Advocacy Survey Spring 2014

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

Additional Class Requirements Attend the Final Trial for the Law Center’s Trial Advocacy class. (Saturday, April 19 th ). This is the substitute for Classes 9 & 10

What We’re Going To Do Core 6 Overview –Pretrial, Appellate, Mediation, Negotiation, Arbitration, and Trial Story of the Case Conflict Escalation Scale Deep Structure

Story of the Case

Conflict Escalation Scale

Deep Structure

Journal Entries 3 Parts 1.Story of the Case 2.Conflict Scale Analysis 3.Deep Structure No specific length Due before class starts on the due date

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 you’ve completed the two assignments above, fill out the provided assessment and complete the scoring grid.

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.

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

Assessments – What is Conlict?

Advocacy Survey Stories

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.

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.

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 don’t like. * Taken from Chris King, Creative Keys

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

What Makes a Good Story?

Clean Questions Power Precision

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

What is important about…? What interests you about…? What do you expect/want…? How do you know when…? How did you decide…? What else is important about…? In addition to ___, what else interests you about…? What else do you expect/want…? Other than ___, how else do you know when…? In what other ways did you decide…?

Your Stories – Your Results NameWin/WinWin/LoseLose/Lose Marcelo45 Josephine261 Ayman8 Yan153 Wayne35 Ghazal35 Lance45 Jessica8 Ana63 Daniel251

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

What It Means

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.

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.

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.

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.

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.

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.

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.

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.

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.

Surface Structure: Words Tonality Body Language Gestures What you observe

Deep Structure: Words Tonality Body Language Gestures Beliefs Values Biases Prejudices Experiences Fears Dreams Feelings

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

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

Empathy – DS to DS Help me understand…

Advocacy Survey Pretrial Litigation

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

Pretrial – TRCP Initial Stage Client Interviewing and Counseling Pleadings Rule 79 – Plaintiff’s Petition Rule 85 – Defendant’s Answer Discovery Rule 194 – Requests for Disclosure Rule 197 – Interrogatories to Parties Rule 198 – Requests for Admissions Rule 199 – Depositions upon Oral Examination

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

Pretrial – Deposition Gone Wild

Pretrial – Deposition Gone Wild 2

Advocacy Survey Appellate Advocacy

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 don’t preserve and properly raise, then most likely you waive.

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

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

Stages of an Appeal: The Briefs (T.R.A.P. 38) Appellant’s Brief Appellee’s Brief Reply Brief (Appellant) Briefing Rules are liberally construed. Form Substance Request for Oral Argument on the front cover.

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.

Stages of an Appeal: Court’s 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

Advocacy Survey Mediation

Stages of Mediation*: Stage 1 Mediator’s 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

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.

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 party’s interests.

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”)

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

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.

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."

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

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

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

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

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

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.

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.

Advocacy Survey 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)

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”. Reporter’s Comment 2: the “gray”…

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”.

Negotiation Dynamics Integrative or Cooperative Zero-Sum or Distributive

Negotiation Dynamics Win-Win Win-Lose Lose-Lose

Negotiation: Key Concepts Preparation, preparation, preparation What do you know? What DON’T you know?

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

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

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

Advocacy Survey Arbitration

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

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

Arbitration Terms and Conditions

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.

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.

Advocacy Survey Trial Advocacy

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.

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?

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.

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.

Stages of Trial: Cross Examination The purpose of cross examination is to poke holes in the other party’s case. Use only leading questions – “You did not go into the store, did you?” One fact per question. Never ask a question that you don’t know the answer to.

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.

Differences between Civil Trials and Criminal Trials ( ) CivilCriminal PartiesIndividuals or groupsGovernment and an alleged criminal At issueCourt 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