Essential Lawyering Skills (Aspen Coursebook): Interviewing, Counseling, Negotiation, and Persuasive Fact Analysis

Halftitle Page 2 Editorial Advisors 3 Copyright Page 6 About Wolters Kluwer Law & Business 7 Dedication 9 Summary of Contents 11 Table of Contents 13 Acknowledgments 22 Part 1 Becoming A Lawyer 23 Chapter 1 What This Book Is About 24 Chapter 2 Professionalism 27 §2.1 The Reflective Practitioner of Law 27 §2.2 Some Things Effective Lawyers Know 28 §2.2.1 Excellent Judgment Is the Most Important Thing That a Lawyer Can Bring to Any Situation 28 §2.2.2 Integrity Is Your Most Valuable Asset as a Lawyer 29 §2.2.3 A Lawyer's Job Is to Find a Way—to the Extent Possible—for the Client to Gain Control over a Situation 29 §2.2.4 Effective Lawyers Work to Achieve Specific Goals 29 §2.2.5 Success in the Practice of Law Depends on Efficient Work Habits 30 §2.2.6 Thorough Preparation Is Essential 30 §2.2.7 Everything Revolves Around Facts 30 §2.2.8 Assumptions Can Sabotage Good Lawyering 31 §2.2.9 Representing Clients in Disputes Is Only Part of What Lawyers Do—the Rest Is Transactional 31 §2.2.10 To Be Effective, a Lawyer Must Know How—and When—to Function in Inquiring Mode as Well as in Persuasion Mode 32 §2.2.11 Numbers Matter 34 §2.2.12 Taxes Matter 34 §2.2.13 Overlawyering Can Be as Damaging as Underlawyering 35 §2.2.14 For Most Lawyers, It's a Struggle to Lead a Balanced Life, but It's a Struggle You Can Win 35 §2.3 Professionalism Is a Way of Being 36 Chapter 3 Lawyering for and with the Client 38 §3.1 Client-Centered Lawyering 38 §3.2 The Client as a Colleague and Collaborator 39 §3.3 Who Decides What 41 §3.4 What Clients Dislike in a Lawyer 43 §3.5 What Clients Like in a Lawyer 44 §3.6 How to Work Better with Clients 45 §3.7 Confidentiality 46 Chapter 4 Lawyering as Problem Solving 49 §4.1 Diagnosis, Prediction, and Strategy Are Intertwined in Professional Work 49 §4.2 How Professionals Diagnose, Predict, and Strategize 50 §4.3 Thinking Divergently as Well as Convergently 53 §4.4 Avoiding Cognitive Illusions 55 §4.5 The Inclusive Solution 57 §4.6 Developing a Problem-Solving Style 59 Chapter 5 Communications Skills 64 §5.1 Why Communication Through the Spoken Word Is a Core Lawyerly Skill 64 §5.2 Eight Oral Communication Skills 65 §5.2.1 Listening 65 §5.2.2 Empathizing 66 §5.2.3 Asking Questions 67 §5.2.4 Finding and Telling Stories 69 §5.2.5 Painting a Picture 70 §5.2.6 Giving Information 70 §5.2.7 Implying Through Tone of Voice and Body Language 71 §5.2.8 Making Arguments 72 §5.3 The Telephone, Email, and Texting 72 Chapter 6 Multicultural Lawyering 76 §6.1 How Culture Matters in Lawyering 76 §6.2 How Cultural Differences Can Matter in Lawyering 76 §6.3 Why You Should Care about Multicultural Lawyering 79 §6.4 The Risks of Stereotyping 79 §6.5 Multicultural Skills 80 §6.6 Do Men and Women Practice Law Differently? 81 Part II Interviewing 84 Chapter 7 Observation, Memory, Facts, and Evidence 85 §7.1 The Differences Between Facts, Inferences, and Evidence 85 §7.2 The Myths 86 §7.3 What Science Knows about Observation and Memory 89 §7.3.1 What Affects Observation 89 §7.3.2 What Affects Retention in Memory 91 §7.3.3 What Affects Retrieval from Memory 92 §7.4 How Courts Treat Observation and Memory 93 §7.5 The Problem of States of Mind 93 §7.6 How to Explore Memory Accurately in an Interview 94 Chapter 8 Interviewing the Client 100 §8.1 Client Interviewing as Problem Solving 100 §8.1.1 Your Purposes in Interviewing Clients 100 §8.1.2 Active Listening and Other Interviewing Dynamics 101 §8.2 Organizing the Interview 104 §8.2.1 Preparing 105 §8.2.2 Beginning the Interview 106 §8.2.3 Information Gathering 107 §8.2.4 Ascertaining the Client's Goals 109 §8.2.5 Considering a Strategy During the Interview 110 §8.2.6 Closing 112 §8.3 Questions 113 §8.3.1 What to Ask About 113 §8.3.2 Organizing and Formulating Questions 116 §8.4 Special Problems in Client Interviewing 118 §8.4.1 Ethics in Client Interviewing 118 §8.4.2 Handling Private or Embarrassing Material 119 §8.4.3 When the Client Is Distraught 120 §8.4.4 Handling Possible Client Fabrication 120 §8.4.5 When the Client Wants a Prediction on the Spot 122 §8.4.6 Negotiating a Fee Agreement 122 Chapter 9 Interviewing Witnesses 125 §9.1 How Witness Interviewing Is Different from Client Interviewing 125 §9.2 Handling Yourself Ethically 125 §9.3 Getting Cooperation from Neutral and Hostile Witnesses 133 §9.4 Finding Out Everything the Witness Knows 135 §9.5 Handling Yourself Ethically (Revisited)—Who Should Interview the Witness? 139 Part III Persuasive Fact Analysis 142 Chapter 10 How We Organize and Think about Facts 143 §10.1 Facts in the Lawyering Process 143 §10.2 Schemas and the Processing of Information 143 §10.3 Different Modes of Thinking about Facts 145 Chapter 11 The Legal Elements Model of Organizing Facts 151 CHART 11A Sources of Legal Elements 153 CHART 11B Legal Elements→Factual Propositions 153 CHART 11C Ransom Legal Elements Chart 157 Chapter 12 The Chronology Model of Organizing Facts 159 CHART 12A Chronology Template 160 CHART 12B Ransom Chronology 163 Chapter 13 The Story Model of Organizing Facts 168 §13.1 Introduction 168 §13.2 Identifying Uncontested Facts 169 §13.3 Identifying Your Audience 170 §13.4 Developing a Unifying Theme 172 §13.5 Choosing Persuasive Images 175 §13.6 Selecting a Story Genre 176 §13.7 Finding the Story in the Facts 179 §13.8 Ethical Storytelling 181 Chapter 14 Selecting a Model for Presentation of the Case 185 Chapter 15 Strengthening the Persuasiveness of Your Facts 189 §15.1 Assessing the Legal Sufficiency of Your Facts 189 §15.2 Assessing the Sources of Your Facts 191 §15.2.1 Tangible and Oral Sources of Facts 191 §15.2.2 Credibility of Oral Sources of Facts 192 §15.3 Assessing Your Contextual Facts 194 §15.3.1 Focus on Facts, Not Conclusions 194 §15.3.2 Setting the Scene 195 §15.3.3 Identifying the Stage Directions 197 §15.3.4 Explanatory Facts 197 §15.3.5 Personal Facts 197 §15.3.6 Developing Additional Contextual Facts 198 §15.4 Assessing Your Circumstantial Evidence 198 CHART 15A Assessment of Circumstantial Evidence Template 199 CHART 15B Drawing the Inference 199 CHART 15C The Landlord's Inference 200 CHART 15D Ransom's Inference 200 §15.5 Assessing the Structural Integrity of Your Story 201 Chapter 16 Investigating the Facts 204 §16.1 A Fact Investigation Case Study 204 §16.2 Developing Additional Sources of Proof 209 §16.3 Tracking Down Additional Sources 210 §16.3.1 Following the People Trail 210 §16.3.2 Following the Paper and Electronic Trails 211 §16.3.3 Probing the Institutional Context 213 §16.3.4 Exploring Organizational Relationships 214 §16.3.5 Understanding an Organization's Operations 214 §16.3.6 Vehicles for Tracking Down Additional Facts 215 §16.4 Ethics in Fact Investigation 215 Chapter 17 Responding to Your Adversary's Facts 217 §17.1 Imagining Your Adversary's Facts 217 §17.2 Attacking Your Adversary's Sources of Fact 218 §17.3 Attacking Your Adversary's Inferences 219 CHART 17A Attacking Dusak's Inference 219 §17.4 Attacking Your Adversary's Contextual Facts 219 §17.5 Attacking Your Adversary's Story 220 Part IV Counseling 222 Chapter 18 What Happens When a Lawyer Counsels a Client 223 §18.1 Counseling and Advice in Legal Work 223 §18.2 Transactional Counseling 224 §18.3 Dispute Resolution Counseling 225 §18.4 “Decision Making Is an Art” 227 §18.5 The Process of Helping Another Person Make a Decision 228 §18.6 The Four Challenges in Counseling 228 Chapter 19 An Example of Counseling: The Plant Closing 231 §19.1 Preparing to Counsel the Employees 231 §19.2 Meeting with the Steering Committee 235 Chapter 20 Preparing for Counseling: Structuring the Options 237 §20.1 Focusing on Client Goals and Preferences 237 §20.2 Developing Potential Solutions 238 §20.3 Predicting What Each Potential Solution Would Cause 239 §20.3.1 The Potential Solution's Chances of Achieving the Client's Goals 240 §20.3.2 Transaction Costs, Expected Value, the Time Value of Money, and Tax 243 §20.3.3 Side-Effects—Desirable and Undesirable 246 §20.3.4 Decision Trees 247 §20.4 Adapting to the Client's Tolerance for Risk 252 §20.5 Why Some Clients Exclude Their Lawyers from Important Decisions 253 Chapter 21 The Counseling Meeting with the Client 258 §21.1 Mood, Setting, and the Lawyer's Affect 258 §21.2 Beginning the Meeting 260 §21.3 Discussing the Choices and What They Would Do 261 §21.4 If the Client Asks for a Recommendation, Should You Give One? 262 §21.5 Asking the Client to Decide 264 §21.6 Sometimes a Client's Stated Goal Might Not Be the Client's True Preference 264 §21.7 What to Do if the Client Is Persuaded by Cognitive Biases and Illusions 266 Chapter 22 Overcoming Special Problems in Counseling 267 §22.1 Ethical Issues in Counseling 267 §22.2 When the Client's Goals Cannot Be Accomplished 270 §22.3 When the Client Makes a Decision the Lawyer Considers Extremely Unwise 271 Part V Negotiation 273 Chapter 23 How Negotiation Works 274 §23.1 Aims of Negotiation 274 §23.2 Context of Negotiation: Interests, Rights, and Power 275 §23.2.1 Interests of the Parties 275 §23.2.2 Rights of the Parties 276 §23.2.3 Power of the Parties 276 §23.3 Approaches to Negotiation 277 §23.3.1 Adversarial Approach to Negotiation 277 §23.3.2 Problem-Solving Approach to Negotiation 278 §23.3.3 Use of the Different Approaches 279 §23.4 Roles of the Lawyer in Negotiation 280 §23.5 Discharging Your Ethical and Legal Responsibilities 281 Chapter 24 Negotiation Preparation: Assessing the Parties 286 §24.1 Interests, Rights, and Power 286 §24.2 Assessing the Parties' Interests 286 §24.2.1 Types of Interests 286 §24.2.2 Identification of Parties' Interests 287 CHART 24A Assessment of Parties' Interests 289 §24.2.3 Prioritizing Interests 289 §24.3 Assessing the Parties' Rights 289 CHART 24B Assessment of Parties' Rights—Dispute 290 CHART 24C Assessment of Parties' Rights—Transaction 292 §24.4 Assessing the Parties' Power 292 §24.4.1 Types of Power 292 CHART 24D Assessment of Parties' Power 293 §24.4.2 Shifting the Power Relationship 295 §24.5 Obtaining Your Client's Authority 296 §24.6 Is a Structured Settlement in Your Client’s Interest? 298 Chapter 25 Developing a Negotiation Strategy 301 §25.1 Determining Your Client's BATNA 301 §25.2 Determining the Other Party's BATNA 303 §25.3 Selecting an Approach to the Negotiation 303 §25.4 Crafting a Plan: Adversarial Approach 305 CHART 25A Your Own Bargaining Range 306 CHART 25B Both Parties' Bargaining Range 307 §25.5 Crafting a Plan: Problem-Solving Approach 307 §25.5.1 The Brainstorming Process 307 §25.5.2 A Case Study of the Brainstorming Process 309 §25.6 Information Gathering, Disclosing, and Concealing 311 §25.7 Planning the Agenda 312 §25.7.1 Issues 313 §25.7.2 Venue: Telephone, Email, Texting, Location 313 §25.7.3 Timing 316 §25.8 Adapting Your Strategy 317 Chapter 26 Styles and Rituals 319 §26.1 Creating Negotiating Styles 319 §26.1.1 Selecting a Style for a Particular Negotiation 319 §26.1.2 Recognizing Cross-Cultural Differences 322 §26.2 Negotiation Rituals 323 Chapter 27 Following Through on Your Plan 326 §27.1 Adversarial Approach 326 §27.1.1 Making Initial Offers 326 §27.1.2 Deciding How Much to Offer 327 §27.1.3 Presenting Your Initial Offer 327 §27.1.4 Making Subsequent Demands and Concessions 329 §27.2 Problem-Solving Approach 332 §27.2.1 Making Initial Offers 332 §27.2.2 Handling the Other Side's Reluctance to Problem Solve 333 §27.2.3 Problem Solving with the Other Party 335 Chapter 28 Negotiation Tactics 339 §28.1 Information Bargaining 339 §28.1.1 Gathering Information 339 §28.1.2 Concealing Information 341 §28.1.3 Verifying What You Think You Know 342 §28.2 Communicating about Rights and Power 343 §28.2.1 Arguing about Rights 343 §28.2.2 Making and Handling Threats 346 §28.3 Handling Special Problems 347 §28.3.1 Expressing Anger 347 §28.3.2 Handling the Difficult Adversary 348 §28.4 Closing the Deal 348 §28.4.1 Concluding the Negotiation and Discussing It with Your Client 349 §28.4.2 Drafting the Agreement or Stipulation of Settlement 349 Index 353