Interviewing and Counseling

Class Outline

I.  An overview

  1. Traditionally, lawyer-client relations have been described under the labels of “interviewing” and “counseling”
  2. Interviewing is the task of gathering information
  3. Usually involves gathering data about the following:

n  The nature of the problem

n  The client’s legal position

n  Probably consequences of adopting a course of action

ii. Counseling is the task of formulating solutions

  1. Process in which potential solutions are identified and weighed
  2. Usually a decision as to whether the problem will be solved with litigation or by some other means
  3. When clients enter the office they usually have 2 basic questions is mind
  4. What can I do, legally and practically
  5. What should I do about my problem
  6. The initial interview therefore usually focuses on problem identification; the lawyer usually obtains information about:
  7. The nature of the underlying occurrences
  8. The basic difficulties which confront the client
  9. The results the client desires
  10. The initial interview should contain questions to determine when the event occurred (statue of limitations) and where it happened (jurisdiction)
  11. After this, the interview should focus on factual investigation
  12. This is done by asking the clients and others how the transaction occurred
  13. Next, the lawyer and client should address the question of what can and should be done
  14. Identify potential alternative solutions
  15. Predict the probably positive/negative consequences
  16. Weigh the pros/cons of each solution

II.  Motivation within the interview

  1. Motivation to act
  2. Humans have a variety of needs which can generally be divided into 2 categories: physical and psychosocial
  3. Physical needs are often called primary needs and include food, shelter, etc. They are inborn and common to all people
  1. Psychosocial needs are secondary and are learned through association or affiliation. They include the need for love, status, etc. These needs can vary greatly from one society to another.
  2. Motivation to act exists principally when the person perceives that their conduct will satisfy a need without interfering with another need
  3. Self-esteem and self-respect: high needs for clients which are sometimes greater than the need for material gain
  4. Motivation in legal interviews: clients usually have underlying motivation to participate in interviews, yet there are motivational difficulties which must be overcome
  5. Inhibitors
  6. Ego threat

§  People tend to withhold information that they perceive as threatening to their self-esteem or bad for the case

§  Sometimes stems from a fear that the information will become public and thus lower the public opinion of the client

§  To help: don’t judge, build rapport and evaluate in a positive manner

  1. Case threat

§  Can operate on both clients and witnesses

§  Stops communication of facts that they feel could “harm the case” if the lawyer knew them

  1. Role expectations

§  Beliefs as to how certain “actors” in a situation should behave

§  Relationships are seen as a series of dominate/subordinate relationships

§  Most clients will think of lawyers as being in the dominate position and will therefore withhold information if the lawyer doesn’t bring it up

  1. Etiquette barrier

§  Clients doesn’t want to reveal things that the lawyer would find shocking, embarrassing or discomforting

§  If the lawyer doesn’t grant permission, the client will continue to withhold the information

  1. Trauma

§  People are motivated to stop thinking about traumatic events

  1. Perceived irrelevancy

§  Client feels that there is no reason to tell the lawyer certain information

  1. Greater need

§  Client is more concerned with a subject other than what the lawyer is attempting to discuss

  1. Facilitators
  2. Empathetic understanding

§  Ability to listen, understand and not judge someone

§  People will be strongly motivated to continue talking

§  Most important and usually the most difficult to master

  1. Fulfilling expectations

§  Lawyer should convey a strong expectation that data should be revealed in order to overcome reluctance by the client to talk

§  Can also help overcome memory difficulties

§  Important to communicate that you think that the client has the information

  1. Recognition

§  Help increase cooperation by the client by saying things like: your giving me that information is very helpful

  1. Altruistic appeals

§  Fulfills the human need to identify with a value beyond one’s own self-interest

  1. Extrinsic rewards

§  Points out how providing the information will satisfy needs external to the interview

  1. Personality conflicts
  2. Being open and supportive will help overcome some personality conflicts with clients
  3. Go with your gut feelings as to whether or not you’ll get along with the client

III.  Active Listening

  1. People must learn how to listen
  2. Don’t be so interested in your next question that you forget to listen to the answer
  3. Sometimes just by listening, you’ll get the answers without having to even ask
  4. Establish 2 things:
  5. what can I listen for?
  6. what should I listen for?
  7. Identifying content and feelings
  8. Content refers to time, setting, people and specific transactions that make up an event
  9. Feelings refers to the labels a person uses to describe emotional reactions to an event
  10. Lawyers are primarily interested in content but should provide empathetic understanding for feelings
  11. Passive listening
  12. Silence
  13. brief but definite pause in the conversation
  14. Allows client to continue a stream of association
  15. Non-committal acknowledgement
  16. brief reassurance that the client is being heard
  17. Open-ended questions
  18. allows client to respond in a narrative manner and provide a lot of information
  19. Active listening
  20. Process if picking up the client’s message and sending it back in a reflective statement which mirrors what the lawyer has heard.
  21. communicates that the lawyer has heard and understands what the client has said
  22. Good technique b/c lawyers too often see themselves as only gathering facts and do not listen to the feelings of their clients
  23. Vaguely expressed feelings
  24. Empathy is displayed by reflecting feelings in a precise way
  25. Can help the client better understand their emotional responses
  26. Unstated feelings
  27. Important to realize that feelings are present even if the client does not stated those emotions specifically
  28. Easier to do if the lawyer will try to place himself “in the client’s shoes”
  29. Even if the lawyer misstates the client’s feelings, it can help build rapport between the lawyer and client
  30. Non-verbal expressions of feelings
  31. Client will provide auditory and visual clues to aid the lawyer in understanding their feelings

§  Auditory: intonation, pitch, rate of speech and pauses in the conversation

§  Visual: posture, gestures, facial expressions, and body movements

  1. Even though the clients may try to repress some non-verbal clues, an observant lawyer can pick up on some.
  2. The lawyer should also be able to pick up on inconsistencies b/t what is said and how the client is acting
  3. more difficult to hide
  1. Clearly articulated feelings
  2. It is difficult to rephrase without “parroting” what the client has said; maybe better to empathize with what was said or use passive listening if the lawyer is unfamiliar with the situation.
  3. Non-empathetic responses
  4. Important not to be judgmental, but to maintain a reflective attitude
  5. Difficulties in mastering active listening
  6. How strongly people feel influences the nature and amount of information they provide and the decisions they make
  7. Initially, active listening techniques can feel forced and awkward but with practice lawyers can become good at it
  8. Expressing himself can help the client to feel like he has been given a chance to “get feelings of his chest” which can lead to a positive feeling about the lawyer/client interview
  9. Failing to develop the clients feelings can lead to problems in the case which raises professional responsibility issues
  10. How much active listening
  11. Technique should be used to help develop rapport b/t the lawyer and client
  12. Lawyer should relay upon good judgment in deciding when, where and how to employ this technique.

IV.  Questioning

  1. Forms of questions
  2. Open ended questions
  3. allow the client to select the subject matter or the information related the general subject which the client believed is pertinent and relevant
  4. Client selects whatever data appears to be important
  5. Leading questions
  6. structure provides all the data which the lawyer believes is pertinent and relevant
  7. Makes a statement and suggests that the client affirm the validity of the statement
  8. Yes/No questions
  9. structured to elicit a yes or no answer
  10. Don’t suggest the answer as much as leading questions do
  11. Narrow questions
  12. Suggest subject matter and chose which aspect of the general matter the client should discuss
  13. Lawyer has decided which information is relevant
  1. Advantages and disadvantages of certain types of questions
  2. Lawyers should keep in mind the breadth of information sought and the extent to which the lawyer must increase the motivation to communicate
  3. Open-ended questions
  4. advantages

n  More information quickly

v  Allow the client to report information that would be lost if the client were forced to recount the story solely through responses to narrow questions

v  Allow reporting of observations without interruption

v  Allows client to be heard

n  Can increase a clients willingness to give relevant information

v  Tends to communicate that the lawyer is interested in the client

v  Indirectly provides recognition and empathetic understanding

v  Limits interruptions

§  Most likely to help overcome the “greater need” inhibitor

§  Allow rapport to increase prior to talking about subjects the client is reluctant to discuss

  1. disadvantages

§  detrimental if the client has no sense of relevancy

§  do not elicit sufficient detail

§  Narrow questions provide more memory stimulation

v  Can cause client to think back and about what occurred with a specific focus

§  Clients will often omit legally significant details b/c of an incomplete understanding of the legal concepts involved

§  If there is a general reluctance to talk, open-ended questions add to the uneasiness

  1. Narrow questions
  2. advantages

§  used to elicit information on a specific topic if the client is reluctant to talk about it

§  Elicit detail

v  More focus leads to concentration on details

  1. disadvantages

§  Inhibit development of rapport

v  Client feels he never had a chance to explain what happened

v  Probing of subject before client is “ready”

v  Avoid using during the whole interview

v  Don’t use too soon b/c it stops the flow of information

§  Past experiences have a way of “filling in” current experiences in our mind

v  Causes lawyers to forget about finding out information about the general picture and causes the focus to shift to details

  1. Leading questions
  2. disadvantages

§  b/c they suggest an answer, there is an increased likelihood of distortion especially if the client is unsure of the answer

v  particularly in cases where the answer is a “case threat” and the client is afraid the wrong answer will lower the attorney’s opinion of the case

v  watch for ethical implications and increased likelihood of distortion

  1. advantages

§  more likely to get accurate information if:

v  the info is clearly known to the client

v  client wants to withhold info b/c to reveal it would mean the client has violated a behavioral norm

v  this norm is one the client accepts as valid and believes that the lawyer does too

  1. clients ability to provide accurate information
  2. clients do not always remember the specifics of an event; there are several factors which influence the client’s ability to perceive, recall and report events
  3. These can be grouped into 3 categories
  4. factors within the observer
  5. factors within the environment at the time the even occurred
  6. factors related to the manner in which the observer’s perceptions are elicited
  7. Factors within the observer
  8. Amount of attention to significant event

§  Some events are not as important to the client and they are less likely to have been paying close attention to those

  1. amount of stress

§  more stress = more preoccupied with own physical and emotional well-being

  1. variations in sensory activity
  2. biophysical factors

§  age, mental or physical illness, etc.

  1. set or expectancy

§  perceptions are distorted by expectations

  1. Factors within the environment
  2. degree of illumination
  3. speed of events
  4. general noise level
  5. proximity to events
  6. simultaneous occurrences
  7. Factors related to form and sequence of questions
  8. too many narrow questions

§  limits the story that the client can tell

  1. improper use of leading questions

§  causes distortion

§  client will be tempted to go along with lawyer’s suggestion

§  can unwittingly lead the client to adopt a favorable but inaccurate view of the events

  1. pressuring for too much detail

§  clients will “fill in” parts of the story if they are being pressured and can’t recall

§  typically this is an unconscious process

  1. obtaining conclusions which distort

§  answers to specific questions many lock a client in and distort the telling of the whole story.

V.  Ascertaining the client’s problem and legal position

  1. A three staged interview
  2. Preliminary Problem Identification Stage
  3. Lawyer asks the client to provide a general description of:

§  Underlying transaction; and

§  Relief the client wants.

  1. Lawyer should ask only general questions and refrain from asking for details
  2. Chronological overview stage
  3. Client is encouraged to provide a step-by-step narrative of the transaction
  4. Lawyer should not attempt to obtain a detailed elaboration of the various points mentioned by the client
  5. Theory development and verification stage
  6. This stage is used to explore all of the possible legal theories available to the client
  7. Purposes of the 3 staged interview
  8. Main purpose is to increase the thoroughness with which cases are analyzed by encouraging lawyers not to prematurely decide what the client’s problem is, and what should be done to solve it

§  Helps to prevent the common omission of failing to find out what kind of relief the client is seeking

§  Also helps to gather complete information so that the lawyer is not developing solutions for the wrong problem

§  Helps prevent the lawyer from missing other legal issues b/c he is only gathering facts to support the one that he first developed

  1. Advantages

§  Provides client with the opportunity to relate details which he or she sees as important