advocacy survey spring 2014. grading criteria professionalism and preparation (10%) journal entry #1...
TRANSCRIPT
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
Journal Entries
• 3 Parts1. Story of the Case
2. Conflict Scale Analysis
3. Deep Structure
• No specific length
• Due before class starts on the due date
Assessments
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.
Parts of a Story
Beginning This is the set-up. It is where you establish your theme.
MiddleThis is the guts of the story, where most of the action happens.
EndThis 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.Has a sense of truth and moves the listener.
It has to have substance.Needs direction and purpose.
It needs conflict and resolution.Believable action moving the story
It creates vivid images.Bare bones vs. Detailed.
What Makes a Good Story?
It is not “wimpy”. “Wimpy” is insincere.
It is perfect for your audience.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 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 interests you about…?
What do you expect/want…?
How do you know when…?
How did you decide…?
What else is important about…?
In addition to ___, what else interests you about…?
What else do you expect/want…?
Other than ___, how else do you know when…?
In what other ways did you decide…?
Your Stories – Your Results
Name Win/Win Win/Lose Lose/Lose
Marcelo 4 5
Josephine 2 6 1
Ayman 8
Yan 1 5 3
Wayne 3 5
Ghazal 3 5
Lance 4 5
Jessica 8
Ana 6 3
Daniel 2 5 1
Conflict Escalation: The Stages
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
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.
Deep Structure:•Words•Tonality•Body Language•Gestures
•Beliefs•Values•Biases•Prejudices•Experiences•Fears•Dreams•Feelings
•Words•Tonality•Body Language•Gestures
•Beliefs•Values•Biases•Prejudices•Experiences•Fears•Dreams•Feelings
•Words•Tonality•Body Language•Gestures
•Beliefs•Values•Biases•Prejudices•Experiences•Fears•Dreams•Feelings
•Words•Tonality•Body Language•Gestures
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
Progression: Civil Case v. Criminal Case
Initial Stage Pleadings Discovery Motions Negotiation ADR Trial Sequence Appeal
Initial Stage Charging Arraignment & Bail Discovery Motions &
Negotiation Counseling Trial Sequence Appeal
Pretrial – TRCP
Initial Stage Client Interviewing and Counseling
Pleadings Rule 79 – Plaintiff’s Petition Rule 85 – Defendant’s Answer
Discovery Rule 194 – Requests for Disclosure Rule 197 – Interrogatories to Parties Rule 198 – Requests for Admissions Rule 199 – Depositions upon Oral Examination
Pretrial – TRCP
Motions Rule 166a – Summary Judgment
Negotiation ADR – Mediation, Arbitration
Trial Sequence Appeal
Stages of an Appeal: Preserving Appellate Complaints
The appellate process starts during the trial T.R.A.P. 33.1: Preservation
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)
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)
Filed by the Appellant –
Source of information for the appellate court.
Stages of an Appeal: The Briefs (T.R.A.P. 38)
Appellant’s Brief Appellee’s Brief Reply Brief (Appellant) Briefing Rules are liberally construed.
FormSubstance
Request for Oral Argument on the front cover.
Stages of an Appeal: Oral Arguments (T.R.A.P. 39)
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)
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
Stages of Mediation*: Stage 1
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
Parties Opening StatementsEach 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
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
Private CaucusesThe 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
Joint Negotiation
After caucuses, the mediator may bring the parties back together to negotiate directly.
Stages of Mediation: Stage 6
ClosureIf 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*
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*
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
Mediation RegulationAustria has national regulation of civil
mediationAustralia, 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
Jurisdictional Comparisons
Mediation Training
200-hour training modelAustria (200-365), France (560), Germany (200)
40-hour training modelAustralia, Denmark, England, Italy, US
Jurisdictional Comparisons
Mediation AccreditationAustralia: National Mediator AccreditationAustria: Legislatively-based accreditationDenmark: No national accreditationFrance: No national accreditationGermany: No national accreditation Italy: No national accreditationUS: No national accreditation
Jurisdictional Comparisons
Cross-border disputesEU 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.
Mediation vs. Conciliation
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.
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
Duty of Good Faith In Negotiation? In Performance of the Contract?
Professional Obligations 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
Model Rule 3.3(a)(1) Representations to a tribunal
Model Rule 1.3 Reasonable diligence and promptness in
representing a client
Model Rule 4.4 A lawyer shall not use means that have no
substantial purpose other than to embarrass, delay, or burden a third person”.
Negotiation: Key Concepts
Preparation, preparation, preparation
What do you know?
What DON’T you know?
Negotiation: Key Concepts
Barriers to ResolutionStrategic BarriersPrincipal/Agent (Interests v. Incentives)Cognitive Barriers
Risk aversionLoss aversion
Negotiation: Key Concepts
Best Alternative to a Negotiated Agreement or the BATNA
Simple: $1 or $.09
Complex: Multiple moving parts
Negotiation: Key Concepts
Bargaining Zone Reservation Point Prioritized Interests Logrolling
Never give anything away for free
Arbitration – General Characteristics
AdjudicationPrivacyInformal Procedural RulesSubordination of Substantive LawFinalityAdjudicator Expertise
Domestic vs. International*
US (Domestic) Arbitration Derived from US litigation practice Customarily, arbitrations are conducted like Bench Trials
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*
International Arbitration 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.
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