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Author: Jacqui Brauman

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Courts might not give you the best justice

We have a State and Federal Court system set up in Australia; the courts, the system that feeds into it, and the legislation that the courts have to enforce. All of this developed over hundreds of years, and has been transplanted in Australia from the United Kingdom.

The reality is, is that sometimes the system is not the best way to justice. The length of time that you face in a Court process and the cost (financial and emotional) may not be worth it when your outcome is not something you can control. The system itself has gotten so big and cumbersome, that you really need to look to other pathways to justice for yourself, rather than getting stuck into the Court system. 

There are certainly some types of matters that need to go through the Court system. But if at all possible let’s try and find an alternative means for you to get a resolution and get justice.

Once you get into the Court system, a lot of decision-making gets taken out of your hands. So you need to weigh up some objectives for yourself, like how important is it for you to have some say and some control in the outcome in your own life. 

Getting caught into the Court system might not be the best way to go; there are plenty of alternatives to look at (just to name a few): 

  • alternative dispute resolution, like mediation or collaborative practice,
  • free services and community legal centres, 
  • dispute settlement centres, 
  • consumer affairs, 
  • the Ombudsmans. 

Explore alternative dispute processes like mediation and collaborative practice before jumping in and handing your life and your money over to a system that gives you no certainty.

Legally Wise Women helps you to work out whether your matter is suitable for an alternative process, and how to go about finding the best way, and how to go about negotiating the best outcome through that process, rather than going legal and having things turn out huge and out of control.

Legally Wise Women

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Calibrated Questions for Negotiating

Women often having an aversion to negotiating and having difficult conversations, and to being in conflict generally. But it’s something that we actually face in our day, more often than we think. And we need to get more comfortable with conflict and asking for what we want. 

To make us more comfortable, having some tools and strategies to be able to progress a difficult conversation is probably really handy for women to learn. A tool or skill in difficult communication is helpful because then you’ve got some way of structuring and approaching it.

So when you start a negotiation with someone, and it doesn’t matter how high or low stakes it is, some planning will set yourself up for the best change of achieving what you want. It could be:

  • negotiating over certain type of work that you’re doing 
  • a certain project and what’s going to be involved 
  • negotiating for your own pay rise 
  • negotiating to get your kids or your parents to do something that you want them to do, or 
  • it could be as important as negotiating over a financial split with your ex. 

You will experience more emotion, the higher the stakes of the conversation, and that’s also something that we talk about a lot in Legally Wise Women. We need to make sure our brain is functioning, so we are not making decisions in a stress response state. We want to be able to make really rational decisions, and being thoughtful about what outcome we actually want. We also don’t want to be handing off the responsibility of that decision to someone else, just because we’re emotional.

Try to approach the negotiation in stages …

The first stage

The first thing you want to do is make sure the other person feels heard. Now, as much as this may be difficult for you to hear what they want to say, and hold back on what you’re feeling or what you want to say, you’ve got to make sure that they feel like they’re being heard.

Next stage

The next phase is once they feel heard, and you have figured out where they’re coming from, you can use that to your advantage to get what you need as well. 

This is where using some calibration questions will help. Calibrated questions are a ‘What’ or a’How’ question. 

‘What’ questions make someone feel like they’re more in control of the process. It brings them in to be more engaged and to be problem solving with you.

Some simple examples might be, “What do you think has got us to this point? What do you think is going to help resolve it? What do you think I should be doing? What do you think we need to do to move this forward?” And “What’s your advice on making this happen?” 

A ‘What’ question puts decision making back to them, making them feel like they’re in control and it helps them to buy into whatever solution you end up coming up with. Once you get really good at this, you can also phrase your ‘What’ questions in the direction you want them to think!

‘How’ questions are really an interesting way of you saying ‘No’. So if a suggestion comes up that you don’t like, use a ‘How’ question. 

Some simple examples are, “How do you expect that to work? How do you think that I can raise that money? How do you think that this should be executed? How do we go about making this happen? How do you think that I can achieve that? How will a third party buy into this? How is such and such going to respond to what we’re proposing?”

Make sure they’re heard. Make sure they feel like they’re in control. Learn to say no in a way that’s not confronting and to keep the talking happening. These steps will have you much better set to get to creative solutions with less emotion and more buy-in from the other party.

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Preparing For Your First Appointment With A Lawyer

When you go in for your first appointment with a lawyer, as well as trying to understand some of your options, you are also assessing whether you can work with this lawyer:

  • whether they are clear communicators, 
  • whether you feel like they empathise with you and understand you, 
  • whether they try to hurry you along, 
  • whether they try and brush off your problems. 

You really are going to your first appointment with a lawyer to assess whether you can work with this person. You’re not necessarily going there for comprehensive advice.

You should prepare some questions that you want answered. Certainly have some questions read in terms of the process and options. So not necessarily which way you should go, but how this could play out, the number of different ways and what options are open to you. 

Now, before an initial assessment, a lot of firms will send you something to prepare yourself. So if there is something that you need to fill in and return, or something that you need to fill in and bring with you, do that as best you can. It prepares your mind as well as making sure that you’re not wasting the time that you have in that first appointment with the solicitor, because they don’t have to go through the form with you if you’ve already done it. 

Please prepare some questions, like:

  • what are the various ways that this can play out? 
  • what are my initial options or steps?
  • what is each option or step going to cost? 
  • How does the solicitor charge? 
  • Do they charge fixed fee at each different step? 
  • Can they give you an estimate for the overall costs for the various options? 

Don’t expect to come out with all the answers to your legal problem, or clear a pathway. You should come out with a number of options so that you can start thinking and assessing those options. 

If you come away for a first appointment with a lawyer with some kind of certainty about which way you should go and how everything’s going to proceed, then potentially that lawyer has taken over the matter for you and is taking your responsibility off you. Whereas this is your life, your issue. So just be careful of that.

The more elements and more complexity that is involved in your matter, then the more certainty the lawyer has, the more you should be wary. Because there are multiple decisions that you need to be making, and multiple options, and they shouldn’t all be made in that initial assessment without all the information. 

Legally Wise Women

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What is fueling your conflict?

Looking at what is fueling your conflict can be part of the way to be able to have some insight into resolving it, without going legal. 

The earlier we can resolve conflict the better. 

Now it might not be a legal dispute, it might just be having difficult conversation with someone, but a lot of conflict can end up all the way to almost a war between people. That’s often when lawyers are dragged in, but if conflict can be resolved earlier, relationships can often be saved.

As well as working out what you actually want to achieve by resolving the conflict, it’s also good to have an understanding of what is fueling the conflict. If you know what is fueling your conflict, you might be able to address it. 

Addressing the fuel might be either resolving that issue with the other person, or having some insight into something that’s triggering you, or some untrue assumptions that have been made that can be cleared up. 

If it’s your own trigger, perhaps go and talk that through with someone, whether it’s a professional or not, to work out how to bring that trigger down. 

Often conflict results because of a difference in:

  • values, 
  • needs, or 
  • because people are making up stories (making assumptions or presumptions about the other person and why they’ve behaved the way they are without actually asking).

So delve a little bit into that. 

The SCARF model developed by David Rock in 2008 provides us with five values or needs (domains) in which people can be triggered. Often people have a primary, or a couple of dominant drivers among these five, and if you are seen to breach one of these, it can drive conflict:

  • Status
  • Certainty
  • Autonomy
  • Relatedness
  • Fairness

Here is a short assessment to discover your own primary driver, to see if you perceive that it has been breached and might be driving the conflict: https://neuroleadership.com/research/tools/nli-scarf-assessment/assessment 

own records

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How to Keep Your Own Records in Your Legal Matter

For those legally wise women who have engaged a solicitor to help them, this is about how to keep track of your own records for your legal matter.

Part of being legally wise is taking responsibility for your own legal matter. 

You can’t just hand off responsibility to a professional. There are certain things that a professional will do for you, but their primary role is to advise. 

It’s your life, it’s your matter, so you have to keep responsibility of it.

Now that being said, there’s going to be a whole lot of things that your lawyer is doing for you. You need to keep track of what correspondence goes backwards and forwards, what advice you’re given, what offers are made and any court legal documents. 

Most solicitors will email everything to you, so you should have a complete record of pretty much everything they’re doing. I would suggest either having a special folder in your email browser on your laptop or PC where you move everything to that is emailed to you about your legal matter.

If you’re happy to use purely electronic records, then I suggest you also have a separate folder on your desktop which becomes the folder for your legal matter. Inside that folder, I suggest sub-folders. 

So sub-folders should be:

  • correspondence, 
  • offers, and
  • legal documents. 

You may want to keep your own notes as well. So if you type up some notes about what advice you’re given during conversations, you’d put them into another ‘notes’ sub-folder. 

Then each piece of correspondence that comes in either from your solicitor or from the other party’s solicitor goes into the correspondence folder.

Try and keep it sequential in terms of date, so you can work out if you have to go back, the sequence of what happened when. 

Keep another folder with all the legal documents. So you may have multiple drafts before you end up signing a legal document. Realistically the ones you want to keep are the ones that have a court seal on them. So after you’ve signed documents, your solicitor files those, they should then give you sealed copies, which are the ones the court has. When the other party sends legal documents, they serve you with those, they should also have a court seal. So again, keep those all together so you’ve got one central place for all your legal documents.

The reason why I like to keep offers separate from general correspondence is because you want to come back to them and double-check what offers have been made when, and what are still current, what offer do we need to tweak or change, and what offer can we rely on in a cost matter, for example.

So, you don’t have to understand everything that I’ve been talking about in terms of cost, service, filing, all those things, but just understand to take responsibility for your matter. As a woman who is legally wise, you are responsible for what happens in your life. The solicitor is assisting, guiding, advising, but ultimately make sure you take control and keep records for yourself too.

own records

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3 Tips for Starting a Difficult Conversation

You might want to start a difficult conversation to try to approach someone before something turns into a full-on dispute. You may want to try and nip something in the bud, or you want to approach someone about inviting them to try and do dispute resolution.

Know your triggers

Firstly, know yourself, and know your triggers. 

If you’re going to get into a difficult conversation, know your own buttons so that if someone presses a button, whether purposely or not, you’re not just going to react. 

You’re going to go, “Okay, that’s triggered me. I recognize it. I’m not going to react right now. I understand that it triggers me.” Deal with the emotions it caused later.

Don’t corner them

Second tip; don’t corner them when you’re going to have a difficult conversation. 

You don’t like being cornered yourself. So why not actually approach someone first and say, “This thing, I think we need to talk about it. When can we do that?” Or, “Can we talk about it in an hour?” Or, “Can I pull you aside soon to talk about this?”

Better to give them a little bit more time to think about it than going, “Can I pull you aside now?” Or launching straight in, blind-siding them.

Feel the vibe

And then the third tip is if you’re having a difficult conversation, feel the vibe of how the difficult conversation is going.

Women, particularly with our increased intuition or emotional intelligence, quite often feel a vibe. Don’t dismiss it. If it’s not going well and you feel that vibe, you’re probably feeling the emotional response of the other person. If it’s not going well, don’t push on. Find a way to end the conversation and to revisit it later. 

Before starting the difficult conversation, think about how to end things and continue the conversation at a different time if the vibe is not good.

You might want to come in prepared to, say, “Look, it might not actually be the right time at the moment to go into that. Let’s talk about that tomorrow,” or “Let’s go and do this little bit of research and come back in the next couple of days,” or have something similar ready.

Summary

So there’s your three tips for starting a difficult conversation are: 

  1. Know what triggers you, so you don’t have an automatic emotional reaction that you’re not in control of. 
  2. Second, don’t corner them. You don’t like being cornered; actually approach them and set-up when to have this difficult conversation. 
  3. And the third one is feel the vibe during the conversation and have some kind of pre-prepared thing that you can then put the conversation off to another time.

In our community for Legally Wise Women, there’s plenty more tips to learn how to negotiate to get what you want.

Legally Wise Women

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Making Your First Call to a Law Firm

Before you make your first call to a law firm, you will have worked out what type of legal matter you have. You would have had a look through some legal databases or your local law firms to see who does the kind of law that you have the problem with. You will also have narrowed down the particular lawyers at the law firm that do the area of law that you’ve got your problem with.

So you will not that not only does the law firm do the kind of law you need help with, but your will know who in the law firm does what you need. You would have had a little bit of a look at the lawyer on the website of the law firm, and had a look at them on LinkedIn. So at least you have an idea about who potentially you’re going to be seeing; the person, what they look like, what they stand for. 

So you do all those things before even making the call.

Now, when you call a law firm, don’t expect to be able to get put through to a solicitor. 

With some smaller firms, you may be able to speak to a solicitor straight away. However, there’s usually an intake process at a law firm. Just like you would have at a dental practice or a doctor surgery, you can’t get through to speak to the professional at those places either. 

Your first appointment is usually the first time where you would speak to the lawyer, but even some firms have an intake officer that does the first appointment too.

They’ll each have their own way of doing things. 

Keep in mind that the law firms are there to want to serve, and to help you. So they’re going to guide you through some kind of process, so let that happen. 

Let them ask you the questions that need to be asked. They will determine whether the solicitor that you thought was going to be the one for you is actually the best one for you. They’ll also tell you whether the first appointment can be via Zoom, or phone, or whether you have to physically come in, or whether there’s some other process that they have.

You may get some initial information emailed or posted to you, so be prepared that they’ll ask you for that information to be able to send you some things ahead of time, and that will give you an idea about what you might need to bring to that first appointment.

The other thing that they will give you an idea of is cost. You shouldn’t be scared to ask how the firm charges, and what the fee will be for that first appointment. 

Some firms will still do a first appointment free, but not all firms do. Usually the solicitor will tell you more about the legal fees in the first appointment.

If you can get some initial appointments for free, use those free appointments to assess the lawyers. Don’t try and get advice in a half-hour free appointment, because you’re not going to get very far. Use it to assess the communication style of the solicitor, ask questions about the process, not necessarily advice about your particular situation. 

Allow them to guide you through the process. They are there to help. They want to serve. They want to help you with your problems, so let them do that.

Legally Wise Women

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Starting Your Negotiations for a Better Chance of Settling

How do you start up negotiations, so that it starts better, and you’ve got a better chance of settling your dispute? 

No matter what the dispute is about, we want to get it resolved earlier, rather than later.

The longer the dispute runs, the more likely the conflict spirals out of control to the point where you’re basically at war with the other party. This does not give you a good chance of settling.

Lawyers have their place is a dispute, and understanding your legal rights and the process if you can’t resolve it is important. However, if you go to a lawyer and you find out your legal position, and then you entrench into that position, it may not be the best way to try to settle the matter. 

If you push towards a settlement that sticks to a certain percentage, or aligns with your legal rights, you may cause the other party to also entrench into the opposite position.

The best way to try and settle the matter is actually to work out what you want. 

What you want is not based on your legal rights, but what outcome you want from this. 

Does there have to be a working relationship with the other party moving forward? What are your underlying interests to having this resolved? What do you need moving forward? Sometimes you might need some guidance in working that out.

What a good lawyer will do is actually explain all your different options, which is what you want to know. You want to know your different options and the different processes about how to proceed.

Finding some alternative dispute resolution as early as possible is one of the better ways to start negotiations. 

Is there some community mediation centre that you can help resolve your matter without having lawyers involved? There are private mediators that you can use, which would cost a fraction of what the legal fees would be if you took it legal. 

Having an understanding of your options is really important so that you can approach a dispute and resolving that dispute in a way that means you’re more likely to settle it, than inflaming it and making it take longer to resolve than it needs to.

5-part video series so you can learn how to find and hire the right lawyer

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Conflict styles

Before going into some kind of negotiation or dispute settlement, whether you’re doing it yourself or whether you’ve got a lawyer representing you, it would be really interesting for you to learn what your natural conflict style is. 

So there’s been a couple of little tools put out there where you can do a quiz or a questionnaire to find out your natural conflict style. 

Quite often it’s put on an X-Y axis where the X axis is how assertive you are, and the Y axis is how much you value a relationship. 

conflict styles

We want to be sort of in the middle of that scenario, or as far out to being assertive and valuing the other person as possible, because we want both. We want to retain the relationship if possible, or some kind of working relationship, but we also want to assert what our rights are.

So, if, for example, if you’re not assertive and you don’t care about the relationship, then you’re going to have an avoidant conflict style, and you’re pretty much going to go, “Well, I don’t really care.” You’ll walk away; you’re not going to fight for your own rights, and you’re not going to care about the other person either. 

If you care deeply about the relationship, but you don’t value your own needs very much, you’re going to have a more accommodating style. So you’re going to pretty much let them get what they want just for the sake of keeping the relationship. 

So the avoidant and accommodating styles are typically the conflict styles, that women take, primarily because we are conditioned to keep other people happy when we’re raised as children.

However, it doesn’t mean we can’t learn to be otherwise, or to consciously develop some skills to bring us into a more collaborative style. A compromising or collaborative conflict style means that we equally value and assert what we want, but also value the other person.

So, conflict styles are really interesting, and knowing yours can help you learn the skills to get more of what you want. 

I do a lot more training on this in my course about learning how to negotiate to get what you want, which is in my Legally Wise Women community.

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Gender bias in the legal industry

*Sigh* (Another blog by a woman complaining about gender bias.)

Yes! Of course! Well, nothing much has changed since the first studies into this bias in the 1970s and 1980s. 

Except that we know more about it! And we know that if female lawyers, and female expert witnesses face bias, then how is a normal woman going to navigate resolving an issue without facing bias?

Karen Engstrom, another blogger, wrote a great article that I’m going to repeat a lot of it for you, because there has also been some interesting research that female lawyers actually do better than men!:

What female lawyers who are trying to help you are up against

In addition to lower pay and opportunities for advancement, female lawyers (and particularly those who are also minorities) are more likely than their male counterparts:

  • To be interrupted;
  • To be mistaken for non-lawyers, including custodial staff, administrative staff or court personnel, even after making partner at their firms;
  • To do more office housework, such as meeting scheduling and party planning, and even cleaning up food after a meeting; and
  • To have less access to prime assignments.

I too have been mistaken for administrative staff and I recall my frustration. When my male partner inadvertently drove to the wrong location for a meeting that he had scheduled at our office, his guest arrived and was quite insistent that I must have botched the calendar entry for my partner. It offered me minor solace that he felt quite embarrassed when I informed him that I was not my partner’s administrative assistant.

Gender bias seems even more unfair in the courtroom itself where double standards abound. A 2018 study conducted by Arizona State University dissected perceptions of six trial lawyers, three male and three female, as they reenacted an aggressive closing argument from a real court case. Participants in the study described the male lawyers as “commanding, powerful, competent, and hirable” while the females were found to be “shrill, hysterical, grating, and ineffective.” Unfortunately, since the courtroom is a venue where results are inherently driven by a judge and jury’s perceptions, female lawyers are often left to face the reality of such perceptions and adapt accordingly.

What a female expert witness is up against

The necessity to adapt to biased perceptions is not limited to lawyers, but extends to expert witnesses as well. An astounding 83% of expert witnesses retained are male. Bloomberg BNA reported in August 2017:

  • Gender bias in the legal profession isn’t new. Its pernicious reach spreads everywhere.
  • But nowhere is it more pronounced than among the ranks of female expert witnesses who must surmount multiple layers of ingrained stereotypes every day to do their jobs.
  • Women must scale heights in their chosen field to qualify as a trial expert. They then need to persuade mostly male attorneys they should be hired and retained.
  • And to survive, they must consistently convince skeptical jurors that they are more knowledgeable, credible, confident and even likeable, than their opposing, usually male, counterparts.

Certainly, all expert witnesses should be expected to be knowledgeable, credible and confident, but let’s talk about likability. Tess Neal, Assistant Professor of Psychology at Arizona State University, explains that in order to persuade jurors, female experts must not only uphold their occupational role as “competent and knowledgeable,” but also uphold their gender role as “warm and likeable.” According to Neal, male experts face only the former, without likeability as a requirement.

Despite all this you’re better off to have a female lawyer

Premonition co-founder and CEO Guy Kurlandski summarizes the study’s results, “If female attorneys were compensated according to how often they actually win cases, they’d be paid more than men.  We just ran the biggest legal study on gender of all time, and at every level of practice, women came out ahead.”

Armed with the findings from Sky Analytics gender study, Premonition set out to unpack “the truth behind the myth” with respect to the performance of female and male litigators. Premonition utilized its vast archive of courtroom data and proprietary artificial intelligence to study the win rates of litigators across 120,000 cases, finding:[9]

  • Female partners in Big Law outperformed male counterparts in court by nearly 13%; and
  • Female associates outperformed male counterparts by nearly 3%,

Premonition offers several possible explanations for the win gap, largely attributing it to “survival of the fittest” with only the best and most elite female lawyers surviving to outperform a wider pool of males, but also citing a study which found that “female lawyers are somewhat less overconfident in their predictions of case outcomes than males, meaning they are less likely to bring losing cases to court while preparing more diligently for the cases they do litigate.”

Where does all of this leave us? Never has there been a time more ripe for upending courtroom bias than now. Diversity and inclusion initiatives are abundant across law firms and corporations, and data such as that published by Premonition is bound to continue to demonstrate the merits of female lawyers and expert witnesses alike. It is time to put the anecdotes, discouraging realities, and biased perceptions into the past, and instead move toward a future that acknowledges the advantages that females can provide across all areas of the courtroom. Early in my career I was told that perceptions become reality. But times are changing, and I believe the reality of women’s contributions in the courtroom has the power to become the new perception.

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