Client interviewing (1)

Building block pattern

• Interviewing=initial consultation between a prospective client and solicitors.

( empathy, genuiness, listening& probing)• Counseling =identify client’s alternatives& priorities,

help choosing constructive options(creativity, foresight, analysis, explanation, co-operation & advice)• Negotiation=implementation of goals set during

counseling(without litigation)(strategy, persuasion,& conciliation skills)

Interviewing the client is the is the starting point for the establishment of Advocate-Client relationship

Interviewing techniques promote inter-personal communicative skills which are critical for lawyering process

helps in effective presentation of clients case – proper documentation

highly useful for lawyering outside the court or to undertake alternate dispute resolution

it is useful projective technique

the behaviour of the client and veracity of his statements can be meaningfully assessed by the advocate

Interviewing the client may be defined as an effective informal verbal or non verbal conversation, initiated either by the client or advocate, in order to ascertain the legal problem of the client for which the solution is to be found

it is the conversation of gestures

not a two way conversation for interrogation or information

involves gestures, facial expressions , glances, flick of an eye, inflections in the voices often found to be sources to establish the truth. Even silence can speak volumes

neutral assessment beyond the cognitive and emotional reactions of the client

The aim of interview is to describe the legal problem comprehensively looking from the outside in and looking from inside out.

Interviewing the Client

Claim identification Claim assessment

Lawyer – communication - Client

Client interviewing & counseling

The most important thing in communication is to hear what isn’t being said.

Peter F. DruckerSIMILARITIES

importance of legal analysisultimate goal-maximum client satisfaction

Traditional Client Centered • professional relationship• no big deal…just another……• doctrinal categories• pigeon hole approach• lawyers are experts-minimal

input from clients• clients lack sophistication• too emotionally wrapped up• clients are ignorant of long term

effects of decisions• providing legal solutions-

unconnected to client’s legal and non legal concerns

• participatory method• problems- legal & non legal

dimensions• clients are the best judge(experts) of

their own causes- discover personal strengths and capacities

• Existence of range of choices/solutions• client retains control over right to

decision making• balancing of legal and non legal

concerns• client’s emotional investment in a

problem• Autonomy of clients• Intelligence, dignity & morality

TYPES OF CLIENTS

• Informed/smart client• laymen• client without a problem• The ability to ask pointed questions and elicit

the material facts from the stream of thoughts a client verbalises is an important skill for lawyers.

INHIBITIONS OF CLIENT

• Ego Threat • Case Threat • Role Expectations • Etiquette Barriers • Trauma

The Very Basics of Legal Interviewing

• Motivate the Client’s Participation (Develop Rapport through Active Listening)

• Meet and greet• Formalities- names, personal details, confidentiality and the interview process.• Use Questioning Techniques Appropriate to Your Purpose (Open-ended,

Narrow, Yes-No, Leading Questions)• do you have children? tell me about your family.• Allow the Client to Tell the Story Initially• Structure the Interview-• Preliminary problem identification stage-(initial data gathering-

history-)Threat- premature diagnosis• Chronological overview stage-Information Gathering• Theory development & verification stage• Conclude the Interview.

Client Interview Goals

• Get a sense of the client’s situation and legal questions/needs

• BUILD TRUST

• Assess client’s goals

• Assess credibility

• Be sensitive to possible disabilities

Seven stages of interviewing the client …… Attending – initiating – responding –

building trust and rapport with the client

Listening process – with empathy

Facts gathering

Setting and identifying the claim and legal problem

Assessment of the claim

Counseling the client about the action to be taken

Establishing Advocate-client relationship

Structuring the interview

Making known the process

• Tell the client what will happen in the interview, and how long you expect the interview to last.

• Emphasize that what the client says in the interview will remain confidential.

• Although awkward, some lawyers talk about fees at this point to avoid misunderstanding.

• Let the client know that you will discuss the client’s legal rights and possible solutions at the end of the interview.

1)Preliminarily Identify the Problem.

• Ask the client for a general description of the • underlying transaction and the relief desired. • Ex.: “Tell me what your problem is, how it

came about, and what you think you’d like to have done about it.”

• When the client has completed his description of the problem, summarize your understanding of it.(reflective statements)

2)Chronological Overview of the Problem

• Ask the client for a detailed step-by-step chronological description of what has happened.

• Prompt the client with open-ended, non-leading questions like “what happened next?”

• but do not • probe for detail at this stage. • Listen carefully -this is the client’s chance to tell his

story. • You will obtain full information if you let him focus on

his concerns at this stage.

3)Develop and Verify Theories

• • Based on the information obtained in the first stages of the interview, the lawyer can mentally generate theories supporting possible legal claims.

• The lawyer should consider all plausible possible legal claims. -consider all plausible theories, and then proceed to obtain relevant information that would support or negate a claim using each theory.-pursue questions that occurred to you while the client was going through the overview, and to obtain greater detail on relevant facts.

QUE. TECHNIQUEOpen Questions:

• • – “How may I help you?” • • Asking open questions requires you to be able to stop and re-direct a client if • needed • • Advantages: • – The solicitor can actively listen and take notes whilst the client is talking • – Can communicate interest and trust as the client has the freedom to ‘tell their story’ • – Pose little treat to the client • – Generally reveal what a client thinks is important • – May reveal lack of information • – May reveal a client’s uncertainty around certain issues • • Disadvantages: • – Can consume a lengthy amount of time • – Client may dwell on information that that the solicitor does not necessarily require (this is • where you need to stop and re-direct the client) • – Client may only give a brief answer, which then requires the solicitor to ask further questions • – Lengthy and rambled answers which take time to reconcile with facts •

• Open-ended questions encourage the client to talk, and allow her to provide information that the lawyer would not otherwise obtain.

• Begin interviews with broad, open-ended questions that allow the client to tell her story in her own words, and “get her problem off his/her chest.”

Keep the client talking with prompts like, “What happened next?” and then what?”

Closed Questions:• “How old are you?” • • These questions are less threatening to clients as generally no explanation • or justification is required. • • Advantages: • – Solicitors can control the questions and answers more effectively. Allows • questions to be asked in less time and allow the solicitor to get specific • information without waiting for the client to volunteer it. • – Answers are easier to replicate and analyse. Answers can be recorded more • easily, reliably and confidently. • • Disadvantages: • – May obtain not enough information • – May force the client to take a specific position • – May make the client feel as though the solicitor has no interest in the • interview and is merely just going through the steps

• use narrow questions to probe for more information. • Leading questions suggest an answer and thus pose

the risk for distorting the client’s answer and promoting unethical behavior by the lawyer (“You saw Bob reach for a gun just before you pulled the trigger, didn’t you?”).

• Use leading questions only to confirm information provided by the client, or to obtain information that the client may be reluctant to admit.

• Ex: “I guess you’ve had trouble with the police before

Eliciting detailed factual information-Tactics

• Reflective statements• Specific reflective statements- clarification• Finding out the language of client- “ being rough”, “awful”

etc….• Need to elicit extra information not apparent from client’s

descriptions-hidden agendas• Supportive statement• Open ended questions• A combination of all the above• Typical day questions- behavioural details-disability cases• Avoid “why” questions-client is made defensive

SKILLS REQUIRED

• Listening• rapport building.• make the client feel comfortable and open up

to you-put yourself in the clients shoes• knowledge in the matter• your confidence in what you are saying• ability to speak in layman’s terms• ability to think laterally about the problems

Problems of listening/understanding-limitations

• Filling-in• Stereo typing• Perception-subtle understanding &Impressions• Selective attention• Problems personal to client• Uncertainty of relevance• Guilt feeling• Privacy• Suffering• Professionalism v. lay person• Detaching problem from the person• Events v. scenario- family matters• Outcome bias• Problems of information-Facts, fiction, law facts

Overcoming Listening Barriers Do’s

• – Exclude distracting noises and interruptions • – Ensure your desk is clean of all other client files and is

tidy • – Prepare yourself to listen for an extended period. • – Prepare yourself physically to listen • – Focus your attention on what the client is telling you • – Withhold evaluation of what the client is telling you • – Take notes • – Listen responsively • – Make sure you are prepared

Overcoming Listening Barriers DON’Ts:

• – Be preoccupied or bored by what the client is telling you • – Impatient • – Show that time is an issue • – Show bias • – Focus on the client’s appearance or the delivery of their

instructions • – Interrupt the client or finish their sentences unless it is

necessary to clarify any issue • – Change the subject • – Play with stationary • – Speak down to a client

Limitations of questioning

• Style of questioning• Questioning in funnel sequence• Time constraints• Discovering client’s needs-explanation & using client’s ideas• Information categorisation - personal, other parties info.,

witnesses details, events &what client wants• Note taking - unfortunate necessity• + ve effects & - ve effects• (losing eye contact, false importance, threat, command,

pace, suggestions, audio tape)

Advising

• General statement of law involved• Applying law directly to client’s circumstance• Alternatives for action• Technical jargons,• Full story• Lottery-litigation• knowledge of client reaction• The plan of action• Costs involved

Ethical content to be imparted while training the students in the techniques of interviewing the client like

Limits of confidentiality of information

Accept or reject the brief based upon competency

Assess his relationship with other party and introspect whether she can act without bias

Establishing the Advocate-Client relationship should not be solely based upon payment- should be ready to accept the brief in case of needy

Respect for individual autonomyBeneficence-what benefit‟s the client the most. Non maleficence – avoiding harm. Justice– fair distribution of services within society. Legal consequences5. Fidelity– honouring promises from which trust has been formed.6.The counsellor‟s entitlement to self-interest

Parameters of assessment

• Working atmosphere • Description of the problem • Client’s goals and expectations• Problem analysis • Moral and ethical issues • Alternative courses of action• Client’s informed choice• Effective communication• Teamwork • Post Interview Reflection

Concluding the Interview.

• Give the client a brief summary of the law governing his legal rights, and the questions that you must research.

• Tell the client what you will do next and when you will get back to the client.

• The benchmark of a good interview is simple:

• the client will feel that he has consulted a lawyer who is a caring human being.

Thirteen Tasks by Stages:

• Listening • 1. Greet, seat and introduce.• 2. Elicit story with opening question etc.• 3. Listen carefully to basic outline of personalities and case from client's own unhindered words.• Questioning• 4. Question on facts for gaps, depth, background, ambiguities and relevance.• 5. Sum up and recount lawyer's view of facts, and• 6. check for client's agreement or amend.• Advising• 7. State advice and/or plan of action and deal with question of funds. .• 8. Repeat advice/plan of action and check for client's agreement or amend.• 9. Recount folIow-up work to be done by client.• 10. Recount follow-up work to be done by lawyer.• 11. State next contact between lawyer and client.• 12. Ask if "Any Other Business“ and deal with it.• 13. Terminate, help out and goodbye.

Interviewing=1)gathering facts +2)building rapport

Counseling=1)+2)+

helping clients reach decisions +select action steps

Client centered counseling

Attributes• Active participation of client in identifying

problem• Formulating potential solutions• Making decisions• Advice based on client’s values• Recognizing client’s feelings and their importance• Asserting desire to help the client

Counseiling?in relation with interviewing

• Requires advanced skills• Techniques are difficult• Effective use of counseling skills strengthens lawyer

client relationship• Skills• Advanced empathy• Counselor disclosure• Confrontation-FLOW OF INFORMATION , REGARD & UNDERSTANDING IN BOTH DIRECTIONS

• Dilemmas of client

• Maintaining friendship x• maintaining enjoyment of home x • expending large sums of money

Preparatory steps for counseling session

• Research law & investigate facts• Clarify your goals for the session• Scan your research, inv. &experience to identify alternatives for

client-legal/non-legal• Note + ve & -ve consequences of each alternative-impact• In-session tasks=clarify clients priorities + ascertain client’s

reactions to possible consequences of each alt. + cure info. Gaps & ambiguities

• Plan the format for session• Think of-helping techniques-empathy-analogous experiences of

lawyer• Prepare visual aids for client

Problems

• Public nuisance• Divorce• Custody disputes• Domestic violence cases• Industrial disputes

ALTERNATIVES CONSEQUENCES PROBING SUBJECTS

File civil suit Strained relationship, time effort, money, trial, injunction + damages. success %

Pressurize local self govt. agencies

Time, money, strained relationship, extended litigation,costs,delays,50%success

Challenge license renewal Time, money, strained relationship,delay,33%success

Negotiate Time,money,good probability of preserving friendship,win-winsituation,negotiated agreement is likely to interfere in a later court proceedings

Organise community/localofficials

Greater time than any other alt.,money-minimal,strained relationship20-50%success,leadership skill required&lead others

Buying out Money,(partially recoverable later),loss on resale,time,relatinship preserved but dfdt.moves away,totalrelief(if dfdt agreees)success%-whether dfdt will agree to sell

Moving out Time,money-loss on sale-premises.,hassle of moving,preserves relationshipeffects on family,effects of leaving neighbourhood

Do nothing No time commitment,no expenses,money-loss ofproperty value,loss of enjoyment,aggravation of disturbances,effects on family,success in litigation-adversely affected,relationship preserved.

• Dilemmas of client

• Maintaining friendship x• maintaining enjoyment of home x • expending large sums of money

Understanding moral contours & ethical content in the process

Maslow’s pyramid

Lawrence –Moral development theory

Lawrence Kohlberg-6 stages of moral development

Heinz's dilemma

• (obedience),(self-interest) ,(conformity) ,(law-and-order) , (human rights), (universal human ethics)

• Level 1 (Pre-Conventional)• 1.Obedience and punishment orientation• (How can I avoid punishment?)• 2. Self-interest orientation• (What's in it for me?)• (Paying for a benefit)• Level 2 (Conventional)• 3. Interpersonal accord and conformity(Social norms)• (The good boy/girl attitude)• 4.Authority and social-order maintaining orientation(Law and order morality)• Level 3 (Post-Conventional)• 5. Social contract orientation• 6. Universal ethical principles• (Principled conscience)

Nayef Al-Rodhan……..

• Human nature is governed by general self-interest and affected by genetic predisposition, which implies that there are likely to be limits to our moral sensitivities.

• The enduring assumption that human behaviour is governed by innate morality and reason is at odds with the persistence of human deprivation, inequality, injustice, misery, brutality and conflict.

Probing subjects=client is expert here• How much client is willing to spend?/how much can he afford?• Time & money investment?• How important is the friendship to the client?• What is his feeling about total relief?• How important are damages?• How acceptable would be a more controlled operation of activities?• What sort of conditions he would like to be imposed?• How he feels about litigation?• Has he got contacts to pressurize local self govt./license authorities?• How he feels in taking up role of leader?• How responsive will be the community?• How receptive dfdt would be?• Can he or other neighbours are financially well off to buy dfdt’s prop?• Is he intending the dfdt to move out?• What will be client’s feeling if he moves out?• Can he afford to buy a house after he moves out?• How would client’s family feel about doing nothing over the issue?

Ruling out options?=client’s priorities

• Prohibition= ruling out do-nothing=total relief(6 options are good)• Stop activities- but costs factor= 2&3 can be left out- probability of

success is less• No money + skeptic about litigation= negotiation & doing nothing are

better(option is there to make use of other alt. at a later date when conditions deteriorate)

• No leadership skills=legal expertise/personal experiences can be shared with

• Rankings• Litigation-1 or 2 =strains relationship + expensive• Do nothing-1or 2 =maintaining friendship + no costs # offensive

character of activities.• Negotiation-attitude, priorities

Helping client reach a decision?=co-operative venture

• Structured analysis• How are the alternatives related to critical issues• Client is the decision maker• Clarification of concerns• Identifying choices• Choices/models to focus on priorities of client• Lay man’s language• Emotional support

Skills required of lawyerIn counseiling

1)ADVANCED EMPATHY Articulating the implicit= enhanced self-awareness to client= enlightened decision making (eg:money investment in resort)Summarizing core material- concerns x benefits (research)Synthesis= helping client to understand her more deeplyEg: Divorce case-financial distress, job discrimination –weak job performance

VERBAL TECHNIQUES USED

Goal- from inquisitorial examination-to co-operative undertakingFrom what you have told me and correct me if I am off base but it appears that your marital relationship……I wonder and may be you should consider this, whether you are being discriminated---,what do you think……..

2) Counselor SELF DISCLOSURE 3) CONFRONTATION

Goal- changing client’s attitudes & perceptions within a professional relationship-Analogous experiences-common bond developed-Reduces professional superiority-Enhances self reflection of client

feared by lawyers—ve effects may ensueFunctions:-1)enhance client self exploration & self -understanding2) spur action3) ensure accuracy

Variables determining effectiveness1)Content- (eg: park & coke plant)2)Timing- (client self understanding & searching for action steps)3)Frequency4)Duration

-Discrimination at employment- eg:

STEPS IN COUNSEILING

• to identify goals; • to evaluate currently collected data available for

realizing the goals; • to generate alternative potential solutions;• to evaluate each potential solution by weighing their

advantages, costs, risks, and chances of success; (EG:PAYMENT OF WAGES)

• to decide on the best solution; • to begin actions in accordance with the decision

made.

The process

• Request a problem statement• Understand & define the problem• Explain the problem solving process• Explain usefulness of problem solving process adopted• Write down all possible alternatives from the client(be

neutral to all alt.)• Elicit consequences of each• Rate each of them• Select the best option

INTERDISCIPLINARY SKILLS

• Systems Theory• Legal problems are often intermixed with social,

medical, and economic problems (Coleman, 2001).• Need to- Recognize opportunities for crisis intervention

services and other referrals.• Cultural competence-“starting where the client is”• acquisition of knowledge about various cultures and

traditions, and the practice of sensitivity and acceptance of diversity.

• Strengths Perspective