T opic 2. fighting / being resolute



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T opic 2. fighting / being resolute



I. General

Tips to keep in mind

1. When fighting the English tend to sound polite and not too resolute.

2. It is crucial to start with supporting your opponent’s viewpoint and only then present your case.

3. The English will take offense on hearing You are wrong in reply even if there is a heated argument / debate.

4. The English tend to employ impersonal structures and modal verbs in a debate, such as There might be, One might think that, We could look at it this way, It could be viewed from a different perspective.

5. Such comments as That’s right / correct / objectively true should be avoided, as they imply that the speaker voices the ultimate truth.

                                      L. Visson. Where Russians Go Wrong in Spoken English

Practicum 2.1

Relate the above tips to your cultural practices

Practicum 2.2

Study the communication strategy of Fighting / Being Resolute

Step1 Share your opponent’s concerns
Step 2 Object to his / her treatment of the problem
Step 3 Offer solid evidence to support your view
Step 4 Make it clear that your decision is final

Practicum 2.3

When practicing Fighting / Being Resolute strategy you may need the word combinations to follow. Try and explain what they mean

to fight for (one’s rights); to fight dirty / clean; to fight back; to fight / battle one’s way to; legal fight; turf / territorial battles; office politics; to provoke a fight; a resolute / flat refusal / answer; resolutely; to resolve a conflict; conflict resolution; high resolution; workable / unworkable situation; to take the low / high road; a clash of interests; differences about; discrepancy; controversy

Practicum 2.4

Translate into English, relying on the word combinations from Practicum 2.3

1. Он упорно продвигался (2 варианта) по служебной лестнице.

2. Наши противники ведут честную борьбу, нам также не стоит ввязываться в служебные интриги (3 варианта).

3. В государственном аппарате ведется постоянная внутриведомственная борьба.

4. Если вы хотите вырваться на первое место, вам придется преодолеть страх.

5. В течение последних двух столетий женщины боролись за свои права, однако только в начале 20 века им было позволено участвовать в выборах.

6. Она едва смогла сдержать слезы, когда ее возлюбленный сделал ей предложение.

7. На мою просьбу посидеть с ребенком он ответил категорическим отказом (2 варианта).

8.Он предложил решить оставшиеся разногласия лично.

9.Эта ситуация неразрешима.

10.Столкновение интересов приводит к межнациональным конфликтам, требующим немедленного решения со стороны государства

Practicum 2.5

Arrange the Fighting / Being Resolute vocabulary in groups relating to 4 steps of the communication strategy

Step 1 Step 2 Step 3 Step 4
I see your point but I am afraid I can’t fully agree to that There is solid evidence that (I am sorry) I still find it (impossible)

My stand / stance / position / viewpoint is

There is compelling / solid of evidence that

I am sorry (but) we’d like / expect / want to

Under the circumstances, it still makes sense

Given the situation, we’ll have to consider

I suppose you will agree that

Some of your arguments don’t seem quite convincing to me

I share your concerns

I am afraid I see that differently

It seems to be the only option

II. Fighting / Being ResolutePractice

Practicum 2.6

Be resolute in the situations to follow

- you are voicing your intention to sacrifice your present job and opt for a less demanding one to your chief, who is trying to talk you out of it

- you got in a minor car accident caused by a reckless driver who tried to cram between two cars at the traffic lights. Make it clear to the police officer that it is not your fault

- at a board meeting your partner suggests a seemingly hopeless scam which you are strongly against. Be resolute

Practicum 2.7

Rely on Fighting strategy to support or challenge the following views

1. Females are inferior to males

2. First-jobbers are offered only entry level positions

3. Promotion is based on connections rather than on personal achievements

4. The underprivileged have little chance to move up the social ladder

5. When ruling, the jury relies on personal preferences rather than the evidence presented.

Text 2a

The text to follow deals in talking law. Study the text and use it as a starting point for communication

The Legal Profession

The practicing legal profession in England is divided into two main groups: barristers (who are often called “counsel”) and solicitors. The relationship between the two parts of the practicing profession has at least an appearance of conforming to the elitist pattern which dominates the court structure. For here we have a very small “higher” or “senior” branch to the profession – the bar – and much larger “junior” branch. There were in 1993 fewer than 8,000 barristers in private practice in the whole of England and Wales, while there were some 55,000 solicitors in private practice. Both parts of the profession have been growing very rapidly, and the number of solicitors has more than doubled in the past twenty years or so. Much of this rapid growth is undoubtedly due to the demand for legal services paid by the State system of legal aid, so taxpayers have to some degree been funding this extraordinary increase in the number of practicing lawyers.

In one sense it is correct to regard the bar as the senior part of the profession. All higher judicial appointments were until very recently open only to those with experience of practice at the bar, and the higher courts were open to advocates drawn from the bar, although solicitors have had the right to appear in some lower courts. Although new statutory changes have recently come into force which enable solicitors to obtain rights of audience (and ultimately become qualified for the judiciary). The long term impact of these changes remains to be seen.

In their professional relationship, barristers often appear to be treated as the senior profession. A client with a legal problem must always approach a solicitor first – barristers do not deal directly with members of the public, but only through the intermediary of a solicitor. Solicitors may consult barristers by taking counsel’s opinionon difficult questions, and usually rely upon the resulting opinion implicitly; they always defer to barristers with regard to the initiation and conduct of legal proceedings. Of course, solicitors may suggest this or that point to counsel in conference, or in their instructions, but the barrister is usually left to decide. Doubtless a solicitor who is seriously dissatisfied with counsel’s advice would seek advice from other counsel, but he is unlikely to reject the barrister’s opinion without obtaining another.

However, this version of a profession divided into a senior and junior branch can be misleading. For one thing, the bar is a very young profession: not long ago one survey showed that 70 per cent of practicing barristers were under 40 years of age, and quite a large proportion are under 30. Barristers of tender years and limited experience are unlikely to be professionally more competent than solicitors of greater age and experience. Then there are a small number of very large firms of solicitors (almost all in London) who specialize in complicated commercial and tax matters. These solicitors are often far more experienced than any barrister in this kind of work (and are paid accordingly) though it is still the case that if matters go to court, a barrister has to be instructed to handle the case, and can then be expected to concentrate on the case, and bring to bear a higher degree of expertise than the solicitor can find the time to do.

                                                          K. Hewitt, M. Feklin. Understanding British Institutions

Practicum 2.8

Translate the italicized word combinations in Text 2a into Russian

Practicum 2.9

Pra cticum 2.10

Explain the difference between

to evidence / to testify / to witness; testimony / evidence / testimonial; sentence / ruling / verdict / penalty / judgment; attorney / defense attorney; plaintiff / defendant / bailiff / juror / jury; chief-examination testimony / cross-examination testimony; false testimony / hostile testimony; judge / magistrate; solicitor / barrister

Practicum 2.11

Study some common collocations with the legal terms. Employ them in sentences

testimony against / for, testimony at law / in the box, to take / give testimony, witness against a defendant / an accused, to testify to / for / against, to testify to the truth of, to testify adversely / favourably, to give / pronounce sentence, to serve sentence, to sentence to community service / to death / probation, to impose / to inflict a penalty, (non)custodial penalty, pecuniary / money penalty, civil penalty, grave / severe penalty; capital punishment

Practicum 2.12

Translate into English

1. Он должен был явиться в суд для дачи показаний поэтому делу.

2. Свидетель дал показания противобвиняемого (2 варианта).

3. Его приговорили к тюремному заключению (2 варианта) сроком на два года.

4. Во многих высокоразвитых странах смертная казнь как высшая мера наказания отменена.

5. Суд приговорил обвиняемого кусловному заключению.

6. Он еще отбывал срок наказания, когда совершил новое преступление.

Practicum 2.13

Study the responsibilities of judges and magistrates

Judges, magistrates, and other judicial workers apply the law and oversee the legal process in courts. They preside over cases from traffic offenses to disputes over the professional sports management and the rights of sprawling corporations. All judicial workers must ensure that trials and hearings are conducted fairly and that the court safeguards the legal rights of all parties involved.

The responsibilities of judges include presiding over trials or hearings and listening as attorneys represent their clients. Besides, judges settle disputes between opposing attorneys.

Judges often holdpretrial hearings for cases. They listen to allegations and determine whether the evidence presented is sufficient for a trial. In criminal cases, judges may decide that people charged with crimes should be held in jail pending trial, or they may set conditions for their release. In civil cases, judges and magistrates occasionally impose restrictions on the parties until a trial is held.

In many trials, juries are selected to decide guilt or innocence in criminal cases or liability and compensation in civil cases. Judges instruct juries on applicable laws, and hear their verdict. When the law does not require a jury trial or when the parties waive their right to a jury, judges decide cases. Then the judge determines guilt in criminal cases and imposes sentences on the guilty; in civil cases, the judge awards relief—such as compensation for damages—to the winning parties to the lawsuit.

Judges also work outside the courtroom in their chambers or private offices, they read documents on pleadings and motions, research legal issues, write opinions, and oversee the court’s operations and also manage the courts’ administrative and clerical staff.

                                                                                http://www.bls.gov/oco/ocos272.htm

Answer the questions to follow

1) What cases do judges and magistrates preside over?

2) In which way are civil cases different from criminal cases?

3) What responsibilities do judges have when presiding over trials and hearings?

4) How do pretrial hearings contribute to the legal proceeedings?

5) How are the judge and the jury related to each other?

6) When does the judge retain the right to decide the case?

7) What are the judge’s responsibilities outside the courtroom?

Practicum 2.14

Complete the Table

Attorney Judge Juror Barrister Solicitor
responsibilities          
jurisdiction          
who is eligible to their jurisdiction          

Practicum 2.15

Practice Being resolute in the settings to follow:

- juror who is consulted by the judge on his responsibilities and court procedures;

- solicitor, who advises his client against taking the case to court as the chances to win it are miniscule;

- client is seeking lawyer’s advice on a divorce case (principal breadwinner, fully provided for the family, believes he is entitled to a larger share of real estate and assets than his spouse)

III. Communication Practice

Team work

a group of law students working on a mock trial. Suggest a legal problem to work on, distribute roles (a plaintiff, defendant, attorneys, judge, jury), specify the responsibilities of each party involved, look into details of the case and assess the plaintiff’s chances of winning.

Text 2b

The text to follow deals in talking law. Study the text and use it as a starting point for communication

Court Procedures

Rudy Baylor, a young trial lawyer brought to court a bad-faith case of a young man, Donny Ray, who died of acute leukemia. After his family bought a medical insurance with Great Benefit he fell ill and finally died. The insurance company refused to cover his costly treatment (bone marrow transplant) on the grounds it was a pre-existing condition (which was not)

My opening statement has been timed a dozen times at six and a half minutes. The jury is brought in, given a few instructions. I hold a legal pad, glance at it once or twice, and tell the jury about my case. I stand beside the podium, hopefully looking quite lawyerly in my new suit. The facts are so strongly in my favor that I don't want tobelabor them. There was a policy, the premiums were paid on time every week, it covered Donny Ray, he got sick, and then he got screwed. He died for obvious reasons. You, the jurors, will get to meet Donny Ray, but only by means of a videotape. He's dead. The purpose of this case is to collect from Great Benefit what it should have paid to begin with, and to punish it for its wrongdoing. It's a very rich company, made its money by collecting premiums and not paying the claims. Great Benefit deserves to be punished.

The opening statement goes smoothly. I don't stutter or shake or draw objections from Drummond. He strides confidently to the jury box and holds a copy of the policy. He gets off to a dramatic start: "This is the policy purchased by Mr. and Mrs. Black, and nowhere in this policy does it say that Great Benefit has to pay for transplants. This policy costs eighteen dollars a week, does not cover bone marrow transplants, yet the plaintiffs expected my client to pay two hundred thousand dollars for it. My client refused to do so, not out of any malice toward Donny Ray Black. It wasn't a matter of life or death to my client, it was a matter of what's covered in this policy." He waves the policy dramatically, and quite effectively. "Not only do they want the two hundred thousand dollars they're not entitled to, they also s ued my client for ten million dollars in extra damages. They call them punitive damages. I call them ridiculous. I call it greed."

The defense strategy becomes clear. Instead of soft-pedaling by admitting a mistake was made by unknown incompetents deep within a huge company, Drummond is conceding nothing. He'll claim bone marrow transplants are very unreliable, bad medicine, certainly not an accepted and routine method of treating acute leukemia. He sounds like a doctor talking about the odds against finding a suitable donor, millions to one in some cases, and the odds against a successful transplant. Over and over he repeats himself by saying, "It's simply not in the policy."

He decides to push me. The second time he mentions the word "greed," I leap to my feet and object.

The judge quickly says, "Sustained."

I won here.

"I'm sorry, Your Honor," Drummond says sincerely; he loses steam and should quit after ten minutes. The Judge calls time on him at fifteen, and Drummond thanks the jury.

"Call your first witness, Mr. Baylor," Judge Kipler says.

Dot Black walks nervously to the witness stand, takes the oath and her seatand looks at the jurors. She's scared to death, rightfully so, and her answers sound awfully wooden and practiced.

Then we get to the stuff. I hand her the first seven letters of denial, and Dot reads them to the jury. They sound worse than I hoped. Denial outright, for no reason. Denial from claims based on preexisting condition based on the fact that Donny Ray was not a member of the household since he was an adult; on the assertion that bone marrow transplants are not covered by the policy as they are too experimental and thus not an acceptable method of treatment.

And then, the final Letter. As Dot reads it to the jury, I watch their faces intently. Several are visibly stunned. Several blink in disbelief. Several glare at the defense table, where, oddly enough, all members of the defense team are staring down in deep meditation.

When she finishes, the courtroom is silent.

"Please read it again," I say.

"Objection," Drummond says, quickly on his feet.

"Overruled," the Judge snaps.

Dot reads it again, this time with more deliberation and feeling. This is exactly where I want to leave Dot, so I tender the witness. Drummond takes the podium.

                                                                                              J. Grisham. The Rainmaker

Practicum 2.16

Translate the italicized word combinations in Text 2b into Russian

Practicum 2.17

Practicum 2.18

Account for the most natural pattern of communicative behaviour of the protagonist in the suggested settings, rely on Fighting / Being Resolute strategy :

-a student in the Dean’s office at law school, after a fight with a fellow student from affluent background who was bullying and mocking him;

-a lawyer is discouraging his partner from taking up a bad-faith case (mentioned in the text) as they stand no chance to win it.

Practicum 2.19

Draw up a list of arguments which could be relied on when trying a bad-faith case in court

- by the defense

- by the prosecution

Assume the roles of the plaintiff and the defendant (or their attorneys) for this case and present your arguments relying on Fighting / Being Resolute strategy

Practicum 2.20

Read about court trial proceedings. Dramatize the text

I was in the fourth day of trial. Woodson, a twenty-seven-year-old drug dealer, was accused of robbing and killing two college students. Or so the prosecution said. It was a black-on-white crime. But what made his situation even worse was that the killer had attempted to hide the crime by weighing down the bodies.

When Woodson was linked by phone records to the dead men and arrested, the public outrage directed toward himwas almost palpable. The District Attorney's Office promptly announced it would seek the death penalty. The case against Woodson was constructed largely of circumstantial evidence – the phone records – and the testimony of witnesses who were criminals themselves. And state's witness Ronald Torrance sat front and center in this group. He claimed that Woodson confessed the killings to him. Torrance was awaiting trial on robbery and aggravated assaultcharges stemming from his involvement in looting during the riots. He arrived in court on the fourth day of the trial. Torrance described the conversation he allegedly had with Woodson one morning at one of the picnic tables. Woodson not only confessed to the killings, he said, but furnished Torrance with many of the telling details of the murders.

During the testimony, Jerry Vincent, the prosecutor, kept Torrance on a tight leash with long questions designed to elicit short answers. I couldn't wait another hour to get at the man on the stand. I stood up and took a big, thick file and a legal pad with me to the lectern.

"Mr. Torrance, my name is Michael Haller. I work (or the Public Defender's Office and represent Barnett Woodson. Have we met before?"

"No, sir."

"I didn't think so. You and the defendant, Mr. Woodson, go back a long way, correct?"

Under the state's three-strike law, he was facing the lifetime,ifconvicted of charges he robbed and pistol-whipped the female manager of a coin laundry. The crime was committed during three days of rioting.

"So you're telling me that you didn't know Barnett Woodson before that?" I asked the question with surprise in my voice.

"No, sir. We met for the first time in the jail."

"Woodson was transferred into the high-power module where you were already residing on the fifth of September earlier this year. And why were you there in high-power?"

Vincent stood and objected, saying I was covering ground he had already trod in direct testimony. I argued that I was looking for a fuller explanation of Torrance's incarceration, and Judge Companion! allowed me the leeway. He told Torrance to answer the question.

"Like I said, I got a count of assault and one of robbery."

"And these alleged crimes took place during the riots, is that correct?"

With the anti-police climate permeating the city's minority communities since even before the riots, I had fought during jury selection to get as many blacks and browns on the panel as I could. But here was a chance to work on the five white jurors the prosecution had been able to get by me. I wanted them to know that the man the prosecution was hanging so much of its caseon was one of those responsible for the images they saw on their television sets back in May.

Torrance looked over at the prosecution table and then to his own lawyer, sitting in the first row of the gallery. Whether or not they had earlier rehearsed a response to this question, his legal team help Torrance now. He was on his own.

"You're innocent of the crime you are charged with?"

'That's right."

"What about looting? You committed no crimes during the riots?"

After a pause and another glance at his attorney, Torrance said, "I take the fifth on that."

M. Connelly. The Brass Verdict

Glossary

Fifth Amendment – an amendment to the Constitution of the United States, ratified in 1791, that deals with the rights of accused criminals by providing for due process of law, forbidding double jeopardy, and stating that no person may be forced to testify as a witness against himself or herself.

Practicum 2.21

Translate the italicized word combinations in the text into Russian

Practicum 2.22

Practicum 2.23

PracticeFighting / Being Resolute strategy(to be done in writing)

-Draft a cross-examination testimony with the witness against the defendant on the bad-faith case. Prepare an opening statement, a list of questions to be asked and draft some of your comments.

-Think of a similar case to be tried in court and draft an opening statement to present the details of the case and your client to the jury.

III. Communication Practice

Brainstorming

A legal team is working on a bad-faith case. The client (a ten-men firm) against its supplier who keeps delaying deliveries. It has led to financial losses threatening the company’s reputation. Brainstorm arguments to be relied on in court and draft your opening statement.

PROGRESS TEST 2 (part 1)

Review Fighting / Being Resolute communication strategy in the settings to follow

-a shop assistant was refused the end-of-the-year bonus on the grounds that she had been underperforming. She accuses the management of unfair treatment. The manager makes it clear that if she persisted the company would not tolerate her lack of commitment and customer-unfriendly behaviour any longer. The shop assistant fights for her rights.

-a tenant is calling the municipal house maintenance service threatening to sue them for substandard services at exorbitant fees. He abides by Fighting strategy.

PROGRESS TEST 2 (part 2)



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