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Advocacy Survey

Advocacy Survey . Spring 2012. 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

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Advocacy Survey

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  1. Advocacy Survey Spring 2012

  2. 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%)

  3. Additional Class Requirements • Attend the Final Trial for the Law Center’s Trial Advocacy class. (Saturday, April 21st). This is the substitute for Classes 7 & 8.

  4. Assessments – Conflict-Management Style

  5. What is Trauma?

  6. What is Trauma?

  7. What is Trauma?

  8. What is Conflict?

  9. What is Conflict?

  10. What is Conflict?

  11. What is Conflict?

  12. Surface Structure: Words Tonality Body Language Gestures What you observe

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

  14. 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

  15. 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

  16. Clean Questions Power Precision

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

  18. 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…?

  19. Empathy – DS to DS Help meunderstand…

  20. Glasl’s 9 Stage Model of Conflict Escalation(taken from Thomas Jordan’s 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.

  21. 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.

  22. 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.

  23. 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.

  24. 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.

  25. 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.

  26. 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.

  27. 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.

  28. 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.

  29. Advocacy Survey Stories

  30. 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.

  31. 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.

  32. 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

  33. Advocacy Survey Pretrial Litigation

  34. Initial Stage Pleadings Discovery Motions Negotiation ADR Trial Sequence Appeal Initial Stage Charging Arraignment & Bail Discovery Motions & Negotiation Counseling Trial Sequence Appeal Progression: Civil Case v. Criminal Case

  35. 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

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

  37. For Thursday • Depositions http://www.jamespublishing.com/articles_forms/CivilLitigation/defend_liability_depo.htm

  38. The Story of the Case Pleadings v. Statements

  39. Advocacy Survey Mediation

  40. 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."

  41. 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

  42. 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.

  43. 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.

  44. 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”)

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

  46. 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.

  47. 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

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