Interviewing, Counseling, and Negotiating (“ICN”) Outline

I. The importance and interrelationship of interpersonal skills

◊ interpersonal skills is important from identification and development of client’s problem to analysis
of alternatives to action.

1. Interviewing – basic purpose is to gather facts and establish a rapport with the client.
i. establish rapport and contract for services.
a. Empathy – see the world through the client’s eyes. Seeks to learn what the client is experiencing
(events, encounters, reactions and feelings) Shares the client’s values or feelings; understands them.
◊ to respond empathetically, the lawyer must communicate the understanding back to the client by
articulating the client’s feelings.
◊ pacing, good pace throughout the interview

b. genuineness – (sympathy) – to appreciate and understand on an emotional level.

i. shown by word choice, listening (can tell listening by follow up question to information received),
eye contact, facial expressions, body language.
ii. their words match their feelings.
iii. embraces honesty, candid w/client and mean what you say.
c. probing –

d. Concreteness – specificity and clarity in description and narrative.

i. Language can threaten concreteness – words like “things, lousy, everything,” need to probe and get
more info.
ii. client run on – clients avoiding sensitive subjects or scatterbrains.

2. Counseling – to identify the client’s alternatives and priorities and then help the client select the most
constructive opinion.
i. research and investigation. Gather facts
◊ giving opinions, not telling (don’t tell person to plead either guilty or not guilty).
◊ use of interviewing skills +
a. Creativity – think of multiple alternatives for client so they have options

b. Foresight – think ahead of possible solutions or problems which may, or may not, occur.

c. Analysis – break down issue for hidden or untold issues

d. Explanation – explain options to client in dictum on their level. No use for elevated jargon if not
appropriate.
e. cooperation – make client part of the process – get a copy of driving record, get witness
information, etc.
f. advice – if in need of psychiatrist, rehab. Don’t be judgmental.

3. Negotiation – (never get here unless ready for trial) to implement the goals set during counseling.
◊ Achieve client goals.
◊ Resolve issues without litigation. Must use all of pervious skills +
a. strategy

b. persuasion – present in a way that may possibly read a client to better position without telling.

c. conciliation –

- 1 – As taught by Professor Williams

 strategy persuasion conciliation Negotiation -

Creativity
Analysis and Explanation and
and
advice cooperation
foresight Counseling -
genuinenes
empathy listening probing - Interviewing
s

The Role as a Lawyer: Some basic themes

1. The lawyer Roles –
a. primary role is a helper. The process of reaching a decision requires a partnership in
which you provide understanding, legal expertise, and a structure for decision making.
(interpersonal, professional, fiduciary capacity). (negotiation and counseling stage)
b. Role as advocate – to defend clients in a variety of forms. – negotiating, gathering
facts, witnesses, scanning, screening, formulating theories. (generally grouped together
as planning and drafting).

c. The professional Mask – there is an overlap between private self (morals) and
professional roles and responsibility. Must separate between legal and personal life.

i. the job of the lawyer IS NOT to approve, or disapprove, of the character of his or
her client, the cause for what the client seeks the lawyer’s assistance, or, avenue by
the law to achieve what the client wants to accomplish.
ii. The lawyer’s task is to provide that competence which the client lacks and the
lawyer possesses
iii. Legalism – the ethical attitude that holds moral conduct to be a matter of rule
following. Not necessarily a good thing. EX – Lawyers once argued the separate
but equal doctrine was constitutional without addressing the morality.

- 2 – As taught by Professor Williams

 Chapter 2. Helping Theories
2. Psychoanalysis (FREUDIAN) – sees the personality as an arena for conflict.
a. “id” – represents the innate, primitive, selfish, aggressive, and sexual instincts in the
individual.
◊ They would dominate if left totally unrestrained by society and feelings for others.
◊ Freud saw humans as essentially negative.
b. “super ego” – comprises the societal, moral, and parental teachings internalized by the
person.

c. The pleasure principle – people’s overriding drive is to seek pleasure and to avoid pain
or unpleasantness. A person’s actions and thoughts reflect a conscious effort towards
pleasure.

d. “ego” mediates between competing internal forces and the external world. The ego
employs a number of defenses to bar unpleasant experiences or defuse there impact on
the consciousness.
i. repression – individual entirely blocks out a painful experience
ii. rationalization – (most common) describes a post hoc placed by the ego onan
unpleasant event to make it appear for the best.
iii. Projection
iv. Regression
v. Compensation
vi. Intellectualization
vii. Denial

e. determinism – personality development and mental processes (both conscious and

unconscious levels) result directly from past experiences.
f. Psychosexual stages – critical for personality development
i. Oral
ii. Anal – (8 months – 3 years) – child derives his main source of physical pleasure
from stimulation of the anal erogenous zone and from activities connected with the
retention and passage of feces. The child sees the feces as an extraction of self and
thus valuable. When discarded by those who care for him, child may lose self
esteem and grow stubborn and rebellious.
iii. phallic
iv. latency
v. genital

3. Steps in psychoanalysis
i. initial phase – identify the problem and determine of psychoanalysis is appropriate
ii. transference – taking on in the patient’s unconscious the persona of a figure from the
repressed past or from fantasies. Helps patient to understand unconscious manipulates
present perceptions
iii. termination of treatment.
iv. Prepare patient for life after analysis
v. Watch for counter-transference – attributing an identity from his or her past to the
patient.

4. Utility for lawyers and limitations – can not perform psychotherapy but can recognize
problems and refer them to specialist/use therapy for benefit in case.
i. defenses from ego or super ego can prevent information flow from patient.

- 3 – As taught by Professor Williams

 ◊ Person Centered Approach – (client centered and Rogerian approach) – individuals can
best develop and grow toward their full potential (self actualization) when facilitated by a
relationship with a helping person who is empathetic, genuine, and non judgmental. (people
are naturally good).
i. every person possesses an innate drive toward self actualization. They develop
through experience a self concept witch os “organismic”
ii. also develop self regard – how others see them. – Conditions of worth (derived
from family and societal mores
iii. When there is a conflict between organismic needs and self regard, the self regard
needs typically take over. Organismic needs to not disappear, instead cause anxiety
and provoke defense mechanisms to subvert and maintain self regard.
a. for the approach to work – Roger’s has identified:
i. empathy toward client – see empathy above
ii. unconditionally positive in his or her regard for the client – exercises not judgment
about the clients values, feelings, needs, and experiences. Goal is to help each
client identify his or her self concept but not to reshape it.
iii. Genuine -
◊ All similar elements to interviewing above.

1. Limitations to Roger’s Approach

i. as a lawyer, must focus on analysis of legal issue at hand and refer person to therapist for
substance abuse and other problems.

◊ Behaviorism – focus on clients actions and behavioral patterns rather than their feelings
and thoughts.
- based on premise that all behavior is a function of preceding events. A response to certain
stimuli.
- when clients want to change the behavioral patterns, the therapist begins to identify the
stimuli that produce the undesirable behavior, then attempts to alter or extinguish the
response through reinforcement or occasionally punishment to shape a more desired pattern
of behavior.
- more directive than the others, yet they view it as a collaborative approach.

◊ Rational-Emotive Therapy – (RET)

Along with reality therapy – has cognitive basis – faulty thinking leads to anxiety and that
people need to restructure their thinking in order to correct anxiety.

A. The ABC theory

Intense emotional consequences (c) following a significant activating event (a) the
person may think A caused C. However belief systems (b) are largely the cause of
emotional consequences.
◊ people are born with rational and irrational, constructive and destructive
potential.
(agree w/ humanist, and Rogerian’s that people have expansive self actualizing
resources).
“nothing’s bad, but thinking makes it so.”

◊ Transactional Analysis –
“people are born princes and princesses until their parents turn them into frogs.”
A. People function through 3 active personality states. Different from Freud because are evolving, conscious,
and segregated entities within the personality.

- 4 – As taught by Professor Williams

1. parent – introjects and identifies with the person’s own biological parents. Expresses values, beliefs, and
attitudes. Either critical or nurturing
2. adult – provides maturity, logic, and realism
3. child – comprises the rebellious and nonconforming aspects of the personality. Also creative, intuitive, and
emotional components.

- 5 – As taught by Professor Williams

 Chapter 3 the Goals of Interviewing

A. Obtaining Relevant Information

I. Scope of Inquiry
A. Legal problems clients are aware of and articulate – may not always know the exact legal issue, but know they
need help. Take time to listen and to identify all the elements.

B. Legal Problems clients are unaware or do not articulate. Part of being a lawyer is to evaluate issues. Not all
issues are given.
C. Non legal problems affecting the legal issue

II. Establishing an appropriate attorney-client relationship.

◊ listen to all issues of the client.

Fees- Modern Rules of Professional conduct – 1.5(b) when lawyer has not regularly represented the client, the basis
or rate of fee shall be communicated, preferably in writing, before a reasonable time after commencing
representation. (see pg. 73).

Chapter 4 – Anatomy of the Initial Client Interview

(1) Preparing for the law – a good questionnaire given to the client allows the lawyer to research relevant law and
will make it more difficult to miss important, legally relevant questions during the interview.
◊ don’t spend too much time, those hours are un billable. However review a hornbook or a quick review of
something.

(2) Preparing for the facts – often difficult to do because you are not provided sufficient information before you
meet them.
(3) Preparing for the relationship – consider appearances and timing. Anticipating client’s attitude and adjusting own
demeanor.

Ice Breaking – has both client centered and lawyer centered goals.
Client centered – making the client feel more comfortable
Lawyer centered – expanding the lawyer’s information base.

◊ after arranging furniture in an appropriate way, eliminated interruptions, cleaned area, offer soda, water, tea, when
the client is seated. It is ok to continue ice breaking once the client is seated.

◊ to determine if I should go right to business or continue ice breaking – use the client as a barometer.
- is the client eager to get started with business or is more time to get acquainted more appropriate.
- reaching for a briefcase or shuffling through papers are signs the client is ready to get started.

Problem Identification – what questions to ask to get the most information.

◊ open ended questions – how can I help you today? Or if you have an overview of the problem, “I understand you
have questions about… why don’t you start from the beginning and tell me about the problems you are having and
how you’d like to see those problems resolved.

Identify issues or topics in clients response to open ended answers and place them in order they are to be pursued.

- 6 – As taught by Professor Williams

 Chapter 6 Nonverbal Communication and Techniques

Proxemics – the importance of spatial relationships to communications

The way the room is set up for an interview (see page 135) I like Figure (2)

Work
chair

TABLE

My Interviewee
Intervie chair
w chair

Kinesics – body movements (or the failure to move) as a communication device

◊ eye contact is a prerequisite to receiving most nonverbal information and a means for transmitting valuable
information. – too much concern on note taking will cause you to loose much nonverbal information.

Paralinguistics – vocal phenomena (pace, pitch, tone, and volume) other than the actual content of speech)

Chapter 7 Verbal Techniques and Probing Skills

(chapter 7 and 8 specifically addresses clients for interviews)

The Role and Significance of Language

◊ must learn to recognize inadequate responses and probe deeper (could lead to worthless and inadequate research)
- all communication (either on a subconscious or conscious) is important. (Word selection is important)
- language level – avoid legalese as much as possible. Some things have to be explained. Always use some legalese
in an interview (just to prove you’re a lawyer)
◊ don’t talk down to client/don’t talk over the head/but don’t be afraid to use legal language
- establish or achieve immediacy – directness – (what brings you to my office?/ How can I help you?) and encourage
the client to do likewise. (William’s disagrees w/ book. Give bad news and good news in person. Informational
stuff goes in person.

6 things that point to immediacy derived from the language within the language
face to face interviews
must be aware of impressions you are giving to client.
Then either the lawyer or client uses temporal spatial awareness. The person is setting themselves apart from a
person or situation. When a person uses such language – probe someone. Find out what they mean.

(1) the medium of communication – face to face is the most immediate.

(2) spatio-temporal indicators give evidence of attitude toward subject Can get feelings of a client from inclusion or
exclusion of other’s and/or places.
◊ the use of person pronouns. I (close) it (distant). “those people”

selective emphasis – a general description followed by a specific description.

- 7 – As taught by Professor Williams

(3) descriptive terms relative ambiguity “denotative specificity”. Daughter to be, your son’s fiancé, his fiancé, his
friend, she, the person, that thing. Pronoun usage, I , it we, the,

(4) selective emphasis of verbal variant. – when the speaker focus on specific objects out of a group of objects. Can
focus by sequencing, omitting, highlighting, or isolating,
(5) – the speaker’s agent-action-object relationships can be significant. – the person initiating the action is the agent,
the recipient of the action is the object. John hit Sally, Sally hit John, they hit each other, implies different fault. The
use of passive and active voice also effects it. I drove the car rather than the car was driven by me.

(6) the usage of automatic phrases.- out of habit, instead out of need to necessitate anything. (“uh, oh, um, ok,”) ◊
can show negative feelings in client. If lawyer ask clear question and client says “huh” implies negative effect. Also,
words, like just, you know, right.

Developing objectives and planning the interview – 1st and subsequent interviews
(1) why are you doing interview
(2) what do you hope to derive
(3) what do you hope the interviewee derives.

Plan your conduct to the interview

◊ can always look up the area of the law – just look up the general area.
◊ prepare for the interview knowing I should address certain issues.

Anticipate any inhibitors – shame, denying,

When anticipated, have time to develop strategies to deal with situation.

Probing in context – dealing with inadequate responses

◊ must set interview that:
(1) promotes relationship with clients – set up structure
(2) achieve object of receiving information
◊must be aware that the person is not receiving adequate information
partial response – how do u know it is partial –
silence after question or refusal to answer –
◊ irrelevant response –
◊ inaccurate responses – maybe the most difficult to deal with – deal with the inaccurate response while it happens.
(1) partial responses are most common – provide some relevant information, but
not all of what is needed.
(2) Non responses – respond by either more open ended questions or closed ended
questions.
(3) Irrelevant responses –
(4) Inaccurate responses – most difficult to identify -

Reasons for inadequate responses -

(1) client fails to understand the question – just repeat or rephrase
(2) client does not realize full breadth of information requested – leads to inadequate response – cure by follow
up probes
(3) lacks ability to articulate a complete response. Lack of vocabulary or inability to articulate feelings. Probes
must do the filling in
(4) client can not maintain focus and looses grasp of what is relevant. Rambling clients call for more topic
control, directive questions.
(5) Does not remember requested information –
(6) Client consciously conceals, distorts, or fabricates information. Deceit must be confronted.
(7) Psychological factors limit information. Need empathetic probing and professional help.

- 8 – As taught by Professor Williams

Topic Control and Breadth of Questions
Topic control refers to control of the conversation in the interview, what is discussed, for how long, and in what
manner.
(1) Open ended questions – allows client to answer as much as they want.
(2) And closed ended narrow questions - must use because you have to have detail. May need to use when client is
not responsive to open ended questions are not working.

Appropriate breadth of questions and how much topic control to exercise or surrender turns on:
(1) the objectives of the interview – if gathering facts and learning about client – open ended questions are
best.
(2) subject of interview and type of information sought - the more experience a lawyer has – the more the
lawyer will dictate with close ended questions. More experience takes charge more.
(3) type of motivation sought – open ended questions sometimes gains trust, closed ended help when not
getting relevant information.
(4) the identity of the interviewee – age, intelligence, education effects ability to handle topic control.
(5) competing time demands – if limited time may have to assert informational priorities on interview

Request of unspecified Request for specified The facts Interpretation/Explanation

information information
What happened, tell me Did, was, will, has Who, when, where, how Why, how
about it much, how many

Type of motivation sought – what is motivating the client to come to see you.

Probes – read page 162.

Open-Ended Questions and Client Interview Funnel example on pg. 169

Nature of harassment
Touching

Remarks

Bosses Inaction
Client’s complaint’s

Bosses’
Responses

Nature of
workplac
e

- 9 – As taught by Professor Williams

 Natural Probes
(1) The Silent Probe – allows for client to give more information. Should sit up
and attentive.
(2) Encouragement Probe – hmmm, really, un huh, I see, conveys that you are
listening
(3) Immediate elaboration – open ended questions that ask the client to further
elaborate on the topic under discussion. “then what happened”
(4) Retrospective Elaboration – open ended probes that refer back to something
previously raised by the interviewee. “earlier you told me this, can you tell me
about them?”
Non Neutral Probes –
(1) Clarification – seek specific additional information about specific points in proceeding
answers.
(2) Recapitulation – organizes thought, gives client opportunity to correct any misunderstanding
(3) Empathetic Reflection – reflecting on client’s feelings
(4) Mutation – changes the subject from a matter previously discussed. Ease transition with an
introduction. The information you have given me was helpful, but I also need to know about
your previous driving history.
(5) Leading Questions - ask for yes no answers and typically suggest what the appropriate choice
is. You go to church every Sunday don’t you? Exert the most stringent interviewer topic
control. Also used to convey empathy “you recall, you feel…because) and seek confirmation
of particular facts.

Chapter 8 Psychosocial Influences on Communications

Inhibitors of Communication
(1) ego threat – when the subject of discussion threatens the interviewee’s self esteem. EX – an accident
witness resists discussing the interview if it occurred as he emerged from a peep show. Counter by assuring
about confidentiality.
(2) Case Threat – when client’s perceive that disclosure of certain information will harm their case.
(3) Conformance to social norms – some people expect the lawyer to dominate. Also, men and women are
reluctant to discuss sexual matters in public. Counter by using empathy and explanation. Acknowledge the
sensitivity of the subject and the differences between yourself and the interviewee.
(4) Bias – racial or sexist stereotypes. Takes time, exposing them, and proving their premises inapplicable or
wrong.
(5) Competing time demands
(6) Environment – see spatial awareness above.
(7) Perceived Irrelevance and Greater Need – when clients are unable to see the connection between their case
and your questions or clients may become impatient when the client feels there is a greater need than what
you are focusing on.
(8) Trauma - break up of romance, death, accident. Must use patience and understanding, and seek professional
help.
(9) Memory Failure – the one effects ability to communicate, not willingness.
(10) Unconscious Behavior – (1) custom or habit, (2) reactions to many subliminal, nonverbal cues,
reactions under distress.

- 10 – As taught by Professor Williams

Facilitators of Communication – an overview psychosocial influences that facilitate fact-gathering and rapport
building.
(1) Helping relationship – refer to chapter 5:
(a) empathy – encourages the interviewee to open up. Appreciating their circumstances or troubles.
(b) Nonjudgmental acceptance – important when topic of discussion may threaten the respondent’s self esteem.
Client’s must know you still value them.
(c) Positive relationship – global impressions conducive to full and honest information flow.

(2) Recognition – esteem as distinct from affection. The opposite of the ego threat inhibitor. Recognition
means more than acceptance, it also means approval. Can be shown on two levels:
i. specific statements of praise or appreciation “your description of the accident was very good.”
ii. Nonverbal expressions and general statements of sincere regard.
◊ make recognition to the merits of claim and not the issues of the case.

(3) extrinsic rewards – that which brought the client to your interview.
(4) Catharsis – the process by which one person obtains a release from unpleasant emotional tensions by
talking about the source of these tensions and expressing his feelings. “a person feels better when he gets
something off his chest.”
(5) Fulfilling expectations – interviewees respond positively when you articulate their expectations. Brief
clients on three levels:
i. clearly explain at the outset of the relationship that the client should work with you as a partner.
ii. What agenda and expectations you have set for the day
iii. Assert explanations as you and the client discuss facts and issues reflecting confidence that
expectations will be met.
(6) altruistic appeals – appeal to sense of right.
(7) Environment and conformance to social norms. environment is important.

Chapter 9 Witness Interviews

◊ lawyers should not interview witnesses by themselves.

◊ don’t be deceitful regardless of what book says.

A. Basic Principles of Interviewing

(1) Interview Witnesses Pursuant to a theory of the case and a fact-finding gathering plan. The plan requires
consideration of:
(i) facts establishing the existence or nonexistence of the substantive elements entitling the plaintiff to
relief
(ii) facts corroborating the client’s version of the case.
(iii) Facts constituting the adversary’s version of the case
(iv) Facts contradicting the adversary’s version of the case.

(2) interview witnesses as soon as possible

(3) Prepare as much as possible of each witness interview – includes 6 steps:

- 11 – As taught by Professor Williams

 I. set informational goals and agenda – review the theories of the case and accumulated facts to produce a list
for probing.
II. identify other goals – rapport is important
III. gather information on the interviewee – not always easy before interview
IV. learn about the subjects to be discussed – not always east before interview
V. plan tactics – nature and order of questions, techniques for bringing witnesses on your side, and
leverage points that can be used for people unwilling to talk.
VI. anticipate problems – See indifferent witnesses, hostile witnesses, and friendly witnesses

B. Indifferent Witnesses – neutral 3rd parties with no stake in the case and no ax
to grind.
◊ factors:

a. location and time – should be convenient and private to allow for thorough and candid discussions.
i. Allocate enough time for an unrushed and careful exchange.
ii. Generally travel to neutral/indifferent witnesses
b. Opening – keep small talk short if anticipate or feel time is an issue, also, talk about a subject the client is
familiar with.
c. Probing – use the open ended questions and the use of funneling sequence
d. Dealing with Inhibitors - probe about what the problem is. Try to comfort or compel if necessary.

Hostile Witnesses - ◊ note rule 4.3 of the rule of professional conduct.

Deposition is sometimes the only way to compel, and it is better because the response is on record.
◊ insert empathy when appropriate. Understandings of feelings help.

◊ information gathering – plan probes

(1) the degree of threat posed to the client by the questions
(2) the importance of sought for information
(3) organizational clarity
◊ if hostile questions need to be asked, ask later in the interview

◊ consider relative significance of probing topics. Important questions should be asked early.
◊ organizational clarity

Friendly witnesses – may be too friendly and reconstruct facts – warn of consequences.

Counseling
Chapter 10 – interviewing gather facts and build a rapport, in counseling you gather facts, build rapport, and help the
client reach a decision and select action steps.
◊ a follow up interview to make sure you have ALL the information. Continue to gather information, facts and
rapport.
Skills needed:
(1) Analytical skills
(2) verbal skills
(3) Personal skills – maintain objective skills while client is emotionally changed.

Need to determine:
(4) Client’s priorities
(5) Other informational sources
(6) ?
(7) Potential alternatives to achieve client’s objectives
Lawyer must have:

- 12 – As taught by Professor Williams

(1) expertise in the law (by the second visit)
(2) experience – not necessarily legal experience – life
(3) OBJECTIVIY – client’s come to seek someone who does not look at things from an emotional standpoint.
Allows client to engage in introspective
(4) Client’s role is to provide information, accept ultimate responsibility of making decision – don’t tell us
want to do but what they want accomplished. We determine the methods to get those accomplishments
done.

A. Preparation for a Counseling Session – a step by step approach

(1) research the law and investigate the facts – done before filing pleading and before decisions are made.
Need to verify what the client says.
(2) clarify goals before counseling session -
(3) scan your research, investigation, and experience to identify alternatives for the client – consider both legal
and non legal.
(4) Note the positive and negative consequences of each alternative to ensure that the client fully considers the
total impact of his or her decision.
(5) Plan for in-session probing to accomplish three interrelated objectives:
iii. clarify the client’s priorities
iv. ascertain the client’s reactions to the possible consequences of the identified alternatives
v. cure informational gaps and ambiguities.
(6) plan the format for the counseling session
(7) think through what helping techniques might be appropriate during the counseling session.
(8) Prepare visual aids for the client – (Williams does not use this one)
B. Developing a language of prediction
Certain, excellent, very good, good, fair, poor, very poor, impossible, percentages 0-100, or mathematical
50/50, 10-1, 2-1. Use for clarity and accuracy are important.

Chapter 11 Helping the Client Reach a Decision

A. Lawyer’s Role in Decision-Making

◊ a lawyer’s role is to identify alternatives and help client’s identify situations, search within themselves, and
reach a decision.

§ in counseling, you convey and clarify information (through substitution of lay terminology with legal),
exercise judgment, give guidance, provide emotional support, and steer the client to enhanced understanding.

Be careful in client self disclosure – when the lawyer describe feelings or experiences they have that are
analogous to the clients.
◊ don’t want to become lawyer centered, instead of client centered. Don’t disclose what you have done in a
similar case.

Variables to determine effectiveness of self disclosure

(1) content –how ell you accurately analogize to a significant issue. Need to have
correctly identified empathy to find correct analogy.
(2) Timing – if done to early, the lawyer will seem egotistical and pre-occupied
with himself
(3) frequency – same effects as above.
(4) Duration – only as long as it takes to make the analogy, express understanding,
and suggest discussion points for analyzing the client’s problems or alternatives.

Advanced Empathy –

- 13 – As taught by Professor Williams

 (5) Articulating the implicit – articulating the implied or
(6) summarizing core material when the client is rambling
(7) synthesizing – identify overriding themes or patterns from the sum of your
client’s discussions.
(8) Language of advanced empathy –
i. let me see if I can summarize…
ii. I wonder if…
iii. If I understand what you have told me…

Confrontation – means the consoler’s presentation to the client of some apparent or implied conflict.
◊ also used in advanced empathy when inconsistent in the client’s facts or priorities. Must confront to get correct
empathy.

Ineffective consolers use of confrontation:

(1) avoid it entirely
(2) confine to non threatening or neutral topics
(3) confront in aggressive, attacking manner
Confrontation should be used to :

(1) enhance client self exploration and self understanding –

i. confront client about conflict
ii. client looks deeper for meaning
iii. then able to articulate feelings
iv. lawyer makes decision about appropriate course of action

(2) spur action – that gives effect to the insights, values, or goals.
(3) ensure accuracy – to choose appropriate action
Content –
(1) appropriately confront clients when you detect discrepancies between apparent reality and your client’s
expressions or feelings. Self worth is low or too high.
(2) Be sensitive to discrepancies between client’s articulated values and client’s behavior. –
(3) Confront client’s when they rationalize – avoid a situation (consistent tardiness for work)
(4) Methods and Limitations –
(i) if not used for clarification of factual issues, should not be used in early stages of lawyer-client
relationships
(ii) use advanced empathy language
(iii) use nonverbal accompaniment to confrontation must be consistent with caring, empathetic, respectful,
and genuine counseling. (paralinguistic effects)
(5) Attacking (rare situations)
(i) has resisted all lesser measures to force a decision – any decision
◊ refer client to expert for therapy
make decision for client based on descriptions of his/her priorities and common sense
withdraw from representation

Chapter 12 Conflicts in the attorney-client relationship (psychotherapy issues)

◊ Esteem Needs
(1) desire for strength, achievement, adequacy, mastery, competence, confidence, independence, and freedom
(2) desire for prestige, reputation, status, dominance, recognition, attention, importance, or appreciation
(a) moves individual to assume leadership roles.

- 14 – As taught by Professor Williams

 (b) Can be negative if predominates lawyer’s personality.
(3) need for power
(4) need for achievement
(5) need for association
(6) need for order

Similarities Between Negotiating and Interviewing and Counseling

Helping and probing techniques, stimulate other parties motivation, empathy and active listening skills,
sequencing of topics, ordering of questions, planning, analytical, verbal, interpersonal skills

Chapter 14 Introduction to Negotiation –

Conscious of inhibitors
Personality Traits
Facilitators of communications

Biggest problem in negotiations is that there is another competent person disguising weaknesses on the other
side and exposing your weaknesses. Mostly lawyers.

The differences – must modify the skills because the client on the others side is a person you are not developing
a relationship with the person.

Competitive

Cooperative model

Adversarial Model

How do you ever determine if you are a successful negotiator? It should never be about what the client thinks
you did. The lawyer sets the expectations in the interview and counseling. To determine if it was successful:
(1) make sure you engage client in counseling in client centered approach (be honest with client in
realistic way
(2) engage client in discussion what strategies and tactics. (client knows what options are and what is
available).
(3) Persistently test own feelings of the case.
(4) Whether or not you are intimidated by the other person’s lawyer (are you in awe of the other
person’s lawyer).
(5) Did you plan in detail for the negotiation process
(6) Objectively analyze your preparation.
(7) Make adjustments for next time.

Chapter 15 Theories of Negotiations

The Game Theory – applies in monetary and non monetary situation.

The elements:
(1) Game – any situation where two or more people compete
(2) Rules – all the initially available data that specify how the players use the resources under their
command.
(3) Strategy – the moves available to a player through out the course of a game.
(4) Payoff – outcome of any game

• The precision of the game theory is the strength and weakness. Also, game theory only assumes two moves, in
reality, there are many moves.

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Economic Model –
Two parties whose utilities remain stable over time
The settlement zone exists where each party will agree.
Mainly deals with money

Advantages – focus on more dynamic model resembles actual lawyer negotiations.

Does not require perfect information
Do not assume absolute rationality.

Disadvantages – too much attention as to what happens instead of why it happens

Bargaining Theory – the theory is premised on the existence of imperfect information and strategic interaction
between or among the parties to the negotiation.

Planning
Adversarial negotiators – proceed linearly to develop their plans

Problem solver negotiators - focuses on identifying needs and brainstorming to develop solutions for mutual gains
• bring greater satisfaction to both parties
• easier to implement
• greater appreciation for the role of information in the process.

Disadvantages –
• can not be used solely with money
• Takes more time and thrust parties into uncomfortable relationships.
• Certain situations which make it to difficult to use technique. Too rich, powerful. 2 set in bargaining ways.
•

Chapter 16 – Lawyer’s Negotiation

Negotiating style: competitive and cooperative

Negotiating strategy – the conceptual approach adopted by the negotiator.

Planning/transactional matters – most attorneys do this.

Transactional – private rule making agreements between parties achieved through negotiation.
Style and strategy

Conceptual approach to deal with situation

Style and strategy combinations – when blurred they remain blurred.

Aggressive vs. tactful – book runs across the grain but need trust worthiness and cooperative negotiator more than
aggressive. Cooperative moves psychologically toward opponent.
◊ Strengths and weaknesses from both models
◊ Williams is initially always cooperative and aggressive towards the end when he is not getting his way.

Disadvantages to competitive – creates tension, increases understanding.

Cooperative – advantages – nature is to be tolerant, encourages mutual understanding, reduces dead lock,
agreements take less time to achieve, joint outcome

Adversarial and problem solving by Menkel Meadow –

(5) what are the underlining goals of negotiations

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 (6) one you select strategy must select style (already selected based on needs)
(7) select tactics to be used

Chapter 15 has the model and graph for continuum

Style and strategy combinations -

Competitive/adversarial – very high risk of deadlock
Cooperative adversaries – rigid but no rigid Courteous –
Competitive problem solver – problems which must be solved opposed to resources which must be divided up.

Selecting a style/strategy combination – just because you initially select a style strategy you don’t have to stay with
it. There is nothing wrong with changing style and strategy.
◊ should select style and strategy best situated for the situation. 6 factors on page 402.

Chapter 17 The Assessment Stage with respect to negotiation

◊ the key to negotiation is planning.

1) Plan to achieve a particular goal. (identify goals)
2) Probe for information – reality is that will not receive all information needed (either from client or
opposing client)
i. evaluate needs
ii. create appropriate exchange structure
iii. need to prepare for time/detail/thoroughness
◊ Preparation – your ability to control the critical information during the assessment phase.
i. figure the manner in which you want to communicate information (your facts) to another.
ii. Preventing the opposing party from discovering weaknesses in your case.

◊ does it matter if you use the adversarial versus the problem-solving negotiators.
See page 406 (top) for detail.

Assessment during the information stage

(1) ?
(2) can you accurately predict
(3) can you figure out what they believe very important during he negotiation stage.

Evaluate the style and substance of opposing party. Sentence in last line before C.

The Meaning, Role, and Management of Information

Information is negotiation specific. Anything that relates in any conceivable way to the parties… (1 st paragraph
on 407. )

Three categories of information:

Information you want to get (need)
Information you want to give
Information you want to guard. (protect)

Next: decide the value of information to set agenda to negotiation stage.

See exercise on page 408-9

Layers need to guard against:

(1) ask if you are a person who hates to ask sensitive questions. If so, build resistance so you won’t follow
same pattern.
i. the tendency not to ask sensitive questions will lead to not obtaining the correct information

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 (2) lawyers like to answer questions. May hurt in negotiations if you give information that needs to be guarded.
i. ask if you are harming case by answering questions that need to be guarded.
ii. Should be aware that if you are doing a good job of observing opponent, u may notice opponent doing
things they shouldn’t. take full advantage of it

Planning to obtain needed information (repeat of interviewing) ◊ key skills – (listening and probing)

◊ make sure the sill of active listening during interviewing is carried over to the negotiation and counseling
- nonverbal cues and all that other shit.

Repeating what a negotiator said means you listened and understand that is the position they bargained for.

When lawyer is being evasive:

(1) Tell opponent info is critical and failure to respond will end negotiations
(2) confront opponent with their evasiveness and explain why it is important. (could give reasonable answer
why it is not being disclosed.

F. Planning to Protect Sensitive Information

(1) have a duty not to disclose because negotiations will not work.

Helpful info should be shared but sensitive should be protected.

Books tools:
(1) answer a question w/ a question
(2) over/under answer a question
(3) answer another question
(4) rule the question out of bounds
(5) ignore the question and change the topic

Difference from lying and nondisclosure

How do you construct a response to a probe which you believe to be damaging to your client’s case.
(1) honest answer
i. share the answer when it can be used against you. (use when they are going to find out anyway).
(2) Lie – if lie there goes your reputation in the legal sense and professional sense. (pg. 418)
(3) make the other into believing they answered the question when you really didn’t. (blocking inquiry) –
shows that it requires additional probing. 5 types. Williams likes 1st 3
(i) answer a question with a question
(ii) over or under a question – give too much or too little answer

G. Planning to give information

Chapter 18 the Role of Argument in Negotiation

The most important parts of persuasion in negotiation are:
(1) appeal
(2) threat
a. elements of a threat:
i. must be communicated
ii. must be understood
iii. must be valued
iv. must be believed
v. must be prospective
(3) promise

The steps to the argument process

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 (1) identify a norm that can be applied to the issue or negotiation
(2) expand on a normative standard

6 characteristics of a convincing negotiation argument

(1) detail
(2) multidimensionality
(3) balance
(4) subtlety
(5) emphasis
(6) emotionality

Chapter 19 – the exchange stage – preparation –

The exchange of the OBJECT of the negotiation (usually money)

◊ will only get to the exchange stage (cutting the pie) by:
(1) getting effective control of the information and
(2) plan how you will persuade the opponent.

2 components
(1) preparation before entering the room
(2) implementing it before entering the room.

Planning for exchange as an adversarial negotiator – maximizes client’s gain and minimizes the losses
The planning of adversarial bargainers must involve:
(1) itemize what the issues are
(2) calculate some mathematical way to value each issue
(3) creation of some means to measure the client’s gains and losses by issue
adversarial negotiator must plan for 4 categories of moves along the bargaining continuum:
(1) opening offer
(2) target point
(3) commitment or concession point
(4) resistance level

◊ the chart (pg. 477) should reflect not only your range but the anticipated range for opposing party.
◊ suggest you should do a chart for every issue. (turn everything into a fungible item [money] bottom of page 477

Panning for exchange as a problem solving negotiator

(1) classification
(2) clarification
(3) encourage and assist creative thinking (pg. 480 top)

Planning ideas for the exchange stage for the planning party and opposing party
(1) inventory
(2) classify
i. essential needs of client and other party
ii. what is desirable
(3) compare the needs of the parties.
i. come up with shared interest and conflicting interest
(4) search for solutions

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 Chapter 20 The exchange stage: Implantation Stage

(1) the role of the agenda in negotiation

i. agenda control
(2) making and meeting offers
i. who makes the first offer: adversarial
(3) Who makes the first offer
i. adversarial usually don’t make the 1st offer. (someone has to when both are adversarial).
(4) when should the first offer be made – during the negotiation which is ongoing
(5) the size of the offer: adversarial – pg. 498
(6) the opening offer: the problem solver:
i. the problem solver should try to make multiple offers (pg. 501)
(7) how to communicate the offer:
a. adversarial:
i. be brief -
ii. being specific -
iii. justifying the offer (making concessions) maintaining credibility and ego. If there are frequent
concessions, keep taking them is they are offering. Might realize pattern.
b. problem solver

Legal Letters

Chapt. 5 Decision Making and Implementing a decision

The Process of legal decision Making

♦ when counseling the client in decision making, the client and I must address 6 interrelated questions:

(1) what is the client’s legal and factual situation

(2) what are the client’s objectives and goals
(3) what legal and non legal options are available to the client for achieving the objectives
(4) what are the pros and cons and likely outcomes of each option
(5) which option should your client choose
(6) how will the option chosen be implemented

♦ 1 and 2 will be answered in the initial interview

♦ 3 – 6 will be answered through a development of meetings with your client.

In the actual counseling session, addressing the above questions involves:

(1) summarizing your clients factual and legal situations
a. be brief and focus on key facts
b. be balanced, mixing favorable and unfavorable facts
c. if your client has strong feelings, include your understandings of them in your summary.
d. The primary purpose of the summary are to
i. confirm your understanding of your client’s overall situation, and
ii. set the state for putting his situation into its applicable legal context.
♦ at the end of the factual summary ask: is what I’ve described a fair summary of your situation?”

(2) refining and clarifying your client’s objectives

(3) identifying potential options for achieving your client’s objectives
(4) discussing the pros and cons of each option
(5) helping your client decide which option to choose
(6) implementing your client’s decision.

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The rules of professional conduct require:
(1) abide by the client’s decisions concerning the objectives of the representation and consult with him as to
the means by which they are to be pursued
(2) explain matters to your client to the extent reasonably necessary to permit him to make informed decisions
regarding the representation
(3) exercise independent professional judgment and render candid advise.

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 Engagement Letter (general format):
(1) start with an introduction: be professional – thank client for confidence in the firm
(2) lay out why you are writing (use plain language) (that you for meeting Jan 2, 2006), what the letter covers
(3) summary of key facts
(4) what is the scope of representation (what do you plan to do) - specific
(5) what do want the client to do (what do they need to provide) – homework of client
(6) what is the next step in the process (what am I doing next, researching law, meeting w/ other people)
(7) deadlines
(8) fees and cost
(9) conclusion (contact info, how to reach me, if you have a question about the bill, etc)

the sample is 7 pages long.

Top of the letter Williams, Glover and Herman

P.O Box 1000
Durham, NC 27707
919.477.1234
fax – 477.4321

- Bold and center headlines

Signature will be signed by glover.

♦ all three partners met with client.

The scope of representation:

(1) research the law
(2) write an advisory letter about her options (causes of actions)
(3) we would provide advisory letter to her by the end of march, 2006.
(this should be 4-6 pages single spaced).
(4) If contingent – be specific. (have a separate contingency fee agreement)

Grading sheet will have

(1) intro
(2) factual summary
(3) things client should get to us
(4) scope of representation
(5) fee section
(6) conclusion
(7) grammatical

the letter should be 4-6 pages.

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Formatting an inner-office memo: (the general default mode) which is how you are supposed to do it.

Heading
♦ memorandum (written at the top) .
To:
From:
Re:
Date:

Components
(1a) introduction – use this opposed to a questions presented. (you have ask me to find….)
(1)Then you put question presented: use roman numerals to set out different questions
(2) short answer to the question presented
(2a) executive answer – similar to short answer
(3) statement of the facts
(4) discussion (analysis which consist of the law and the application of the facts to the law).
(5) the conclusion
(6) attach copies of key cases and statutes for reader to use.

How this should be structured

Memorandum (in the middle)
TO: Senior Partners
From: associate attorney #
RE: Case-outline memo from Mary pierce case
Date: date turned in

I. potential cause of action

II. damages
III. Parties liable
A.
IV. defenses (where your affirmative defenses go).
♦ there is no conclusion section

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 Chapt. 13 – Negotiating in writing and over the telephone

Advantages of negotiating in writing

(a) it creates a paper record that leaves less room for misunderstanding, and allows the other
party to carefully review what is being said and share it with other persons involved in
the negotiation.
(b) Correspondence is more articulate.
i. strong points emphasized
ii. weak points down played and refuted
iii. difficult and sensitive matters can be handled delicately worded phrases
© efficient and unmistakable way of conveying instructions, sanctions, time frames, and
deadlines.

Disadvantages –
(a) is impersonal and does not allow interpersonal emotional appeals
(b) if done sloppily, it may create false impressions, confusion, or misunderstandings that
may be difficult to erase later.
(c) Writing is time consuming, from a actual writing standpoint and the time of negotiation.

Techniques for an effective letter

(1) send the letter by registered or certified mail – ends any discussion that it was not
received, make sure you put on the first page of letter that it was sent that way.
(2) Copy the letter to other persons – particularly if it is sent to a business or governmental
entity. Copy it to anyone directly or indirectly involved in the negotiation..
a. this puts pressure and exerts a prompter response
b. do not do it if it unnecessarily alienates the party.
(3) – identify your authority to represent – in firs paragraph – clearly identify the subject
matter of your representation and authority to represent. Essential formality that will
require the other side to report directly to you.
(4) Adopt and appropriate style and tone – adjust to particular person. Avoid legalese to
people not represented by counsel. Keep tone professional, and firm when need be,.
Avoid personal attacking language
(5) Highlight pertinent facts and law – educate other side on relevant facts – use objective
tone, educate other side on legal position, highlight things most favorable to you.
(6) Convey a specific proposal or course of action
(7) State a time frame for action and consequences for inaction.

Example – pg. 255 –

Settlement brochure – a document that sets out the legal and factual basis for a claimant’s claim
and details her damages,
♦ the brochure may be in the form of a letter or a more formal, bound document that contains
extensive exhibits.

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♦ brochures are often used by plaintiffs lawyers in personal injury cases to establish the basis for
initial settlement demands and to define the issues for ensuing negotiations.

♦ the brochure is often sent to the adjuster for the defendant’s liability insurance carrier before
any lawsuit is filed.
♦ the adjuster then responds to the claimants initial offer either over the phone or in writing.
♦ usually a settlement occurs, if not the brochure is used to structure a settlement agenda.

♦ effective brochures usually contain extensive documentary and illustrative exhibits to back up
assertions.
♦ broad disclosure is there because it is assumed most things would be revealed in discovery.
♦ don’t limit yourself to admissible evidence – as long as it is pertinent.

♦ no format – limited by your imagination.

♦ most in narrative form that reference illustrative material.

Structure
(1) introduction/cover letter – sets out limitations, and should include:
a. a statement that it is provided for settlement purposes
b. that the brochure is the property of the client, may not be copied, and returned on
demand. ( not necessary here because everything is discoverable).
c. date specified for reply, when the settlement offer may be withdrawn or expire
d. expression to settle the case reasonably
e. offer to meet further to meet for future negotiations

(2) statements of facts and liability

a. written as narrative
b. humanize client
c. refer to exhibits
d. where liability is clear, do not discuss applicable law
e. do not discuss law if not pertinent

(3) summary of medical treatment

a. chronological order of medical treatment
b. quote verbatim pertinent parts of medical record.
c. Copies of pertinent medical records, - x-rays,

(4) summary of lost earnings – include – not applicable in our case

(5) summary of pain and suffering and permanent treatment
a. vividly described in narrative form
b. day to day life video
(6) damages summary and initial demand
(a) conclude with this –
(b) each item of damage should be separately enumerated.
(c) Items of general damage should be especially enumerated including:
i. past pain and suffering

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 ii. future pain and suffering
iii. lost wages
iv. future lost earnings and benefits
v. misc. expenses.

Negotiating over the telephone – advantages and disadvantages

Advantages: greater since of freedom, easier to say know,

Disadvantages – less personal than face to face interactions, may lead to hasty concessions and
uninformed decisions.

Techniques for effective telephone negotiations

(1) do not commit yourself unless you are prepared

(2) do not be afraid to be unavailable
(3) use a preparation negotiation outline
(4) adjust the pace and tone of your voice
(5) to not be afraid to call back

Chapter 14 – negotiating face to face

A. With whom to negotiate –

a. someone whom has the authority to bind the party
b. a counterpart you can get along with
c. if more than one party – which should you start with

B. When to negotiate
a. initiate negotiations when the other party is in the weakest position or your client is in the
strongest position. Factors include:
i. time pressure
ii. deadlines
iii. delaying
iv. surprise

C. Where to negotiate –
a. seize the opportunity to choose the place –preferably your own office or own comfortable
place.
b. Choose the other’s office if you will use the walk out method.
c. If you cannot get your place, and do not want to be at the other’s office, chose a neutral
location.
d. Pay attention to the overall environment, seating arrangements, and otherwise

D. Who should attend the negotiation –

a. If you do good guy/bad guy method – have a colleague join you.

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 b. Having client present has advantages and disadvantages.
i. Disadvantage - harder to control environment.
ii. .emotional aspect may get in the way
iii. candor may be inhibited
iv. other side might not be able to vent – which is a prerequisite fro serious
negotiations.
v. Advantages –
vi. If parties expect a continuing relationship
vii. Emotional differences can be smoothed over during meeting
viii. If his/her presence can provide technical expertise
ix. Demonstrate jury appeal
x. Likely muzzle irrational negotiator.
xi. Political reasons (represent university or otherwise).

♦ if the client comes – take the lead

♦ client’s role is restricted t the role which he is playing at the negotiation.

♦ set the tone – small talk

♦ set the agenda – explicitly and implicitly
♦ read body language
♦ exchange information - (assessment stage) –
parties exchange information in order to:
(1) the underlying needs or interest of each party
(2) the primary, secondary, and incidental objectives of each party
(3) the possible solutions that may satisfy each parties interest and objectives
(4) each parties best alternatives to a negotiated agreement (BATNA).

In obtaining information for the other side:

(1) ask broad, open ended questions when seeking maximum information
(2) use silence, encouragement, and questions that call for elaboration
(3) listen intently and patiently
(4) ask specific questions to clarify, pin down, and confirm information.
(5) Insist upon the necessity of receiving crucial information

Protecting information
(1) ignore the question and change the topic
(2) answer the question by asking another question
(3) answer the question by answering another a question
(4) over answer or under answer the question
(5) rule the question out of bounds

Making offers
(a) who should make the first offer –
i. some make it first to get the ball rolling
ii. making the first offer may make you seem over eager and have a weak case.
iii. If you miscalculated the value of the case, you may be at a disadvantage.

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 iv. Can induce the other side in making the first offer, this induces the other party to
concede first.

The amount of the first offer –

(4) making concessions - when to make (pg. 283).

Chapter 16 – Negation during mediation

Mediation is an informal, non adversarial alternative dispute resolution process, whereby a

neutral third party, who is either selected by the parties or is appointed from an approved list of
mediators eligible to mediate the type of case at hand.
♦ virtually all jurisdictions mandate mediation in certain cases or make it available.

♦ mediation has advantages – formal setting of bring parties together, can feel someone has fully
heard their side.
♦ can break down emotional barriers
♦ gives parties a greater sense of control.

Mediation process – pg. 312

Next week, take role for the class – 1 hour required.

Credibility is key. Does it work or does it turn you off.

♦ does tone convince you or does it turn you off.

No page limit. It takes what it takes. No format, do what you will.

♦ do not have to make up outlines and invoices. (just site to where you want them to look. They
know what it is).

♦ there is no right answer for an expiration date. (but, she wants to settle, so If there is an
expiration date, be careful of tone). Beware, the SoL for wrongful death is approaching.
♦ make sure it is for the proper purpose and tone is correct.

♦ facts – put the facts that goes to liability. Don’t lecture him about the facts because the other
person investigated. The quotes from the people need to be there. Information about the medical
treatment goes here, but its short because it will be illustrated further in the damages section.

♦ liability section – to the point short and sweet, can use memo as a guide, but don’t cut and
paste.
♦ remember, you are writing to a lawyer. Don’t teach him.

♦ ex because they had actual and constructive notice, they will be liable. Constructive notice is
when…..

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♦ statement of liability on McCloud’s and apartment- put in the document. Show as a veiled
threat to sue.

Do not discuss law when it is clear.

Medical treatment – not more than a paragraph for each one (Mrs. Potter and Peter). Not the
same as what’s in the facts section. Narrative form.

Distinguish from facts is itemization. Here, you itemize. Don’t have to have receipts. Just say see
attached… see blah.

♦ don’t talk about medical treatment in the facts in this case. Use it for the narrative.

♦ pain and suffering – damages for Mrs. Potter – narrative she stopped taking meds, looking for
depression damages

♦ how do we put a number on pain and suffering

♦ wrongful death – for Peter – pain and suffering

♦ look at case law to see settlement cases.
♦ the lump sum will bring it down.

♦ not given the dollar amount she expected.

♦ all we got is a picture of peter
♦ what about punitives? Mrs. Potter is entitled to seek punitive damages. The insurance company
will not cover punitive damages.

3 times compensatory or 250,000, which ever is greater.

Peter’s could be in the millions but Mrs. Potter’s will likely be 250,000.

Options of ranges for punitive damages.

♦ don’t know insurance company limits. They don’t cover punitives.

♦ What are McCloud’s assets? Does it matter?

♦ She wants to settle as soon as possible.

♦ damages summary and demand – separate them out – pain and suffering, total, medial, total,
and add punitives if you decide to put them in.

♦ might be too early to have mediation, but it could possibly go in.

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