Law Society of Scotland Professional Education and Training (PEAT) PEAT 1: Practical Legal Skills Flashcards

24 sample cards from the PEAT 1: Practical Legal Skills deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. In negotiation theory, what is the difference between 'distributive' and 'integrative' bargaining?

   Distributive (positional/'win-lose') bargaining treats value as a fixed pie to be divided, with parties claiming as much as possible. Integrative ('win-win') bargaining seeks to expand value and find mutually beneficial trade-offs based on interests.

2. What are the four principles of 'principled negotiation' from Fisher and Ury's 'Getting to Yes'?

   1) Separate the people from the problem; 2) Focus on interests, not positions; 3) Invent options for mutual gain; 4) Insist on using objective criteria.

3. What does 'BATNA' stand for and why is it central to negotiation strategy?

   Best Alternative To a Negotiated Agreement — your best course of action if no deal is reached. It sets your walk-away point: you should reject any deal worse than your BATNA, and a strong BATNA increases your bargaining power.

4. Define 'reservation point' (resistance point) and 'ZOPA' in negotiation.

   The reservation point is the least favourable outcome a party will accept (their walk-away). The ZOPA (Zone of Possible Agreement) is the overlap between the parties' reservation points where a deal is possible; if there is no overlap, no agreement exists.

5. Distinguish a party's 'positions' from their 'interests' in negotiation.

   A position is what a party says they want (their stated demand); an interest is the underlying need, concern or motivation behind it. Focusing on interests reveals more options for agreement than arguing over fixed positions.

6. What is an 'anchor' in negotiation and what effect does it have?

   An anchor is the first figure or offer put on the table; due to the anchoring bias it strongly influences the range within which subsequent bargaining occurs, pulling the final outcome toward it.

7. List key elements of effective negotiation preparation.

   Clarify your client's interests and objectives; identify your BATNA and reservation point; estimate the other side's interests and BATNA; gather supporting facts and objective criteria; set opening and target positions; and plan concessions and possible trades.

8. What is a 'log-rolling' (trade-off) strategy in integrative negotiation?

   Log-rolling is trading concessions on issues you value less for gains on issues you value more, exploiting the different priorities each party places on the issues to create joint value.

9. Why is it important to negotiate 'in good faith' but with authority limits clarified?

   Good faith maintains professional credibility and the prospect of settlement, while confirming the client's instructions and the negotiator's authority limits prevents agreeing to terms the client has not authorised.

10. What should a negotiator do at the 'concluding' stage to avoid later disputes?

    Confirm the agreed terms precisely, ensure all points are covered (nothing 'agreed in principle' left open), record the agreement in writing, and clarify what is binding and what remains subject to client approval or formal documentation.

11. What does the maxim 'nothing is agreed until everything is agreed' mean in negotiation?

    Individual points provisionally settled are not binding until the whole deal is concluded; it allows parties to revisit earlier concessions and prevents being locked into part of a package that does not complete.

12. What are the fundamentals of effective oral advocacy?

    Thorough preparation and mastery of the facts and law; a clear logical structure; speaking clearly and at a measured pace; appropriate eye contact and courtesy to the bench; responsiveness to questions; and persuasive but accurate submissions.

13. What is a common recommended structure for a persuasive oral legal submission?

    Open with the proposition/relief sought, signpost the points to be made, develop each point (fact then supporting law/authority), deal with the opponent's case, then conclude by restating the relief sought — i.e. 'tell them what you'll say, say it, summarise'.

14. What is the purpose of 'signposting' in oral advocacy?

    Signposting tells the court in advance how the argument is organised (e.g. 'I have three submissions; first...'), helping the judge follow and note the structure and making the argument easier to persuade with.

15. What is the difference between 'examination-in-chief' and 'cross-examination'?

    Examination-in-chief is questioning your own witness to elicit their evidence supporting your case (leading questions generally not allowed on contested matters). Cross-examination is questioning the opponent's witness to test/undermine their evidence and put your case (leading questions permitted).

16. Why are leading questions prohibited in examination-in-chief but permitted in cross-examination?

    In chief, leading questions would put words in your own witness's mouth and reduce the evidential weight of their testimony. In cross, leading questions are allowed to control a hostile witness and challenge or test their account.

17. What is the rule in 'putting your case' during cross-examination?

    An advocate must put to the opposing witness any matter on which the witness's evidence will be contradicted, giving them a fair opportunity to comment; failure to do so may mean the contradicting evidence carries less weight or is not admitted.

18. State two golden rules for effective cross-examination technique.

    1) Keep questions short, closed and one fact at a time, controlling the witness; 2) Do not ask a question to which you do not know the answer (and stop once you have the point — avoid 'one question too many').

19. How should an advocate address the bench in the Scottish courts?

    A Sheriff is addressed as 'My Lord/My Lady' in the Sheriff Appeal Court or 'Sheriff'/'My Lord/My Lady' per local practice; a Court of Session/High Court judge (Senator) is addressed as 'My Lord' or 'My Lady'. Always stand when addressing the court and when the judge speaks.

20. What are the basic rules of court etiquette and presentation for a practitioner?

    Dress soberly/professionally; stand to address the court and sit when an opponent or the judge speaks; address the bench correctly; show courtesy to opponents and witnesses; do not interrupt; and refer to the other side respectfully (e.g. 'my friend').

21. What is the difference between 'primary' and 'secondary' sources of law in legal research?

    Primary sources are the law itself — legislation (Acts, statutory instruments) and case law (judicial decisions). Secondary sources explain or comment on the law — textbooks, journal articles, encyclopaedias and commentary.

22. What are the principal formal sources of Scots law?

    Legislation (UK Parliament, Scottish Parliament, and retained/assimilated EU law), judicial precedent (case law), institutional writings (e.g. Stair, Erskine, Bell), custom, and equity. Institutional writings have special authority unique to Scots law.

23. What is the leading practitioner's encyclopaedia for researching Scots law, and what is the citation tool for finding cases?

    The 'Stair Memorial Encyclopaedia' (The Laws of Scotland) is the principal narrative starting point; databases such as Westlaw, LexisNexis and the Session Cases reports are used to find and update cases, with citators showing subsequent judicial treatment.

24. What is a sound methodology for approaching a legal research problem?

    1) Analyse the facts and identify the legal issues and keywords; 2) Consult secondary sources for an overview (encyclopaedia/textbook); 3) Find the primary law (statute and cases); 4) Update/verify it is current (check amendments and citators); 5) Apply the law to the facts and record findings with full citations.

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PEAT 1: Practical Legal Skills flashcards FAQ