Transcript Advocacy Survey - University of Houston Law Center

Advocacy Survey
Spring 2014
Grading Criteria
• Professionalism and Preparation (10%)
• Journal Entry #1 (12%) – Mediation Advocacy
Due before class starts on March 6th
• Journal Entry #2 (18%) – Negotiation Advocacy
Due before class starts on March 27th
• Journal Entry #3 (30%) – Trial Advocacy
Due before class starts on April 22nd
• Final Exam (30%)
Additional Class Requirements
• Attend the Final Trial for the Law Center’s
Trial Advocacy class. (Saturday, April 19th).
This is the substitute for Classes 9 & 10
What We’re Going To Do
• Core 6 Overview
– Pretrial, Appellate, Mediation, Negotiation,
Arbitration, and Trial
• Story of the Case
• Conflict Escalation Scale
• Deep Structure
Story of the Case
Conflict Escalation Scale
Deep Structure
Journal Entries
• 3 Parts
1. Story of the Case
2. Conflict Scale Analysis
3. Deep Structure
• No specific length
• Due before class starts on the due date
Assessments
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Trauma
 On the paper provided, write your definition of
trauma. Not the dictionary definition but your
definition.
Conflict
 On the other side of the paper, draw a picture that
represents your view of conflict.
Conflict Resolution Style

Once you’ve completed the two assignments above, fill out
the provided assessment and complete the scoring grid.
Assessments – What is Trauma?
Mental scarring which occurs as a result
of life events.
 An event that angers you or saddens you
every time you think about it.
 The mental and physical aftereffects of
an especially difficult event or
experience. These effects are negative
and to an extent debilitating.

Assessments – What is Trauma?
An event or experience in one’s life that
leaves a lasting mark on them forever –
either physically, mentally, or
emotionally.
 An experience, event that shocks the
individual’s senses when they
experience it. An experience that has
lasting negative effects on the life and
psych of the individual.

Assessments – What is Conlict?
Assessments – What is Conlict?
Assessments – What is Conlict?
Assessments – What is Conlict?
Advocacy Survey
Stories
Parts of a Story

Beginning
This is the set-up. It is where you establish
your theme.
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Middle
This is the guts of the story, where most of the
action happens.

End
This is the wrap for the story – and in a
perfect world, you close with your theme.
What Makes a Good Story?*

It touches people in some way.
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It has to have substance.
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Needs direction and purpose.
It needs conflict and resolution.
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Has a sense of truth and moves the listener.
Believable action moving the story
It creates vivid images.

Bare bones vs. Detailed.
What Makes a Good Story?

It is not “wimpy”.
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It is perfect for your audience.
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“Wimpy” is insincere.
Prepare for your audience.
It is a story you love and that you love to
tell.

Never, never tell a story that you don’t like.
* Taken from Chris King, Creative Keys
What Makes a Good Story?
The Devil is in the Details
What Makes a Good Story?
What Makes a Good Story?
Clean Questions
Power
Precision
What is important about…?
What interests you about…?
What do you expect/want…?
How do you know when…?
How did you decide…?
What is important about…?
What else is important about…?
What interests you about…?
In addition to ___, what else interests you about…?
What do you expect/want…?
What else do you expect/want…?
How do you know when…?
Other than ___, how else do you know when…?
How did you decide…?
In what other ways did you decide…?
Your Stories – Your Results
Name
Win/Win
Win/Lose
Marcelo
4
5
Josephine
2
6
Ayman
Yan
Lose/Lose
1
8
1
Wayne
5
3
3
5
Ghazal
3
5
Lance
4
5
Jessica
8
Ana
6
3
Daniel
2
5
1
Conflict Escalation: The Stages
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Stage 1: Hardening
 Stage 2: Debates and Polemics
 Stage 3: Actions, not Words
 Stage 4: Images and Coalitions
 Stage 5: Loss of Face
 Stage 6: Strategies of Threats
 Stage 7: Limited Destructive Blows
 Stage 8: Fragmentation of the Enemy
 Stage 9: Together Into The Abyss
What It Means
Stage 1: Hardening
• The first stage of conflict escalation
develops when a difference over some
issue or frustration in a relationship
proves resilient to resolution efforts.
Stage 2: Debates and Polemics
• Since the counterpart doesn't seem
amenable to sensible arguments,
discussions tend to develop into verbal
confrontations. The parties look for
more forceful ways of pushing through
their standpoints. In order to gain
strength, they tend to become
increasingly locked into inflexible
standpoints.
Stage 3: Actions, not Words
• At stage 3, the parties no longer believe
that further talk will resolve anything,
and they shift their attention to actions.
Common interests and the prospect of
resuming cooperation recede into the
background, and the parties see each
other as competitors.
Stage 4: Images and Coalitions
• At stage 4 the conflict is no longer about
concrete issues, but about victory or
defeat. Defending one's reputation is a
major concern.
Stage 5: Loss of Face
• The transition to stage 5 is particularly
dramatic. Loss of face means that the
conflict parties feel that they have
suddenly seen through the mask of the
other party, and discovered an immoral,
insane or criminal inside.
Stage 6: Strategies of Threats
• Since no other way seems to be open, the
conflict parties resort to threats of damaging
actions, in order to force the counterpart in
the desired direction. The strategical threats
of stage 6 are very different from the deniable
punishment actions characteristic of stage 4.
The latter mainly serve the function of giving
vent to pent-up frustrations. Strategical
threats are actively used in order to force the
counterpart to certain concessions.
Stage 7: Limited Destructive Blows
• The threats of stage 6 undermine the
basic sense of security of the parties.
Now they expect the counterpart to be
capable of very destructive acts.
Securing one's own further survival
becomes an essential concern.
Stage 8: Fragmentation of the Enemy
• At this stage the attacks intensify and
aim at destroying the vital systems and
the basis of power of the adversary.
One may specifically aim at fragmenting
the counterpart into ineffectual splinters,
and at the ability of the counterpart to
make decisions.
Stage 9: Together into the Abyss
• In the last stage of conflict escalation,
the drive to annihilate the enemy is so
strong that even the self-preservation
instinct is neglected. Not even one's
own survival counts, the enemy shall be
exterminated even at the price of
destruction of one's own very existence
as an organization, group, or individual.
Ruin, bankruptcy, prison sentences,
physical harm, nothing matters any
longer.
Surface Structure:
•Words
•Tonality
•Body Language
•Gestures
What you observe
Deep Structure:
•Words
•Tonality
•Body Language
•Gestures
•Beliefs
•Values
•Biases
•Prejudices
•Experiences
•Fears
•Dreams
•Feelings
•Words
•Tonality
•Body Language
•Gestures
•Beliefs
•Values
•Words
•Biases
•Tonality
•Prejudices
•Body
Language
•Experiences
•Gestures
•Fears
•Dreams
•Feelings
•Words
•Tonality
•Body Language
•Gestures
•Beliefs
•Values
•Biases
•Prejudices
•Experiences
•Fears
•Dreams
•Feelings
Empathy

“The skill or ability to tap into our own
experiences in order to connect with an
experience someone is relating to us.”

“It’s not just about the words. It’s about
fully engaging and wanting to
understand.”
- Dr. Brene Brown
Empathy – DS to DS
Help
me
understand…
Advocacy Survey
Pretrial Litigation
Progression:
Civil Case v. Criminal Case
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Initial Stage
Pleadings
Discovery
Motions
Negotiation
ADR
Trial Sequence
Appeal
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Initial Stage
Charging
Arraignment & Bail
Discovery
Motions &
Negotiation
Counseling
Trial Sequence
Appeal
Pretrial – TRCP
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Initial Stage
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Pleadings
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Client Interviewing and Counseling
Rule 79 – Plaintiff’s Petition
Rule 85 – Defendant’s Answer
Discovery
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Rule 194 – Requests for Disclosure
Rule 197 – Interrogatories to Parties
Rule 198 – Requests for Admissions
Rule 199 – Depositions upon Oral Examination
Pretrial – TRCP
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Motions
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Rule 166a – Summary Judgment
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Negotiation
 ADR – Mediation, Arbitration
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Trial Sequence
 Appeal
Pretrial – Deposition Gone Wild
Pretrial – Deposition Gone Wild 2
Advocacy Survey
Appellate Advocacy
Stages of an Appeal: Preserving Appellate Complaints

The appellate process starts during the trial
 T.R.A.P. 33.1: Preservation
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Timely made
Get a ruling
If you don’t preserve and properly raise, then
most likely you waive.
Stages of an Appeal:
Notice (T.R.A.P. 25)
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An appeal is perfected when a written notice of appeal
is filed with the trial court clerk.
The filing of a notice of appeal by any party invokes
the appellate court’s jurisdiction over all parties to the
trial court’s judgment or order appealed from.
A party who seeks to alter the trial court’s judgment or
other appealable order must file a notice of appeal.
Stages of an Appeal:
Docketing Statement (T.R.A.P. 32.1)
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Filed by the Appellant –
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Source of information for the appellate court.
Stages of an Appeal:
The Briefs (T.R.A.P. 38)
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Appellant’s Brief
Appellee’s Brief
Reply Brief (Appellant)
Briefing Rules are liberally construed.
 Form
 Substance
Request for Oral Argument on the front cover.
Stages of an Appeal:
Oral Arguments (T.R.A.P. 39)
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Court may decide that oral argument is unnecessary
because:
 the appeal is frivolous;
 the dispositive issue or issues have been
authoritatively decided;
 the facts and legal arguments are adequately
presented in the briefs and record; or
 the decisional process would not be
significantly aided by oral argument.
Stages of an Appeal:
Court’s Decision T.R.A.P. 43)
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Judgment should be rendered promptly
 Types of judgment
 Affirm
 Reverse
 Modify
 Vacate
 Dismiss
 Remand
 Written opinion that is as brief as practicable but that
addresses every issue raised and necessary to final
disposition of the appeal
Advocacy Survey
Mediation
Stages of Mediation*: Stage 1
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Mediator’s Opening Statement
After the parties are seated at a table,
the mediator introduces everyone,
explains the goals and rules of the
mediation, and encourages each side to
work cooperatively toward a settlement.
*Taken from Nolo.com
Stages of Mediation: Stage 2
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Parties Opening Statements
Each party is invited to describe, in his or her
own words, what the dispute is about and how
he or she has been affected by it, and to
present some general ideas about resolving it.
While one person is speaking, the other is not
allowed to interrupt.
Stages of Mediation: Stage 3
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Joint Discussion & Problem-Solving
The mediator may try to get the parties
talking directly about what was said in
the opening statements. This is the time
to determine what issues need to be
addressed, what facts the parties
actually agree on, and to determine each
party’s interests.
Stages of Mediation: Stage 4
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Private Caucuses
The private caucus is a chance for each party to meet
privately with the mediator (usually in a nearby room)
to discuss the strengths and weaknesses of his or her
position (reality testing) and new ideas for settlement.
The mediator may caucus with each side just once, or
several times, as needed. These private meetings are
considered the guts of mediation.
(Newhouse: “Live in the question”)
Stages of Mediation: Stage 5
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Joint Negotiation
After caucuses, the mediator may bring
the parties back together to negotiate
directly.
Stages of Mediation: Stage 6
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Closure
If an agreement has been reached, the mediator may
put its main provisions in writing as the parties listen.
The mediator may ask each side to sign the written
summary of agreement or suggest they take it to
lawyers for review. If the parties want to, they can
write up and sign a legally binding contract. If no
agreement was reached, the mediator will review
whatever progress has been made and advise
everyone of their options, such as meeting again later,
going to arbitration, or going to court.
Mediation:
Can It Be A Legitimate Legal Process?
The Kansas Supreme Court, in Court Rule 902
(2001) describing mediator qualifications for
court referrals and approved programs, stated:
"No standards or qualifications should be
imposed upon any person chosen and agreed
to by the parties. These qualifications should
not prevent parties having free choice of
process, program and the individual neutral."
Marketplace Mediation Model*
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Referred to and external from the Courts
 Referrals are sometimes mandatory and sometimes
require the consent of the parties.
 Mediators are usually selected from a “list” of
accredited professional mediators
 Mediators are paid directly by the parties but public
funds are available in limited circumstances.
 Mediator fees are sometimes regulated.
 Is favored in common law jurisdictions
*From “Global Trends in Mediation”, Alexander
Justice Mediation Model*
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At the request of the parties within the court
proceedings
No additional cost
Before a judge who will not be the judge at trial
if the mediation does not settle.
The parties do not have a choice of the
mediator.
Is favored in civil law jurisdictions
*From “Global Trends in Mediation”, Alexander
Jurisdictional Comparisons
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Mediation Regulation
Austria has national regulation of civil
mediation
 Australia, Denmark, England, France,
Germany, Italy, US are examples of
jurisdictions that have no national regulation
 US: Uniform Mediation Act which focuses
primarily on mediator confidentiality
 TX: Code of Civil Procedure Title 7
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Jurisdictional Comparisons
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Mediation Training
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200-hour training model
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Austria (200-365), France (560), Germany (200)
40-hour training model
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Australia, Denmark, England, Italy, US
Jurisdictional Comparisons
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Mediation Accreditation
Australia: National Mediator Accreditation
 Austria: Legislatively-based accreditation
 Denmark: No national accreditation
 France: No national accreditation
 Germany: No national accreditation
 Italy: No national accreditation
 US: No national accreditation
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Jurisdictional Comparisons
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Cross-border disputes
EU Directive on Mediation in Civil and
Commercial Cases (2006)
 UNICTRAL Model Law on International
Commercial Conciliation (2002)
 EU Green Paper on ADR Measures for Civil
and Commercial Matters (2001)
 Mediation Rules: Service Providers such as
the ICC, AAA, LICA, etc.
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Mediation vs. Conciliation
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Conciliation is mediation-like
Mediation tends to be more interest-based.
Conciliation tends to be more directive and
interventionist.
Conciliator gives parties legal information and
suggests solutions to them.
Conciliation is typically found in civil law
countries.
Advocacy Survey
Negotiation
Negotiation

“Accordingly, and regrettably, lying is not the
province of a few “unethical lawyers” who
operate on the margins of the profession. It is
a permanent feature of advocacy and thus of
almost the entire province of law.”
-Gerald Wetlaufer, The Ethics of Lying in Negotiation
75 Iowa Law Review 1219 (1990)
Negotiation
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Duty of Good Faith
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In Negotiation?
In Performance of the Contract?
Professional Obligations
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Model Rule 4.1 – “...an attorney shall not
knowingly: (a) make a false statement of material
fact or law to a third person”.
Reporter’s Comment 2: the “gray”…
Negotiation
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Model Rule 3.3(a)(1)
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Model Rule 1.3
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Representations to a tribunal
Reasonable diligence and promptness in
representing a client
Model Rule 4.4
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A lawyer shall not use means that have no
substantial purpose other than to embarrass, delay,
or burden a third person”.
Negotiation Dynamics
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Integrative or Cooperative
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Zero-Sum or Distributive
Negotiation Dynamics
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Win-Win
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Win-Lose
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Lose-Lose
Negotiation: Key Concepts
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Preparation, preparation, preparation
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What do you know?
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What DON’T you know?
Negotiation: Key Concepts
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Barriers to Resolution
 Strategic Barriers
 Principal/Agent (Interests v. Incentives)
 Cognitive Barriers
Risk aversion
 Loss aversion
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Negotiation: Key Concepts
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Best Alternative to a Negotiated Agreement or
the BATNA
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Simple: $1 or $.09
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Complex: Multiple moving parts
Negotiation: Key Concepts
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Bargaining Zone
 Reservation Point
 Prioritized Interests
 Logrolling
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Never give anything away for free
1st Journal Entry
Conflict Escalation Scale
Stage
Number Selected
Stage 1
1
Stage 2-3
2
Stage 3
3
Stage 4
2
Stage 5
1
Stage 5-6
1
Stage 6
2
Advocacy Survey
Arbitration
Arbitration – General Characteristics
 Adjudication
 Privacy
 Informal
Procedural Rules
 Subordination of Substantive Law
 Finality
 Adjudicator Expertise
Arbitration – Basic Concepts
 Severability
 Prima
Paint Doctrine
 Kompetenz-Kompetenz
 1st
Options case
Arbitration
Terms and Conditions
Domestic vs. International*
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US (Domestic) Arbitration
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Derived from US litigation practice
Customarily, arbitrations are conducted like Bench Trials
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Broad discovery, including depositions and documents
Oral direct examinations
Extensive cross examinations
Party-retained experts
Extensive written arguments
Less Rigid Application of the Rules of Evidence
Application of the “American Rule” on Legal Expenses and
Attorneys Fees
Non-Reasoned, or Summary, Awards.
Domestic vs. International*
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International Arbitration
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Blend of Practices between Common Law and Civil Law
No, or Limited, Discovery
Hearing Practices include:
 Witness Statements are typically used for direct evidence.
 Greater reliance on documentary evidence
 Tribunal-appointed experts are common
Tribunal May Award Full Costs, including Legal Fees and
Expenses
A “Reasoned Award” is Generally Required.
*Comparison taken from John Pinney: General Aspects of Arbitration in the US.
Arbitration Exercise
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Administered by?
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Where?
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Who?
Arbitration Exercise
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Administered by?
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Where?
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Why did you choose them?
Why did you pick this location?
Who?
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A list of your top three arbitrators and why?
Arbitration Exercise
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Administered by?
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International Chamber of Commerce (ICC)
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London Court of Arbitration (LCIA)
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Hong Kong International Arbitration Center (HKIAC)
Arbitration Exercise
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Where?
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New York
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Paris
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Hong Kong
Arbitration Exercise
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Who?
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Ben Sheppard
Jeremy Lack
Louise Barrington
Colin Wall
Neil Kaplan
Ann Ryan Robertson
Maria Mercedes Tarrazón Rodón
John Beechey
Pierre Karrer
Elaine Liu
Advocacy Survey
Trial Advocacy
Trial Practice
“I deal in carnage.
I defend the
indefensible.”
Trial: The Story of the Case
Stages of Trial: Pretrial Motions
Used
to establish procedural and evidentiary
protocols.
Primarily in civil cases – referred to as Motions
in Limine (i.e. TX Rules of Evidence 404, 405).
Establish rapport with the judge.
Stages of Trial: Voir Dire

The purpose of voir dire is to get a sense of
how potential jurors feel about the issues in
your case.
 The more you (as an attorney) talk, the less
you learn.
 Who do you strike?
Stages of Trial: Opening Statements

The purpose of an opening statement is to tell
the jury your story of the case – using only the
facts for persuasion.
 Studies have shown that a majority of jurors
make up their mind about the case after
opening statements.
Stages of Trial: Direct Examination

The purpose of direct examination is to tell the
jury your story of the case through your
witnesses.
 Use only non-leading questions – what,
where, how, when, explain, tell…
 You want the jury to focus on the witness.
Stages of Trial: Cross Examination

The purpose of cross examination is to poke
holes in the other party’s case.
 Use only leading questions – “You did not go
into the store, did you?”
 One fact per question.
 Never ask a question that you don’t know the
answer to.
Stages of Trial: Closing Argument

The purpose of closing argument is to tell the
jury your story of the case using facts and
evidence together in a persuasive way.
 It is your last chance to connect with the jury
before they deliberate.
 Use the jury charge effectively.
Differences between Civil Trials and
Criminal Trials (
)
http://www.laits.utexas.edu/gov310/JU/civcrim/index.html
Civil
Criminal
Parties
Individuals or groups
Government and an alleged criminal
At issue
Court must determine whether
one party has caused harm to
another party; case deals with
rights and duties between
individuals
Court must determine whether one
party has violated a statute that
prohibits some type of activity
Type of
Wrongdoing
Harm to private person or
group
Transgression against society
Penalty or
Remedy
Compensation for damages or
loss
Punishment (fine, imprisonment,
rehabilitation, etc.)
Burden of
Proof
Preponderance of the
evidence
Guilt beyond a reasonable doubt