STUDENT EXAM NO. _________________________________________
Lawyering: Problem-Solving and Dispute Resolution - Winter 2005
Professor John Lande
University of Missouri School of Law
1. This is a take-home examination that will be sent to you by email (at your email address in TWEN) at 8:00 a.m. on May 13. If it is a problem to get your exam by email, you may pick up the exam in room 203. In any case, you must return your answer sheets in person to room 203 no later than 2 p.m. on May 13.
2. You must use exam identification numbers from room 203, which you may pick up in advance. Be sure to allow space on your exam answer cover sheet for the sticker with the identification number. PUT YOUR EXAMINATION NUMBER ON THE LINE ABOVE AND ON EACH PAGE OF YOUR ANSWER SHEETS in case the sticker becomes separated from your exam answer. Do not put your name on the exam or your answer sheets and do not identify yourself in any way.
3. This exam consists of four (4) essay questions, which appear on five (5) pages. You must answer each question. Define and apply relevant concepts whenever appropriate. Focus your answers to address the questions asked.
4. THE ANSWER TO EACH QUESTION IS LIMITED TO A MAXIMUM OF TWO (2) PAGES. Each answer must be self-contained. Do not "incorporate by reference" any material from one answer to another. Each question is made up of subquestions. You are not required to answer the subquestions in the order in which they appear and label the portions of your answer accordingly, though you may choose to do so if it helps to write a coherent and persuasive answer. You must type or word-process your answers. Pages must be 8½" by 11" with minimum 1" margins on all sides. Type must be double-spaced in 12-point Times New Roman type or another font that is similar in size and easily readable. The answer to each question must begin on a new page. Put page numbers on all answer sheets. ANSWERS OR PORTIONS OF ANSWERS NOT CONFORMING TO THESE INSTRUCTIONS MAY BE DISREGARDED.
5. This is a take-home exam for which you may consult your notes, the textbook, or any written materials you have. You may not consult any person or receive any other type of assistance.
6. The honor code applies to this take-home examination. You must perform all work on your own and abide by the instructions on this page.
You are a solo practitioner specializing in family law. You have been contacted by Marney, who wants to hire you to represent her in her divorce. When she called you, she told you in no uncertain terms that she is only interested in litigation and "none of that touchy-feely dispute resolution stuff." She fired her last lawyer because she felt that he wasn't aggressive enough in representing her interests.
Marney briefly explained the background of her situation. She and her husband, Stan, had been married for eight years, with no children (though Stan has a son from a previous marriage). When they started the divorce over a year ago, things went surprisingly well because they both agreed that the marriage had broken down, and the problems were not resolvable.
But now the process has stalled because of disputes about property division. Those disputes have become increasingly acrimonious, destroying whatever cooperation previously existed between Marney and Stan. Specifically, they cannot agree who gets to keep Muffin, the Great Dane that they raised together since he was a puppy (he's now about four years old). They are also fighting over who gets to keep various pieces of the living room furniture that they bought while married. When describing these disputes, Marney said that Stan has been acting like a "jerk" and that she "deserves" to keep both Muffin and the furniture.
Because your jurisdiction follows the community property rule (that each spouse obtains a one half interest in all property acquired during the marriage), you have your doubts about the merits of Marney's claim, but you need further information to make that legal determination. You have scheduled an initial meeting with Marney tomorrow.
(a) Explain how you will approach the initial meeting, which will focus on interviewing, describing:
(1) the type of lawyer-client relationship you would seek to foster, and why, and
(2) how you would conduct the interview with Marney, including specific questions you would ask.
(b) After meeting with Marney and getting more information about the disputed property (including beloved Muffin), you think that Marney's claim to the property is on shaky legal grounds. In second session with Marney, which will focus on counseling, how would you approach this issue? To answer this question, do not do legal research. Instead, rely on legal information about the community property rule provided above.
Assume that (a) you have made lots of money as a successful lawyer, and (b) you have been interested in finding a place at the lake that you plan to use for a weekend and vacation get-away. You have been scouting the area and finally found an interesting prospect just beyond a popular destination. There was a "For Sale by Owner" sign in the front yard and you called as soon as you got home. You were told that the asking price is $210,000, and the owner's description further piqued your interest. You did some homework in anticipation of meeting with her tomorrow morning. You learned that she paid $140,000 for it five years ago and has been living in it full time ever since. She fixed it up somewhat but did nothing major to it. It has been on the market for a little over a month. A local realtor reported that house sales have been "ok, but not great" for the last several years. You also checked with your financial advisor as to "how much house you could afford" and were told that anything beyond $200,000 would be a stretch.
(a) If you are able to talk with the owner again before you make an offer, what would you want to achieve or learn in such a conversation?
(b) If you are unable to talk with the owner before you make an offer, what will your opening offer be? What will you say when you make that offer? Explain why.
(c) Using the principles of the text and those developed in class, what will your strategy be in negotiating for the purchase of the house? Explain.
You are a new associate in a large law firm and have been assigned to assist a partner, Marilyn Shaw, in representing Hakim Kurt, M.D., a defendant in a medical malpractice suit filed in the local federal district court. The circumstances giving rise to the claim are as follows: Polly Putnam, a twenty year-old resident of another state, was traveling through the jurisdiction in which you live when she experienced extreme pain in her left foot and noticed a growth in the area where she felt the pain. She asked the hotel in which she was staying to recommend a physician, and the hotel concierge provided Dr. Kurt's contact information from a handbook for hotel guests. When Ms. Putnam described her problem to Dr. Kurt, he applied a local anesthetic and removed the growth. Unfortunately, the excision damaged a nerve, which caused her to lose some control over her foot. She claims that this is a permanent impairment that interferes with her ability to play basketball, her principal form of recreation: she is a member of the women's basketball team of a small college. The suit is based on claims of negligence in (a) performing the surgery, and (b) failing to obtain Ms. Putnam's informed consent.
You and Ms. Shaw interviewed Dr. Kurt and learned that several other medical malpractice claims have been filed against him in recent years and he feels wrongly accused of malpractice both in those cases, which are still pending, and in this one. He strikes you as angry and defensive and sometimes interpersonally insensitive. He says that his demeanor is the product of overwork. He also tells you that he doesn't remember whether he informed Ms. Putnam of the risks and alternatives to the surgery or whether she explicitly agreed to the surgery (i.e., whether he got the patient's informed consent). He says that his treatment probably was sloppy and he is very worried that a premium increase might result from a high settlement. Any problems in his treatment, he says, including possible rude behavior, probably resulted from the fact that he was preoccupied at that time with concern about his own child, who had been injured in a soccer accident that morning. He feels very sad about the injury that seems to have resulted from this surgery. He has had trouble sleeping as a result. During parts of your interview, Dr. Kurt was extremely charming and engaging and inquired about your own family situation.
Some discovery has been completed and you believe that Dr. Kurt stands a good chance of losing at trial, but there is much uncertainty about the facts and likely damages. Dr. Kurt's insurance carrier hired your firm, but Dr. Kurt is your firm's client. You have engaged in extensive negotiations with the plaintiff's lawyer, and the sides are far apart on the issue of damages.
The court has a mandatory mediation program and has ordered this case into mediation. It has assigned a mediator, Juan Rolf, a retired state supreme court justice known to have a very forceful (some say overbearing) personality. Judge Rolf sent both sides a letter in which he outlined the mediation procedures. It included the following:
"1. Twenty days before the mediation, lawyers must submit to the mediator a mediation statement that includes...(ii) a brief summary of the dispute and the party's claims, defenses and alleged damages as the case may be.
"2. Mediation is an informal process in which the mediator facilitates settlement negotiations. The mediation will begin with a joint session in which the lawyers present their cases. Next the mediator will meet separately with the parties (or, if the defendant is covered by liability insurance, by a claims adjuster) and their lawyers. During these sessions, the mediator will help the participants and lawyers understand their cases better by identifying strengths and weaknesses in the cases and describing the likely outcomes in court. In addition, the mediator will carry settlement offers between the sides."
Ms. Shaw, the partner with whom you are working, tells you that, although the court program has provisions for opting-out, she wants to mediate and that Dr. Kurt has agreed to it. She says she has had almost no experience with mediation and asks you to send her a memorandum addressing the following questions:
(a) What are the advantages and disadvantages in this case of the procedures outlined in the mediator's letter?
(b) What other procedures might you suggest and what would be their advantages and disadvantages?
(c) Should we use this mediator, or should we select another mediator, as is allowed by the court rules?
You are the general counsel of XYZ Corporation, a conglomerate that has more than 100,000 non-union employees working in numerous divisions that produce a wide variety of goods and services. The CEO has become alarmed by a substantial increase in the number of employment claims against the corporation, with growing litigation expenses and liability. She recently read an article in an airline magazine touting the benefits of arbitration clauses requiring employees to arbitrate all employment disputes. She wants you to advise her about such clauses. She HATES litigation because she thinks that it encourages employees to file frivolous claims in hopes of getting some settlement. She said that the fact that XYZ wins most cases in court proves that most cases are frivolous and it really bothers her that the corporation settles many cases to reduce the cost and risk of litigation. She wants to reduce the number of claims and the amount that the corporation pays in legal fees and to employees for these claims. She also wants to minimize the amount of time that employees spend dealing with these complaints, especially the executives and human resources (HR) people handling the complaints for the corporation. It is also important to develop a system that helps protect the corporation's reputation. You talked with the head of the HR department, who confirmed that the number of complaints has been rising steadily over the past few years. He also said that there are a few divisions that have a disproportionate number of complaints, which he thinks interferes with the productivity in those divisions. Although the CEO didn't mention these issues in your conversation with her, you think that she would be concerned about them.
The CEO is a tough-minded executive who wants you to write a brief memo with realistic advice to achieve her goals. The memo must:
(a) identify the most plausible options she should consider (including arbitration mandated in employment contracts)
(b) analyze the advantages and disadvantages for XYZ of each of these options, and
(c) recommend which option or options is or are most appropriate.
Although the CEO is frustrated with the existing system in which complaints are handled through litigation (and initially by the EEOC, for discrimination complaints), do not assume that the status quo is necessarily worse than the alternatives.