Interviewing, Counseling, and Negotiating (“ICN”) Outline I.

The importance and interrelationship of interpersonal skills ◊ interpersonal skills is important from identification and development of client’s problem to analysis of alternatives to action. 1. Interviewing – basic purpose is to gather facts and establish a rapport with the client. i. establish rapport and contract for services. a. Empathy – see the world through the client’s eyes. Seeks to learn what the client is experiencing (events, encounters, reactions and feelings) Shares the client’s values or feelings; understands them. ◊ to respond empathetically, the lawyer must communicate the understanding back to the client by articulating the client’s feelings. ◊ pacing, good pace throughout the interview b. genuineness – (sympathy) – to appreciate and understand on an emotional level. i. shown by word choice, listening (can tell listening by follow up question to information received), eye contact, facial expressions, body language. ii. their words match their feelings. iii. embraces honesty, candid w/client and mean what you say. c. probing – d. Concreteness – specificity and clarity in description and narrative. i. Language can threaten concreteness – words like “things, lousy, everything,” need to probe and get more info. ii. client run on – clients avoiding sensitive subjects or scatterbrains. 2. Counseling – to identify the client’s alternatives and priorities and then help the client select the most constructive opinion. i. research and investigation. Gather facts ◊ giving opinions, not telling (don’t tell person to plead either guilty or not guilty). ◊ use of interviewing skills + a. Creativity – think of multiple alternatives for client so they have options

b. Foresight – think ahead of possible solutions or problems which may, or may not, occur. c. Analysis – break down issue for hidden or untold issues d. Explanation – explain options to client in dictum on their level. No use for elevated jargon if not

e. cooperation – make client part of the process – get a copy of driving record, get witness f.
information, etc. advice – if in need of psychiatrist, rehab. Don’t be judgmental.

3. Negotiation – (never get here unless ready for trial) to implement the goals set during counseling. ◊ Achieve client goals. ◊ Resolve issues without litigation. Must use all of pervious skills + a. strategy b. persuasion – present in a way that may possibly read a client to better position without telling. c. conciliation –

- 1 – As taught by Professor Williams

strategy Creativity and foresight empathy

persuasion Analysis and advice genuinenes s

conciliation Explanation and cooperation listening probing

Negotiation -

Counseling - Interviewing

The Role as a Lawyer: Some basic themes 1. The lawyer Roles – a. primary role is a helper. The process of reaching a decision requires a partnership in which you provide understanding, legal expertise, and a structure for decision making. (interpersonal, professional, fiduciary capacity). (negotiation and counseling stage) b. Role as advocate – to defend clients in a variety of forms. – negotiating, gathering facts, witnesses, scanning, screening, formulating theories. (generally grouped together as planning and drafting).

c. The professional Mask – there is an overlap between private self (morals) and
professional roles and responsibility. Must separate between legal and personal life.

ii. iii.

the job of the lawyer IS NOT to approve, or disapprove, of the character of his or her client, the cause for what the client seeks the lawyer’s assistance, or, avenue by the law to achieve what the client wants to accomplish. The lawyer’s task is to provide that competence which the client lacks and the lawyer possesses Legalism – the ethical attitude that holds moral conduct to be a matter of rule following. Not necessarily a good thing. EX – Lawyers once argued the separate but equal doctrine was constitutional without addressing the morality.

- 2 – As taught by Professor Williams

transference – taking on in the patient’s unconscious the persona of a figure from the repressed past or from fantasies. The ego employs a number of defenses to bar unpleasant experiences or defuse there impact on the consciousness. Watch for counter-transference – attributing an identity from his or her past to the patient. and parental teachings internalized by the person. iv. termination of treatment. 4. defenses from ego or super ego can prevent information flow from patient. “ego” mediates between competing internal forces and the external world. moral. Steps in psychoanalysis initial phase – identify the problem and determine of psychoanalysis is appropriate ii.Chapter 2. Utility for lawyers and limitations – can not perform psychotherapy but can recognize i. The pleasure principle – people’s overriding drive is to seek pleasure and to avoid pain or unpleasantness. ◊ Freud saw humans as essentially negative. a. repression – individual entirely blocks out a painful experience rationalization – (most common) describes a post hoc placed by the ego onan unpleasant event to make it appear for the best. ◊ They would dominate if left totally unrestrained by society and feelings for others. v. vi. When discarded by those who care for him. selfish. “id” – represents the innate. Psychosexual stages – critical for personality development i. f. 3. iii. phallic latency genital iii. Oral Anal – (8 months – 3 years) – child derives his main source of physical pleasure from stimulation of the anal erogenous zone and from activities connected with the retention and passage of feces. Helps patient to understand unconscious manipulates present perceptions iii. Projection Regression Compensation Intellectualization Denial e. . c. child may lose self esteem and grow stubborn and rebellious. vii. b. i. i. Psychoanalysis (FREUDIAN) – sees the personality as an arena for conflict. A person’s actions and thoughts reflect a conscious effort towards pleasure. d. Prepare patient for life after analysis v.3 – As taught by Professor Williams . determinism – personality development and mental processes (both conscious and unconscious levels) result directly from past experiences. The child sees the feces as an extraction of self and thus valuable. primitive. v. ii. problems and refer them to specialist/use therapy for benefit in case. “super ego” – comprises the societal. ii. aggressive. and sexual instincts in the individual. Helping Theories 2. iv. iv.

. and segregated entities within the personality.more directive than the others. They develop through experience a self concept witch os “organismic” ii. unconditionally positive in his or her regard for the client – exercises not judgment about the clients values. for the approach to work – Roger’s has identified: i. ◊ Rational-Emotive Therapy – (RET) Along with reality therapy – has cognitive basis – faulty thinking leads to anxiety and that people need to restructure their thinking in order to correct anxiety. and Rogerian’s that people have expansive self actualizing resources). ◊ people are born with rational and irrational.” A. empathy toward client – see empathy above ii. ◊ Behaviorism – focus on clients actions and behavioral patterns rather than their feelings and thoughts. Goal is to help each client identify his or her self concept but not to reshape it. The ABC theory Intense emotional consequences (c) following a significant activating event (a) the person may think A caused C. “nothing’s bad.” ◊ Transactional Analysis – “people are born princes and princesses until their parents turn them into frogs. When there is a conflict between organismic needs and self regard. Different from Freud because are evolving. iii. A response to certain stimuli. – Conditions of worth (derived from family and societal mores iii. and experiences. but thinking makes it so. Limitations to Roger’s Approach i. then attempts to alter or extinguish the response through reinforcement or occasionally punishment to shape a more desired pattern of behavior. . the therapist begins to identify the stimuli that produce the undesirable behavior. . 1. . constructive and destructive potential.based on premise that all behavior is a function of preceding events. i. must focus on analysis of legal issue at hand and refer person to therapist for substance abuse and other problems. A. instead cause anxiety and provoke defense mechanisms to subvert and maintain self regard. (agree w/ humanist.◊ Person Centered Approach – (client centered and Rogerian approach) – individuals can best develop and grow toward their full potential (self actualization) when facilitated by a relationship with a helping person who is empathetic. Organismic needs to not disappear. every person possesses an innate drive toward self actualization. conscious. needs. a. and non judgmental. Genuine ◊ All similar elements to interviewing above. feelings.4 – As taught by Professor Williams . People function through 3 active personality states. However belief systems (b) are largely the cause of emotional consequences. (people are naturally good). genuine. yet they view it as a collaborative approach. as a lawyer.when clients want to change the behavioral patterns. also develop self regard – how others see them. the self regard needs typically take over.

Either critical or nurturing adult – provides maturity. beliefs. and realism child – comprises the rebellious and nonconforming aspects of the personality. attitudes.5 – As taught by Professor Williams . 3. . parent – introjects and identifies with the person’s own biological parents. Also creative. and 2. Expresses values. logic. intuitive. and emotional components.1.

Legal Problems clients are unaware or do not articulate. ◊ listen to all issues of the client.reaching for a briefcase or shuffling through papers are signs the client is ready to get started. ◊ after arranging furniture in an appropriate way. eliminated interruptions. when the client is seated.5(b) when lawyer has not regularly represented the client. water.Chapter 3 the Goals of Interviewing A. before a reasonable time after commencing representation. (3) Preparing for the relationship – consider appearances and timing. ◊ to determine if I should go right to business or continue ice breaking – use the client as a barometer. but know they need help. Part of being a lawyer is to evaluate issues. It is ok to continue ice breaking once the client is seated. C. Anticipating client’s attitude and adjusting own demeanor. Chapter 4 – Anatomy of the Initial Client Interview (1) Preparing for the law – a good questionnaire given to the client allows the lawyer to research relevant law and will make it more difficult to miss important. Legal problems clients are aware of and articulate – may not always know the exact legal issue. ◊ open ended questions – how can I help you today? Or if you have an overview of the problem. the basis or rate of fee shall be communicated. offer soda. 73). Not all issues are given. Ice Breaking – has both client centered and lawyer centered goals. Client centered – making the client feel more comfortable Lawyer centered – expanding the lawyer’s information base. Non legal problems affecting the legal issue II. “I understand you have questions about… why don’t you start from the beginning and tell me about the problems you are having and how you’d like to see those problems resolved. . Take time to listen and to identify all the elements. tea. Obtaining Relevant Information I. legally relevant questions during the interview. Fees. Problem Identification – what questions to ask to get the most information. B. Scope of Inquiry the client eager to get started with business or is more time to get acquainted more appropriate. cleaned area. preferably in writing.6 – As taught by Professor Williams . .Modern Rules of Professional conduct – 1. Identify issues or topics in clients response to open ended answers and place them in order they are to be pursued. (see pg. (2) Preparing for the facts – often difficult to do because you are not provided sufficient information before you meet them. Establishing an appropriate attorney-client relationship. those hours are un billable. However review a hornbook or a quick review of something. . ◊ don’t spend too much time.

(William’s disagrees w/ book. The person is setting themselves apart from a person or situation. Always use some legalese in an interview (just to prove you’re a lawyer) ◊ don’t talk down to client/don’t talk over the head/but don’t be afraid to use legal language . and volume) other than the actual content of speech) Chapter 7 Verbal Techniques and Probing Skills (chapter 7 and 8 specifically addresses clients for interviews) The Role and Significance of Language ◊ must learn to recognize inadequate responses and probe deeper (could lead to worthless and inadequate research) .establish or achieve immediacy – directness – (what brings you to my office?/ How can I help you?) and encourage the client to do likewise. Find out what they mean. 6 things that point to immediacy derived from the language within the language face to face interviews must be aware of impressions you are giving to client. When a person uses such language – probe someone. (1) the medium of communication – face to face is the most immediate. Then either the lawyer or client uses temporal spatial awareness. I (close) it (distant). – too much concern on note taking will cause you to loose much nonverbal information. “those people” selective emphasis – a general description followed by a specific description.Chapter 6 Nonverbal Communication and Techniques Proxemics – the importance of spatial relationships to communications The way the room is set up for an interview (see page 135) I like Figure (2) Work chair TABLE My Intervie w chair Interviewee chair Kinesics – body movements (or the failure to move) as a communication device ◊ eye contact is a prerequisite to receiving most nonverbal information and a means for transmitting valuable information. (Word selection is important) . . tone. Informational stuff goes in person. Paralinguistics – vocal phenomena (pace. pitch.7 – As taught by Professor Williams . Give bad news and good news in person.language level – avoid legalese as much as possible. ◊ the use of person pronouns.all communication (either on a subconscious or conscious) is important. (2) spatio-temporal indicators give evidence of attitude toward subject Can get feelings of a client from inclusion or exclusion of other’s and/or places. Some things have to be explained.

Plan your conduct to the interview ◊ can always look up the area of the law – just look up the general area. (2) Non responses – respond by either more open ended questions or closed ended questions. but not all of what is needed. (6) the usage of automatic phrases. Lack of vocabulary or inability to articulate feelings. – when the speaker focus on specific objects out of a group of objects. – the person initiating the action is the agent..(3) descriptive terms relative ambiguity “denotative specificity”. ◊ prepare for the interview knowing I should address certain issues. highlighting. distorts. Need empathetic probing and professional help. his friend. words. (4) selective emphasis of verbal variant. The use of passive and active voice also effects it. um. (“uh. Daughter to be. directive questions. (1) partial responses are most common – provide some relevant information. If lawyer ask clear question and client says “huh” implies negative effect. John hit Sally. the person. she. Rambling clients call for more topic control. Also. have time to develop strategies to deal with situation. When anticipated. or fabricates information. (7) Psychological factors limit information. (3) Irrelevant responses – (4) Inaccurate responses – most difficult to identify Reasons for inadequate responses (1) client fails to understand the question – just repeat or rephrase (2) client does not realize full breadth of information requested – leads to inadequate response – cure by follow up probes (3) lacks ability to articulate a complete response. his fiancé. like just. or isolating.out of habit. it we. ok. (5) Does not remember requested information – (6) Client consciously conceals. implies different fault. right. I . Deceit must be confronted. Can focus by sequencing. that thing.”) ◊ can show negative feelings in client. . Pronoun usage. oh. Developing objectives and planning the interview – 1st and subsequent interviews (1) why are you doing interview (2) what do you hope to derive (3) what do you hope the interviewee derives. the recipient of the action is the object. you know. they hit each other.8 – As taught by Professor Williams . Anticipate any inhibitors – shame. Sally hit John. (5) – the speaker’s agent-action-object relationships can be significant. your son’s fiancé. I drove the car rather than the car was driven by me. Probing in context – dealing with inadequate responses ◊ must set interview that: (1) promotes relationship with clients – set up structure (2) achieve object of receiving information ◊must be aware that the person is not receiving adequate information partial response – how do u know it is partial – silence after question or refusal to answer – ◊ irrelevant response – ◊ inaccurate responses – maybe the most difficult to deal with – deal with the inaccurate response while it happens. omitting. denying. instead out of need to necessitate anything. the. Probes must do the filling in (4) client can not maintain focus and looses grasp of what is relevant.

must use because you have to have detail. when. (1) Open ended questions – allows client to answer as much as they want. education effects ability to handle topic control. how many Interpretation/Explanation Why. Probes – read page 162. tell me about it Request for specified information Did. Open-Ended Questions and Client Interview Funnel example on pg. (2) subject of interview and type of information sought .9 – As taught by Professor Williams .the more experience a lawyer has – the more the lawyer will dictate with close ended questions. will. where. (3) type of motivation sought – open ended questions sometimes gains trust. Appropriate breadth of questions and how much topic control to exercise or surrender turns on: (1) the objectives of the interview – if gathering facts and learning about client – open ended questions are best. has The facts Who. (2) And closed ended narrow questions . intelligence. what is discussed. (4) the identity of the interviewee – age. (5) competing time demands – if limited time may have to assert informational priorities on interview Request of unspecified information What happened. was. for how long. how much. May need to use when client is not responsive to open ended questions are not working. 169 Nature of harassment Touching Remarks Bosses Inaction Client’s complaint’s Bosses’ Responses Nature of workplac e . and in what manner.Topic Control and Breadth of Questions Topic control refers to control of the conversation in the interview. how Type of motivation sought – what is motivating the client to come to see you. closed ended help when not getting relevant information. More experience takes charge more.

(8) Trauma .ask for yes no answers and typically suggest what the appropriate choice is. (2) Encouragement Probe – hmmm.break up of romance. Must use patience and understanding. Chapter 8 Psychosocial Influences on Communications Inhibitors of Communication (1) ego threat – when the subject of discussion threatens the interviewee’s self esteem.Natural Probes (1) The Silent Probe – allows for client to give more information. (4) Bias – racial or sexist stereotypes. Also. Counter by using empathy and explanation. can you tell me about them?” Non Neutral Probes – (1) Clarification – seek specific additional information about specific points in proceeding answers. “then what happened” (4) Retrospective Elaboration – open ended probes that refer back to something previously raised by the interviewee. EX – an accident witness resists discussing the interview if it occurred as he emerged from a peep show. (3) Conformance to social norms – some people expect the lawyer to dominate. exposing them. conveys that you are listening (3) Immediate elaboration – open ended questions that ask the client to further elaborate on the topic under discussion. and seek professional help. not willingness. you feel…because) and seek confirmation of particular facts. men and women are reluctant to discuss sexual matters in public. The information you have given me was helpful. un huh. “earlier you told me this. (10) Unconscious Behavior – (1) custom or habit. Counter by assuring about confidentiality. (5) Leading Questions . Ease transition with an introduction. (2) Recapitulation – organizes thought. death. You go to church every Sunday don’t you? Exert the most stringent interviewer topic control. reactions under distress. really. Should sit up and attentive. gives client opportunity to correct any misunderstanding (3) Empathetic Reflection – reflecting on client’s feelings (4) Mutation – changes the subject from a matter previously discussed. Also used to convey empathy “you recall. Takes time. (2) reactions to many subliminal. (2) Case Threat – when client’s perceive that disclosure of certain information will harm their case. I see. (5) Competing time demands (6) Environment – see spatial awareness above. nonverbal cues. (7) Perceived Irrelevance and Greater Need – when clients are unable to see the connection between their case and your questions or clients may become impatient when the client feels there is a greater need than what you are focusing on. and proving their premises inapplicable or wrong. (9) Memory Failure – the one effects ability to communicate. but I also need to know about your previous driving history. accident. .10 – As taught by Professor Williams . Acknowledge the sensitivity of the subject and the differences between yourself and the interviewee.

Appreciating their circumstances or troubles. The opposite of the ego threat inhibitor. (1) Helping relationship – refer to chapter 5: (a) empathy – encourages the interviewee to open up.11 – As taught by Professor Williams . ◊ don’t be deceitful regardless of what book says. clearly explain at the outset of the relationship that the client should work with you as a partner. (b) Nonjudgmental acceptance – important when topic of discussion may threaten the respondent’s self esteem. ◊ make recognition to the merits of claim and not the issues of the case. The plan requires consideration of: facts establishing the existence or nonexistence of the substantive elements entitling the plaintiff to relief (ii) facts corroborating the client’s version of the case. Basic Principles of Interviewing (1) Interview Witnesses Pursuant to a theory of the case and a fact-finding gathering plan. it also means approval. Recognition means more than acceptance. “a person feels better when he gets something off his chest. (c) Positive relationship – global impressions conducive to full and honest information flow.” (5) Fulfilling expectations – interviewees respond positively when you articulate their expectations. (7) Environment and conformance to social norms.” ii. (iii) Facts constituting the adversary’s version of the case (iv) Facts contradicting the adversary’s version of the case. Chapter 9 Witness Interviews ◊ lawyers should not interview witnesses by themselves. ii. (i) (2) interview witnesses as soon as possible (3) Prepare as much as possible of each witness interview – includes 6 steps: . Brief clients on three levels: i. environment is important. A. Assert explanations as you and the client discuss facts and issues reflecting confidence that expectations will be met. (6) altruistic appeals – appeal to sense of right. Can be shown on two levels: i. specific statements of praise or appreciation “your description of the accident was very good. (3) extrinsic rewards – that which brought the client to your interview. (2) Recognition – esteem as distinct from affection. (4) Catharsis – the process by which one person obtains a release from unpleasant emotional tensions by talking about the source of these tensions and expressing his feelings. What agenda and expectations you have set for the day iii. Client’s must know you still value them. Nonverbal expressions and general statements of sincere regard.Facilitators of Communication – an overview psychosocial influences that facilitate fact-gathering and rapport building.

in counseling you gather facts. c. and leverage points that can be used for people unwilling to talk. ◊ factors: a. Understandings of feelings help. Try to comfort or compel if necessary. set informational goals and agenda – review the theories of the case and accumulated facts to produce a list for probing. ◊ insert empathy when appropriate. build rapport. Probing – use the open ended questions and the use of funneling sequence Dealing with Inhibitors . learn about the subjects to be discussed – not always east before interview V.I. VI. Continue to gather information. ◊ organizational clarity Friendly witnesses – may be too friendly and reconstruct facts – warn of consequences. Need to determine: (4) (5) (6) (7) Lawyer must have: Client’s priorities Other informational sources ? Potential alternatives to achieve client’s objectives . hostile witnesses. Generally travel to neutral/indifferent witnesses Opening – keep small talk short if anticipate or feel time is an issue. ask later in the interview ◊ consider relative significance of probing topics. also. and friendly witnesses B. identify other goals – rapport is important III. ◊ a follow up interview to make sure you have ALL the information. II. Deposition is sometimes the only way to compel. and help the client reach a decision and select action steps. talk about a subject the client is familiar with. and it is better because the response is on record. Allocate enough time for an unrushed and careful exchange. i.◊ note rule 4. Important questions should be asked early. ◊ information gathering – plan probes (1) the degree of threat posed to the client by the questions (2) the importance of sought for information (3) organizational clarity ◊ if hostile questions need to be asked. anticipate problems – See indifferent witnesses.12 – As taught by Professor Williams .probe about what the problem is.3 of the rule of professional conduct. d. facts and rapport. plan tactics – nature and order of questions. location and time – should be convenient and private to allow for thorough and candid discussions. Hostile Witnesses . b. Indifferent Witnesses – neutral 3rd parties with no stake in the case and no ax to grind. Counseling Chapter 10 – interviewing gather facts and build a rapport. techniques for bringing witnesses on your side. ii. gather information on the interviewee – not always easy before interview IV. Skills needed: (1) Analytical skills (2) verbal skills (3) Personal skills – maintain objective skills while client is emotionally changed.

good. and steer the client to enhanced understanding. (4) Note the positive and negative consequences of each alternative to ensure that the client fully considers the total impact of his or her decision. instead of client centered. Developing a language of prediction Certain. (6) plan the format for the counseling session (7) think through what helping techniques might be appropriate during the counseling session. percentages 0-100. (5) Plan for in-session probing to accomplish three interrelated objectives: iii. (8) Prepare visual aids for the client – (Williams does not use this one) B. Variables to determine effectiveness of self disclosure (1) content –how ell you accurately analogize to a significant issue. 2-1. you convey and clarify information (through substitution of lay terminology with legal). Allows client to engage in introspective (4) Client’s role is to provide information.(1) expertise in the law (by the second visit) (2) experience – not necessarily legal experience – life (3) OBJECTIVIY – client’s come to seek someone who does not look at things from an emotional standpoint. ascertain the client’s reactions to the possible consequences of the identified alternatives v. Be careful in client self disclosure – when the lawyer describe feelings or experiences they have that are analogous to the clients. clarify the client’s priorities iv. Chapter 11 Helping the Client Reach a Decision A. Use for clarity and accuracy are important. search within themselves. ◊ don’t want to become lawyer centered. investigation. (4) Duration – only as long as it takes to make the analogy. § in counseling. and suggest discussion points for analyzing the client’s problems or alternatives. Need to verify what the client says. 10-1. poor. give guidance. Don’t disclose what you have done in a similar case. cure informational gaps and ambiguities. A. very good. very poor. fair. We determine the methods to get those accomplishments done. (2) clarify goals before counseling session (3) scan your research. Lawyer’s Role in Decision-Making ◊ a lawyer’s role is to identify alternatives and help client’s identify situations. excellent. Advanced Empathy – . impossible. and experience to identify alternatives for the client – consider both legal and non legal. provide emotional support.13 – As taught by Professor Williams . accept ultimate responsibility of making decision – don’t tell us want to do but what they want accomplished. and reach a decision. express understanding. exercise judgment. (2) Timing – if done to early. or mathematical 50/50. Preparation for a Counseling Session – a step by step approach (1) research the law and investigate the facts – done before filing pleading and before decisions are made. the lawyer will seem egotistical and pre-occupied with himself (3) frequency – same effects as above. Need to have correctly identified empathy to find correct analogy.

mastery. attention. attacking manner Confrontation should be used to : (1) enhance client self exploration and self understanding – i. status. or goals. empathetic. competence. .14 – As taught by Professor Williams . confront client about conflict client looks deeper for meaning then able to articulate feelings lawyer makes decision about appropriate course of action (2) spur action – that gives effect to the insights. confidence. recognition. ii. reputation. respectful. values. iv. iii. (paralinguistic effects) (5) Attacking (rare situations) (i) has resisted all lesser measures to force a decision – any decision ◊ refer client to expert for therapy make decision for client based on descriptions of his/her priorities and common sense withdraw from representation Chapter 12 Conflicts in the attorney-client relationship (psychotherapy issues) ◊ Esteem Needs (1) desire for strength. adequacy. independence. and genuine counseling. and freedom (2) desire for prestige. Must confront to get correct empathy. dominance. Ineffective consolers use of confrontation: (1) avoid it entirely (2) confine to non threatening or neutral topics (3) confront in aggressive. (5) Articulating the implicit – articulating the implied or (6) summarizing core material when the client is rambling (7) synthesizing – identify overriding themes or patterns from the sum of your client’s discussions. should not be used in early stages of lawyer-client relationships (ii) use advanced empathy language (iii) use nonverbal accompaniment to confrontation must be consistent with caring.i. ii. (2) Be sensitive to discrepancies between client’s articulated values and client’s behavior. ◊ also used in advanced empathy when inconsistent in the client’s facts or priorities. – (3) Confront client’s when they rationalize – avoid a situation (consistent tardiness for work) (4) Methods and Limitations – (i) if not used for clarification of factual issues. or appreciation (a) moves individual to assume leadership roles. iii. achievement. importance. Self worth is low or too high. (3) ensure accuracy – to choose appropriate action Content – (1) appropriately confront clients when you detect discrepancies between apparent reality and your client’s expressions or feelings. (8) Language of advanced empathy – let me see if I can summarize… I wonder if… If I understand what you have told me… Confrontation – means the consoler’s presentation to the client of some apparent or implied conflict.

The lawyer sets the expectations in the interview and counseling. need for power need for achievement need for association need for order Similarities Between Negotiating and Interviewing and Counseling Helping and probing techniques. Also. The elements: (1) Game – any situation where two or more people compete (2) Rules – all the initially available data that specify how the players use the resources under their command. game theory only assumes two moves. The differences – must modify the skills because the client on the others side is a person you are not developing a relationship with the person. empathy and active listening skills. verbal. (3) Strategy – the moves available to a player through out the course of a game. (4) Payoff – outcome of any game • The precision of the game theory is the strength and weakness. analytical. (7) Make adjustments for next time. . planning. there are many moves. ordering of questions. stimulate other parties motivation. Competitive Cooperative model Adversarial Model How do you ever determine if you are a successful negotiator? It should never be about what the client thinks you did. Chapter 15 Theories of Negotiations The Game Theory – applies in monetary and non monetary situation. interpersonal skills Chapter 14 Introduction to Negotiation – Conscious of inhibitors Personality Traits Facilitators of communications Biggest problem in negotiations is that there is another competent person disguising weaknesses on the other side and exposing your weaknesses. sequencing of topics. Mostly lawyers.(b) (3) (4) (5) (6) Can be negative if predominates lawyer’s personality. in reality. (4) Whether or not you are intimidated by the other person’s lawyer (are you in awe of the other person’s lawyer). (3) Persistently test own feelings of the case. (client knows what options are and what is available). To determine if it was successful: (1) make sure you engage client in counseling in client centered approach (be honest with client in realistic way (2) engage client in discussion what strategies and tactics. (5) Did you plan in detail for the negotiation process (6) Objectively analyze your preparation.15 – As taught by Professor Williams .

2 set in bargaining ways. Planning Adversarial negotiators – proceed linearly to develop their plans Problem solver negotiators . Aggressive vs. Mainly deals with money Advantages – focus on more dynamic model resembles actual lawyer negotiations. reduces dead lock. powerful. joint outcome Adversarial and problem solving by Menkel Meadow – (5) what are the underlining goals of negotiations . • Certain situations which make it to difficult to use technique. Transactional – private rule making agreements between parties achieved through negotiation.focuses on identifying needs and brainstorming to develop solutions for mutual gains • bring greater satisfaction to both parties • easier to implement • greater appreciation for the role of information in the process. • Chapter 16 – Lawyer’s Negotiation Negotiating style: competitive and cooperative Negotiating strategy – the conceptual approach adopted by the negotiator. ◊ Strengths and weaknesses from both models ◊ Williams is initially always cooperative and aggressive towards the end when he is not getting his way. Does not require perfect information Do not assume absolute rationality. Disadvantages – • can not be used solely with money • Takes more time and thrust parties into uncomfortable relationships. increases understanding.Economic Model – Two parties whose utilities remain stable over time The settlement zone exists where each party will agree. agreements take less time to achieve. Disadvantages to competitive – creates tension. Disadvantages – too much attention as to what happens instead of why it happens Bargaining Theory – the theory is premised on the existence of imperfect information and strategic interaction between or among the parties to the negotiation. Too rich. Cooperative moves psychologically toward opponent. Cooperative – advantages – nature is to be tolerant. tactful – book runs across the grain but need trust worthiness and cooperative negotiator more than aggressive.16 – As taught by Professor Williams . Planning/transactional matters – most attorneys do this. encourages mutual understanding. Style and strategy Conceptual approach to deal with situation Style and strategy combinations – when blurred they remain blurred.

Anything that relates in any conceivable way to the parties… (1 st paragraph on 407. (identify goals) 2) Probe for information – reality is that will not receive all information needed (either from client or opposing client) i. evaluate needs ii. create appropriate exchange structure iii. ◊ does it matter if you use the adversarial versus the problem-solving negotiators. build resistance so you won’t follow same pattern. i. and Management of Information Information is negotiation specific. Assessment during the information stage (1) ? (2) can you accurately predict (3) can you figure out what they believe very important during he negotiation stage. figure the manner in which you want to communicate information (your facts) to another. See exercise on page 408-9 Layers need to guard against: (1) ask if you are a person who hates to ask sensitive questions. ◊ should select style and strategy best situated for the situation. i. Selecting a style/strategy combination – just because you initially select a style strategy you don’t have to stay with it. (protect) Next: decide the value of information to set agenda to negotiation stage. ii. See page 406 (top) for detail. Chapter 17 The Assessment Stage with respect to negotiation ◊ the key to negotiation is planning. 6 factors on page 402. 1) Plan to achieve a particular goal.(6) one you select strategy must select style (already selected based on needs) (7) select tactics to be used Chapter 15 has the model and graph for continuum Style and strategy combinations Competitive/adversarial – very high risk of deadlock Cooperative adversaries – rigid but no rigid Courteous – Competitive problem solver – problems which must be solved opposed to resources which must be divided up. The Meaning. Preventing the opposing party from discovering weaknesses in your case. Sentence in last line before C. ) Three categories of information: Information you want to get (need) Information you want to give Information you want to guard.17 – As taught by Professor Williams . Role. Evaluate the style and substance of opposing party. the tendency not to ask sensitive questions will lead to not obtaining the correct information . need to prepare for time/detail/thoroughness ◊ Preparation – your ability to control the critical information during the assessment phase. If so. There is nothing wrong with changing style and strategy.

must be valued iv. Williams likes 1st 3 (i) answer a question with a question (ii) over or under a question – give too much or too little answer G. May hurt in negotiations if you give information that needs to be guarded. u may notice opponent doing things they shouldn’t. i. (could give reasonable answer why it is not being disclosed. (use when they are going to find out anyway). must be prospective (3) promise The steps to the argument process . elements of a threat: i. (pg. share the answer when it can be used against you. F. take full advantage of it Planning to obtain needed information (repeat of interviewing) ◊ key skills – (listening and probing) ◊ make sure the sill of active listening during interviewing is carried over to the negotiation and counseling . Planning to give information Chapter 18 the Role of Argument in Negotiation The most important parts of persuasion in negotiation are: (1) appeal (2) threat a. Books tools: (1) answer a question w/ a question (2) over/under answer a question (3) answer another question (4) rule the question out of bounds (5) ignore the question and change the topic Difference from lying and nondisclosure How do you construct a response to a probe which you believe to be damaging to your client’s case.(2) lawyers like to answer questions. ii. (1) honest answer i. Repeating what a negotiator said means you listened and understand that is the position they bargained for.nonverbal cues and all that other shit. When lawyer is being evasive: (1) Tell opponent info is critical and failure to respond will end negotiations (2) confront opponent with their evasiveness and explain why it is important. Helpful info should be shared but sensitive should be protected. must be communicated ii. must be understood iii.18 – As taught by Professor Williams . must be believed v. 5 types. Planning to Protect Sensitive Information (1) have a duty not to disclose because negotiations will not work. Should be aware that if you are doing a good job of observing opponent. (2) Lie – if lie there goes your reputation in the legal sense and professional sense. (blocking inquiry) – shows that it requires additional probing. 418) (3) make the other into believing they answered the question when you really didn’t. ask if you are harming case by answering questions that need to be guarded.

come up with shared interest and conflicting interest (4) search for solutions . ◊ suggest you should do a chart for every issue. essential needs of client and other party ii. 477) should reflect not only your range but the anticipated range for opposing party.(1) identify a norm that can be applied to the issue or negotiation (2) expand on a normative standard 6 characteristics of a convincing negotiation argument (1) detail (2) multidimensionality (3) balance (4) subtlety (5) emphasis (6) emotionality Chapter 19 – the exchange stage – preparation – The exchange of the OBJECT of the negotiation (usually money) ◊ will only get to the exchange stage (cutting the pie) by: (1) getting effective control of the information and (2) plan how you will persuade the opponent.19 – As taught by Professor Williams . 2 components (1) preparation before entering the room (2) implementing it before entering the room. 480 top) Planning ideas for the exchange stage for the planning party and opposing party (1) inventory (2) classify i. i. Planning for exchange as an adversarial negotiator – maximizes client’s gain and minimizes the losses The planning of adversarial bargainers must involve: (1) itemize what the issues are (2) calculate some mathematical way to value each issue (3) creation of some means to measure the client’s gains and losses by issue adversarial negotiator must plan for 4 categories of moves along the bargaining continuum: (1) opening offer (2) target point (3) commitment or concession point (4) resistance level ◊ the chart (pg. (turn everything into a fungible item [money] bottom of page 477 Panning for exchange as a problem solving negotiator (1) classification (2) clarification (3) encourage and assist creative thinking (pg. what is desirable (3) compare the needs of the parties.

keep taking them is they are offering. mixing favorable and unfavorable facts c. b. problem solver Legal Letters Chapt. who makes the first offer: adversarial (3) Who makes the first offer i. justifying the offer (making concessions) maintaining credibility and ego. (4) when should the first offer be made – during the negotiation which is ongoing (5) the size of the offer: adversarial – pg.20 – As taught by Professor Williams . .Chapter 20 The exchange stage: Implantation Stage (1) the role of the agenda in negotiation i. if your client has strong feelings. and ii. addressing the above questions involves: (1) summarizing your clients factual and legal situations a. In the actual counseling session. If there are frequent concessions. be brief and focus on key facts b. the problem solver should try to make multiple offers (pg. 498 (6) the opening offer: the problem solver: i. ♦ at the end of the factual summary ask: is what I’ve described a fair summary of your situation?” (2) refining and clarifying your client’s objectives (3) identifying potential options for achieving your client’s objectives (4) discussing the pros and cons of each option (5) helping your client decide which option to choose (6) implementing your client’s decision. adversarial usually don’t make the 1st offer. (someone has to when both are adversarial). adversarial: i. confirm your understanding of your client’s overall situation. agenda control (2) making and meeting offers i. include your understandings of them in your summary. The primary purpose of the summary are to i. d. being specific iii. 501) (7) how to communicate the offer: a. be brief ii. the client and I must address 6 interrelated questions: (1) (2) (3) (4) (5) (6) what is the client’s legal and factual situation what are the client’s objectives and goals what legal and non legal options are available to the client for achieving the objectives what are the pros and cons and likely outcomes of each option which option should your client choose how will the option chosen be implemented ♦ 1 and 2 will be answered in the initial interview ♦ 3 – 6 will be answered through a development of meetings with your client. set the state for putting his situation into its applicable legal context. be balanced. Might realize pattern. 5 Decision Making and Implementing a decision The Process of legal decision Making ♦ when counseling the client in decision making.

21 – As taught by Professor Williams .The rules of professional conduct require: (1) abide by the client’s decisions concerning the objectives of the representation and consult with him as to the means by which they are to be pursued (2) explain matters to your client to the extent reasonably necessary to permit him to make informed decisions regarding the representation (3) exercise independent professional judgment and render candid advise. .

meeting w/ other people) (7) deadlines (8) fees and cost (9) conclusion (contact info.4321 . researching law.specific (5) what do want the client to do (what do they need to provide) – homework of client (6) what is the next step in the process (what am I doing next.22 – As taught by Professor Williams . (have a separate contingency fee agreement) Grading sheet will have (1) intro (2) factual summary (3) things client should get to us (4) scope of representation (5) fee section (6) conclusion (7) grammatical the letter should be 4-6 pages. The scope of representation: (1) research the law (2) write an advisory letter about her options (causes of actions) (3) we would provide advisory letter to her by the end of march.1234 fax – 477. etc) the sample is 7 pages long. (this should be 4-6 pages single spaced). NC 27707 919. what the letter covers (3) summary of key facts (4) what is the scope of representation (what do you plan to do) .O Box 1000 Durham. Glover and Herman P. Top of the letter Williams. 2006). 2006.477. ♦ all three partners met with client. if you have a question about the bill. .Bold and center headlines Signature will be signed by glover. (4) If contingent – be specific.Engagement Letter (general format): (1) start with an introduction: be professional – thank client for confidence in the firm (2) lay out why you are writing (use plain language) (that you for meeting Jan 2. how to reach me.

(you have ask me to find…. Parties liable A. How this should be structured Memorandum (in the middle) TO: Senior Partners From: associate attorney # RE: Case-outline memo from Mary pierce case Date: date turned in I. defenses (where your affirmative defenses go). To: From: Re: Date: Components (1a) introduction – use this opposed to a questions presented.23 – As taught by Professor Williams . potential cause of action II.) (1)Then you put question presented: use roman numerals to set out different questions (2) short answer to the question presented (2a) executive answer – similar to short answer (3) statement of the facts (4) discussion (analysis which consist of the law and the application of the facts to the law). ♦ there is no conclusion section . damages III. Heading ♦ memorandum (written at the top) . (5) the conclusion (6) attach copies of key cases and statutes for reader to use.Formatting an inner-office memo: (the general default mode) which is how you are supposed to do it. IV.

bound document that contains extensive exhibits. (2) Copy the letter to other persons – particularly if it is sent to a business or governmental entity. Keep tone professional. . highlight things most favorable to you. (b) Correspondence is more articulate. a. Techniques for an effective letter (1) send the letter by registered or certified mail – ends any discussion that it was not received... Example – pg. sanctions. time frames.24 – As taught by Professor Williams . do not do it if it unnecessarily alienates the party. educate other side on legal position. (6) Convey a specific proposal or course of action (7) State a time frame for action and consequences for inaction. weak points down played and refuted iii. 255 – Settlement brochure – a document that sets out the legal and factual basis for a claimant’s claim and details her damages. strong points emphasized ii. (c) Writing is time consuming. (4) Adopt and appropriate style and tone – adjust to particular person. 13 – Negotiating in writing and over the telephone Advantages of negotiating in writing (a) it creates a paper record that leaves less room for misunderstanding. Copy it to anyone directly or indirectly involved in the negotiation. make sure you put on the first page of letter that it was sent that way. or misunderstandings that may be difficult to erase later. Avoid personal attacking language (5) Highlight pertinent facts and law – educate other side on relevant facts – use objective tone. Essential formality that will require the other side to report directly to you. and firm when need be.Chapt. difficult and sensitive matters can be handled delicately worded phrases © efficient and unmistakable way of conveying instructions. confusion. i. from a actual writing standpoint and the time of negotiation. (3) – identify your authority to represent – in firs paragraph – clearly identify the subject matter of your representation and authority to represent. and deadlines. it may create false impressions. Disadvantages – (a) is impersonal and does not allow interpersonal emotional appeals (b) if done sloppily. and allows the other party to carefully review what is being said and share it with other persons involved in the negotiation. ♦ the brochure may be in the form of a letter or a more formal. this puts pressure and exerts a prompter response b. Avoid legalese to people not represented by counsel.

and should include: a. Copies of pertinent medical records. if not the brochure is used to structure a settlement agenda. offer to meet further to meet for future negotiations (2) a. (6) (a) (b) (c) i. summary of lost earnings – include – not applicable in our case summary of pain and suffering and permanent treatment vividly described in narrative form day to day life video damages summary and initial demand conclude with this – each item of damage should be separately enumerated. Structure (1) introduction/cover letter – sets out limitations. when the settlement offer may be withdrawn or expire d. ♦ don’t limit yourself to admissible evidence – as long as it is pertinent. b. ( not necessary here because everything is discoverable). (3) a. ♦ the brochure is often sent to the adjuster for the defendant’s liability insurance carrier before any lawsuit is filed. may not be copied. e. Items of general damage should be especially enumerated including: past pain and suffering . b. ♦ no format – limited by your imagination. c. a statement that it is provided for settlement purposes b.x-rays.♦ brochures are often used by plaintiffs lawyers in personal injury cases to establish the basis for initial settlement demands and to define the issues for ensuing negotiations. ♦ usually a settlement occurs. c. expression to settle the case reasonably e. and returned on demand. ♦ broad disclosure is there because it is assumed most things would be revealed in discovery. b. c. (4) (5) a.25 – As taught by Professor Williams . ♦ effective brochures usually contain extensive documentary and illustrative exhibits to back up assertions. do not discuss applicable law do not discuss law if not pertinent summary of medical treatment chronological order of medical treatment quote verbatim pertinent parts of medical record. ♦ most in narrative form that reference illustrative material. d. statements of facts and liability written as narrative humanize client refer to exhibits where liability is clear. ♦ the adjuster then responds to the claimants initial offer either over the phone or in writing. . date specified for reply. that the brochure is the property of the client.

a counterpart you can get along with c. c. expenses. and do not want to be at the other’s office. iv. future pain and suffering lost wages future lost earnings and benefits misc. Disadvantages – less personal than face to face interactions. and otherwise D. If you do good guy/bad guy method – have a colleague join you. chose a neutral location. initiate negotiations when the other party is in the weakest position or your client is in the strongest position. d. seating arrangements. b.26 – As taught by Professor Williams . delaying iv. deadlines iii. With whom to negotiate – a. may lead to hasty concessions and uninformed decisions. easier to say know. Techniques for effective telephone negotiations (1) (2) (3) (4) (5) do not commit yourself unless you are prepared do not be afraid to be unavailable use a preparation negotiation outline adjust the pace and tone of your voice to not be afraid to call back Chapter 14 – negotiating face to face A. time pressure ii. iii. surprise C. . Factors include: i. Choose the other’s office if you will use the walk out method. When to negotiate a. Who should attend the negotiation – a. v.ii. Negotiating over the telephone – advantages and disadvantages Advantages: greater since of freedom. someone whom has the authority to bind the party b. Pay attention to the overall environment. if more than one party – which should you start with B. seize the opportunity to choose the place –preferably your own office or own comfortable place. Where to negotiate – a. If you cannot get your place.

Having client present has advantages and disadvantages. iii. If parties expect a continuing relationship vii.27 – As taught by Professor Williams . (5) Insist upon the necessity of receiving crucial information Protecting information (1) ignore the question and change the topic (2) answer the question by asking another question (3) answer the question by answering another a question (4) over answer or under answer the question (5) rule the question out of bounds Making offers (a) who should make the first offer – i. some make it first to get the ball rolling ii. ♦ if the client comes – take the lead ♦ client’s role is restricted t the role which he is playing at the negotiation. pin down.harder to control environment.(assessment stage) – parties exchange information in order to: (1) the underlying needs or interest of each party (2) the primary. Disadvantage . . Political reasons (represent university or otherwise). ♦ set the tone – small talk ♦ set the agenda – explicitly and implicitly ♦ read body language ♦ exchange information . and questions that call for elaboration (3) listen intently and patiently (4) ask specific questions to clarify. secondary. and confirm information. making the first offer may make you seem over eager and have a weak case.b. open ended questions when seeking maximum information (2) use silence. In obtaining information for the other side: (1) ask broad. you may be at a disadvantage. encouragement. Demonstrate jury appeal x. v. i. ii. and incidental objectives of each party (3) the possible solutions that may satisfy each parties interest and objectives (4) each parties best alternatives to a negotiated agreement (BATNA). If his/her presence can provide technical expertise ix. Advantages – vi. other side might not be able to vent – which is a prerequisite fro serious negotiations. . If you miscalculated the value of the case. xi. Likely muzzle irrational negotiator. Emotional differences can be smoothed over during meeting viii.emotional aspect may get in the way iii. candor may be inhibited iv.

. Does it work or does it turn you off. Can induce the other side in making the first offer. can feel someone has fully heard their side. be careful of tone). 312 Next week. Mediation process – pg. ♦ virtually all jurisdictions mandate mediation in certain cases or make it available. the SoL for wrongful death is approaching. (just site to where you want them to look. they will be liable. do what you will. They know what it is).when to make (pg. ♦ there is no right answer for an expiration date. Chapter 16 – Negation during mediation Mediation is an informal. ♦ facts – put the facts that goes to liability. this induces the other party to concede first. The quotes from the people need to be there. ♦ ex because they had actual and constructive notice. Constructive notice is when…. who is either selected by the parties or is appointed from an approved list of mediators eligible to mediate the type of case at hand. ♦ mediation has advantages – formal setting of bring parties together. you are writing to a lawyer. No page limit.28 – As taught by Professor Williams . ♦ can break down emotional barriers ♦ gives parties a greater sense of control. can use memo as a guide. (but. ♦ does tone convince you or does it turn you off. whereby a neutral third party. ♦ liability section – to the point short and sweet. ♦ do not have to make up outlines and invoices. take role for the class – 1 hour required. she wants to settle. 283). but its short because it will be illustrated further in the damages section. No format.iv. Don’t lecture him about the facts because the other person investigated. It takes what it takes. ♦ remember.. ♦ make sure it is for the proper purpose and tone is correct. non adversarial alternative dispute resolution process. so If there is an expiration date. but don’t cut and paste. Credibility is key. Don’t teach him. The amount of the first offer – (4) making concessions . Information about the medical treatment goes here. Beware.

you itemize.000. Not the same as what’s in the facts section. which ever is greater. ♦ What are McCloud’s assets? Does it matter? ♦ She wants to settle as soon as possible. but it could possibly go in. ♦ might be too early to have mediation.♦ statement of liability on McCloud’s and apartment. looking for depression damages ♦ how do we put a number on pain and suffering ♦ wrongful death – for Peter – pain and suffering ♦ look at case law to see settlement cases. ♦ don’t know insurance company limits. Potter’s will likely be 250.put in the document. Peter’s could be in the millions but Mrs. Do not discuss law when it is clear. Don’t have to have receipts.000. total. The insurance company will not cover punitive damages. Options of ranges for punitive damages. Potter and Peter). total. Potter is entitled to seek punitive damages. and add punitives if you decide to put them in. ♦ all we got is a picture of peter ♦ what about punitives? Mrs. Narrative form. 3 times compensatory or 250. They don’t cover punitives. ♦ not given the dollar amount she expected. Here. ♦ damages summary and demand – separate them out – pain and suffering. ♦ don’t talk about medical treatment in the facts in this case. Show as a veiled threat to sue. ♦ the lump sum will bring it down. medial. Medical treatment – not more than a paragraph for each one (Mrs. Use it for the narrative. Just say see attached… see blah. ♦ pain and suffering – damages for Mrs. Potter – narrative she stopped taking meds. .29 – As taught by Professor Williams . Distinguish from facts is itemization.

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