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