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International Lawyering Skills


International Lawyering Skills Prof. Gary Chodorow Beijing Foreign Studies University 2005-2006 Semester II – PowerPoint PPT presentation

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Title: 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
  • Good judgment is the ability to know what actions
    are most likely to solve problems.

  • Ls Job Is to Find Way for C to Gain Control over
    the Situation
  • C wants control.

  • Effective Ls Work to Achieve Specific Goals
  • Cs goal is ultimate goal.
  • L helps clt get there by focusing on correct
    strategic goals.

  • Success in the Practice of Law Depends on
    Efficient Work Habits
  • Must bill a lot of hours to make firm happy.
  • Must make every hour count to make C happy with

  • Thorough Preparation is Essential
  • Motto for this course is plan, do, reflect.
  • Ls ratio of preparation to performance is easily
    15 or 201.

  • Everything Revolves Around Facts
  • Gather Facts Use Facts
  • from C counsel C
  • analyze facts negotiate
  • from
  • elsewhere persuade
  • ct

  • Assumptions Can Sabotage Good Lawyering
  • When Ls make assumptions, they their Cs can get
  • 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.
  • Any assumption should be explicit not unconscious.

  • L Must Be Able to Switch Between Inquiring and
    Persuasion Modes
  • Persuasion mode Act to manipulate a situation.
  • Inquiry mode Interest in exploring things
    regardless of the consequences.

Persuasion Mode Q Didnt the lab tests show this tire disintegrates at 90 miles per hour? Q And didnt your company advertise this tire as suitable for use on police cars? Q Police sometimes have to chase criminals at high speeds, dont they? Inquiry Mode Q Could you tell me everything you know about how this tire was tested? Q What were the results of those tests? Q What did the advertisements say about using the tire on police cars?
  • Numbers Matter
  • Ls work often involves reallocating .

  • Overlawyering Can Be as Damaging as
  • Dont kill the deal by overlawyering.

  1. Good Judgment is Critical
  2. Ls 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
  2. 3.3. Who Decides What?
  3. 3.4-5 What Cs Dislike about Ls / Avoiding These
  4. 3.6 Confidentiality

3.2. Participatory v. Traditional Models of
  1. Traditional Model Views L as Cs champion, C as
    helpless. L more likely to define goals of
    representation to do work independently.
  2. Participatory Model Views L as Cs ally. Treats
    C as effective collaborator. L more likely to dig
    deeper to find Cs goals to work
    collaboratively with C.

How Problems Are Identified
Traditional Model Participatory Model
Legal problems C aware of articulates. Same Legal problems C unaware of or doesnt articulate. Non-legal problems bearing on legal problem. Non-legal consequences of legal problem.
What Facts Does L Gather?
Traditional Model Participatory Model
Facts related to legal merits. Facts related to C adversarys theory of case Facts unrelated to legal merits but relevant to negotiating. Same Same Same Facts unrelated to merits but relevant to counseling (e.g., Cs feelings).
L Emotionally Involved?
Traditional Model Participatory Model
No Yes, within limits.
Cs Role in Solving the Problem
Traditional Model Participatory Model
Passive, helpless, needs Ls protection Answer Ls questions Listen to Ls advice Active, capable collaborator Brainstorm together about facts and strategies.
Office Set-Up
Traditional Model Participatory Model
C sits in small chair in front of Ls big desk. L sits in bigger chair. Sit together at table.
Rationale for Using Participatory Model
  1. C may give L good ideas, catch Ls mistakes.
  2. Promote Cs dignity by making C responsible for
    own choices.
  3. Reduce Cs 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
  • Q Recall interactions have you had with
    professionals (doctor, L, dentist, auto
  • Was it participatory or traditional?
  • Were you satisfied or not with the relationship?

3.3 Who Decides What?
  • U.S. law
  • 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 (contd)
  • 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
  • Still, L required by MRPC to consult w/C on such

  • Consultation w/C wise
  • C may have helpful info.
  • C may see negative impact of tactics on her or
  • 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 Cs opinion about how to
    proceed / L fails to inform C of status of case /
    L doesnt keep promises.
  2. L neglects case.
  3. L inaccurately predicted the case outcome or
  4. L failed to disclose fees costs in advance.

  1. L speaks in legal jargon.
  2. L is condescending.
  3. L talks too much listens too little.
  4. Disrespectful by making C wait or interrupting
  5. L doesnt 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 Cant 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 momentsdivorce,
    dispute w/IRS, bankruptcy.

3.6. Confidentiality
  • MRPC 1.6 L shall not reveal info relating to C
    representation unless
  • C gives informed consent
  • Disclosure is impliedly authorized in order to
    carry out the representation or
  • L reasonably believes its necessary to
  • Prevent reasonably certain death or substantial
    bodily harm
  • Protect L in a fee dispute, malpractice action,
    or ethics investigation or
  • Comply with a court order.

  • MRPC 3.3
  • If C testifies falsely refuses to confess the
    falsity to ct, L must take remedial measures,
    including, if necessary, disclosure to ct.
  • If C has or intends to engage in criminal or
    fraudulent conduct relating to the proceeding, L
    must do same.

Chapter 4. Lawyering as Problem-Solving
  1. 4.1 Solving Professional Problems
  2. 4.2 Strategic Styles
  3. 4.3 The Inclusive Solution

4.1 Solving Professional Problems
  • Most of Ls thinking consists of
  • Diagnosing what is happening now or past.
  • Predicting what will happen in future.
  • Strategy creation implementation to control
    what happens in future.

6 Steps of Professional Creativity
  1. Problem Identification notice define the
  2. Gathering evaluating raw materials Identify
    the causes, obstacles, history, symptoms, and
    significance of the problem.
  3. Solution generation Brainstorming.

  • More on BrainstormingSteps
  • 1. Clearly state the problem where everyone can
    refer to it. State the time limit.
  • 2. Explain 4 basic rules of brainstorming
  • No judgments, evaluations or comments should be
    made about any suggestion.
  • All ideas, even absurd or impractical ones, are
    welcome try to avoid self-criticism.
  • The aim is to identify as many solutions to
    problem as possible.
  • Participants are encouraged to combine ideas and
    to piggyback on others ideas.
  • 3. Record ideas accurately.

  • Solution evaluation Critically evaluate
    advantages disadvantages of each solution.
  • Decision Choose among solutions.
  • Action.

  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
  • Strategy Plan for resolving a problem favorably
    to C.
  • Tactic A smaller piece of a strategy.
  • More..

Class 3Becoming a L (contd)
  • Chap. 5Communication Skills
  • Chap. 6Multicultural Lawyering

Chap. 5Communication Skills

Good Listener Poor Listener
plenty of eye contact no fidgeting uncrossed legs leaning forward open hands a few nods and ah-has a couple of smiles take notes sit down cross legged slight slump into chair generally keep your arms crossed little eye contact look at clock once look at your watch once frown a lot fidget with keys or fingernails

One-Word Conversation
  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
  3. Go down hall for a minute to prepare your story.
    Dont listen in to classroom! Wait til I ask you
    to return.

Chap. 6Multicultural Lawyering
  1. 6.2 How Cultural Differences Can Matter in

Tidbits from Malcolm Gladwell, Blink The Tipping
Point (2005)
  • Wendy Levinson on Dr-Patient Conversations
  • Wendy Levinson recorded hundreds of dr-patient
    conversations. ½ drs never sued other ½ sued at
    least 2x.
  • Characteristics of never sued
  • Spent more time w/each patient.
  • Made more orienting comments, like First Ill
    examine you, and then we will talk the problem
  • More likely to engage in active listening.
  • No difference in amount or quality of info they
    gave patients.

  • Nalini Ambady Listens to Dr-Patient
  • Conversations
  • Took 40-second slices of Levinsons tapes,
    distorted them so cant hear words, just drs
    intonation, pitch, rhythm.
  • Ranked tapes for warmth, hostility, dominance,
  • Drs tended to be in non-sued group if voice
    sounded less dominant and more concerned.

  • Paul Ekman on facial expressions
  • He showed photographs of men women making a
    variety of distinctive facial expressions to
    subjects in Japan, Brazil, Argentina, tribes in
    Far East jungles.
  • Everywhere people agreed on what those
    expressions meant.

Class 4
  • Interviewing
  • Chapter 7 Memory Cognitive Interviewing
  • Chap 8 Interviewing the C

Factors Affecting Accuracy of Memories
  • Observation
  • Length of time witness exposed to event.
  • Did conditions interfere with observation?
  • What witness doing at time of event.
  • Whether witness a careful observer in general or
    of this type of event.
  • Whether witness under stress at time.
  • Witness own self-interest, expectations,

  • Retention
  • Amount of time passed since event.
  • Past experience with aspects of the event.
  • Unconscious transference Blending of memories
    from different events.
  • Contamination of memory by conduct of other
  • Contamination of memory by witness own conduct.

  • Jonathan W. Schooler on verbal
  • overshadowing
  • Brains left hemisphere thinks in words right
    thinks in pictures.
  • Compare 2 groups
  • Group A Sees suspect later IDs him in
  • Group B In between, also verbal describes
    suspect to 3P.
  • Group B more inaccuracies because verbal memory
    displaces image memory.

  • Retrieval
  • How Qs asked.

Juries Eye-Witness Testimony
  1. Fallacy that a confident witness is a reliable
  2. Fallacy that witness who remembers details about
    peripheral matters more accurately remembers
    facts in issue.

Cognitive Interviewing Techniques to Help
Witness Remember
  1. Reinstate context.
  2. Tell me everything.
  3. Recall events in different order.
  4. Change perspectives.

4 Stages of a Cognitive Interview
  • 1. Introductory Stage
  • Goals Put wit at ease, build rapport.
  • Methods
  • Explain wits importance cuz he knows facts.
  • Ask background Qs to show As are easy.

  • 2. Open-Ended Narration Stage
  • Goal Learn broad outlines of story. Identify
    topics that need to be probed later.
  • Methods
  • L reintates context asks tell me everything
  • L listens to whole story with minimal
  • L notes topics to be probed later.

  • 3. Probing Stage
  • Goal Exhaust wits memory on each important
  • Method
  • Return to each important topic youve identified.
  • Use cognitive interview techniques to encourage
    details from wit.
  • Order your questions like a funnel.

  • Start with open-ended questions.
  • Work your way towards closed-ended (leading)

  • 4. Review Stage
  • Goal Let wit know youve understood and give wit
    an opportunity to add/correct details.
  • Repeat your understanding of important info,
    telling wit he can add/correct details.

Chapter 8. Interviewing the C
  1. 8.1. C Intv as Problem-Solving
  2. 8.2. Organization of an Intv
  3. 8.3. Questions
  4. 8.4. Special Problems in C Intv

C Intv as Problem Solving
  • Purposes of C Interview
  • Learn AMAP about facts.
  • Learn Cs goals.
  • Tentatively describe solutions.
  • Form A-C Relationship.
  • Build rapport.
  • Educate C.
  • Help C deal with stressful situation.
  • Enter into a representation agreement.

Intv Dynamics
  • Why C May Not Communicate Well
  • Embarrassmentconfess that problem out of
    control discuss personal issues discuss
  • Stressed about case, possible legal fees.
  • C afraid to tell any facts that may undermine his
  • Class, cultural, age, language barriers.
  • Memory problems.

  • How L Can Facilitate C Communication
  • Show understanding, sympathy respect.
  • Active listening.
  • Nonverbal communication.
  • Try participatory model of lawyering.
  • Ask well-organized questions.
  • Note taking.

Class 5Interviewing (contd)
  1. Organizing the Intv (contd)
  2. Some Difficulties in the Intv

Organization of an Interview
  1. Schedule appointment
  2. Preparing for intv
  3. Ice-breaking
  4. Problem identification
  5. Information gathering
  6. Goal identification
  7. Preliminary strategy
  8. Closing

1. Schedule Appointment
  1. Set time
  2. Give directions to office
  3. Tell C of any consultation fee
  4. Reminds C to bring any relevant documents
  5. Found out basic information about C matterfor
    preparation stage.

2. Prepare for Intv
  • Brief legal research
  • Brief factual investigation on C her business
    for ice-breaking better understanding case
  • Google
  • Lexis
  • Neat office or conference room.
  • Dress well.
  • Avoid interruptions.

  • Secretarys Message
  • Made appointment for Greg Lucchino of the
    Vipers. Wants to discuss his right as a minority
    shareholder to block a companys improper action
    which will hurt the business injure his
  • --------------------------------------------------
  • 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
  • Goals
  • Put C at ease.
  • Begin to build rapport.
  • Expand Ls information base.

  • Methods
  • Escort C to/from waiting room.
  • 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).
  • Get acquainted (e.g., hometown college Cs
  • How Long? Take cue from C.

  • You are a L assigned to represent a 17-year-old
    accused of breaking into old widows 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.

  • 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 Chases 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
    Banks commercial loan department.

4. Problem Identification
  • Ask C to explain legal concern
  • E.g., How can I help you? or Lets talk about
    what brings you here today.
  • (Ask differently if you already know something
    about the problem).
  • Listen to answer with minimum interruptions.
    Remember that participatory model listens for
  • Legal problems C articulates.
  • Legal problems C unaware of or doesnt
  • Nonlegal problems impacting on legal problems.

  • The International Joint Venture
  • (Handout)

5a. Information GatheringOpen-Ended Narration
  • Goal Learn broad outlines of story. Identify
    topics that need to be probed later.
  • Method
  • For cognitive intvs L reintates context asks
    tell me everything question.
  • L actively listens to whole story with minimal
  • L notes topics to be probed later.

5b. Information GatheringProbing Stage
  • Goal Exhaust wits memory (for cognitive intv)
    or knowledge (other intv) on each important
  • Method
  • Good time to discuss confidentiality if C
    inexperienced at hiring Ls.
  • Return to each important topic youve identified.
  • For cognitive intv Use cognitive intv techniques
    to encourage details from wit.
  • Order your questions like a funnel.

  • Example of how to discuss confidentiality
  • Before we go further, I should explain that the
    law requires me to keep confidential what you
    tell me. I cant 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
  • Details who, what, where, when, why, how?
  • How did you learn that? (Identify wit).
  • Do you or anybody else have related documents?
    (Find evidence)
  • In litigation
  • What will C opponents theory of the case
    likely be?
  • Has C talked with anybody else about this subject
    (possible witness for or against C).

  • In transaction
  • History/current posture of transaction.
  • Parties interests.
  • Questions to avoid 3 disasters
  • Conflict of interest.
  • Missing statute of limitations, appeal deadline,
    or other deadline.
  • Failure to protect C from immediate harm.

  • (Handout)

5b. Information GatheringReview Stage
  • Goal Let wit know youve 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

7. Preliminary Strategy
  1. Begin generating possible solutions (altho
    probably cant decide on strategy til do more
    fact/law investigation).
  2. Preliminarily assess these solutions, and explain
    what further legal/factual investigation
    necessary before solutions become clearer.

  • The Legal Malpractice Case
  • (See Handout)

8. Closing
  • Mutual decision about representation.
  • Tell C how best to contact you. Tell C role of
    anybody else in firm who will work on case.
  • Next steps for L Cclear schedule
  • C sign rep agrt pay retainer.
  • C not speak w/others about issue being litigated.
  • C gather documents info.
  • L do factual/legal investigation.

Exercise Divorce, Custody, and Sexual Preference
  • Mutual decision about representation
  • Your decision
  • Can you provide competent representation?
  • Your personal professional preferences.

Exercise (contd)
  • b. Fees
  • Fee arrangements
  • Hourly Fee
  • Flat Fee
  • Contingent Feeillegal in criminal domestic
    relations cases.
  • of Value of Transaction
  • Before begin work, get a retainer (except
    contingent fee cases) sign a representation

Class 6Interviewing 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 -- LS GOALS -- Wit Intv C Intv -- LS GOALS -- Wit Intv
Learn facts Learn Cs goals. Tentatively describe solutions. Form L-C Relationship build rapport educate C reach representation agreement. Learn facts Alter wits memory. Learn how to bolster or attack wits credibility. Make a lasting good impression. Preserve evidence.
Cs Goals ------------------- Wits Goals Cs Goals ------------------- Wits Goals
Win Learn tentative solutions to problem. Form L-C Relationship Build rapport be educated get help in dealing with stressful situation reach representation agreement. Help a party win? Friendly, hostile, neutral. Avoid getting in middle of dispute. Avoid inconvenience of intv, dep, trial. Avoid embarrassment damage to credibility during cross-examination.
9.2 Ethical Issues
  • What is the policy behind the rules?
  • MRPC 4.2 (Krieger p.108)
  • 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 wits story
  • 3. Facts impeaching the wits memory, perception
    or sincerity.
  • Goals
  • 1. Withdrawal of wits statement
  • 2. Modification of wits statement
  • 3. Agreement of wit not to cooperate with other

  • Coercive or confrontational techniques
  • Confronting wit with inconsistencies / other
    versions of story
  • Pressing wit for modifications of statement
  • Use of cross-examination style questions
  • Threats made to wit
  • Condescending/patronizing attitude
  • Other confrontational techniques (e.g.,
    withholding positive feedback, interruption,
    argumentative tone)

  • Deceptive techniques
  • Misrepresentation or nondisclosure of facts or
  • Misrepresentation or nondisclosure of Cs goals
    or Ls goals
  • Other deceptive techniques slanted or biased
    word choice feigned naivete understatements and
    exaggerations of positive and negative

  • Manipulative techniquesasking questions
  • Strategic use of closed questions
  • Strategic use of leading questions (on matters of
  • Strategic use of active listening techniques

  • Manipulative techniques--use of motivational
  • Identity of interests ("we're in this
  • Empathic statements
  • Statements suggesting the possibility of avoiding
  • Statements personalizing the client
  • Statements sharing inside information
  • Use of prefatory statements ("lectures") before
    asking risky questions
  • Other motivational devices (e.g., humor or

  • Manipulative techniques sequencing
  • interview
  • Introductory statement what tone was set and
    what was disclosed?
  • Strategic sequencing of interview to control

Stages of the Wit Interview
  • Stages of Intv
  • Schedule appointment
  • Preparing for intv
  • Opening / Ice-breaking
  • Information gathering
  • Closing

  • Schedule Appointment
  • Intv quickly before memory degrades, opposing P
    creates good impression, or memory is
    contaminated by others.
  • Accommodate wit on time place of intv.
  • For neutral or hostile wit, maybe dont call

  • Preparing for Intv
  • Research witness--likely friendly, neutral,
  • Research ways to create rapport (e.g., same
    church or hobby or alma mater as L or C).
  • Plan topics to cover during intv (Exercise 2).
    If you can research these topics in advance, you
    can ask better questions during intv
  • Facts related to legal merits.
  • Facts related to C adversarys theory of case
  • Facts unrelated to legal merits but relevant to

  • Decide on tactics to use
  • Order of questions
  • How to win over wit to your side or reduce
  • How to deal with problems (refusal to talk very
    old wit doesnt speak English).

Class 7
  • Wit Intvs (contd)
  • Assessment of Class L-C Intvs

Review--Stages of Wit Intv
  • Schedule appointment
  • Preparing for intv
  • Opening / Ice-breaking
  • Information gathering
  • Closing

  • Opening / Ice-Breaking
  • Isolate wit.
  • No leisurely ice-breaking with neutral or hostile
  • But rapport still important.
  • Sprinkle 3-4 sympathetic things about C or
    yourself into conversation as naturally as
  • Opening--See sample opening on Krieger p. 118.
    Basic goals
  • Show respect for wit (apologize for taking time
    explains that wits knowledge is important)
  • Show L open-minded (want to know true facts)

  1. How would you deal with a wit who refuses to talk?

  • Info Gathering Stage
  • Must balance possibly conflicting goals
  • Wait to ask potentially offensive Qs until build
  • Wit may cut off intv prematurely so ask important
    Qs early.
  • If wit is hostile, found out whymaybe use it at
    trial for impeachment.
  • Get all contact info so you can locate wit at
    time of trial.

  • If wit friendly, explain importance of knowing
    good bad facts.
  • If you dont believe wit, choose to either
  • Ask wit to change the story or
  • Say nothing now, but later impeach at trial.

  • Closing
  • Take a written statement on the spot. (See
    Krieger p.124 for format). Freezes witnesses
    memory so cant be manipulated as easily by
    others, but if it is manipulated, you can later

9.5 Who Should Conduct the Intv?
  • Problem L cant testify at trial.
  • Solutions
  • Investigator
  • Ad Can testify maybe less intimidating than L.
  • Disad If unfamiliar with facts law, may do
    less complete job.

  • Other L
  • Ad Can testify.
  • Disad Like invesigator, may do incomplete job.
  • You do intv with tape recorder or ct reporter
  • Ad Can impeach wit without testifying.
  • Disad Wit may be frightened into silence.
  • 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
  • Feedback from Students
  • Video Clips
  • Whats 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

Intro to Counseling
  • Counseling ?
  • Steps
  • Prepare ID Cs goals develop 2 potential
    solutions that may, to varying degrees,
    accomplish those goals.
  • Explain potential solutions so C can choose among

  • Transactional Counseling
  • E.g.
  • Business wants to know how to structure deal, how
    to minimize taxes, or how to minimize legal
  • Family wants to plan an estate or buy a home.

  • Varying Degrees of Formality
  • Advice to C over Phone
  • Take careful notes of facts C tells you.
  • Review your understanding of facts w/C for
  • If need to research law, tell C when you will
    call back.
  • Take careful notes of advice you give. Keep in C

  • Counseling about a Transaction in
  • Formation Stage
  • Process described on Krieger p.218.

  • Dispute Resolution Counseling
  • E.g., whether to file a lawsuit whether to offer
    or accept a settlement.
  • Several methods of dispute resolution
  • Negotiatew/no intention of suing before suing
    after suing.
  • Arbitrate.
  • Mediate.

Counseling as 6-Step Problem Solving
  1. ID the problem How to best meet Cs goals
  2. Gather evaluate info raw materials Research
    law gather facts thru intvs investigation.
  3. Generate potential solutions Brainstorm. Be
  4. Evaluate each potential solution advantages,
    costs, risks, odds of success. Be precise
  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
  • ID the problem How to best meet Cs goals
  • 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.

  • Gather evaluate info raw materials Research
    law gather facts thru intvs investigation.
  • Law
  • State plant closing statute Must give ees 120
    days notice before terminating them otherwise,
    er liable for triple unpaid wages.
  • Worker Adjustment Retraining Act Similar to
    state statute but less severe.
  • COBRA Er must arrange for continued coverage
    under its health ins plan, but at ee cost.
  • State unemployment compensation Pays 1/3 wages
    for up to 6 mo. if ee looking but unable to find
    new job.

  • Gather evaluate info (contd)
  • b. Factsrelevant to ee buyout
  • Zoning Industrial only
  • Many nearby plants have closed found no buyers.
  • Owner still owes property tax even if plant
    closed. Some nearby owners have defaulted on
    taxes, preferring to let govt foreclose rather
    than paying.
  • Plant equipment useable for 10 yrs more. Unclear
    if er can find buyer.
  • Product continually in demand modest profit
    this plant has good reputation among customers.

  • 2. Gather evaluate info (contd)
  • b. Factsrelevant to ee buyout (contd)
  • No ee has significant savings or
    mgt/finance/marketing experience.
  • Corp is exclusively profit-minded, operates no
    other plant in state.

  • 3. Generate potential solutions Brainstorm. Be
  • Get corp to obey state plant closing statute.
  • Help ees with COBRA UI rights.
  • Use protest, lobbying, media to get Congress or
    state legislature to adopt remedial legislation.
  • Find way for ees to buy operate plant.

  • 4. Evaluate each potential solution advantages,
    costs, risks, odds of success. Be precise
  • Get corp to obey state plant closing statute
  • Advantages ees 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.

  • Help ees with COBRA UI rights.
  • Advantages Temporary benefits.
  • Risks None.
  • Costs A few hours to research inform ees of
  • Odds of success Very high.

  • 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 wouldnt be retroactive.

  • Find way for ees to buy operate plant.
  • Be precise practical
  • Need to buy plant.
  • Need mgt/marketing/financial expertise.
  • Need transition plan to avoid losing customers
  • Corp may be willing to sell cheap or lend to
    ees 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
  • Local govt may be willing to assist to avoid
    reduced tax revenue if (a) es unemployed and
    (b) property taxes unpaid.

  • Find way for ees to buy operate plant
  • Advantages Would achieve ee goals of keeping
    job (income, sense of community, job
  • Risks
  • If ees become owners, their could be conflict
    between efficient inefficient ees, since
    profit affected.
  • Other problems?
  • Costs ?
  • Odds of success ?

  • 5. Choose best solution Help C choose by
    explaining clearly balance empathy detached
  • 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 ee buyout is feasible.
  • Cs decide on backup plan to pursue options a b.

In-Depth Look at Counseling as 6-Step Problem
1. ID the problem How Best to Meet Cs Goals
  • Method for goal identification
  • Ask Qs in value-neutral way.
  • Rank Cs goals what C hired you to get.

  • Basic Qs What are ingredients of ideal (worst)
    outcome? How would each ingredient affect you
  • 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
  • Dispute Resolution Goals Money? Injunction?
    Legislation? Vindication? Revenge?

  • Rank Cs preferences something C wants you to
    do or not do in pursuing goals. E.g.
  • Avoid disrupting relationship C considers
  • Avoid calling Aunt Sally as a witness
  • Avoid trial because
  • Opponent opportunity to impugn Cs character at
  • 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
  1. Its not enough to read statutes (e.g., ee
    buyout wouldnt be mentioned).
  2. It helps to gain talk to people w/practical

4. Evaluate each potential solution advantages,
costs, risks, odds of success. Be precise
Best possible Best unsurprising Most likely Worst unsurprising Worst possible
10 odds 20 odds 50 odds 20 odds 10 odds
200,000 net 160,000 net 100,000 net 0 net -40,000 net
20,000 32,000 50,000 0 - 4,000 98,000
  • Stating the Odds of Success
  • Dont imply more precision than you know (e.g.,
    maybe say 10 increments, not 67).
  • 2. Predictions should be frank
    disinteresteddont sugar coat them to make C
    feel better or get C to hire you.

  • Stating the Odds of Success (contd)
  • 3. Like writing a predictive memo
  • Dont waffle (e.g., maybe youll win).
  • OK to qualify your prediction where facts or law
    or law application to facts unclear.
  • Where facts unclear, can make recommendation to
    investigate further, considering the cost of

Calculating Odds of Success Legal Elements Chart
Legal Elements of Battery Cites. Factual Proposition Evidence Source Inferences Between Evidence Proposition
Offensive or harmful contact. Giles v. Smith (Del. 1992). ComplainantDef shouted at me to leave his apartment, he hit me. DefI didnt hit her. Pl testified Def testified Witness I heard def shout. 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
    issuei.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 arent
    always true. Try attacking these inferences
  • Evidence Joe drove toward the doctors office at
    120 k.p.h. Inference Joe was in a hurry to get
    to his doctors appointment.
  • 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 (contd)
  • 0. Prediction should take into account the Ls
  • 1. Prediction should take into account the
    likeability of the parties
  • 2. Prediction should take into account the
    decision makers point of view practices.
  • Judge
  • Jury

Calculating DamagesP.I. Case
  • 1. Special damages economic losses proximately
    caused by injury
  • 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
  • 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

  • Property damages
  • General Damages pain and suffering (needn't be
    denominated as such) simply a "fair and
    reasonable" sum for compensation.
  • Mental anguish
  • Must be medically diagnosable and medically
  • In cases of outrageous conduct, where anguish is
    foreseeable, one can infer anguish
  • Causation issues
  • Mitigation plaintiff must take reasonable steps
    to mitigate injury (including surgery if
  • 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
  • Juries in different communities have different
  • Can look at representative sample of reported
    jury verdicts to estimate verdict in your case.
  • Find on Lexis Source Legal gt States Legal -
    U.S. gt Indiana gt Jury Instructions Verdicts gt
    Indiana Jury Verdict Reporter.
  • Criticism Rely on Ls to report verdicts, but Ls
    tend to only report verdicts that make them look

  • 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

  • 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 executive-type 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
  3. (Of course, before going to trial, youll want to
    investigate whether def has assets or insurance
    to cover potential verdict).

Adjustment to Damages (contd)
  • Assign a Present Value to Future Income
  • PV FV
  • (1i)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)
  • Compensatory damages for physical injury or
    property loss are not taxed.
  • Compensatory damages for emotional distress are
    taxed unless the distress was the result of
    physical injury.
  • Damages for b/k, compensation for lost income,
    punitive damages are taxable.

Class 9
  • In-Depth Look at Counseling as Problem-Solving
  • Counseling Meeting
  • Mood, Setting, Ls Affect
  • Steps in Meeting
  • Special Problems in Counseling

In-Depth Look at Counseling as Problem-Solving
Calculating Costs
  • L feesnot paid by losing party
  • Court feesnot paid by losing party
  • 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

Mood, Setting, Ls 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
  • Review the purpose of the meeting
  • What decision C needs to make
  • Why its important
  • Explain Cs role
  • Why its Cs decision
  • How L can help by explaining for each option the
    advantages, costs, risks, odds of success.
  • C L collaborate in making a decision.
  • L willing to fight for C no matter what Cs
    decision is.

2. Assess both parties interests, rights, power
  • To assess rights, refer to legal elements charts
    rights chart showing strengths/weaknesses of
    each partys case
  • Discuss elements at issue for each
    claim/affirmative defense.
  • 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
  • Now, you can summarize for C the strengths
    weaknesses of each Ps case.

3. Brainstorm About List of Options
  • Even if previously brainstormed about the
    options, at a minimum
  • give a list of the options
  • asking C to refrain from judging options
    prematurely (before evaluate them).
  • 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.
  1. Explain the 5 scenarios

Worst possible Worst un-surprising Most Likely Best un-surprising 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 un-surprising Most Likely Best un-surprising Best possible
Damages . 1. 2. 3. . .
Costs 1 2...
Intangibles 1 2
Net value -15,000
  • Discuss the procedures for litigation.
  • Summarize the advantages risks unknowns of

  • Once you have discussed all options, ask C again
    whether sees any additional options

5. Help C to Decide by Comparing the Options.
  • Best if can options compare side-by-side.
  • It may be too sudden to ask C, Whats your
  • Instead ask, Do you have any initial thoughts
    about which options you prefer?
  • You can if there are any options C prefers to
    rule out.
  • You can ask what advantages and disadvantages C
    sees in each option.
  • Whenever C expresses a preference, ask why?

  • Best to deflect or defer C request for
    recommendation because
  • C may be silenced by pressure to agree w/you or
    by relief that decision made.
  • C may argue with you or find new L.
  • Lose opportunity to brainstorm for better
  • Lose opportunity to better understand C goals /
    preferences that C couldnt articulate earlier.
  • May lose opportunity to confirm that best choice
    being made.
  • This way, C wont later wonder why u didnt
    choose other option (especially if u werent

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 Cs Goals Cant 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 Cs Goals Cant Be Accomplished
  1. Begin by saying you have disappointing news.
  2. Explain in detail why goal cant be accomplished.
  3. Listen to Cs 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,