How Lawyers Help Resolve Legal Disputes

alternative-dispute-resolution-adr-918x516A negotiated settlement can be turned into a binding contract that is enforceable. Parties can engage each other using different types of negotiation, including distributive and integrative. Distributive, positional or hard-bargaining negotiation employs the zero-sum principle, which favors one party at the expense of the other. As a result, parties often adopt extreme positions fully aware that they are unacceptable. This type of negotiation usually involves parties that have not previously worked together.

With integrative negotiation, counter-parties employ tactics aimed at increasing the likelihood of a negotiated agreement. Also known as interest-based, principled or merit-based negotiation, it attempts to create value by ensuring the outcome divides spoils equally between the parties.

The approach is generally characterized by high levels of trust and the nurturing of a professional relationship. It is common for both sides to employ creative problem-solving techniques to attain a win-win outcome. They trade one favor for another (logrolling) at the expense of their arbitrary starting positions.

In some cases, one party may concede to the negotiation based on social motivations. However, quick concessions may mean that one of the sides opted not to explore all integrative solutions. Perspective-taking is known to allow parties to reach a mutually beneficial outcome.

Negotiation is defined by a number of key characteristics that include:

Non-adjudicative — the outcome of the negotiations typically does not entail recourse to a third-party neutral. Flexible — the parties can agree on the scope of the negotiations. They can adopt either an interest-based or positional-based bargaining approach. Confidential — the parties can keep the deliberations confidential or make them public.

Voluntary — participation is purely voluntary and the parties can reject or agree on the outcome. They also have the right to withdraw from the negotiation. In addition, they can be represented by a third party. Bilateral or multilateral — the number of participants can be limited to a few parties or more.


Arbitration provides a practical solution for resolving different types of disputes. The approach is typically used in the context of commercial disagreements. Many employment and consumer matters are resolved through arbitration. Participation can be voluntary or involuntary and the decisions taken by an impartial adjudicator can be binding or not.

Mandatory arbitration is established by a statute or contract that the counterparties signed voluntarily. On the other hand, non-binding arbitration shares similarities with mediation in that there is no imposition of decisions.

On another level, arbitration is regulated differently in various countries around the world. Some nations like England have a separate that covers arbitration. In many cases, provisions surrounding arbitration may be outlined multiple procedural laws.

Benefits of arbitration

– Faster when compared to litigation
– Unlike court verdicts, arbitration is generally easier to implement internationally due to the provisions of the New York Convention (1958)
– Parties select their own tribunal as opposed court cases that have a pre-selected judge
– Proceedings are confidential

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Do Jurors Believe Expert Witnesses?

Expert witnesses can be brought into a case for a wide variety of reasons including educating the members of the jury on a particularly American-Juriescomplex subject or offering their opinion on how a piece of evidence should be taken into account, just to name a few. It is the decision of the judge who presides over the procedure to determine if the expert witness is allowed, and can also describe conditions under which the expert’s testimony will be heard. Certain questions, for example, may not be asked if the Judge feels it may unduly influence the jury. Attorneys will argue over what can be admissible as well. These experts are often considered well educated and experienced in their field, and their long career history.

What Juries Want

Typically, what juries want, based on post-trial interviews, is an expert witness who will teach them what they need to know in order to make an informed decision. If a doctor, for instance, can explain a particular illness to the satisfaction of jurors, it helps them understand why someone got sick in the first place, and how it is relevant to the decision they must make.

What jurors also indicated was important is the medical expert’s proximity to the person’s illness to which they are testifying. A Los Angeles criminal defense lawyer will ultimately choose an expert witness who can testify about the actual person rather than theories and conclusions found in journals and books. If juries don’t find the expert’s opinion relates to the case at hand, in other words, they may discount it as “they were never even there” to see the ill person, so “how could they know?”

It seems jurors can also detect the expert’s knowledge of the particular case, rather than inferring the evidence is related to their vast knowledge. They know when the expert hasn’t read the details. In essence, jurors tend to place more belief in those who may have little experience testifying as an expert and more experience in the trenches doing all the work. Professional expert witness, therefore, may seem less believable because their job is testifying, as opposed to real life experiences.

What Juries Need

coutroom576A Los Angeles criminal defense lawyer will carefully weigh out how all evidence will be presented to a jury, and have special requirements when it comes to experts. Juries also cannot be expected to consider the information they do not understand. They do require education of some very complicated information at times, and the attorney will choose carefully. For example, if the trial involves high-tech computer information, we can assume jurors will have varied knowledge on the subject. It will take an expert to explain, for example, how coding works to make software user-friendly, and they’ll need someone to educated them on the subject.

Interestingly, the expert will need to balance “teaching” with presenting juries their opinion or appearing as though they are influencing their decision. A Los Angeles criminal defense lawyer will carefully map out questioning so the expert doesn’t appear to be anything more than a teacher, simply there to help the jury decide. Expert witnesses who appear to be influencing the jurors can easily be discounted, and jurors have often pronounced they decided to discount the expert altogether. Some have remarked they felt their decision had nothing to lose by completely disregarding the facts presented.

What Lawyers Must Do

Because jurors can have a much different view of experts than attorneys, judges, and those in the courtroom, criminal defense attorneys will balance the pros and cons of the expert testimony with the needs and wants of the jury. Because it can be such an important part of the proceedings, preparing and expert witness is vital. Keeping in mind that juries have the upper hand in the courtroom, their opinion and how they may perceive a witness is crucial.

In one of the most famous cases of the century, jurors completely discounted DNA evidence in the OJ Simpson case because they felt it was irrelevant, boring, and ultimately tampered with due to what they saw as more compelling evidence presented elsewhere in the proceedings. This is certainly an easy example of a very complicated trial, but jurors ultimately tell the truth of what they found to be the most compelling evidence in any case, and Los Angeles criminal defense attorneys pay scrupulous attention to what jurors believe to the best example of truth.

The CSI Effect Influence

crime_scene_Null_Value_FlickrAny defense lawyer would most likely offer up their own theory and thoughts about the CSI effect and perhaps mention some cases in which they believed the effect either worked well for their client or worked somewhat against them. The truth is, the well known social circumstance can cut both ways. In essence, the CSI effect is the perceived notion by the American public about the necessity of DNA evidence or other scientific “proof” necessary to find a defendant guilty or innocent.

USA Today coined the term in the early 2000’s, to explain in part, how television programs, like CSI, has many times falsely educated the public on how investigations and crime scene evidence is found, tested, and used in a court of law. The stories often times investigate, bring charges, try and convict a defendant in less than an hour. Though the essence of the stories may indeed be true, that’s where the similarity to the real truth may end.

The Jury

Because the jury is formed of those who are presumably influenced by the quick action of one or two characters in a TV show who not only investigate the crime scene, process evidence, and chase down the alleged criminal and participate in the trial, they may be suspect of any crime scene which produces no evidence at all. That never happens on TV, after all. Unfortunately, the truth is never that easy. DNA evidence, fingerprints, hair samples, or other processable evidence is often not available. Any criminal defense lawyer faced with the lack of scientific evidence of their client’s actions, moreover, is not out of the woods with the jury, as circumstantial evidence is usually very compelling and can be difficult to repute. Still, it is how the jury weighs the evidence which is of utmost importance.

The CSI effect, however, is known to influence jurors as they desire the concrete evidence shown on their favorite TV show. The jury in the infamous Casey Anthony case, for example, cited the lack of “proof” she was responsible for her daughter’s death. The baby’s remains were found in a swampy area of Florida after any fingerprints, DNA, or other scientific proof had long washed away. The circumstantial case showed Ms. Anthony was the last one who had custody of the child, the last seen with her, and there was evidence of decomposition in the trunk of her car. But, the jury wanted more, and it wasn’t available.

The Media

Certainly not every case is widely reported and each detail printed for mass consumption. But the media reflects the public’s consumption ofcsi_effect TV in many ways. The Law and Order franchise has been in the mainstream for 27 years, and its effect on the perception of our society is replete with the dramatic effect which, though entertaining, is far from the truth. Professional Forensic Scientists in tracking the CSI effect have often noted clear untruths about not only the judicial process portrayed, but also note up to 40% of the techniques used in TV programming depicted as tests do not even exist. In addition, evidence collected and processed which can take months in authentic criminal cases to complete is communicated in minutes and is then depicted as the absolute truth of guilt or innocence.

In reality, a lawyer must also have the testimony, eyewitness accounts, the testimony of the defendant, and attend to all the circumstances of the crime. It is the preponderance of the evidence, and not an eyelash found in a vacant field, which summarizes an entire case. Even the earliest accounts of the CSI effect can be traced back as far as the Perry Mason show, which revolutionized TV as a source for criminal justice information, or the lack of it.

Many attorneys and legal professionals in other positions have reported in surveys, by a margin of 80%, that they believe cases in their career have been influenced by the CSI effect. Because of the focus on the media, in turn, becomes the focus of the jury pool deciding on guilt or innocence, it is easy to see how the influence has become one of the most investigated and written about social conditions in the modern history of Law. Perhaps, the understanding of the phenomena will lead to enhanced jury education, questioning techniques, and disclosure by media on where the real truth exists.

Who Is Fit To Stand Trial?

5104a9a9ed3c1.imageBeing fit to stand trial or competent to stand trial has been in the American vernacular since the early 90’s when the American Bar Association underlined this as one of the most important rights of a defendant in modern years. Though the law was in place prior to this, the use of it was not necessarily used as widely until later years. Originally used in only death penalty cases, it provided that a defendant must understand why they were being executed for their crime. Later, it was expanded to those who waived right to counsel, and those who were going to plead guilty in a court of law.

Certainly, it seems to be a logical question for anyone facing serious charges. At a minimum, a defendant should understand the charges and what they are facing down the road. What may not be as clear is how the competency is established. Since competency involves the mental capabilities, certainly a clinician must be involved, but what exactly establishes incompetence, for example? This can be a blurry line at which psychologists, lawyers, and judges try to find the truth.


Simply put, and what any Los Angeles criminal defense lawyer would tell a client is that a defendant must understand the nature of the criminal proceedings and have the ability to assist their counsel in the case. Though this is a broad measurement, clinicians will perform a variety of self-reporting and paper and pencil tests to get a clear picture of the defendant’s ability to understand these two important elements.

There are many tests used to gauge psychological and mental aptitude, and tests used specifically for defendants facing criminal charges. An example is The Competency to Stand Trial Assessment Instrument which was designed by psychiatrists just for this purpose, but there are a host of tests psychiatrists can use to measure the functional abilities of the defendant. What needs to be measured with the variety of instruments is the presence of mental disorders, intellectual deficits, and if any are present, how these impact psychological abilities.

Test Conclusions

As anyone can imagine, the stakes are high. If the defendant is being tried for an especially heinous crime, there are, for example, a criminal defense lawyer, a prosecuting attorney, the victim’s family, and the defendant themselves who all have a part in the stakes. However the tests may turn out, it is the opinion of the clinician and the discretion of the judge which weigh in on the decision to go forward with a trial or not. Because psychiatry and its instruments of measure can be subjective by nature, there have always been arguments on both sides of the conclusions put forward by a defendant. There are experts in the field of forensic psychiatry whose life work and experience are in this area, and these are the professionals typically used in cases needing competency tests. If it is found that a defendant’s mental capacity is so compromised they have no real understanding of the proceedings or their part in them, the trial will be postponed, and services may be provided for them to attempt to improve their competency in the future.

When Testing Is Needed

The issue of a defendant’s competency can be raised at any time, even after a trial has started. For example, in one of the most famous CourtAmerican trials ever, Casey Anthony was tested for competency very late in the trial due to her very strong reaction to the idea of pleading down to a lesser charge. It was her defense team who raised the issue, and the judge had to stop the trial for testing to be done.

Anyone involved in a case can bring the issue to the judge if they suspect the defendant is not able to understand the process in which they’re involved. Those who work as a criminal defense lawyer can, in fact, have competency tested before a trial ever begins if there are signs their client is not able to assist in their own defense because, for example, they do not understand the charges or have any recollection of the events, to name just a few. One particular item a defendant is tested for, interestingly, is malingering, or the intentional act of answering questions in an attempt to receive results indicating incompetence. In other words, the tests are designed to indicate if a person is lying.

Settling In Quite Comfortably

Hi! I’m so excited that I was able to get this site since Gallatin holds some nice memories. It was settled in 1802, so that’s fairly early – only 16 after Sumner County itself (where Gallatin is located) was established. Anyway, enough about that – I just wanted to say hello and let you know that I have a lot of plans for my blog, which I hope will have a comfortable and down-home feel to it. I have some stories and posts coming soon!