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Title: Advocacy Survey


1
Advocacy Survey
  • Spring 2014

2
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3
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)

4
Additional Class Requirements
  • Attend the Final Trial for the Law Centers Trial
    Advocacy class. (Saturday, April 19th).
  • This is the substitute for Classes 9 10

5
What Were Going To Do
  • Core 6 Overview
  • Pretrial, Appellate, Mediation, Negotiation,
    Arbitration, and Trial
  • Story of the Case
  • Conflict Escalation Scale
  • Deep Structure

6
Story of the Case
7
Conflict Escalation Scale
8
Deep Structure
9
Journal Entries
  • 3 Parts
  • Story of the Case
  • Conflict Scale Analysis
  • Deep Structure
  • No specific length
  • Due before class starts on the due date

10
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11
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 youve completed the two assignments above,
    fill out the provided assessment and complete the
    scoring grid.

12
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13
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.

14
Assessments What is Trauma?
  • An event or experience in ones life that leaves
    a lasting mark on them forever either
    physically, mentally, or emotionally.
  • An experience, event that shocks the individuals
    senses when they experience it. An experience
    that has lasting negative effects on the life and
    psych of the individual.

15
Assessments What is Conlict?
16
Assessments What is Conlict?
17
Assessments What is Conlict?
18
Assessments What is Conlict?
19
Advocacy Survey
  • Stories

20
Parts of a Story
  • Beginning
  • This is the set-up. It is where you establish
    your theme.
  • 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.

21
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.

22
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 dont like.
  • Taken from Chris King, Creative Keys

23
What Makes a Good Story?
  • The Devil is in the Details

24
What Makes a Good Story?
25
What Makes a Good Story?
26
Clean Questions
  • Power

Precision
27
  • What is important about?

What interests you about?
What do you expect/want?
How do you know when?
How did you decide?
28
  • 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?
29
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30
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
31
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

32
What It Means
33
  • 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.

34
  • 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.

35
  • 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.

36
  • 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.

37
  • 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.

38
  • 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.

39
  • 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.

40
  • 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.

41
  • 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.

42
Surface Structure
  • Words
  • Tonality
  • Body Language
  • Gestures
  • What you observe


43
Deep Structure
  • Words
  • Tonality
  • Body Language
  • Gestures

  • Beliefs
  • Values
  • Biases
  • Prejudices
  • Experiences
  • Fears
  • Dreams
  • Feelings

44
  • Words
  • Tonality
  • Body Language
  • Gestures
  • Words
  • Tonality
  • Body Language
  • Gestures

  • Beliefs
  • Values
  • Biases
  • Prejudices
  • Experiences
  • Fears
  • Dreams
  • Feelings
  • Beliefs
  • Values
  • Biases
  • Prejudices
  • Experiences
  • Fears
  • Dreams
  • Feelings
  • Words
  • Tonality
  • Body Language
  • Gestures

45
Empathy
  • The skill or ability to tap into our own
    experiences in order to connect with an
    experience someone is relating to us.
  • Its not just about the words. Its about fully
    engaging and wanting to understand.
  • - Dr. Brene Brown

46
Empathy DS to DS
  • Help meunderstand

47
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48
Advocacy Survey
  • Pretrial Litigation

49
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

50
Pretrial TRCP
  • Initial Stage
  • Client Interviewing and Counseling
  • Pleadings
  • Rule 79 Plaintiffs Petition
  • Rule 85 Defendants Answer
  • Discovery
  • Rule 194 Requests for Disclosure
  • Rule 197 Interrogatories to Parties
  • Rule 198 Requests for Admissions
  • Rule 199 Depositions upon Oral Examination

51
Pretrial TRCP
  • Motions
  • Rule 166a Summary Judgment
  • Negotiation
  • ADR Mediation, Arbitration
  • Trial Sequence
  • Appeal

52
Pretrial Deposition Gone Wild
53
Pretrial Deposition Gone Wild 2
54
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55
Advocacy Survey
  • Appellate Advocacy

56
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 dont preserve and properly raise, then
    most likely you waive.

57
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 courts jurisdiction over
    all parties to the trial courts judgment or
    order appealed from.
  • A party who seeks to alter the trial courts
    judgment or other appealable order must file a
    notice of appeal.   

58
Stages of an Appeal Docketing Statement
(T.R.A.P. 32.1)
  • Filed by the Appellant
  • Source of information for the appellate court.   

59
Stages of an Appeal The Briefs (T.R.A.P. 38)
  • Appellants Brief
  • Appellees Brief
  • Reply Brief (Appellant)
  • Briefing Rules are liberally construed.
  • Form
  • Substance
  • Request for Oral Argument on the front cover.

60
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.

61
Stages of an Appeal Courts 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

62
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63
Advocacy Survey
  • Mediation

64
Stages of Mediation Stage 1
  • Mediators 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

65
Stages of Mediation Stage 2
  • 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.

66
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
    partys interests.

67
Stages of Mediation Stage 4
  • 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)

68
Stages of Mediation Stage 5
  • Joint Negotiation
  • After caucuses, the mediator may bring the
    parties back together to negotiate directly.

69
Stages of Mediation Stage 6
  • 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.

70
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."

71
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72
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

73
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

74
Jurisdictional Comparisons
  • 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

75
Jurisdictional Comparisons
  • Mediation Training
  • 200-hour training model
  • Austria (200-365), France (560), Germany (200)
  • 40-hour training model
  • Australia, Denmark, England, Italy, US

76
Jurisdictional Comparisons
  • 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

77
Jurisdictional Comparisons
  • 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.

78
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.

79
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80
Advocacy Survey
  • Negotiation

81
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)

82
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.
  • Reporters Comment 2 the gray

83
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.

84
Negotiation Dynamics
  • Integrative or Cooperative
  • Zero-Sum or Distributive

85
Negotiation Dynamics
  • Win-Win
  • Win-Lose
  • Lose-Lose

86
Negotiation Key Concepts
  • Preparation, preparation, preparation
  • What do you know?
  • What DONT you know?

87
Negotiation Key Concepts
  • Barriers to Resolution
  • Strategic Barriers
  • Principal/Agent (Interests v. Incentives)
  • Cognitive Barriers
  • Risk aversion
  • Loss aversion

88
Negotiation Key Concepts
  • Best Alternative to a Negotiated Agreement or the
    BATNA
  • Simple 1 or .09
  • Complex Multiple moving parts

89
Negotiation Key Concepts
  • Bargaining Zone
  • Reservation Point
  • Prioritized Interests
  • Logrolling
  • Never give anything away for free

90
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91
Advocacy Survey
  • Arbitration

92
Arbitration General Characteristics
  • Adjudication
  • Privacy
  • Informal Procedural Rules
  • Subordination of Substantive Law
  • Finality
  • Adjudicator Expertise

93
Arbitration Basic Concepts
  • Severability
  • Prima Paint Doctrine
  • Kompetenz-Kompetenz
  • 1st Options case

94
Arbitration
  • Terms and Conditions

95
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.

96
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.

97
Advocacy Survey
  • Trial Advocacy

98
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.

99
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?

100
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.

101
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.

102
Stages of Trial Cross Examination
  • The purpose of cross examination is to poke holes
    in the other partys case.
  • Use only leading questions You did not go
    into the store, did you?
  • One fact per question.
  • Never ask a question that you dont know the
    answer to.

103
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.

104
Differences between Civil Trials and Criminal
Trials (http//www.laits.utexas.edu/gov310/JU/civc
rim/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
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