becoming a practitioner melbourne, 23 to 27 june 2014

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Becoming a Practitioner Melbourne, 23 to 27 June 2014

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Becoming a Practitioner

Melbourne, 23 to 27 June 2014

The three-stage interview process

Interviewing

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Stage 1 Listen

• Let the client tell their story How can I help you? What can I do for you?

• Maintain eye contact• Take only brief notes• Interrupt only to encourage them to continue• Acknowledge strong emotion and adopt a

calming strategy

Stage 2 Question

• Seek the facts you need by questioning• Establish the client’s expectations and get their

instructions• Take detailed notes• Establish the chronology• Summarise the facts and instructions

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Stage 3 Advise• Ensure you have all relevant information and

understand the law• Discuss options• Facilitate the client’s decision• Outline the next steps• Record advice • Write to client

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Letter writing

Essential elements of clear writing

• Accurate and precise

• Complete

• Understandable to the reader

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Accurate and precise• Accurate means expressing meaning

correctly, exactly and without vagueness or ambiguity.

• Precise means making clear distinctions, defining things so as to distinguish them from other things.

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Complete• Complete means the document includes all

the information necessary for its meaning to be properly understood, without including unnecessary material.

• ‘The essential quality of good legal writing is clarity and the second quality is brevity - or as much brevity as the subject will permit’ - Sir Harry Gibbs

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Understandable• The document must be understandable to the

reader.• The key to making documents understandable

is simplicity, especially if the reader has limited comprehension skills.

• ‘Clearness is secured by using words that are current and ordinary’ - Aristotle

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Plain English writing• Writing in clear, plain English involves observing some

simple principles:– Consider your audience– Get to the point– Avoid pomposity– Use short sentences– Omit surplus words– Use familiar, everyday words (avoid legal jargon or archaic

expressions)– Consider document structure and design

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Structure of professional letters• Law firms will usually have a preferred house

style.• The following elements normally exist in some

form in a professional letter.

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Structure of professional lettersFile reference

Date

Addressee’s name and addressMs Vella Vaccaro14 White StreetBlacktown VIC 3278

SalutationDear Vella,

Subject reference e.g. Our recent meeting

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Structure of professional lettersOpening paragraph/s - e.g. refer to the previous meeting and summarise the purpose of this letter.

Body of letter - set out in separate paragraphs such things as confirmation of instructions and the advice given, the action to be taken and any requests for further information.

Closing paragraph/s – e.g. confirm the next steps, including when you will next contact the client and how the client may contact you in the meantime.

Complimentary close - Yours sincerely or Yours faithfully

Signature block - may include the firm name, your name , title and contact details

Enc. or Encs - note any enclosures with the letter

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Negotiation

Negotiation approaches 1. Position or adversarial bargaining• Each negotiator starts with a (usually extreme)

position and defends that position.• Parties trade offers and counter offers until

they agree on an outcome.• More suited to disputes between parties with

no continuing relationship that involve only money (damages).

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Advantages• May be relatively quick and cheap.• Effective in disputes when only money

(damages) is at stake and parties have no ongoing relationship.

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Disadvantages • Less effective when needs other than money are at stake.• Not good for ongoing relationships. You can end up with a

worse relationship than you started with.• Can be slow and inefficient.• Risk that one party will walk away. Options are then for both

to live with the problem, or seek a determinative resolution (by arbitration or adjudication).

• Often produces winners and losers. • May make an agreement under which parties assume

ongoing obligations less durable.

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Approaches to positional bargaining• The soft negotiator wants to avoid personal conflict

and so makes concessions readily in order to reach agreement.

• The hard negotiator sees any situation as a contest of wills in which the side that takes the more extreme positions and holds out for longer fares better. This approach often invites a correspondingly hard response from the other sides and makes it harder to reach agreement.

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2. Interest-based bargaining• Negotiators attempt to understand the needs and interests of

the parties.• Negotiators work jointly to develop options that meet the

needs of all parties.• The key question in interest-based negotiation is why

someone wants something, their underlying motivation. That question will usually lead to their most important needs and concerns, fears and aspirations.

• Parties in conflict often have several needs or interests. While the needs of each party may not be the same, they need not be in conflict.

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Positions and interests

Positions Interests

Things you say you want Underlying motivationsDemands Needs and concernsThings you say you will or won’t do

Aspirations and fears

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Considerations in interest-based bargaining• Separate the people from the problem - focus

on the situation, not who caused it.• Focus on interests, not positions.• Generate a variety of options.• Insist that results be based on objective

criteria (e.g. market valuation, efficiency, industry standards) and consider fairness or equity.

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The 5 stages of negotiation1. Preparation

• Thorough; anticipate what other side will seek; consider strategy (opening offer, trade-offs etc.) and BATNA

2. Opening• Establish rapport, process (authority to settle) and approach

3. Exploration • Set agenda; gather information; develop options; evaluate and

shortlist options• How is agreement to be reached?

– layered bargaining (agreement building). – conditional linked bargaining (‘juggling the balls’).

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The 5 stages of negotiation

4. Bargaining – the basic rules– Never give away something without getting something in

return - trade, don’t concede– Listen – Communicate clearly– Be persuasive. Support your arguments with evidence – Be patient. Avoid being rushed – Maintain your integrity. Be ethical

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The 5 stages of negotiation

5. Agreement– Reality test proposed solutions– Workable and better than BATNA? - when do actions need to be

taken by and do they require third party cooperation?– Durable - are the parties committed to it? What if circumstances

alter? – Confirm parties understanding of what is being agreed. – Establish what is to be done, by whom and when - establish a

timeframe for obligations to be carried out.– Put agreement in writing - record the parties’ commitments and get

them initialled pending the drafting of the formal settlement agreement.

– Sign agreement.25