Outline for Interviewing & Counseling Class

OUTLINE FOR INTERVIEWING & COUNSELING CLASS

Fall 2000

I. Lawyer-Client Interaction

Basic Model / Procedural Format

Treat other atty & judge with respect ALWAYS – want to win for client=key

*** Always CALL CLIENT BY FIRST NAME!!!!!

Watch barriers in office ie. desk. Let them sit first. Get children’s names. Prof recommends: gauge your clients’ stories. Civil. If slip and fall, tell them you will go to the accident scene. Tell them there might be cameras and you will be able to look at the tape – go to the store where happened and tell the manager there he is on notice to preserve all tapes from that day forward. And take notes [WRITE MEMO] after conference. Criminal. Ask when did Miranda get read to you: exact time! NEVER threaten criminal action for a civil suit.

Remember sometimes impt to tell clients NOT TO SAY A WORD. Ie. if FBI, Bank Examiner, Police show up, clients should be pre warned not to speak to them (prof. told of frustrations finding police reports ruined case because spoke first to them…); tell them not to sign docs. DON’T TAKE CLIENTS YOU DON”T LIKE (kiddie porn guy).

Want to find out what client’s opinion is on consequences. When find alternatives, decision is up to client-always-find out which one he wants to go with..***Prof does NOT agree with client making a decision early on (SOMETIMES need to open their eyes…usually client wants an option). If kids, mention by first name and ask if natural, stepkids, handicapped?

When get into counseling part of interview: going to trial will always have a myriad of outcomes. Book lists 5 possible scenarios from best to worst – 3 more or less. When damages are set, have to determine liability. ***If can use % terms – better; always make sure talk about bad evidence against client! Sometimes clients don’t stand a chance – need to tell them. Talk to client about alternatives to settlement / offers. ***Always pass on settlement offers unless strict instructions from client (1)ethics (2) training. ***Get settlements in WRITING. Remember to outline legal consequences – “here’s what’s going to happen if we do nothing…can go into bankruptcy etc.

ALWAYS copy all of advice you give, so it doesn’t come back to bite you.

Some physical traits to look for:

Posture: cross legs away or toward you – include or exclude

Eye contact (no gum); pronation- “lower, down,” supenation-hands up “heighten”

Can also have a mid level.

Rubbing one eye or covering up – they don’t buy it

Picking imaginary lint – they’re uncomfortable with you but won’t tell you

Personal space – boundaries

Eye dilation – constrict=don’t buy open=taking

If catch witness in several lies, ask them a question while walking away=disrespect

Some attorneys stand over or behind a witness = control / uncomfortable

II. Motivation Within the Interview

Passive: soft sounds

Active show care / more involved, empathetic, reflective, non-judgmental; use statements judiciously; become better listener.

Motivation to Act

Two broad categories of needs (1) physical, evolutionary and [food, shelter, sex…]

(2) psychosocial [thought, attitude, behavior]. Contemporaneous in conflict: ie. Ph.D not want lesser work than his talent level versus his wife threatening to leave.

Motivation happens when individual feels that a course of action will satisfy one or more needs without unduly interfering with others = compromise usually. Self-esteem usu very high need – sometimes material gain is not the goal. Ie. little old lady taken by gypsies but doesn’t want to go to court because she will be perceived as a weak old person.

Motivation in Legal Interviews

Try to get information from clients even if embarrassed. Prof talked about homosexual affair and person being involved in legal issue on homo part of town. Might be a situation where inclusive, yet non-threatening question might be asked: “So, how long have you been gay?” Below are most common psychological factors. 2 types

1. Inhibitors – can intertwine; seven factors; not mutually exclusive; a & b key

Ego Threat – very common; lawyer must recognize

Ego can prevent lawsuits; let killer plead. Embarrassment that threatens self-esteem; often afraid of knowledge becoming public; key to overcoming is conveying a sense that you will never breach confidentiality.

Case Threat – Need to get client to tell everything, so can help them.

Sometimes, client feels that revealing info will hurt case / or that telling info to lawyer means it will come out at trial. Ie. ex-passengers in a car won’t say driver has been drinking; ie. will contest on insanity might be reluctant to state proponent’s lawyer facts that decedent was competent. If you evaluate your witnesses in a positive, confident manner, they will treat you in the same way. You want to build self-esteem. Ie. witness is not a party but their testimony might be key (will contest & person saw other writing the will) – here the testimony is outcome determinative.

Role Expectations – like parent to children / military

Can be from actual or vicarious role (learned behavior); difft levels (culture/status); most time, the client sees you in power position; usually client is afraid. Develops from variety of sources: actual and vicarious nature. Unconscious beliefs. Book states that people would be better off if they saw more relationships based on shared responsibility instead of dominant or subordinate positions. ***Client might perceive that if a topic is not discussed, it probably is not important. Realize these roles, and create relaxed atmosphere where either type of client could speak freely.

Etiquette Barrier – Some people only communicate with like persons

eg. Females often only talk to other females; need to convey to client that NO TOPIC IS TABOO, and that nothing should be withheld; client should feel it’s OK to talk. Usually involves (1) sexual matters or (2) violence. Client does not want to relay info that will be shocking or uncomfortable to the attorney. Clear the air or the client will not open up.

Trauma – When witness/client recalls negative feeling, relive situation

Can really affect a testimony. Fear, anger, humiliation, or sadness. They re-experience these feelings. Recognize and let them get comfortable – don’t force issue. Sometimes good to change subject and refocus client/witness.

Perceived Irrelevancy – Client plays lawyer / not involve feelings.

This is the situation where client refuses info because feels it’s not imp’t; don’t let client make legal decisions for you; (ie. prior pain, prior marriage, approved party). Get them to explain why it is relevant. Be patient.

Greater Need – client wants to talk about something else; they don’t see

the important items. (ie. wrongful death suit – key items: suffer pecuniary loss and heir, but client doesn’t realize elements). Hard to get full and accurate info. Your questions are not perceived as irrelevant or threatening. Client just wants to focus on topic they feel is important. Listen, and in chronological part of overview, direct the kinds of questions you need answers.

2. Facilitators – (a) through (d) = psych manipulations; (e)=phys reward

Key phenomena can use to = full participation

Empathetic Understanding – Listen to others / feel pain = big difference

Clinton good at this. Here, client tells you emotions. Bad: “sig other broke up” answer “oh that will pass;” NEVER pass judgment on what clients say; builds rapport / bond.

Goal is to (1) listen, (2) understand, and (3) refrain from judging. DO NOT put in your “two cents.” The client will continue to respond if they sense your empathy.

Client may want to tell (1) how they felt when an event occurred, (2) why an event occurred, (3) how they now feel both about what occurred and what the occurrence portends for the future.

You must understand both FACTS and FEELINGS.

Fulfilling Expectations

When inhibitor prevents client from communicating with you, you can let client know how imp’t something is. Ie. witness not remember, but you give them an expectation, they will live up to it – can use empathy also.

Must (1) be useful in overcoming memory difficulties as well as inhibitors and (2) can be employed to create an expectation that the sought data need not be revealed.

“I understand how hard it is to recall; I’ve often had that difficulty myself. Often I find, however, that if I concentrate for a while, things start to come back. Why don’t you think about it a little bit more.” Key is to empathize and create expectation.

Also use the FEEL, FELT, FOUND method. “I know how you feel; that’s the same way another client felt, until he found how crucial it was… and how good his memory really was… and was able to recall so much; and now he feels so much more confident in his own ability and the course of his case...” Use appropriately, ethically.

Recognition – Everyone likes to be recognized (remember Dale Carnegie)

Also have to be recognized by outside persons; people become confident when recall well; very simple things motivate clients. Direct, sincere praise can make all the difference in the world.

Altruistic Appeals – Humans need higher cause

An identification of objectives with a higher group. Ie. open door for old lady = self-esteem increases; can be helpful with reluctant witnesses (“Your testimony could keep an innocent man from prison”); some “do it because it’s the right thing to do.” Great with reluctant witnesses. Differs from recognition in that deeds may or may not be public ones that result in higher self-esteem.

Extrinsic Rewards – for witness’s own value

This is needs-based; favorable outcome of case; clients perceive success of case hinges on testimony. Ie. ask a client off work for W-2, tax info: tell him how valuable this is. Client must always perceive that info they are giving is always related to the situation they are attempting to remedy. Lawyer can point this out: “You want me to call Mr. King as one of your witnesses. Before deciding to do that, I want us to decide if the jury is more likely to disbelieve him because he is a close friend of yours. That is why I am asking you all these questions about how well you know Mr. King.”

INHIBITORS FACILITATORS

Ego threatEmpathetic understanding

Case ThreatFulfilling expectations

Role expectationsRecognition

Etiquette BarrierAltruistic appeals

TraumaExtrinsic reward

Perceived Irrelevancy [all can be used to get client participation]

Greater need

Most attorneys are not empathetic listeners – remember practice problems in class; most of first criteria was whether we listened and showed feeling toward client’s pain.

3. Personality Conflicts – These will happen. Get mentally ready for this.

If client perceives attorney as too hostile, will not like [Rule of Thumb–go with your gut]; if you are not comfortable with client, don’t take case. Prof: in civil likes to like clients (in plaintiff cases, need to believe in position.). There is no ideal type of lawyer personality. Must become a chameleon – adapt to type of personality that the client has.

III. Active Listening – Great Place to Develop Rapport- who, what, when, where?

Tactics: need to identify contents and client’s feelings [empathy]; when people want a pound of flesh (revenge) you need to get them back to earth – try to inject reality;

NEVER promise more than you can deliver. Clients are looking for emotional answers and feelings will affect decisions: ie. asbestos-some lawyers feel emotions will cloud your objectivity. If you have weak liability and high damages, build damages.

Where? – jurisdiction When? –SOL. FBI and Police very good at this. Must take an affirmative act of listening. Helps get your clients’ cooperation: empathetic understanding key. Techniques are critical b/c motivates clients to work with you.

Need to determine (1) why effective listening is so impt for the accomplishment of getting full client participation and (2) what it is that lawyers can and should listen for. Remember the greatest tool you can use is your ability to LISTEN. The interview should last 15-30 minutes.

Identifying Content and Feelings

Two things about clients: (1) observe details (2) have feelings about events

When they recall an event: (1) content mixed w/ (2) emotions

IE. they say they were disappointed: breach of K [time, place, sequence events, details]; hurt [emotional part; feelings about event]

Make sure you try to figure out the client’s past and current feelings. Types of feelings include: sad, overwhelmed, depressed, worried, surprised, stunned, scared, angry, unjustly accused, anxious, worried, relieved, betrayed, and frustrated, to name a few.

Passive Listening

Silence

Silence = brief and definite pause in conversation. Used effectively, can really make a difference and develop trust with your client. Make sure that you appear not to be troubled by a long pause in conversation – be a psychologist. When a client pauses, DON’T BUTT IN. BITE YOUR TONGUE and ride out the silence. There does not need to be constant flow of words + it makes you seem like you are listening well.

Good to say “I’m listening, so go ahead at your own speed.” Sometimes experts feel obligated to fill any pause with more info, and you may need to tell them to be quiet.

Non-committal Acknowledgment-mirror clients

Just to make sure that the client does not feel uncomfortable about the silence, it is

sometimes important to interject brief expressions that show you are listening: “oh” “I see” “Mm-hmmm” “interesting” “Really” “No fooling” “Wow” “you did eh?” Try to acknowledge that you are listening, without giving away that you are evaluating the situation for its key legal issues.

Open-Ended Questions

Good to show that client may continue. Results in client narrative. Examples are :“What else happened” “What other reasons are there” “Can you tell me more about that?” These are passive techniques and give the client space in the interview to communicate his or her thoughts and feelings. They do not tend to communicate that the lawyer truly understands or accepts the client’s messages.

Prof really likes these.

Active Listening – Key: Be as Little Judgmental as Possible – More effective

More effective; can be non-judgmental; show them you care for them as individuals; hear, understand, accept feelings of clients; feelings hard to get sometimes [overcome obstacles]. Show that you are interested in them as individuals.

Hands are key to body language; steepling (fingers together) means “we’re confident”

Also, hands behind head – usu male = confidence.

Eyes can be single most important factor. People do not like to be stared at. Averting eyes = not a clear message; always have eye contact with jury; up and to the right = recalling from memory; down and to left = lying; down parallel to ground = themselves; look over glasses = dominant stare

Avoid being perceived as simply a “gatherer of facts.” Remember that two things occur (1) many people do not express their feelings [typically come out in non-verbal ways like tears, grunts etc] and (2) the feelings are not clearly articulated [ie. “I feel weird”]. As an attorney, you may have an opportunity to build them up, you can always find a positive thing to say while expressing their feelings. Also, some people just won’t know how to feel.

Vaguely Expressed Feelings

Can use an array of responses when a client just simply doesn’t clearly expres

their feelings. Ie. “You felt hurt and disappointed when she told you about the affair”=nonjudgmental reflective. Or “You feel anxious about getting up on the stand and embarrassing yourself.” = build their self worth.

Usually here, not sure how to feel.

Unstated Feelings

Put yourself in their shoes. More difficult, because client is going over an experience that normally is laden with emotions. Passive listening questions are appropriate in this situation. For example: “what happened next.”

Results in choice for attorney. Can (1) direct questioning to emotional issue or (2) keep gathering data indirectly. If decide to pinpoint the emotional issue, need to accurately identify the emotion attached. ie. “I imagine you were very angry and quite worried about your baby.” It is always good to identify unexpressed feelings. This is called “putting yourself in the client’s shoes.” Sympathy is always a winner. Don’t worry if don’t perfectly identify the emotion, because just in the attempt, you may facilitate communication with the client.

Non-Verbal Expressions of Feelings – listen and observe the client’s cues

Usually two types of non-verbal cues: auditory and visual

Auditory: intonation,, pitch, rate of speech, and pauses

Visual : posture, gestures, facial expressions, and body movements such as fidgeting