine Each Party’s BATNA
1. BATNA = Best Alternative to a Negotiated
Agreement. It’s your best course of action for
satisfying your interests without the other’s
agreement.
2. Purpose of BATNA: (a) It’s your backup plan if
negs fail; (b) knowing value of BATNA will help
you determine bottom line in negs. (Similarly,
estimating other party’s BATNA will help you
estimate their bottom line).
E.g.:
• Hot & sunny day. You need a hat. In 1st
store, you see hat in window with advertised
price of $28. You wonder if you can
negotiate a lower price.
• In 2nd store with fixed prices, you see hat
with advertised price of $17 that’s not quite
as nice but is acceptable.
• Buying the 2d hat is your BATNA. In other
words, if negs on 1st hat fail, you’ll buy 2nd
hat.
Brainstorm Possible BATNAs
E.g.:
If you believe you’ve been wrongly passed
over for promotion by your boss because
you are a woman, your BATNA may be to
file a sexual discrimination claim, find a new
job, go back to school, or do nothing.
How to Brainstorm BATNAs
1. Think of ways to meet interests.
2. Think of what legal rights you have.
3. Think of ways to use your power.
See e.g. on Krieger p.296, next to last ¶.
Evaluate Those Possible BATNAs to See
Which Is Best…
Best
Best
possible
unsurprising
10%
20%
odds
odds
$200,000
$160,000
net
net
Most
Worst
likely unsurprising
50%
20%
odds
odds
$100,000
$0
net
net
Worst
possible
10%
odds
-$40,000
net
a. Advantages
b. Risks (including potential liability for tx)
c. Net Value: (damages) & (costs)
d. Odds of success
e. Any major unknowns (facts, ev, law, law application
to facts)
Estimate Other Party’s BATNA
Same process:
– Use your assessment of their interests,
rights, power to brainstorm BATNAs
– Evaluate those possible BATNAs.
– Use that to estimate their bottom line in
negotiations.
Prepare for Problem Solving:
Identify Integrative Potential
1. Brainstorm about ways to satisfy
interests of both parties.
a. Educate C about how to brainstorm.
b. Expand the pie, i.e., add issues to the
agenda.
c. Outside experts (e.g., accountants or
investment bankers) may be able to help
brainstorm (e.g., creative way of structuring
financial transaction).
2. Plan for “logrolling” or “trade offs”
a. Rank the relative importance of issues
(interests) to C and other party.
b. Determine what issues C willing to concede
on in return for concessions by other party
on other issues.
Prepare a Competitive Strategy
1. Figure out:
a.
b.
c.
d.
Your opening offer
Your bottom line.
The other side’s bottom line.
Your concession points between the
opening offer and your bottom line.
The Relevance of the Bottom Line
Negotiated settlement possible if
there is an overlap in the range of values the
parties will accept:
--$100
--def’s bottom line: $60
pl’s bottom line:$40--
--$0
No settlement range
--$100
--pls bottom line: $60
def’s bottom line:$40--
--$0
Hide & Seek; Push the Bottom Line
--$100
--def’s bottom line: $60
pl’s bottom line:$40--
--$0
Preparation for Cooperative
Strategy: Objective Standards
1. Talk w/C & investigate normal practices
or other objective standards useful in
resolving issues in neg in a “just & fair”
way.
2. Examples of objective standards: market
value, precedents, professional
standards, established moral standards,
tradition, equal treatment, principles of
reciprocity, scientific judgment, efficiency.
Class 13
Neg Planning (cont’d)
Get Authority to Neg
Plan for Info Exchange
Plan the Issues Agenda
Place & Time & Team for Negs
Orienting & Positioning Phase
Initial Proposals Phase
Get Authority to Neg
1. Before each round of neg, ask C to
decide how much authority to settle she
will give you.
a. No authority = Any negotiated deal must be
presented to C for approval.
b. Unlimited authority = C pre-approves any
deal L negotiates.
c. Limited authority = C pre-approves deal
negotiated by L up to a certain amount.
No
Ad 1: Can brainstorm more openly w/other party.
authority Disad 1: C may delay in making realistic
assessment of her case.
UnDisad 1: C loses control
limited
Disad 2: L maybe less competitive & loses
authority opportunity for reflection would have if reported
back to C, so deal maybe not as good.
Limited Ad 1: Encourages C to seriously assess case
authority before neg.
Ad 2: Allows C to keep control over process.
Ad 3: Encourages L to be more competitive.
Ad 4: Denying have sufficient authority is good
tacting for refusing concession.
Disad 1: May encourage L to be too competitive.
Plan for Info Exchange
1. What Happens During Info Exchange
Phase of Neg?
2. Decide what info you need to gather
about …
a. Other party’s interests.
b. Parties’ rights.
c. Other party’s power.
3. Decide what info to disclose:
a. Competitive strategy: Disclose facts showing
your bottom line is strong (your BATNA has
hi value) and other party’s is weak (his
BATNA has little value).
b. Problem-solving strategy: Disclose facts
about your C’s interests to facilitate win-win
and logrolling solutions.
c. Cooperative strategy: Disclose facts relevant
to objective criteria for settling case.
4. Decide what weaknesses to conceal:
a. If other side will get info anyway, maybe
useless to conceal.
b. Candid disclosure of your weaknesses may
minimize it.
c. Analyze whether disclosure may facilitate
neg.
Orienting & Positioning Phase:
Issues Agenda
1. Most negs involve multiple issues.
2. Sequence:
–
–
–
Deal with minor issues first to establish a
cooperative relationship.
Deal with major issues first to see if agreement
possible. Also, once reach agreement on major
issues, negotiators won’t want agreement to be
derailed by minor issues.
Neg multiple issue simultaneously. Facilitates
logrolling.
3. Be prepared for need to persuade other party
that your proposed sequence is best.
Neg Team, Place, Timing, Physical
Space
1. Team:
a. Should C be present?
b. Involve third party, such as “middle man”
2. Place: neg at L’s office, neutral location,
by phone?
3. Timing:
a. Dealing with external deadlines.
b. Deadlines set by parties.
a
b
Initial Proposals Phase:
Competitive
Cooperative
Problem Solving
Initial Proposal—Competitive
Who goes 1st?
1. Ad: Serious offer can become focal point
from which further bargaining proceeds, i.e.
establish probable bargaining range.
2. Ad: Can learn from other party’s reaction to
offer.
3. Disad: Might not be aggressive enough if
don’t know bottom line or target.
4. Disad: If other party goes 1st, you can adjust
your initial proposal accordingly.
5. Disad: In some areas of litigation, an early
offer to settle seen as sign of weakness.
How much to offer?
1. Ad: Empirical research demonstrates a
significant positive correlation between amount
of the negotiator’s original demand and her
payoff.
2. Aim somewhat further than other party’s
bottom line. Why?
–
–
–
Forceful: Convey conviction in strength of your
case, persuading other party to move target &
bottom line.
Credible: Otherwise, offer can be dismissed as
unrealistic.
Cushion: At beginning of neg, you have imperfect
info about case. This way, you can probe for more
info before making a serious settlement proposal
(i.e., hide own bottom line & learn other party’s).
3. Disad:
a. invite retaliation
b. risk deadlock
c. cause negative perception of the negotiator.
Boulwarism
1.
2.
3.
4.
5.
Definition: Making only 1 offer & telling other party you will
settle on no other terms.
When appropriate? (1) You have enough info to be
reasonably sure your offer is better than other party’s
BATNA; (2) you can convince the other party of that; and
(3) you can convince the other party you will not make
any concessions.
Ad: If successful, reduces transaction costs of neg.
Disad: (1) Other party’s negotiator loses face by not
getting any concessions; (2) If other party doesn’t accept
offer, you must choose between retreating to BATNA and
losing credibility by making concession.
Response: As soon as you suspect Boulwarism, point out
its disadvantages to show you know the game being
played.
How to Present Your Offer
1. Specificity: Specific facts are more
credible; if you fail to be specific, you
seem unsure about your bottom line and
seem open to concessions.
2. Justification: Sound reasons make offer
seem legitimate; otherwise it seems like
it was “pulled out of ___.”
3. Consequence: Describe your BATNA in
the most persuasive way possible.
Initial Proposal--Cooperative
1. Differs from competitive initial proposal in
2 ways:
a. Amount is more moderate: exceed your
target by just a moderate amount.
b. Justified by reference to objective standards.
2. Ads: Establish trust; minimize possibility
of deadlock.
3. How should a negotiator who wishes to
behave cooperatively respond to
competitive initial offer?
a. Expose other party’s initial offer as extreme,
explicitly or more subtly by asking him to
justify it by objective criteria.
b. If other party sticks to extreme initial offer…
i.
Respond w/an equally extreme offer to suggest
where the settlement range lies.
ii. Refuse to respond until other party moderates.
iii. Make a fair & reasonable offer.
2. Responding to a Competitive Proposal
with a Problem-Solving Proposal:
a. Try not to sound naïve or condescending.
b. Instead, just subtly turn discussion from
positions to interests by probing reasons
behind other party’s position.
i.
Show commitment to this process by active
listening & acknowledging legitimacy of other
party’s interests.
c. Then, explain your interests.
2. (cont’d)
d. Then, find win-win solutions or logrolling
solutions:
i.
Present own proposal, showing how it meets
other party’s interests; or
ii. Try to brainstorm w/other party. Again, don’t
sound naïve or condescending.
Class 14
Phases of Neg:
1. Neg planning & preparation.
2. Orientation & positioning
3. Initial proposals.
4. Information exchange.
5. Narrowing the differences—More
Competitive Tactics
6. Closure.
Information Exchange Phase
1. In preparation phase, you already
decided what info to gather, conceal, and
disclose.
2. Gathering info:
a.
b.
c.
d.
Funnel questions
Active listening
Using silence
Dealing with other lawyer’s refusal to
answer
1. Concealing information:
a. Partial truth
b. Evade the question
c. Refuse to answer the question
Competitive Tactics
1. Knowing these tactics gives a clearer and
deeper understanding of how hard bargainers
operate.
2. Some are quite shady—ethically dubious or
even immoral.
3. By knowing them, you know how to respond.
E.g., one effective way to deal with a hardbargainer is to hard-bargain back. This shows
you can play the game and may induce some
cooperation.
Precondition
1.
2.
3.
4.
Definition: A party may refuse to negotiate prior to
satisfaction of some precondition.
E.g.: Israel refuses to negotiate with Palestinians’
Hamas government until they recognize Israel’s
right to exist.
Analysis: A precondition is actually a way of
obtaining a concession without giving any in
return.
Response: Make clear that the precondition is
actually an issue in the neg. Either demand
reciprocal concessions or refuse to consider
precondition until full neg takes place.
False Demand – False Concession
False Demand – False Concession:
1. Definition: Negotiator attempts to convince
opponent that an issue, about which she
actually cares little or not at all, is very
important. Negotiator claims she will concede
the issue only if the other side makes a
particular concession.
2. Response: Assess whether the issue is really
important—obtain outside info, ask probing
questions.
Nibble (Late Hit)
1. Definition: Escalate demands near the end of a
neg, after the parties have invested time &
energy & have resolved major matters. The
negotiator raises a further item, relatively
small, but not yet discussed, indicating it is a
“must have” or the neg may fail.
2. Analysis: Opponent may concede to nibble
because of the large psychological investment
in the neg.
3. Response: Communicate that both sides can
play the game of threatening a final
agreement. Perhaps express willingness to
see the deal fail.
Linkage
1. Definition: Expanding the scope of a neg by
bringing in issues which, while not clearly
related, are arguably linked.
2. E.g.: After Saddam Hussein’s army invaded
Kuwait in 1990, he sought to link resolution of
that war to the Palestinian issue. By doing so,
he sought to shift the alignment of the parties
& introduce new parties.
3. Response: Adding issues creates possible
trade-offs that may not have existed before but
may also complicate matters. Where
appropriate, resist adding new issues.
Boulwarism
Previously Discussed
Split the Difference
1. Definition: When the parties are close to
agreement but still some distance apart,
propose splitting the difference.
2. Analysis: This tactic seems fair, but in actuality
the proponent may already have everything
she wants and use this tactic to get further
gains. This tactic is often effectively combined
with a large initial demand.
3. Response: Agree to split this tactic only if it is
really fair. Otherwise, use a different formula
that is more advantageous.
Final Offer
1.
2.
3.
4.
5.
Definition: Negotiator states she has reached her final
position & will concede no more.
When appropriate: Like Boulwarism, (a) You have
enough info to be reasonably sure your offer is better
than other party’s BATNA; (b) you can convince the
other party of that; and (c) you can convince the other
party you will not make any concessions.
Ad: If successful, reduces transaction costs of neg.
Disad: If the other party doesn’t take the offer, offeror
must retreat to its BATNA or lose credibility by making
a concession. (To minimize credibility loss, the offeror
could link his concession to a concession by the other
party).
Response?
Misleading Concession Pattern
1. Definition: In distributive negotiations,
mislead the other party regarding your
bottom line by making smaller and
smaller negotiations, leading the other
party to believe you are approaching
your bottom line.
Deadlock and Concede
1. Definition: Negotiator sets the agenda and
organizes her issues so that she raises her
least important issue first and her most
important issue second. The remaining issues
are arranged similarly, alternating less
important and more important issues.
Negotiator deadlocks on the first issue but then
concedes. Continuing bargaining, she also
deadlocks on the second issue but then
demands the other side concede on it because
she conceded on the first issue and there has
not yet been a reciprocal concession. And so
on.
Negotiator without Authority
1. Definition: A negotiator without authority will
have to clear proposed settlements with his or
her client.
–
–
If a negotiator actually or pretends to lack authority,
she can explore the other side’s positions & gain
concessions without making any real commitments
or corresponding concessions of her own.
In the alternative, a negotiator can claim limited
authority as a tactic to induce settlement within the
limits asserted. The adversary may simply not want
to take the time or trouble to seek to go beyond the
limits.
Choosing Effective Neg Tactics
For each tactic used by other side, negotiator can
strategically choose how to respond. Consider:
1. Other P’s negotiation strategy
2. Does case have integrative opportunities?
3. The stage of the negotiation.
4. Relative bargaining power of the parties
5. Prospects for ongoing relationships with other
party or in business community.
6. Attitude of negotiator’s C.
7. Negotiator’s own personality.
1. Other Party’s Neg Strategy
a. To be successful, cooperative & problemsolving strategies (together, “collaborative”
strategies) require other party to adopt similar
strategy.
b. Prisoner’s Dilemma: By adopting a
collaborative strategy, you are vulnerable to
exploitation to competitive behavior.
c. Other party may try to fool you with
collaborative style cloaking competitive tactics.
d. Investigate other negotiator’s likely strategy.
2. Does Case Have Integrative
Opportunities?
a. Only if the answer is yes is problemsolving strategy an option.
b. Types of problem-solving solutions:
– “Bridging proposals”: Satisfy both parties’
underlying interests.
– “Logrolling agreements”: Parties trade
concessions on different issues on which
they place different priorities, so that both
parties are more satisfied than if they merely
conceded equivalent amounts on each
issue.
3. Stage of the Neg
Negs often progress from mostlycompetitive to mostly-collaborative stages.
2. Orientation & positioning: Set tone for
negs & make initial presentations about
merits. Usually competitive.
3. Initial proposals: Not to be taken
seriously.
2. Information exchange: Negotiators make
arguments & gather/selectively disclose
info.
3. Narrowing the differences: More realistic
proposals are made once there is a
danger of deadlock.
4. Closure: Reach agreement or terminate
the neg.
4. Relative Rights & Power of the
Parties
a. If you have strong rights/power:
i.
That is another way of saying the other
party has no good BATNA, so you have
leverage in the neg.
ii. May choose any strategy.
b. If you’re weak:
i.
That is another way of saying the other
party has a good BATNA, so you have little
leverage in the neg.
ii. May either (1) attempt to change the
perceived balance of power; or (2) use
collaborative neg tactics.
5. Prospects for Ongoing
Relationships
a. Competitive strategy could harm C’s
future relationships w/other party &
business community.
–
This is especially true of competitive
tactics at end of neg, which leave bitter
aftertaste.
b. Where both parties foresee ongoing
relationship, collaborative tactics are
more likely to be reciprocated not
exploited.
6. Attitude of Negotiator’s C
a. C may want to use collaborative tactics
because wants ongoing relationship with
other party.
b. C may want to use competitive tactics
out of anger.
c. C not inclined to trust his L may be
convinced by visibly competitive tactics.
7. L’s Personality
a. It may be easier to use neg strategy that
match your basic personality (although
you should learn to use each strategy).
Summary: Factors to Weigh
If yes…
1. Will other negotiator continue Comp
comp tactics?
If no…
Any
2. Does problem have
integrative potential?
3. Is neg in early phase?
4. Does C have superior
rights/power?
5. Does C want ongoing
relationship w/OP or business
community?
PS
Comp or coop
Comp
Any
Comp or coop
Coop; or comp
then coop or PS
Any
PS or
coop
6. Does C’s input favor comp?
Comp
7. Does negotiator’s personality Comp
favor comp?
Any
Coop or PS