Lawyering Outline
Professor Bailey
Fall 2014, Section 1A
INTRODUCTION
1. Dispute Resolution Continuum
Self Help
Client Interview & Counsel
Lawyer Negotiation
Arbitration
Questions to Ask About Each Type
Formality of process
Expertise of decision maker
Public or private
Can you appeal
Adjudicative Effect
Governed by strict rules
Decision maker doesn’t necessarily have any expertise
You can appeal
Administrative Proceedings
Not as formal
Decision maker is expert
You can appeal
Decision maker is expert
Appealable, but not often appealed
It’s incredibly difficult to vacate an arbitrator’s award
Questions for Consensual
Is there a third party involved?
Is it a formal process?
Is it public or private?
What is outcome?
Consensual – Not binding, agreement
Interviewing and Counseling – often a problem will be solved in attorney’s office
No third party
Often settles case, or sets groundwork
Negotiation
No third party
Can be settled, or go to court
No third party binding
Contract, breach of contract will be seen in court
Mixed or Hybrid
Neutral Evaluations
Parties hire a third party neutral and then give her evaluation
Mini trials
Large commercial cases that are expensive
Make a panel of 6-12, get a paid jury, present the case to the fictitious jury, and hear what the jury has to say. Then decide whether or not you want to go to trial over the case
Consensual and Mixed or Hybrid cases are sometimes called deregulators of justice
Benefits of ADR
Cost effective
Gives parties their own autonomy
Decide how to conduct the process
Litigation is loaded down with rules
Access – instant gratification
Satisfaction – much greater satisfaction levels
Arbitration v. Mediation
Is one of goals to maintain long-term relationship? Mediation is more suited for that purpose
Is this decision one that must be made quickly? Arbitration
Is a creative solution necessary? Mediation is better
Solutions tend to create better satisfaction than Arbitration, bc participants participate in decision making
MacCrate Report
Legal Analysis & Reasoning: What we primarily do in law school since the 1800s
Problem Solving: Became more common with the advent of mediation and arbitration
Factual Investigat
alternative
course of actions
– Client may have a better grasp of the consequences than the attorney does
– Increases client satisfaction
– Lawyer educates the client to make the decisions that the client is capable of making
– Better outcomes when client is involved in the decision making
a. client knows cost/benefit of his own situation (so they feel more accountable for final situation) client accepts more blameà less malpractice
b. Lawyer performs better b/c he knows he is being watched
· Adversarial
a. Attorneys view dispute as a zero-sum gain “all or nothing”
b. Deny responsibility and blame the other side
c. Take tough or unreasonable position
d. Tend to act disrespectful toward opposing attorney and client
· Advocacy
a. Represent client interest as opposed to zero-sum gain
b. Possibly more harmonious
c. Cheaper/ less time
d. Risk
e. Privacy
Think about what is in the best interest of your client (negotiation, mediation, arbitration, etc)
INITIAL CLIENT INTERVIEW
