Advocacy Survey

1
(No Transcript)
2
Advocacy Survey

• Spring 2012

3
Grading Criteria

• Professionalism and Preparation (10)
• Journal Entry 1 (12) - Appellate
• Due at the beginning of class on March 8
• Journal Entry 2 (18) - Arbitration
• Due at the beginning of class on April 10
• Journal Entry 3 (30) Trial Advocacy
• Due at the beginning of class on April 24
• Final Exam (30)

4
Additional Class Requirements

• Attend the Final Trial for the Law Centers Trial
  Advocacy class. (Saturday, April 21st).
• This is the substitute for Classes 7 8.

5
(No Transcript)
6
Assessments Conflict-Management Style
7
What is Trauma?
8
What is Trauma?
9
What is Trauma?
10
What is Conflict?
11
What is Conflict?
12
What is Conflict?
13
What is Conflict?
14
Surface Structure

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

15
Deep Structure

• Words
• Tonality
• Body Language
• Gestures

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

16

• 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

17
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

18
Clean Questions

• Power

Precision
19

• What is important about?

What interests you about?
What do you expect/want?
How do you know when?
How did you decide?
20

• 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?
21
Empathy DS to DS

• Help meunderstand

22
Glasls 9 Stage Model of Conflict
Escalation(taken from Thomas Jordans article)

• 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.

23

• 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.

24

• 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.

25

• 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.

26

• 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.

27

• 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.

28

• 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.

29

• 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.

30

• 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.

31
Advocacy Survey

• Stories

32
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.

33
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.

34
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

35
(No Transcript)
36
Advocacy Survey

• Pretrial Litigation

37
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

38
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

39
Pretrial TRCP

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

40
For Thursday

• Depositions
• http//www.jamespublishing.com/articles_forms/Civi
  lLitigation/defend_liability_depo.htm

41
The Story of the Case

• Pleadings v. Statements

42
(No Transcript)
43
Advocacy Survey

• Mediation

44
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."

45
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

46
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.

47
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.

48
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)

49
Stages of Mediation Stage 5

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

50
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.

51
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

52
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

53
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

54
Jurisdictional Comparisons

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

55
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

56
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.

57
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.