Lawyers and Dispute Resolution Chapter 1

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Questions and Answers

The authors of the text, Boulle and Field, argue that DR skills should be considered a separate field from transactional lawyering.

False (B)

What is the authors' main argument regarding the integration of DR expertise into legal practice?

  • DR expertise is a separate field from transactional lawyering.
  • DR skills are not relevant for transactional lawyering.
  • DR expertise should be solely focused on augmenting an adversarial system.
  • DR expertise should be fully integrated into legal practice and education. (correct)

Why do the authors believe transactional competency is essential for new lawyers?

Because transactional practice is at least equal to, and perhaps even dominates, DR practice.

The authors point out that the legal profession is on track to achieving the greater integration of ______ into legal practice.

<p>DR expertise</p> Signup and view all the answers

Match the following terms with their descriptions:

<p>Transactional competency = The ability to understand and negotiate in business transactions. DR expertise = Knowledge and skills in resolving disputes in a non-adversarial manner. Adversarial system = A legal system where opposing parties present their arguments to a judge or jury.</p> Signup and view all the answers

The authors argue that the legal profession has already fully integrated DR expertise into practice and education.

<p>False (B)</p> Signup and view all the answers

What is the authors' perspective on the current role of DR expertise in the legal profession?

<p>They believe it is currently seen as augmenting the adversarial system but should be more comprehensively integrated into legal practice.</p> Signup and view all the answers

The authors argue that DR expertise should be accepted as doing ______ than simply augmenting an adversarial system focused on litigation.

<p>more</p> Signup and view all the answers

What is the primary reason the authors wrote this book?

<p>To explore how DR expertise could be more fully integrated into legal practice and education. (B)</p> Signup and view all the answers

What is the authors' primary focus regarding the integration of DR expertise?

<p>They focus on integrating DR expertise into both legal practice and legal education.</p> Signup and view all the answers

Which of the following Australian legislation requires parties to attempt alternative dispute resolution (ADR) before commencing court proceedings?

<p>All of the above (D)</p> Signup and view all the answers

Judges in Australia have no authority to refer cases to ADR processes once a matter reaches court.

<p>False (B)</p> Signup and view all the answers

What are two examples of areas of legal practice where pre-filing ADR efforts are now required?

<p>Examples include family law, discrimination, personal injuries law, small claims, and administrative law.</p> Signup and view all the answers

The ______ and the ______ are two Australian pieces of legislation that mandate parties to attempt alternative dispute resolution before initiating court proceedings.

<p>Civil Dispute Resolution Act 2011 (Cth), UCPR, Family Law Act</p> Signup and view all the answers

Match the following legislation with the area of law they are associated with:

<p>Civil Dispute Resolution Act 2011 (Cth) = General civil disputes Family Law Act 1975 (Cth) = Family Law Anti-Discrimination Act 1991 (Qld) = Discrimination Personal Injuries Proceedings Act 2002 (Qld) = Personal Injuries Law</p> Signup and view all the answers

Which of the following institutions does NOT offer practical legal training in Australia?

<p>Australian National University (C)</p> Signup and view all the answers

Flinders and Newcastle Universities integrate practical legal training into undergraduate degrees.

<p>True (A)</p> Signup and view all the answers

What is the purpose of the Legal Profession Uniform Admission Rules?

<p>To regulate the admission of legal practitioners in Australia.</p> Signup and view all the answers

Practicing certificates in Victoria are issued by the ______.

<p>Legal Services Board</p> Signup and view all the answers

Match the institutions with their type of training:

<p>Queensland University of Technology = University offering practical legal training College of Law = Independent institution for legal training Leo Cussens Institute = Professional training for law practitioners Flinders University = University integrating training into degrees</p> Signup and view all the answers

Which of the following statements about practical legal training is correct?

<p>Practical legal training is available both in universities and independent institutions. (C)</p> Signup and view all the answers

The main goal of dispute resolution is to ensure that disputes are dealt with fairly.

<p>True (A)</p> Signup and view all the answers

What is one of the contemporary common denominators of a profession according to Freidson?

<p>Expertise (D)</p> Signup and view all the answers

The term 'profession' originates from the Greek language.

<p>False (B)</p> Signup and view all the answers

Match the author with their work:

<p>Freidson = Professionalism Reborn Wilensky = The Professionalization of Everyone Larson = The Rise of Professionalism Finn = The Fiduciary Principle</p> Signup and view all the answers

Credentialism is not considered a common denominator of a profession.

<p>False (B)</p> Signup and view all the answers

According to Freidson, a profession requires __________.

<p>autonomy</p> Signup and view all the answers

What is a critical skill for lawyers in both transactional and dispute resolution (DR) practices?

<p>Communication skills (C)</p> Signup and view all the answers

Lawyers primarily focus on litigation when it comes to dispute resolution.

<p>False (B)</p> Signup and view all the answers

What are the two essential skills mentioned that lawyers need to use daily?

<p>Communication and negotiation skills</p> Signup and view all the answers

DR expertise should be recognized as a core aspect of __________.

<p>contemporary lawyering</p> Signup and view all the answers

Match each function to the corresponding aspect of legal practice:

<p>Transactional practice = Focus on client needs and interests Dispute Resolution (DR) = Manage disputes through negotiation or mediation Litigation = Ensuring courtroom representation Negotiation = Settlement of disputes prior to trial</p> Signup and view all the answers

According to the content, why is negotiation an important skill for lawyers?

<p>It allows for the resolution of disputes without going to court (D)</p> Signup and view all the answers

Currently, DR expertise is viewed as an essential part of all legal practices.

<p>False (B)</p> Signup and view all the answers

What has historically limited the perception of DR expertise?

<p>A narrow focus on litigation</p> Signup and view all the answers

Lawyers should cater to not just their clients' legal rights but also their __________.

<p>needs and interests</p> Signup and view all the answers

Flashcards

Practical Legal Training

Training provided to law students for real-world legal practice.

Australian Law Faculties

Universities in Australia that offer law degrees and training.

Legal Services Board

Body that issues practicing certificates in Victoria, Australia.

Legal Profession Uniform Law

Legislation governing legal practice in Victoria and its regulation.

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Integrated Practical Legal Training

Combining practical legal training with undergraduate law degrees.

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Dispute Resolution

Process of resolving conflicts through fair means.

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Billable Hours

Time charged to clients for legal services rendered.

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Continuing Professional Education

Ongoing learning for professionals to maintain skills and knowledge.

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Professionalization

The process by which occupations develop into professions.

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Freidson's Common Denominators

Expertise, credentialism, and autonomy as key traits of professions.

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Fiduciary Principle

A legal obligation of one party to act in the best interest of another.

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Latin Origin of Profession

Derived from 'professio' meaning to make a public declaration.

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Expertise

High level of knowledge or skill in a specific area.

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Credentialism

Emphasis on formal qualifications to verify competence.

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Autonomy

The ability to make independent decisions within a profession.

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Power in Professions

The influence and authority held by professionals in their field.

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Civil Dispute Resolution Act 2011

Legislation requiring parties to attempt dispute resolution before court.

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Genuine Steps Requirement

Mandate for parties to make earnest attempts at resolution pre-court.

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Assisted Dispute Resolution (DR)

Process involving mediation or negotiation with assistance to settle disputes.

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Pre-filing Dispute Resolution

Efforts made to resolve conflicts before initiating court proceedings.

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Court-Connected Referrals

Judges can refer matters to alternative resolution methods after court filing.

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Client Needs

The interests and requirements of clients that lawyers must address.

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Communication Skills

Essential abilities for lawyers to convey information and engage with clients.

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Negotiation Skills

Techniques used by lawyers to reach agreements in transactions and disputes.

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Dispute Resolution (DR)

Various processes aimed at resolving conflicts outside of court.

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Litigation

The process of taking legal action in court to resolve disputes.

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Negotiation Processes

Methods used to settle disputes before going to trial.

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Core Lawyering Skills

Essential abilities required for effective legal practice, including DR.

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Transactional Law

Legal practice focusing on the documentation and negotiation of business agreements.

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Legal Rights

Entitlements that individuals possess under the law.

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DR Expertise

Advanced knowledge and skills in dispute resolution processes.

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Transactional Lawyering

Legal practice focused on facilitating transactions rather than resolving disputes.

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Transactional Competency

The necessary skills and knowledge for new lawyers to effectively handle transactional work.

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Integration of DR in Legal Practice

The incorporation of dispute resolution practices into everyday legal work.

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Adversarial System

A legal system where parties in a dispute engage in opposition to present their case.

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Augmenting Litigation

Improving or enhancing the litigation process with additional expertise or methods.

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Legal Education

The academic training and studies required to practice law.

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Preventative Lawyering

The practice of minimizing legal disputes before they arise through proactive measures.

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Dominance of Transactional Practice

The idea that transactional lawyering may be more prevalent than dispute resolution practice.

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Study Notes

Chapter 1: Lawyers, Lawyering and Dispute Resolution

  • This book examines the role of an Australian lawyer in the 21st century, emphasizing dispute resolution (DR) skills.
  • DR, particularly non-litigation dispute resolution (NLDR), is increasingly crucial for effective contemporary legal practice.
  • The first chapter explores the Australian legal profession, its philosophical framework, and the role of lawyers as dispute managers and resolvers.

The Profession of Law

  • The legal profession is ancient and global, existing in various forms in different jurisdictions and cultures.
  • China is recognized as having one of the oldest legal systems, dating back to approximately 2800 BC.
  • Lawyers provide legal advice, representation, and advocacy for clients, while also serving society and the public good, particularly in democratic societies.
  • Lawyers practice as solicitors or barristers in private sector, government, or community legal sectors.
  • Legal practice requires specialist knowledge, skills (legal thinking, legal research, communication), and attitudes.

Australian Dispute Resolution

  • DR knowledge, skills, and attitudes are critical aspects of modern lawyering.
  • Traditional legal practice largely involved face-to-face meetings, phone calls, and written communication.
  • The legal profession is today undergoing changes impacting the delivery of legal services.
  • Law schools now teach Law graduates both undergraduate (LLB – Bachelor of Laws) and post-graduate (JD – Juris Doctor) level law degrees.
  • Legal work comprises transactional and DR work.
  • Transactional work involves forming, negotiating, and closing business agreements.
  • Transactional lawyers manage disputes by evaluating legal and commercial risks, performing due diligence, and drafting contracts/agreements.
  • Lawyers should understand the broader context surrounding transactions.
  • DR expertise is critical to modern lawyering.
  • The legal profession faces challenges affecting its efficacy and value.
  • Criticism of the legal profession includes that it is too expensive and too adversarial.
  • Economic pressures, technology, market competition, and changes in client expectations are impacting legal service provision.
  • Lawyers may lose power and control.
  • DR expertise should be central to legal education.
  • The Priestley 11 (compulsory law subjects) are criticized for their focus on doctrinal law, potentially neglecting legal skills and values.
  • The TLOs (Threshold Learning Outcomes for Law) are modern educational standards emphasizing skills and attitudes required in legal practice.
  • DR subjects in law school can help students satisfy TLOs in knowledge, ethical reasoning and communication.

Conclusion

  • Dispute Resolution (DR) is now central to the legal profession and crucial for maintaining the rule of law.
  • Legal practice demands critical thinking, communication skills and flexibility to meet challenges.
  • Effective legal service provision requires new approaches supported by the understanding of DR processes and legal concepts.

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Australian Dispute Resolution: Law and Practice Chapter 1 PDF

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