Legal Counseling and Negotiating: A Practical Approach

, by Herman, G. Nicholas; Cary, Jean M.; Kennedy, Joseph E.

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ISBN: 9780820550237 | 082055023X
Cover: Hardcover
Copyright: 4/1/2001

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Supplemental Materials

Preface

Acknowledgments

vii

Introduction

Learning Legal Counseling and Negotiating

(4)

The Importance of Legal Counseling and Negotiating

(1)

``Learning by Doing'' and the Role of This Book

(3)

PART I COUNSELING

Overview of the Counseling Process and Decision--Making Models

(12)

What is ``Counseling''?

(1)

An Overview of the Counseling Process

(1)

Decision--Making Models

(6)

The Lawyer--Centered Model

(1)

The Client--Centered Model

(2)

The Collaborative Model

(1)

Using Different Decision--Making Models

(1)

Counseling to Prevent Harm to the Client and Others

(3)

A Caring Perspective on Counseling

(1)

Patience in Counseling

(1)

The Initial Client Meeting

(12)

Objectives of the Initial Client Meeting

(1)

Handling the Initial Phone Call from Your Client

(1)

Beginning the Meeting and Developing Rapport

(1)

Interviewing the Client to Get a Basic Factual Picture of Your Client's Situation

(1)

Explaining the Attorney--Client Privilege, if Appropriate

(1)

Obtaining a Sense of Your Client's Objectives

(1)

Determining the Existence of a Conflict of Interest

(1)

Deciding Whether to Represent Your Client and Establishing the Nature and Scope of the Representation

(1)

Giving Preliminary Advice

(1)

Establishing an Initial Course of Action

(1)

Establishing Attorney's Fees

(1)

Making Arrangements for Follow--up Conferences

(1)

Documenting the Initial Client Meeting

(2)

Interviewing Your Client

(36)

Introduction

(1)

Facilitators of Communication

(4)

Conveying Empathetic Understanding

(1)

Engaging in Active Listening

(1)

Encouraging Communication Through Conveying Expectations and Recognition

(1)

Keeping an Open Mind about What is Relevant

(1)

Inhibitors of Communication

(2)

Fears of Embarrassment or Hurting the Case

(1)

Anxiety, Tension, or Trauma

(1)

Etiquette Barriers and Prejudices

(1)

Differing Conceptions about Relevant Information

(1)

Purposes of Interviewing

(1)

Types of Questions

(7)

Open Questions

(3)

Follow Up Questions

(1)

Closed Questions

(1)

Leading Questions

(1)

Summary Questions

(1)

Information--Gathering Techniques

(7)

The Funnel Technique

(3)

The Time Line

(1)

The Strategic Use of Silence

(1)

Failed Memory Probes

(2)

Using Writings or Demonstrations to Re--create Events

(1)

Exploring Your Client's Objectives

(1)

Exploring Legal Theories

(1)

Taking Notes During the Interview

(1)

Illustration of Initial Client Meeting and Interview

(13)

Decision--Making and Implementing the Decision

(24)

Introduction

(1)

The Process of Legal Decision--Making

(1)

Summarizing Your Client's Factual and Legal Situation

(1)

Refining and Clarifying Your Client's Objectives

(1)

Identifying Potential Options for Achieving Your Client's Objectives

(1)

Discussing the Pros and Cons and Likely Outcomes of Each Option

(4)

Discussing Non--Legal Pros and Cons

(1)

Discussing Legal Pros and Cons

(2)

Helping Your Client Decide Which Option to Choose

(2)

Implementing Your Client's Decision

(1)

Crisis Counseling

(1)

Illustration of Decision--Making Conference

(13)

Ethical Considerations in Counseling

(42)

Introduction

(1)

Establishing the Attorney--Client Relationship

(1)

Establishing the Scope of the Representation

(5)

The Duties of Competence, Diligence, and Communication

(3)

Advising Your Client

101

(2)

Representing a Client who is Under a Disability

103

(4)

Preserving Confidentiality of Information

107

(2)

Serving as an Intermediary Between Clients

109

(4)

Conflicts--of--Interest

113

(6)

Setting Attorney's Fees

119

(3)

Declining or Withdrawing from Representation

122

(4)

Dealing with Persons Other than Your Own Client

126

(7)

PART II NEGOTIATING

Introduction and Academic Approaches to Negotiation

133

(18)

The Relationship Between Counseling and Negotiating

133

(1)

Academic Approaches to Understanding Negotiation

134

(1)

Game Theory and The Prisoner's Dilemma

134

(3)

Economic Approaches

137

(5)

Anthropological and Sociological Approaches

142

(3)

Psychological Approaches and Factors

145

(5)

Risk Aversion

145

(2)

Reference Points and Framing Effects

147

(1)

Sunk Costs

148

(1)

Reactive Devaluation

149

(1)

Translating Academic Approaches into Practice

150

(1)

Negotiating Models, Strategies and Styles

151

(16)

Introduction

151

(1)

The Adversarial Model

152

(2)

The Problem--Solving Model

154

(1)

Factors Affecting the Utility of the Adversarial and Problem--Solving Models

155

(3)

The Nature of the Dispute or Problem

156

(1)

The Other Side's Negotiating Approach

156

(1)

Differences in Bargaining Leverage

157

(1)

Future Dealings Between the Parties or Negotiators

157

(1)

Pressures to Reach an Agreement

158

(1)

Negotiating Strategies and Styles

158

(1)

Competitive (Hardball) Style

158

(1)

Cooperative (Softball) Style

159

(1)

Competitive--Cooperative (Hardball and Softball) Style

159

(1)

Choosing a Negotiating Style and Strategy

160

(1)

Style and Strategy Combinations

160

(1)

Competitive and Adversarial

160

(1)

Cooperative (or Competitive--Cooperative) and Adversarial

161

(1)

Competitive and Problem--Solving

161

(1)

Cooperative (or Competitive--Cooperative) and Problem--Solving

161

(1)

The Overall Importance of Flexibility and Credibility

161

(1)

Summary of Style and Strategy Characteristics, Advantages, and Disadvantages

162

(5)

Ethical Considerations in Negotiation and Settlement

167

(14)

Introduction

167

(1)

Attorney's Authority to Settle and Advising the Client

167

(2)

Aggregate Settlements

169

(2)

Contingent Fees

171

(2)

Example of Contingent Fee Contract

173

(1)

Truthfulness in Negotiating

174

(4)

Civility in Negotiating

178

(1)

Threatening Criminal Prosecution in Negotiating

179

(2)

Negotiating Tactics and Techniques

181

(24)

Introduction

182

(1)

Abdication

183

(1)

Adjournment or Caucus

183

(1)

Anger/Aggressiveness

183

(1)

Asymmetrical Time Pressure

184

(1)

Blaming or Fault Finding

184

(1)

Bluffing

184

(1)

Br'er Rabbit

184

(1)

Coalition

185

(1)

Company Policy Excuse

185

(1)

Deadlines

185

(1)

Delay

186

(1)

Dodging the Question through Blocking Techniques

186

(1)

Draft Document or Single Negotiating Text

186

(1)

Escalating Demands

187

(1)

Excessive Initial Demands/Offers

187

(1)

Face Saving

187

(1)

Fait Accompli

188

(1)

False Demands

188

(1)

False Emphasis

188

(1)

False Multiple Concessions

189

(1)

False Security

189

(1)

Floating Trial Balloons and Bracketing

189

(1)

Good Guy--Bad Guy Routine/Mutt and Jeff

190

(1)

Lack of Authority or Limited Authority

190

(1)

Little Ol' Country Lawyer

191

(1)

Lock--in Positions

191

(1)

Low--Balling

192

(1)

Misstatement

192

(1)

Nibbling

192

(1)

Off--the--Record Discussions

193

(1)

Personal Attacks

193

(1)

Playing Dumb

193

(1)

Preconditions or Conditional Proposals

193

(1)

Problem Solving

194

(1)

Publicity

194

(1)

Questions to Facilitate Agreements

195

(1)

Questioning by Socratic Method

196

(1)

Reversing Position

196

(1)

Salami

197

(1)

Snow Job/Alleged Expertise

197

(1)

Splitting the Difference

197

(1)

Surprise

198

(1)

Take-it-or-Leave--it

198

(1)

Threats

199

(1)

Timing

199

(1)

Two Against One

200

(1)

Walkout

200

(1)

Word--Smithing

200

(1)

Dealing with Disingenuous or Inappropriate Tactics or Techniques

201

(4)

Valuing Cases for Negotiation and Settlement

205

(22)

Introduction

205

(1)

Target and Resistance Points

205

(2)

Intuitive ``Case Worth'' Analysis

207

(2)

Rule--of--Thumb Valuation

209

(1)

The Sindell Formula

210

(2)

Traditional Economic Analysis

212

(3)

Fair Settlement Range Formula

215

(1)

Analysis of the Client's Aversion to Risk and Motivations

216

(2)

Adopting a Holistic Analysis and Advising the Client

218

(2)

Example of Holistic Analysis

220

(7)

Preparing for Negotiation

227

(24)

Introduction

228

(1)

Information to Obtain

228

(2)

Information from the Client

228

(1)

Information About the Other Party

228

(1)

Information About the Opposing Negotiator

229

(1)

Information About the Law

229

(1)

Other Information

230

(1)

Preparing a Negotiation Preparation Outline

230

(6)

From the Perspective of Each Party, Make a List of Information To Obtain, Information To Reveal, and Information To Protect

230

(1)

Make a List of Each Party's Interests

231

(1)

Make a List of Each Party's Primary Objectives, Secondary Objectives, and Incidental Objectives (to Exchange)

231

(1)

Make a List of Possible Solutions for Each Party (from most preferred to least preferred)

232

(1)

Make a List of Each Party's Best Alternatives to a Negotiated Agreement (BATNA)

232

(1)

Make a List of Each Party's Factual and Legal Leverage Points (Strong and Weak)

233

(1)

Identify Each Party's Potential Target and Resistance Points

233

(1)

Identify Each Party's Negotiating Strategy: Adversarial or Problem-Solving

234

(1)

Identify Each Party's Negotiating Style: Competitive (Hardball), Cooperative (Softball), or Competitive--Cooperative (Hardball and Softball)

234

(1)

Make a List of Each Party's Offers or Proposals in the Order They May be Presented

234

(1)

Consider Each Party's Particular Tactics

235

(1)

Revise All of the Foregoing Matters Throughout the Negotiating Process

236

(1)

Format for Negotiation Preparation Outline

236

(2)

Illustration of Negotiation Preparation Outline (Adversarial Approach)

238

(6)

Illustration of Negotiation Preparation Outline (Problem--Solving Approach)

244

(5)

The Role of the Client and Advising the Client

249

(2)

Negotiating in Writing and Over the Telephone

251

(18)

Introduction

251

(1)

Negotiating in Writing---Advantages and Disadvantages

252

(1)

Techniques for Effective Correspondence

252

(3)

Send the Letter By Registered or Certified Mail

252

(1)

Copy the Letter to Other Persons

252

(1)

Identify Your Authority to Represent

253

(1)

Adopt an Appropriate Style and Tone

253

(1)

Highlight the Pertinent Facts and Law

253

(1)

Convey a Specific Proposal or Course of Action

254

(1)

State a Time Frame for Action and Consequences for Inaction

254

(1)

Illustration of a Demand Letter

255

(1)

Settlement Brochures

256

(3)

Introduction to Brochure/Cover Letter

257

(1)

Statement of Facts and Liability

257

(1)

Summary of Medical Treatment

258

(1)

Summary of Lost Earnings

258

(1)

Summary of Pain and Suffering and Permanent Injury

258

(1)

Damages Summary and Initial Demand

258

(1)

Illustration of Settlement Brochure (Personal Injury Case)

259

(7)

Negotiating Over the Telephone---Advantages and Disadvantages

266

(1)

Techniques for Effective Telephone Negotiations

266

(3)

Do Not Commit Yourself Unless You are Prepared

266

(1)

Do Not Be Afraid to Be ``Unavailable''

267

(1)

Use a Preparation Negotiation Outline

267

(1)

Adjust the Pace and Tone of Your Voice

267

(1)

Do Not Be Afraid to Call Back

267

(2)

Negotiating Face to Face

269

(28)

Introduction

269

(1)

With Whom to Negotiate

270

(1)

When to Negotiate

270

(1)

Where to Negotiate

271

(1)

Who Should Attend the Negotiation

271

(2)

Setting the Tone

273

(1)

Setting the Agenda

273

(2)

Reading Body Language

275

(1)

Exchanging Information

276

(1)

Obtaining Information

276

(2)

Protecting Information

278

(1)

Revealing Information

279

(1)

Adversarial Bargaining

280

(10)

Making Offers

280

(3)

Making Counteroffers

283

(1)

Making Concessions

283

(5)

Forms of Persuasion

288

(2)

Problem--Solving Bargaining

290

(3)

Identifying and Sharing Interests or Needs

290

(1)

Brainstorming for Solutions

291

(1)

Making Problem--Solving Offers, Counteroffers, and Concessions

292

(1)

Combining Adversarial and Problem--Solving Bargaining

293

(1)

Concluding the Negotiation

294

(3)

Negotiating During Civil Litigation

297

(12)

Introduction

297

(1)

General Considerations about Preparation

297

(1)

General Considerations about Pretrial Strategy and Style

298

(1)

Filing the Complaint and Answer

299

(2)

Using Discovery

301

(1)

Making Offers of Judgment

302

(3)

Using Timing and Deadlines

305

(1)

Using Pretrial Settlement Conferences

306

(1)

Settling at the Last Minute

307

(1)

High--Low Agreements

308

(1)

Negotiating During Mediation

309

(38)

Introduction

310

(1)

The Mediation Process, in General

311

(3)

Facilitative v. Evaluative Mediation

314

(1)

Mediator Styles and Strategies

314

(2)

What Cases to Mediate and When to Mediate

316

(2)

Favorable Situations for Mediation

317

(1)

Unfavorable Situations for Mediation

317

(1)

Choosing a Mediator

318

(1)

Mediator Tactics and Techniques

319

(6)

Tactics and Techniques Drawn from Traditional Negotiating

319

(1)

Tactics and Techniques for Obtaining Information

320

(1)

Tactics and Techniques for Generating and Discussing Potential Solutions

321

(1)

Tactics and Techniques for Assessing, Selecting, and Communicating Specific Proposals

322

(1)

Tactics and Techniques for Creating Movement in the Negotiations

323

(2)

Tactics and Techniques for Forging and Finalizing the Terms of an Agreement

325

(1)

Preparing for Mediation

325

(6)

Preparing a Mediation Preparation Outline

325

(1)

Holding a Pre--mediation Conference With the Mediator or Between Counsel

326

(1)

Who Should Attend the Mediation

327

(2)

Preparing the Client for Mediation

329

(2)

Effective Advocacy During Mediation, in General

331

(1)

Preparing a Pre--mediation Submission

332

(2)

Making the Opening Statement

334

(3)

Using the Private Caucuses

337

(8)

Assist the Mediator in Obtaining Information

338

(1)

Discuss the Strengths and Weakness of the Case

339

(1)

Specify Confidential Information

339

(1)

Listen to the Mediator's Cues and Clues

340

(1)

Invite the Mediator's Perspectives about the Case

340

(1)

Do Not Disclose Your Bottom Line Up Front

341

(1)

Make Reasonable Settlement Offers Supported by Sound Reasons

342

(1)

Hold Back Some Strong Leverage Points Until the Final Caucuses

342

(1)

Suggest Mediator Tactics and Techniques that May Help Forge an Agreement

343

(1)

Confer Alone with the Mediator and Opposing Counsel, if Necessary

344

(1)

Do Not Make the Mediator's Fee an Element of the Settlement

344

(1)

Be Patient with the Mediation Process and Take Time to Confer Privately with Your Client

345

(1)

Concluding the Mediation

345

(2)

Legal Considerations in Settlement

347

(46)

Introduction

347

(1)

Duties of Attorneys in Settlement

348

(2)

Duties of Insurers to Defend and Settle

350

(5)

Settlements With and Contribution Among Joint Tortfeasors

355

(7)

Example of Settlement Agreement and Release [With Reservation of Rights]

362

(1)

Mary Carter and Loan--Receipt Agreements

363

(5)

Settlements Requiring Judicial Approval

368

(1)

Taxation of Settlement Funds

369

(2)

Lump--sum and Structured Settlements

371

(3)

Liens of Health--care Providers and Other Entities on Settlement Funds

374

(2)

Confidentiality of Settlements and Settlement Discussions

376

(4)

Finalizing Settlements and Disbursing Settlement Funds

380

(5)

Enforcing Settlements and Drafting Settlement Agreements

385

(4)

Example of Common Settlement Agreement Provisions

389

(4)

Cross--Cultural Negotiations and Negotiating Between Genders

393

(14)

Introduction

393

(1)

Cross--Cultural Negotiations

394

(7)

Language Barriers

394

(2)

Environmental and Technological Differences

396

(1)

Differences in Social Organization

397

(1)

Differences in Contexting and Face--Saving

398

(1)

Differences in Authority Conception

399

(1)

Nonverbal Behavior

400

(1)

Differences in Conception of Time

400

(1)

The Utility of the LESCANT Factors

401

(1)

Negotiating Between Genders

401

(6)

Studies about Negotiating Between Genders

402

(2)

The Importance of Awareness about Perceived Gender Differences

404

(3)

Plea Bargaining

407

Introduction

408

(1)

Plea Bargaining Styles and Strategies

409

(1)

The Prosecutor's and Defendant's Interests and Objectives

410

(4)

Factors Affecting the Prosecutor's Interests and Objectives

410

(2)

Factors Affecting the Defendant's Interests and Objectives

412

(2)

General Constitutional Considerations

414

(3)

The Role of the Prosecutor

417

(5)

The Role of Defense Counsel

422

(3)

Preparing for Plea Bargaining

425

(13)

Information to Obtain

425

(3)

Sources of Information

428

(1)

Preparing a Plea Bargaining Preparation Outline

429

(1)

Illustration of Plea Bargaining Preparation Outline

430

(6)

The Role of the Client and Advising the Client

436

(2)

Plea Bargaining Tactics

438

(7)

Coalition

438

(1)

Cooperation from the Defendant

438

(1)

Deadlines

439

(1)

Delay

439

(1)

Illusory Promises

440

(1)

Image Building

440

(1)

Lack of Authority or Limited Authority

440

(1)

Last Minute Pleas

441

(1)

Obtaining Discovery

441

(1)

Overcharging

441

(1)

Package Deals

442

(1)

Plea Policies Excuse

442

(1)

Polygraph Tests

443

(1)

Publicity

443

(1)

Quick Pleas

443

(1)

Take-it-or--Leave--it

444

(1)

Threats

444

(1)

Waiver of Constitutional Rights

444

(1)

Negotiating the Plea Agreement

445

(13)

With Whom to Bargain

445

(1)

When to Bargain and Who Should Initiate Bargaining

446

(1)

Where to Bargain and Who Should Attend

447

(1)

Setting the Tone and Agenda

447

(1)

Making Offers, Counteroffers, and Concessions

448

(1)

Sentencing Factors

449

(4)

Types of Plea Provisions and Common Defense Arguments

453

(3)

Finalizing the Bargain and The Role of the Judge in Bargaining

456

(2)

Entering a Plea Under a Plea Agreement

458

(22)

Types of Pleas

458

(1)

Plea of Not Guilty

458

(1)

``Straight'' Guilty Plea

459

(1)

Alford Plea

460

(2)

Nolo Contendere Plea

462

(1)

Conditional Plea

463

(1)

General Procedures on Entering a Plea

464

(7)

Entering the Plea Under a Plea Agreement

471

(7)

Checklist for Entering the Defendant's Plea and Advising the Client

478

(2)

Enforcing the Plea Bargain

480

(14)

Constitutional Grounds and Remedies for Enforcement

480

(3)

Bargains Benefiting or Binding Third Persons

483

(3)

Construing the Terms of the Bargain

486

(3)

The Prosecutor's Performance of the Bargain

489

(3)

The Defendant's Performance of the Bargain

492

(1)

Procedure for Enforcing or Abrogating the Bargain

493

(1)

Mediation in Criminal Cases

494

Appendix A

(1)

Appendix B

(1)

Appendix C

(1)

Index

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Legal Counseling and Negotiating: A Practical Approach

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Legal Counseling and Negotiating: A Practical Approach

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