Legal Counseling and Negotiating: A Practical Approach

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

• ISBN13: 9780820550237
• ISBN10: 082055023X
• Format: Hardcover
• Copyright: 2001-04-01
• Publisher: Lexis Nexis Matthew Bender

Table of Contents

Preface	v
Acknowledgments	vii
Introduction
Learning Legal Counseling and Negotiating	3	(4)
The Importance of Legal Counseling and Negotiating	3	(1)
``Learning by Doing'' and the Role of This Book	4	(3)
PART I COUNSELING
Overview of the Counseling Process and Decision--Making Models	7	(12)
What is ``Counseling''?	7	(1)
An Overview of the Counseling Process	8	(1)
Decision--Making Models	9	(6)
The Lawyer--Centered Model	10	(1)
The Client--Centered Model	11	(2)
The Collaborative Model	13	(1)
Using Different Decision--Making Models	14	(1)
Counseling to Prevent Harm to the Client and Others	15	(3)
A Caring Perspective on Counseling	18	(1)
Patience in Counseling	18	(1)
The Initial Client Meeting	19	(12)
Objectives of the Initial Client Meeting	19	(1)
Handling the Initial Phone Call from Your Client	20	(1)
Beginning the Meeting and Developing Rapport	21	(1)
Interviewing the Client to Get a Basic Factual Picture of Your Client's Situation	22	(1)
Explaining the Attorney--Client Privilege, if Appropriate	23	(1)
Obtaining a Sense of Your Client's Objectives	24	(1)
Determining the Existence of a Conflict of Interest	25	(1)
Deciding Whether to Represent Your Client and Establishing the Nature and Scope of the Representation	25	(1)
Giving Preliminary Advice	26	(1)
Establishing an Initial Course of Action	27	(1)
Establishing Attorney's Fees	27	(1)
Making Arrangements for Follow--up Conferences	28	(1)
Documenting the Initial Client Meeting	29	(2)
Interviewing Your Client	31	(36)
Introduction	31	(1)
Facilitators of Communication	32	(4)
Conveying Empathetic Understanding	32	(1)
Engaging in Active Listening	33	(1)
Encouraging Communication Through Conveying Expectations and Recognition	34	(1)
Keeping an Open Mind about What is Relevant	35	(1)
Inhibitors of Communication	36	(2)
Fears of Embarrassment or Hurting the Case	36	(1)
Anxiety, Tension, or Trauma	37	(1)
Etiquette Barriers and Prejudices	37	(1)
Differing Conceptions about Relevant Information	38	(1)
Purposes of Interviewing	38	(1)
Types of Questions	38	(7)
Open Questions	39	(3)
Follow Up Questions	42	(1)
Closed Questions	42	(1)
Leading Questions	43	(1)
Summary Questions	44	(1)
Information--Gathering Techniques	45	(7)
The Funnel Technique	45	(3)
The Time Line	48	(1)
The Strategic Use of Silence	49	(1)
Failed Memory Probes	50	(2)
Using Writings or Demonstrations to Re--create Events	52	(1)
Exploring Your Client's Objectives	52	(1)
Exploring Legal Theories	53	(1)
Taking Notes During the Interview	53	(1)
Illustration of Initial Client Meeting and Interview	54	(13)
Decision--Making and Implementing the Decision	67	(24)
Introduction	67	(1)
The Process of Legal Decision--Making	67	(1)
Summarizing Your Client's Factual and Legal Situation	68	(1)
Refining and Clarifying Your Client's Objectives	69	(1)
Identifying Potential Options for Achieving Your Client's Objectives	70	(1)
Discussing the Pros and Cons and Likely Outcomes of Each Option	70	(4)
Discussing Non--Legal Pros and Cons	71	(1)
Discussing Legal Pros and Cons	72	(2)
Helping Your Client Decide Which Option to Choose	74	(2)
Implementing Your Client's Decision	76	(1)
Crisis Counseling	77	(1)
Illustration of Decision--Making Conference	78	(13)
Ethical Considerations in Counseling	91	(42)
Introduction	91	(1)
Establishing the Attorney--Client Relationship	92	(1)
Establishing the Scope of the Representation	93	(5)
The Duties of Competence, Diligence, and Communication	98	(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	(1)
Appendix B	1	(1)
Appendix C	1	(1)
Index	1