Becoming a Practitioner Melbourne, 23 to 27 June 2014

The three-stage interview process Interviewing

3 Stage 1Listen 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 2Question 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 4

Stage 3Advise 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 5

Letter writing

Essential elements of clear writing Accurate and precise Complete Understandable to the reader 7

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. 8

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 9

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 10

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 11

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. 12

Structure of professional letters File reference Date Addressee’s name and address Ms Vella Vaccaro 14 White Street Blacktown VIC 3278 Salutation Dear Vella, Subject reference e.g. Our recent meeting 13

Structure of professional letters Opening 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 14

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). 16

Advantages May be relatively quick and cheap. Effective in disputes when only money (damages) is at stake and parties have no ongoing relationship. 17

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. 18

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. 19

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. 20

Positions and interests PositionsInterests Things you say you wantUnderlying motivations DemandsNeeds and concerns Things you say you will or won’t do Aspirations and fears 21

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. 22

The 5 stages of negotiation 1.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’). 23

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 24

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