Advocacy Survey

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Advocacy Survey

• Spring 2014

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Grading Criteria

• Professionalism and Preparation (10)
• Journal Entry 1 (12) Mediation Advocacy
• Due before class starts on March 6th
• Journal Entry 2 (18) Negotiation Advocacy
• Due before class starts on March 27th
• Journal Entry 3 (30) Trial Advocacy
• Due before class starts on April 22nd
• Final Exam (30)

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Additional Class Requirements

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

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What Were Going To Do

• Core 6 Overview
• Pretrial, Appellate, Mediation, Negotiation,
  Arbitration, and Trial
• Story of the Case
• Conflict Escalation Scale
• Deep Structure

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Story of the Case
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Conflict Escalation Scale
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Deep Structure
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Journal Entries

• 3 Parts
• Story of the Case
• Conflict Scale Analysis
• Deep Structure
• No specific length
• Due before class starts on the due date

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Assessments

• Trauma
• On the paper provided, write your definition of
  trauma. Not the dictionary definition but your
  definition.
• Conflict
• On the other side of the paper, draw a picture
  that represents your view of conflict.
• Conflict Resolution Style
• Once youve completed the two assignments above,
  fill out the provided assessment and complete the
  scoring grid.

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Assessments What is Trauma?

• Mental scarring which occurs as a result of life
  events.
• An event that angers you or saddens you every
  time you think about it.
• The mental and physical aftereffects of an
  especially difficult event or experience. These
  effects are negative and to an extent
  debilitating.

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Assessments What is Trauma?

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

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Assessments What is Conlict?
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Assessments What is Conlict?
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Assessments What is Conlict?
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Assessments What is Conlict?
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Advocacy Survey

• Stories

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Parts of a Story

• Beginning
• This is the set-up. It is where you establish
  your theme.
• Middle
• This is the guts of the story, where most of the
  action happens.
• End
• This is the wrap for the story and in a perfect
  world, you close with your theme.

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What Makes a Good Story?

• It touches people in some way.
• Has a sense of truth and moves the listener.
• It has to have substance.
• Needs direction and purpose.
• It needs conflict and resolution.
• Believable action moving the story
• It creates vivid images.
• Bare bones vs. Detailed.

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What Makes a Good Story?

• It is not wimpy.
• Wimpy is insincere.
• It is perfect for your audience.
• Prepare for your audience.
• It is a story you love and that you love to tell.
• Never, never tell a story that you dont like.
• Taken from Chris King, Creative Keys

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What Makes a Good Story?

• The Devil is in the Details

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What Makes a Good Story?
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What Makes a Good Story?
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Clean Questions

• Power

Precision
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• What is important about?

What interests you about?
What do you expect/want?
How do you know when?
How did you decide?
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• What is important about?

What else is important about?
What interests you about?
In addition to ___, what else interests you
about?
What do you expect/want?
What else do you expect/want?
How do you know when?
Other than ___, how else do you know when?
How did you decide?
In what other ways did you decide?
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Your Stories Your Results
Name Win/Win Win/Lose Lose/Lose
Marcelo 4 5
Josephine 2 6 1
Ayman 8
Yan 1 5 3
Wayne 3 5
Ghazal 3 5
Lance 4 5
Jessica 8
Ana 6 3
Daniel 2 5 1
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Conflict Escalation The Stages

• Stage 1 Hardening
• Stage 2 Debates and Polemics
• Stage 3 Actions, not Words
• Stage 4 Images and Coalitions
• Stage 5 Loss of Face
• Stage 6 Strategies of Threats
• Stage 7 Limited Destructive Blows
• Stage 8 Fragmentation of the Enemy
• Stage 9 Together Into The Abyss

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What It Means
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• Stage 1 Hardening
• The first stage of conflict escalation develops
  when a difference over some issue or frustration
  in a relationship proves resilient to resolution
  efforts.

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• Stage 2 Debates and Polemics
• Since the counterpart doesn't seem amenable to
  sensible arguments, discussions tend to develop
  into verbal confrontations. The parties look for
  more forceful ways of pushing through their
  standpoints. In order to gain strength, they tend
  to become increasingly locked into inflexible
  standpoints.

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• Stage 3 Actions, not Words
• At stage 3, the parties no longer believe that
  further talk will resolve anything, and they
  shift their attention to actions. Common
  interests and the prospect of resuming
  cooperation recede into the background, and the
  parties see each other as competitors.

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• Stage 4 Images and Coalitions
• At stage 4 the conflict is no longer about
  concrete issues, but about victory or defeat.
  Defending one's reputation is a major concern.

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• Stage 5 Loss of Face
• The transition to stage 5 is particularly
  dramatic. Loss of face means that the conflict
  parties feel that they have suddenly seen through
  the mask of the other party, and discovered an
  immoral, insane or criminal inside.

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• Stage 6 Strategies of Threats
• Since no other way seems to be open, the conflict
  parties resort to threats of damaging actions, in
  order to force the counterpart in the desired
  direction. The strategical threats of stage 6 are
  very different from the deniable punishment
  actions characteristic of stage 4. The latter
  mainly serve the function of giving vent to
  pent-up frustrations. Strategical threats are
  actively used in order to force the counterpart
  to certain concessions.

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• Stage 7 Limited Destructive Blows
• The threats of stage 6 undermine the basic sense
  of security of the parties. Now they expect the
  counterpart to be capable of very destructive
  acts. Securing one's own further survival becomes
  an essential concern.

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• Stage 8 Fragmentation of the Enemy
• At this stage the attacks intensify and aim at
  destroying the vital systems and the basis of
  power of the adversary. One may specifically aim
  at fragmenting the counterpart into ineffectual
  splinters, and at the ability of the counterpart
  to make decisions.

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• Stage 9 Together into the Abyss
• In the last stage of conflict escalation, the
  drive to annihilate the enemy is so strong that
  even the self-preservation instinct is neglected.
  Not even one's own survival counts, the enemy
  shall be exterminated even at the price of
  destruction of one's own very existence as an
  organization, group, or individual. Ruin,
  bankruptcy, prison sentences, physical harm,
  nothing matters any longer.

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Surface Structure

• Words
• Tonality
• Body Language
• Gestures
• What you observe

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Deep Structure

• Words
• Tonality
• Body Language
• Gestures

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

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• Words
• Tonality
• Body Language
• Gestures

• Words
• Tonality
• Body Language
• Gestures

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

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

• Words
• Tonality
• Body Language
• Gestures

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Empathy

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

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Empathy DS to DS

• Help meunderstand

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Advocacy Survey

• Pretrial Litigation

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Progression Civil Case v. Criminal Case

• Initial Stage
• Pleadings
• Discovery
• Motions
• Negotiation
• ADR
• Trial Sequence
• Appeal

• Initial Stage
• Charging
• Arraignment Bail
• Discovery
• Motions Negotiation
• Counseling
• Trial Sequence
• Appeal

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Pretrial TRCP

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

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Pretrial TRCP

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

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Pretrial Deposition Gone Wild
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Pretrial Deposition Gone Wild 2
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Advocacy Survey

• Appellate Advocacy

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Stages of an Appeal Preserving Appellate
Complaints

• The appellate process starts during the trial
• T.R.A.P. 33.1 Preservation
• Timely made
• Get a ruling
• If you dont preserve and properly raise, then
  most likely you waive.

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Stages of an Appeal Notice (T.R.A.P. 25)

• An appeal is perfected when a written notice of
  appeal is filed with the trial court clerk.
• The filing of a notice of appeal by any party
  invokes the appellate courts jurisdiction over
  all parties to the trial courts judgment or
  order appealed from.
• A party who seeks to alter the trial courts
  judgment or other appealable order must file a
  notice of appeal.   

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Stages of an Appeal Docketing Statement
(T.R.A.P. 32.1)

• Filed by the Appellant
• Source of information for the appellate court.   
  

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Stages of an Appeal The Briefs (T.R.A.P. 38)

• Appellants Brief
• Appellees Brief
• Reply Brief (Appellant)
• Briefing Rules are liberally construed.
• Form
• Substance
• Request for Oral Argument on the front cover.

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Stages of an Appeal Oral Arguments (T.R.A.P. 39)

• Court may decide that oral argument is
  unnecessary because
• the appeal is frivolous
• the dispositive issue or issues have been
• authoritatively decided
• the facts and legal arguments are adequately
• presented in the briefs and record or
• the decisional process would not be
• significantly aided by oral argument.

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Stages of an Appeal Courts Decision T.R.A.P.
43)

• Judgment should be rendered promptly
• Types of judgment
• Affirm
• Reverse
• Modify
• Vacate
• Dismiss
• Remand
• Written opinion that is as brief as practicable
  but that addresses every issue raised and
  necessary to final disposition of the appeal

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Advocacy Survey

• Mediation

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Stages of Mediation Stage 1

• Mediators Opening Statement
• After the parties are seated at a table, the
  mediator introduces everyone, explains the goals
  and rules of the mediation, and encourages each
  side to work cooperatively toward a settlement.
• Taken from Nolo.com

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Stages of Mediation Stage 2

• Parties Opening Statements
• Each party is invited to describe, in his or her
  own words, what the dispute is about and how he
  or she has been affected by it, and to present
  some general ideas about resolving it. While one
  person is speaking, the other is not allowed to
  interrupt.

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Stages of Mediation Stage 3

• Joint Discussion Problem-Solving
• The mediator may try to get the parties talking
  directly about what was said in the opening
  statements. This is the time to determine what
  issues need to be addressed, what facts the
  parties actually agree on, and to determine each
  partys interests.

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Stages of Mediation Stage 4

• Private Caucuses
• The private caucus is a chance for each party to
  meet privately with the mediator (usually in a
  nearby room) to discuss the strengths and
  weaknesses of his or her position (reality
  testing) and new ideas for settlement. The
  mediator may caucus with each side just once, or
  several times, as needed. These private meetings
  are considered the guts of mediation.
• (Newhouse Live in the question)

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Stages of Mediation Stage 5

• Joint Negotiation
• After caucuses, the mediator may bring the
  parties back together to negotiate directly.

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Stages of Mediation Stage 6

• Closure
• If an agreement has been reached, the mediator
  may put its main provisions in writing as the
  parties listen. The mediator may ask each side to
  sign the written summary of agreement or suggest
  they take it to lawyers for review. If the
  parties want to, they can write up and sign a
  legally binding contract. If no agreement was
  reached, the mediator will review whatever
  progress has been made and advise everyone of
  their options, such as meeting again later, going
  to arbitration, or going to court.

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Mediation Can It Be A Legitimate Legal Process?

• The Kansas Supreme Court, in Court Rule 902
  (2001) describing mediator qualifications for
  court referrals and approved programs, stated
  "No standards or qualifications should be imposed
  upon any person chosen and agreed to by the
  parties. These qualifications should not prevent
  parties having free choice of process, program
  and the individual neutral."

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Marketplace Mediation Model

• Referred to and external from the Courts
• Referrals are sometimes mandatory and sometimes
  require the consent of the parties.
• Mediators are usually selected from a list of
  accredited professional mediators
• Mediators are paid directly by the parties but
  public funds are available in limited
  circumstances.
• Mediator fees are sometimes regulated.
• Is favored in common law jurisdictions
• From Global Trends in Mediation, Alexander

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Justice Mediation Model

• At the request of the parties within the court
  proceedings
• No additional cost
• Before a judge who will not be the judge at trial
  if the mediation does not settle.
• The parties do not have a choice of the mediator.
• Is favored in civil law jurisdictions
• From Global Trends in Mediation, Alexander

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Jurisdictional Comparisons

• Mediation Regulation
• Austria has national regulation of civil
  mediation
• Australia, Denmark, England, France, Germany,
  Italy, US are examples of jurisdictions that have
  no national regulation
• US Uniform Mediation Act which focuses primarily
  on mediator confidentiality
• TX Code of Civil Procedure Title 7

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Jurisdictional Comparisons

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

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Jurisdictional Comparisons

• Mediation Accreditation
• Australia National Mediator Accreditation
• Austria Legislatively-based accreditation
• Denmark No national accreditation
• France No national accreditation
• Germany No national accreditation
• Italy No national accreditation
• US No national accreditation

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Jurisdictional Comparisons

• Cross-border disputes
• EU Directive on Mediation in Civil and Commercial
  Cases (2006)
• UNICTRAL Model Law on International Commercial
  Conciliation (2002)
• EU Green Paper on ADR Measures for Civil and
  Commercial Matters (2001)
• Mediation Rules Service Providers such as the
  ICC, AAA, LICA, etc.

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Mediation vs. Conciliation

• Conciliation is mediation-like
• Mediation tends to be more interest-based.
• Conciliation tends to be more directive and
  interventionist.
• Conciliator gives parties legal information and
  suggests solutions to them.
• Conciliation is typically found in civil law
  countries.

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Advocacy Survey

• Negotiation

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Negotiation

• Accordingly, and regrettably, lying is not the
  province of a few unethical lawyers who operate
  on the margins of the profession. It is a
  permanent feature of advocacy and thus of almost
  the entire province of law.
• -Gerald Wetlaufer, The Ethics of Lying in
  Negotiation
• 75 Iowa Law Review 1219 (1990)

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Negotiation

• Duty of Good Faith
• In Negotiation?
• In Performance of the Contract?
• Professional Obligations
• Model Rule 4.1 ...an attorney shall not
  knowingly (a) make a false statement of material
  fact or law to a third person.
• Reporters Comment 2 the gray

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Negotiation

• Model Rule 3.3(a)(1)
• Representations to a tribunal
• Model Rule 1.3
• Reasonable diligence and promptness in
  representing a client
• Model Rule 4.4
• A lawyer shall not use means that have no
  substantial purpose other than to embarrass,
  delay, or burden a third person.

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Negotiation Dynamics

• Integrative or Cooperative
• Zero-Sum or Distributive

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Negotiation Dynamics

• Win-Win
• Win-Lose
• Lose-Lose

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Negotiation Key Concepts

• Preparation, preparation, preparation
• What do you know?
• What DONT you know?

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Negotiation Key Concepts

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

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Negotiation Key Concepts

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

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Negotiation Key Concepts

• Bargaining Zone
• Reservation Point
• Prioritized Interests
• Logrolling
• Never give anything away for free

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1st Journal Entry

• Conflict Escalation Scale

Stage Number Selected
Stage 1 1
Stage 2-3 2
Stage 3 3
Stage 4 2
Stage 5 1
Stage 5-6 1
Stage 6 2
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Advocacy Survey

• Arbitration

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Arbitration General Characteristics

• Adjudication
• Privacy
• Informal Procedural Rules
• Subordination of Substantive Law
• Finality
• Adjudicator Expertise

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Arbitration Basic Concepts

• Severability
• Prima Paint Doctrine
• Kompetenz-Kompetenz
• 1st Options case

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Arbitration

• Terms and Conditions

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Domestic vs. International

• US (Domestic) Arbitration
• Derived from US litigation practice
• Customarily, arbitrations are conducted like
  Bench Trials
• Broad discovery, including depositions and
  documents
• Oral direct examinations
• Extensive cross examinations
• Party-retained experts
• Extensive written arguments
• Less Rigid Application of the Rules of Evidence
• Application of the American Rule on Legal
  Expenses and Attorneys Fees
• Non-Reasoned, or Summary, Awards.

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Domestic vs. International

• International Arbitration
• Blend of Practices between Common Law and Civil
  Law
• No, or Limited, Discovery
• Hearing Practices include
• Witness Statements are typically used for direct
  evidence.
• Greater reliance on documentary evidence
• Tribunal-appointed experts are common
• Tribunal May Award Full Costs, including Legal
  Fees and Expenses
• A Reasoned Award is Generally Required.
• Comparison taken from John Pinney General
  Aspects of Arbitration in the US.

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Arbitration Exercise

• Administered by?
• Where?
• Who?

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Arbitration Exercise

• Administered by?
• Why did you choose them?
• Where?
• Why did you pick this location?
• Who?
• A list of your top three arbitrators and why?

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Arbitration Exercise

• Administered by?
• International Chamber of Commerce (ICC)
• London Court of Arbitration (LCIA)
• Hong Kong International Arbitration Center
  (HKIAC)

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Arbitration Exercise

• Where?
• New York
• Paris
• Hong Kong

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Arbitration Exercise

• Who?
• Ben Sheppard
• Jeremy Lack
• Louise Barrington
• Colin Wall
• Neil Kaplan
• Ann Ryan Robertson
• Maria Mercedes Tarrazón Rodón
• John Beechey
• Pierre Karrer
• Elaine Liu

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Advocacy Survey

• Trial Advocacy

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Trial Practice

• I deal in carnage.
• I defend the indefensible.

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Trial The Story of the Case
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Stages of Trial Pretrial Motions

• Used to establish procedural and evidentiary
  protocols.
• Primarily in civil cases referred to as Motions
  in Limine (i.e. TX Rules of Evidence 404, 405).
• Establish rapport with the judge.

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Stages of Trial Voir Dire

• The purpose of voir dire is to get a sense of how
  potential jurors feel about the issues in your
  case.
• The more you (as an attorney) talk, the less you
  learn.
• Who do you strike?

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Stages of Trial Opening Statements

• The purpose of an opening statement is to tell
  the jury your story of the case using only the
  facts for persuasion.
• Studies have shown that a majority of jurors
  make up their mind about the case after opening
  statements.

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Stages of Trial Direct Examination

• The purpose of direct examination is to tell the
  jury your story of the case through your
  witnesses.
• Use only non-leading questions what, where,
  how, when, explain, tell
• You want the jury to focus on the witness.

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Stages of Trial Cross Examination

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

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Stages of Trial Closing Argument

• The purpose of closing argument is to tell the
  jury your story of the case using facts and
  evidence together in a persuasive way.
• It is your last chance to connect with the jury
  before they deliberate.
• Use the jury charge effectively.

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Differences between Civil Trials and Criminal
Trials (http//www.laits.utexas.edu/gov310/JU/civc
rim/index.html)
Civil Criminal
Parties Individuals or groups Government and an alleged criminal
At issue Court must determine whether one party has caused harm to another party case deals with rights and duties between individuals Court must determine whether one party has violated a statute that prohibits some type of activity
Type of Wrongdoing Harm to private person or group Transgression against society
Penalty or Remedy Compensation for damages or loss Punishment (fine, imprisonment, rehabilitation, etc.)
Burden of Proof Preponderance of the evidence Guilt beyond a reasonable doubt