Legal Strategy

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In Legal Strategy, well-known professor, Paul J. Zwier focuses on pre-litigation, transactional, and negotiation processes, and describes each in a way that brings together the basics of each discipline.

Zwier describes how, once a lawyer determines the end goal the client desires, the lawyer must explore the facts and procedural alternatives most likely to get there. By getting lawyers to focus in a continual exercise of deliberating on what matters most, Zwier sets forth three steps in legal strategy: fact investigation, client counseling, and implementations of the client's decision.

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Table of Contents

CONTENTS


CHAPTER 1 CLIENT FACTS AS THE FOUNDATION FOR A LEGAL STRATEGY



1.1 Client Documents

111. E-mail

1.1.2 Technology and “The Smoking Gun”

1.1.2.1 Internet Searches

1.2 Client Interviews

1.2.1 Goals of the Client

1.2.2 Conflicting Motivations

1.2.3 An Overall Client Interview Strategy

1.2.3.1 A “Bucket Bailer” Approach

1.2.4 Ice Breaking

1.3 The Three-Stage Interview

1.3.1 The “Emotional Deck Clearing” Stage

1.3.2 The “Problem Skeleton” Stage

1.3.3 The “Early Theory Verification” Stage

1.4 Client-Supportive Witness Interviews


CHAPTER 2 OTHER FACTS TO SHAPE A LEGAL STRATEGY


2.1 Documents from Opponents and Third Parties

2.2 Corroborating Witnesses

2.2.1 Contrast with Friendly Witnesses

2.2.2 Unfriendly Witnesses

2.2.3 Contrasting Questioning Strategies

2.3 Inhibitors and Techniques in Response

2.3.1 Personal Threat

2.3.2 Select A Neutral Location

2.3.3 Prepare An Ice Breaker

2.3.4 Understanding

2.3.5 Perceived Job Threat

2.4 Barriers

2.4.1 Role Expectations

2.4.2 Etiquette Barrier

2.4.3 Trauma

2.4.4 Perceived Irrelevance

2.4.5 Greater Need

2.4.6 Time and Money

2.4.7 Forgetting

2.5 Questioning and Memory Retrieval

2.5.1 Fixes for Memory Inhibitors

2.5.2 Unwanted Recollection

2.6 Planning To Use Other Facilitators


CHAPTER 3 CASE ANALYSIS FOR REFINING A STRATEGY


3.1 A Litigator’s Paradoxical Roles

3.1.1 Legal Theory

3.1.1.1 Syllogisms and Legal Interpretation

3.1.1.2 Paramount v QVC

3.1.1.3 Developing A Legal Theory

3.2 Factual Theory

3.2.1 Time Lines

3.2.2 Story Outlines

3.3 Create A Cohesive Persuasive Story Outline

3.3.1 Law Office "Group Think"

3.4 Focus Groups for Early Case Analysis

3.4.1 Brainstorming

3.4.1.1 Good Facts

3.4.1.2 Bad Facts

3.4.1.3 Best Facts

3.4.1.4 Worst Facts

3.4.1.5 Spin Control

3.4.1.5.1 Brainstorming The Law

3.4.1.6 Theme

3.5 Analogies

3.5.1 A Caveat About Using Analogy

3.6 Graphics Help with Reverse Engineering


CHAPTER 4 LAWYER ROLES IN STRATEGIC DECISION MAKING: CLIENT COUNSELING


4.1 The Client-Centered Approach

4.1.1 Preliminary Observations--The Conflict in the Relationship

4.1.1.1 Client Autonomy

4.2 Model Code and Model Rules

4.3 Predicting Social, Psychological, and Moral Consequences

4.4 The Problem of Law Low Balling

4.5 Giving The Client The Bad News

4.6 Taking Ethical Control of The Case in a Client-Centered Approach

4.6.1 The Client May Want More from The Lawyer

4.7 Lawyer as Surrogate Decision Maker

4.8 Lawyer as Friend. Lawyer as Listener

4.8.1 Some Underlying Assumptions

4.9 Choosing The Right Model for The Right Client Situation

4.10 Client-Centered Counseling and The Institutional Client

4.10.1 Focus on The Risk of Being Wrong To Select The Best Options

4.10.2 Assemble The Best Options into A Process

4.11 Conclusion


CHAPTER 5 TESTING A STRATEGY THROUGH NEGOTIATION AND MEDIATION


5.1 Preliminary Perspectives

5.2 Position Bargaining

5.2.1 An Analytical Economic Model

5.2.2 Client Role in Position Bargaining

5.3 Planning for Position Bargaining

5.3.1 Step One: Information Exchange

5.3.2 Step Two: Response To Opening Offer

5.3.3 Step Three: Opening Offer

5.3.4 Step Four: Persuasive Statements in Support of Your Positions

5.3.5 Step Five: Plan Your Concessions

5.3.6 Step Six: Test Your Opponents Bottom Line

5.3.6.1 Ethical Parameters

5.3.7 Prepare for Deadlock

5.3.8 Wrap Up

5.3.9 Write Up

5.4 Problem Solving: A Second Approach

5.5 Respect and Anger

5.6 Anger Management

5.7 Listening Is A Key

5.8 Negotiation Strategy and Client Counseling

5.9 Mediation in The Context of A Position-Bargaining Strategy

5.10 Mediation In The Context of A Problem-Solving Strategy

5.11 Problem Solving-Mediation Will Affect Advocacy Strategy

5.12 Application To Homestead

5.13 Intractable Conflicts


October 12, 2010