Law Professional Skills

Law Professional Skills

 

by (Name)

 

The Name of the Class (Course)

 

Professor (Tutor)

 

The Name of the School (University)

 

The City and State where it is located

 

The Date

 

 

 

 

 

 

 

 

 

 

 

1.      The perfect pitch is a skill every businessperson needs. Write the perfect pitch to land a job in the legal services industry. Word Limit - 300 words.

My name is [student inserts his/her name]. I am in my third year of study for my law degree at [name of the university] seeking for a training contract from your law firm. I got to know of your law firm from one of my law lecturers, herself a beneficiary of your training contract during her time at the university.

I was attracted to studying law because I love helping people to solve the numerous problems that they encounter in life in a fair manner. It took the intervention of an open day forum on professional careers to realize that I was destined for a career in law. I am optimistic that your law firm given its multinational perspective would offer me a very solid foundation upon which I can explore a full range of legal services essential in realizing my career goals.

I would be really grateful if I would get absorbed into the shipping law division of your law firm. I would love to eventually specialize in this area, having previously been attached to two other law firms in the same departments, I would therefore be a useful addition to your firm for I bring with me useful industry insights and competence in my area of specialization. 

I possess team working and communication skills which are a prerequisite for interacting with colleagues, clients, and other professionals in such a big law firm as yours. Moreover, I am highly motivated and possess self-drive which is crucial for handling projects of a large scope such as those handled by your law firm. I am well aware that during the early years, young lawyers joining your firm come under constant challenge, both intellectually and in terms of workload. Despite this challenge, I find it quite appealing as it will lay a solid foundation for an illustrious career that I envision in the coming years.

Please find attached my CV for your perusal. I am available for any assessment or interviews as you would deem necessary.       

2.      Why do negotiations between parties fail? What are the barriers to the resolution of conflict? Can lawyers dampen conflict? Word Limit – 500 words.

One of the reasons why negotiations fail is due to the mismanagement of expectations. Misalignment of reality and expectations on either party would lead to a less favorable outcome. This calls for proper preparation and flexibility to become acquainted with the realistic expectations at play. If either party is unwilling to consider the points of view of the other party, this means that they are also less likely to acknowledge that the other party has varied desires and needs.[1] This could have a huge impact on the negotiations. By considering the desires and goals of the other party, a negotiator is in a better position to anticipate the position of the other party. Consequently, this improves rapport between the two parties.

There are also several barriers to the resolution of a conflict. According to the strategic barrier, every negotiation entails tension between on the one hand, maximising one's gains and on the other hand, identifying common interests and hence seeking to maximise the shared gains.[2] This tension thus acts as a hindrance to conflict resolution.

The principal/agent problem is yet another barrier to the resolution of conflict. Principals are rarely involved in negotiations and dispute resolutions. Instead, they identify agents to act on their behalf. It is important to note that these agents so identified will actually have varying incentives from those of their principals. Consequently, this could act as a source of barrier to conflict resolution.[3] Due to the customary and contractual difficulties involved in aligning the interest of the principal with the incentives of an agent, this creates a divergence of interests. Consequently, this could act as a barrier for resolving conflict efficiently.

Cognitive biases are yet another barrier to conflict resolution in negotiations.  Cognitive barrier is concerned with the manner in which the human mind processes information, and more so in assessing uncertainty and risks. Behavioural studies suggest that human beings are generally risk averse, and this is in itself a formidable barrier to conflict resolution. For instance, both parties in the negotiation process could be embroiled in a fight while trying to resolve a dispute as they endeavour to avoid any loss, despite the fact that the dispute resolution itself entails a gamble in which either party could lose more than they had anticipated.

Lawyers have traditionally been shown to have a decisive impact on the litigation process, but there appears to be no consensus yet if indeed lawyers exacerbate or dampen conflict.[4] However, there is an emerging popular view to the effect that lawyers, as opposed to dampening conflict in litigation, actually end up exacerbating the underlying divisiveness with which to resolve disputes. This hinges on the premise that litigators do not show a willingness to settle disputes efficiently.[5] They engage in wasteful and endless fights in a bid to enrich themselves, at the expense of their clients.

3.      A Mediator assists in disputing parties to resolve disagreements and turns peacemaker. Discuss the neutrality requirements of a mediator and state briefly whether they need to be legally trained. Word Limit – 500 words

The mediation process often consists of two parties embroiled in a dispute and is often characterized by conflicting interests, positions, as well as arguments. The inclusion of the mediator as a third party to the mediation process is intended to enable the disputants solve their problems and communicate in a rational manner, identify and resolve the issues under dispute, explore the alternatives available to them, and hopefully, arrive at a consensual settlement that both parties view as being equitable and fair.[6] If at all such an objective is to be realized, there is need to ensure that the mediator remains impartial and neutral throughout the mediation process.

According to article 6(1) of the Mediation Act 2005, a mediator should remain impartial and neutral in the negotiation process. If at all the mediator is to remain neutral and impartial, he/she should "only accept the invitation to mediate the procedure if personally able to guarantee his or her own independence, impartiality, and neutrality".[7] This is provided for by Article 9 of the Mediation Act 2005. Mediators' neutrality is a desirable trait as it acts as an assurance of the parties' trust in them, not to mention that it also contributes towards their authoritativeness.[8] A mediator is also expected to divulge all circumstances that could raise doubts to the parties involved in the mediation process regarding his/her neutrality and impartiality. It may also be necessary for the mediator to declare whether he/she is a related party to the mediation. Accordingly, upon being assigned a mediation procedure, a mediator is also obliged to sign a declaration form on their neutrality and impartiality. The duly signed form should then be presented to the parties embroiled in a dispute.  

The mediator needs to also inform the parties embroiled in a dispute that he/she plans on remaining impartial throughout the mediation process, implying that they will not be biased against either side.[9] In the spirit of impartiality, mediators are called upon to express their concerns to the disputants should they view a proposed agreement as being unfair. The mediator can also bring the mediation process to an end in case they cannot do away with intimidating and manipulative negotiating techniques. Besides, should the mediator perceive that going on with the negotiation process will result in prejudice or harm on one or both parties, they can end the mediation.

Most dispute resolution organizations and jurisdictions demand that a mediator should have undertaken at least 20-40 hours of training in general mediation. Moreover, they should also have a designated level of experience in the mediation process as a co-mediator or observer. Furthermore, mediators must provide the relevant credentials to show that they indeed took part in such training. This may include letters of reference or certificates of completion. However, it is not mandatory that the mediator be duly trained as most forums opt to train their own mediators.[10] Others decide to certify certain college programs or companies as their approved centers for mediation training. A college degree is a basic requirement for inclusion in mediation training, with some states making it mandatory that a person seeking mediation training must hold a law degree.

4.      Arbitration is seen as the new litigation. Describe and discuss how evidence is gathered. Word Limit – 500 words

Arbitration gained popularity in the early twentieth century, thanks in large part to the passage of several federal statutes which underscored the importance of contractual agreements aimed at arbitrating future disputes. Those in support of arbitration view it as a way of steering clear of "needless contention that [is] incidental to the atmosphere of trials in court".[11]

It is a common practice in England and Wales for arbitral tribunals and parties involved in arbitration to regularly adopt the IBA rules as guidance, though they are not binding. The tribunal, in keeping with the Arbitration Act requirements, are expected to act in an impartial and fair manner. Moreover, tribunals ought to accord the parties involved in arbitration reasonable opportunity so that they can present their cases fairly. Additionally, the Arbitration Act requires that tribunals desist from embracing procedures which are likely to result in unwarranted delay or expense. Save for such fundamental duties of fairness and impartiality, the tribunal enjoys a lot of leeway in terms of how to conduct hearings. For example, a tribunal can give its recommendations on a dispute before it by only examining the submissions of the parties involved.

The process of gathering and submitting evidence is crucial in arbitration. In gathering evidence for arbitration, this should be done in a fair, efficient, and economical manner. The type of evidence that is permissible before an Arbitration tribunal is in the form of witness statement or exhibits to pleadings. Such evidence is normally presented by the parties involved in a dispute.  A tribunal could also adopt inquisitorial processes as a means of gathering evidence. Under S. 12(3) of the International Arbitration Act 2008, a Tribunal has this power which it can invoke if it deems necessary.

Witness testimony in arbitration is commonly presented as a written witness statement. Such testimony is usually exchanged between the parties involved before the actual hearing.[12] In this case, it serves as the direct evidence of the witness in question. It may be necessary to cross-examine the witnesses in the event of a dispute over a statement. However, such discretion rests with the tribunal. The tribunal may also decide the manner in which witness evidence ought to be presented, in case the parties fail to reach a consensus.

The arbitral tribunal now enjoys the privilege to decide if an oral hearing should be held, which also entails evidence and submissions. These powers are provided for under the English Arbitration Act. The arbitral tribunal also has the powers to determine evidential matters, depending on any agreement that the parties involved may have reached. The arbitral tribunal may for example, have to establish whether inspection and disclosure ought to occur between parties.[13] Moreover the arbitral tribunal will have to establish the extent of such disclosure and whether there are certain documents that could hinder such disclosure. It will also decide if there an exchange or witness statements is permissible, if the relevance, admissibility and weight given to witness statements should abide by strict rules of evidence.

5.      Describe and discuss action against solicitors and the role of the Solicitors Disciplinary Tribunal with reference to two recent cases. Word Limit – 1000 words

Solicitors act under the instructions of their clients, who have placed their faith and trust in them due to their legal expertise in the matter at hand. However, in case the solicitor is negligent in his or her actions, with the result that the client suffers a loss of faith or trust in the justice system or incurs a financial loss, they could be compelled to take legal action against such a solicitor.  A solicitor may be deemed to have been negligent in case it is ascertained that they gave the incorrect advice to their client. A client may also take legal action against a solicitor who fails to advice them accordingly. This is because the solicitor owes the client a duty to advice them accordingly and so if no relevant advice is forthcoming, they are deemed to have absconded this duty.[14]  A missed time limit is yet another reason why a client may be compelled to take legal action against a solicitor due to their professional negligence. For example, a solicitor may fail to advice his client of the consequences of missing a limitation period.

The Solicitors Disciplinary Tribunal "deals with allegations of serious breaches of the rules".[15] This is a statutory tribunal, having been incepted under the 1974 Solicitors Act. The main role of the Tribunal is to deliver judgement on allegations brought against solicitors that they might have acted in breach of professional rules. This demands that the Tribunal first establish the facts of a client’s complaint through documents and evidence. Based on such information, the Tribunal can then give its judgement on whether misconduct has been proved.   The SDT may also strike off a solicitor who is deemed to have been dishonest in his or actions. However, if such a solicitor is forthcoming, the Tribunal may decide to retain such a solicitor. This happened in Solicitors Regulation Authority v. Imran.[16] As a trainee solicitor, the appellant had been involved in a speeding offence in which he gave false information. This was revealed after the police conducted an investigation. The appellant was found guilty of having contravened Section 5 of the 1911 Perjury Act. Accordingly, he was scheduled to serve a 2 month prison sentence. However, he was by then qualified to practice as a solicitor. He willingly informed the solicitors’ regulatory authority who viewed his action as being spontaneous. This, coupled with his self-referral to the Authority, he was suspended for two years. Similarly, the SDT struck off Andrew William Shaw, a solicitor, following investigations which revealed that he had acted in a dishonest manner by his action of misleading the court in a civil litigation.[17]

 

 

 

 

Bibliography

Cases

Solicitors' Regulation Authority v Imran [2015] EWHC 2572 (Admin).

Shaw v SRA [2017] EWHC 2076 (Admin)

Statues

International Arbitration Act 2008

Mediation Act 2005

Perjury Act 1911

Solicitors Act 1974

Books

City Law School, Professional Negligence Litigation in Practice (Oxford University Press

2008)

Claudio Baraldi and Vittorio Iervese, Participation, Facilitation, and Mediation: Children

and Young People in Their Social Contexts (Routledge 2013) 72

Gary L. Kaplan, Executive Guide to Managing Disputes (Beard Books 2009).

Giuseppe De Palo and Mary B. Trevor, EU Mediation Law and Practice (OUP 2012) 41

Guy Olivier Faure, Unfinished Business: Why International Negotiations Fail (University of Georgia Press 2012)

Jonathan Herring, Legal Ethics (Oxford University Press 2017) 80

Suzanne McCorkle and Melanie J. Reese,  Mediation Theory and Practice (SAGE Publications 2014)

Journal articles

Thomas J. Stipanowich, ‘Rethinking American Arbitration’ (1988) 63 IND. L.J. 3, 429

Online Journals

Guy Pendell and David Bridges, ‘Arbitration in England and Wales’ (CMS Guide to Arbitration e-guidesvol 1, 12 April 2012)<https://eguides.cmslegal.com/pdf/arbitration_volume_I/CMS%20GtA_Vol%20I_ENGLAND%20WALES.pdf> accessed: 04 May 2017

Ronald J. Gilson and Robert H. Mnookin, ‘Disputing through Agents: Cooperation and Conflict between Lawyers in Litigation’ (1994) Colum. L. Rev. 509 <https://scholarship.law.columbia.edu/faculty_scholarship/55> 

accessed 26 August 2018

Websites and Blogs

Angeline Welsh,’ Arbitration Guide IBA Arbitration Committee. England & Wales’ (January 2018)

<https://www.ibanet.org/Document/Default.aspx?DocumentUid=D49BD82B-83AA-47C3-A238-F7E165D03891> accessed 26 August 2018

Thomas Reuters, ‘What Is Mediation And How Does It Work?’ (Findlaw 2018) <https://corporate.findlaw.com/litigation-disputes/what-is-mediation-and-how-does-it-work.html>