INTERVIEWING & COUNSELING

I. Chapter One Lawyer-Client Interaction an Overview
   Interviewing is the task of gathering information. Counseling is the task of
formulating solutions. Always treat other judges and other attorneys with respect.
The key is for you to be the client‟s advocate.

    A. Office Etiquette:
           - Write down the client‟s name and use it!
           - Keep two questions in mind:
                      1. What can you do about the problem, legally and practically?
                      2. What should you do?
    Make the client comfortable and let them sit first. In a Civil Case: Be sure to gather
information on your own. Go to the accident scene. Take notes at the interview. Write
memo after the conference. Criminal. Ask when police read Miranda to the client.

    Tell clients NOT TO SAY A WORD. Might tell them that you will FIRE them if
they talk to others. Remind client about confidentiality (if the child is the client, you are
not obligated to inform the financing parent all the information gathered) Tell client not
to sign documents. DON‟T TAKE CLIENTS YOU DON”T LIKE (even if child
pornographers deserve representation, you may not be able to give best representation).

   B. Assist the client with basic questions: problem identification/general information
      Questions:       1. Nature and underlying occurrences which caused client to seek
                      legal assistance.
                      2. Basic difficulties which now confront the client as a result of
                          these occurrences
                      3. The results the client desires

    C. Counseling part of interview: Lists possible scenarios from best to worst. Talk to
the client about alternatives to settlement. Always pass on settlement offers. (Especially
dollar amount). Get settlements in writing. Remember to outline legal consequences.

II. Chapter Two Motivation Within the Interview

  A. Motivation to Act
      Two categories of needs:
      (1) Physical (food, shelter…), and
      (2) Psychosocial [thought, attitude, behavior]. Both are contemporaneous and may
  be in conflict: Example: Lawyer wants to work longer hours to build up billing time
  versus his wife threatening to leave. An individual is motivated when he feels that a
  course of action will satisfy one or more needs without unduly interfering with others.
  Self-esteem is usually a very high need.

  B. Motivation in Legal Interviews

      Try to get information from clients even if embarrassed. Might be a situation
where inclusive, yet non-threatening question might be asked: Example: “So, how long
have you been gay?”
      Most Common Psychological Factors. 2 types (inhibitors and facilitators)

      1. Inhibitors – can intertwine; seven factors; not mutually exclusive

         a. Ego Threat – very common; lawyer must recognize -- Can range from
            mild embarrassment to strong feelings of guild or shame. The client is
            often afraid of knowledge becoming public; key to overcoming ego threat is
            conveying a sense that you will never breach confidentiality.

         b. Case Threat – Need to get client to tell everything, so you can help.
            Sometimes, client feels that revealing certain information will “hurt the
            case” or that telling information to lawyer means it will come out at trial.
            Example: passengers in a car won‟t say driver has been drinking. If you
            evaluate your witnesses in a positive, confident manner, they will treat you
            in the same way. You want to build self-esteem. You need to know
            everything, however. Case threat also appears with witnesses.

         c. Role Expectations – beliefs people have about what kind of behavior is
            appropriate within the confines of a particular relationship. Many times the
            client sees you in power position; usually the client is afraid. Client might
            perceive that if a topic is not discussed, it probably is not important.
            Realize these roles and create a relaxed atmosphere where the client can
            speak freely.

         d. Etiquette Barrier – Some people only communicate with like persons.
            You 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 may not want to discuss info that will
            be shocking or uncomfortable to the attorney. Example: sexual
            dysfunction told by male client to female attorney. Clear the air or the client
            will not open up.

         e. Trauma – When witness/client recalls experience which evokes negative
            feelings, client relives the trauma. This can really affect a testimony.
            Example: Fear, anger, humiliation, or sadness. Recognize and let the client
            get comfortable – don‟t force issue. Sometimes good to change subject and
            refocus client/witness.

  f. Perceived Irrelevancy – This is the situation where client doesn‟t relate
     information because he feels it‟s not important; don‟t let client make legal
     decisions for you; (example: prior marriage, prior conviction). Get the
     client to explain why it is relevant. Be patient.

  g. Greater Need – Client wants to talk about something other than what is of
     immediate importance to the lawyer. This may make it difficult to get full
     and accurate information. Lawyer‟s 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, redirect the kinds
     of questions you need answers.

2. Facilitators –  (a) through (d) = psychological manipulations;
(e)=physical reward

  a. Empathetic Understanding – Listen to client and respond empathetically.
     Here, client tells you emotions. Never pass judgment on what clients say.
     Build a rapport / bond.

       Goal is to (1) listen, (2) understand, and (3) refrain from judging. Do no
       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. Client may also tell how he feels
       now and what the occurrence portends for the future.

   Lawyer must understand both FACTS and FEELINGS.

  b. Fulfilling Expectations -- When inhibitor prevents client from
     communicating with you, you can let client know how important
     something is. Example: a witness cannot remember an event, but you give
     them an expectation, they will live up to it.

       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.

        Example: “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.

  c.   Recognition – Everyone likes to be recognized. Client can become more
       confident when he recalls information well. Direct, sincere praise can
       make all the difference in the world.

          d. Altruistic Appeals – Humans need higher causes, identification of
             objectives with a higher group. Example: “Your testimony could keep an
             innocent man from prison”; or “do it because it‟s the right thing to do.”
             This works great with reluctant witnesses. Altruistic Deeds usually
             increase self-esteem whether or not the person‟s deeds have been public.
             This distinguishes altruism from recognition.

          e.   Extrinsic Rewards – This is need-based; favorable to the outcome of the
               case; client perceives success of case hinges on testimony. Client must
               perceive that the information they are giving is 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 threat                     Empathetic understanding
    Case Threat                    Fulfilling expectations
    Role expectations                  Recognition
    Etiquette Barrier                  Altruistic appeals
    Trauma                         Extrinsic reward
    Perceived Irrelevancy                  [all can be used to get client participation]
    Greater need

       3. Personality Conflicts – If client perceives attorney as too hostile, he will not
       like the attorney [Rule of Thumb–go with your gut]; if you are not comfortable
       with client, don‟t take case.

III. Chapter Three Active Listening

    You need to identify Contents and client‟s Feelings [empathy]; when people want
revenge you need to bring them back to reality; Never promise more than you can

    Ask Where, When, Why, Who, and How Much. Where? – Jurisdiction; When? –
Statute of Limitations. You must take an affirmative act of listening. Helps get your
clients‟ cooperation. Empathetic understanding is the key. Techniques are critical
because it motivates clients to work with you.

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

   A. Identifying Content and Feelings

   Clients (during an event): (1) Observe details
                              (2) Have feelings about events
   Client‟s recollections:    (1) Contain content mixed with
                              (2) Emotions

   Make sure you try to figure out the client‟s past and current feelings.

   B. Passive Listening

       1. Silence = brief and definite pause in conversation. Used effectively, silence
          can make a difference and develop trust between you and your client. Be a
          psychologist. When a client pauses, do not interrupt.

       2. Non-committal Acknowledgment -- 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.” Try to
          acknowledge that you are listening, without giving away that you are
          evaluating the situation for its key legal issues.

       3. Open-Ended Questions – Assist the client to continue with the interview.
          Results in client narrative. Examples: “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.

   C. Active Listening

       Active Listening is the process of picking up the client‟s message and sending it
back in a reflective statement which mirrors what the lawyer has heard.

       Very effective; can be non-judgmental; shows the client you care for them as
individuals; hear, understand, accept feelings of clients; feelings hard to get sometimes.

   Avoid being perceived as simply a “gatherer of facts.” Pay attention to the client‟s
feelings. Remember that two things occur (1) many people do not express their feelings
and (2) the feelings are not clearly articulated. As an attorney, you may have an
opportunity find a positive thing to say while clients express feelings.

       1. Vaguely Expressed Feelings -- You can use an array of responses when a
          client just simply doesn‟t clearly express his feelings. Example: “You felt hurt
          and disappointed when she told you about the affair” This is nonjudgmental

          reflective. Or “You feel anxious about getting up on the stand and
          embarrassing yourself.” This statement can build a client‟s self worth.

      2. Unstated Feelings -- Put yourself in the client‟s shoes. This is difficult,
         because client is going to express an occurrence that is laden with emotions.
         Passive listening questions are appropriate in this situation. For example:
         “what happened next.”

    This results in a choice for the attorney. You can (1) direct questioning to emotional
issue or (2) keep gathering data indirectly. If you decide to pinpoint the emotional issue,
you need to accurately identify the emotion attached. Example: “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.

      3. Non-Verbal Expressions of Feelings – Usually two types of non-verbal cues:
          auditory and visual
          Auditory: intonation, pitch, rate of speech, and pauses
          Visual: posture, gestures, facial expressions, and fidgeting
         These are usually very hard to detect. You want to detect inconsistencies in
         body movement and statements. Example: Tightening fist, loss of eye contact,
         voice pitch change

      4. Clearly Articulated Feelings -- Usually feelings of hatred. Beware of
         “parroting” or mirroring clearly negative feelings. Always try to empathize.
         A passive listening response may facilitate communication where the client
         believes that their situation is completely foreign to the attorney.
          Example: “I can understand how angry and frustrated you‟d feel after he did it
         again.” This involves a connection, but the lawyer is not too emotionally

      5. Non-Empathetic Responses – Avoid judgmental responses. Too often,
         lawyers fail to respond non-judgmentally. Avoid being irrelevant. Watch time
         shifts. Examples:
         Good: “I can understand your concern.” This is a great statement and keeps
         you neutral.
          Good: “It‟s perfectly proper for you to feel that way. Under the
          circumstances, no one could expect anything else.” non-judgmental yet
          Poor: Any analysis in this circumstance: “Your feelings will pass.” Don’t

   D. Difficulties in Mastering Active Listening

        Some people don‟t perfect their listening skills because they experience
discomfort at first. You will perfect listening skills over time. Be genuine. Active
listening enhances your skills.
        Let a client speak if he begins to outpour. Remember that although the client may
be experiencing very negative feelings, they may be positive about the overall outcome of
the interview with you.
        Your goal is to gain information. Do not probe for voyeuristic reasons. If you fail
to gather full amount of information because emotions hindered you, you are not
exercising professional responsibility

   E. How Much Active Listening

        Purpose of the active listening response is to provide non-judgmental
understanding and thereby stimulate full client participation. Goal is to help client feel
free to discuss and think about their situation in a comfortable and open manner. Build
rapport. Will vary from client to client. USE ACTIVE LISTENING – and figure out
how much rapport needs to be developed. Exercise good judgment.

IV.     Chapter Four Questioning

      A. Forms of Questions

         1. Open Ended: Examples: “what brings you here today?”
               “Is there anything else we need to discuss?” With a new client, don‟t
               assume anything. Do NOT ask “what‟s your problem?” Client is free to
               talk about: (1) whole range of subjects-himself the police or third persons
               (2) whole range of activities-talking, doing, feeling and (3) whole range of
               places or objects – specific rooms, specific physical objects

                Advantages: Lets client open up with no memory stimulus. Allows
                client to relate information that might be lost if he is forced to answer
                narrow questions. Few interruptions. You MUST recognize defensive
                posturing, and DO NOT discuss a threatening topic! The goal here is
                openness (where the client is willing to help).

                Disadvantages: relevancy of information is not always clear. Client
                rapport & motivation may not be developed

         2. Leading: questions which suggest the answer. Theses are good if you know
         the answer. The question makes a statement and suggests that the client ought to
         affirm the validity of the statement. You should suggest what the answer should
         be. Typical answer is yes or no. Restrict leading questions because if the client
         thinks he doesn‟t have the right answer, it may affect the outcome of the case or
         your opinion of him.

          Example: sexual behavior- can overcome impeding part of questioning with
          an acceptance questions: “so how long have you been gay?” You can avoid
          friction with acceptance – client opens up. Other examples:
              “I guess you‟ve had problem with the police before?”
              “You heard the officer yell „stop‟ did you not?”
              “You had at least four drinks before getting behind the wheel, isn‟t that
              correct?” -- The key is to hone in on accurate and honest behavior
              “This is not your first arrest for drug abuse, isn‟t that correct”
              “You‟re related to the defendant, aren‟t you?”
              Good Cross-Examination questions ---- you will know the answer to a
              leading question

       3. Yes / No: Constructed in such a way that the client can respond with a yes or
       no, but do not suggest an answer like leading questions. Examples:
               “Did you know before entering the party that the occupants were selling
               drugs?” “did police have a warrant when entered the premises?”
               “Have you ever seen that man before today?”

       4. Narrow: You select the subject matter. Allows the attorney to decide
          which information is relevant.
       Where find out elements of case. Generally limits time and place
       Don‟t use this too soon or client may shut down. Detailed probing
              These questions select subject matter and choose what to discuss
       “When the officer entered, where were you standing?” – restricts response
       “How was the officer dressed?” “What color was the car?”
       “How long did it take you to drive from your home to the park?”
       “How old is your daughter?” “Where did the accident occur?”

       Advantages: helps client deliver detail to you; can stimulate memory. Great if
       client is reluctant to divulge info. Can comfort client by overcoming sensitive
       issues with open-ended questions. Start first with open questions and then move
       to more narrow questions. Particular facts make clients to start thinking.

B. A Client’s Ability to Provide Accurate Information
  Two theories on how people store information about past events: (1) Associationist
  and (2) reconstructive. Both assume that clients not remember everything.
  Perception is a selective process

       Factors which impact memory: (1) Within observer at time of event [amount of
       attention to significant event, stress, variations in sensory acuity; amount of food
       eaten, alcohol consumed, age, observer‟s set of expectancy]
           (2) Factors within environment at time event occurred [illumination,
       speed, general noise level, proximity to events, simultaneous occurrences]
           (3) Related to manner in which observer’s perceptions are elicited – goes
       to form and sequence of questions [too many narrow questions, improper use of

        leading questions, pressuring the client for too much detail, obtaining conclusions
        which distort].

   V.      Chapter Five Ascertaining the Client’s Problem

The Three Staged Interview Process: (1) Preliminary Problem Identification with
Preparatory Explanation (2) Chronological Overview and (3) Theory Development and

        A. Preliminary Problem ID

           “Step by step tell me what happened” – find:
               (1) Underlying transaction which caused the situation and
               (2) Relief client desires

       (Client will tell you what is important; concludes with a summary of situation);
what are client‟s concerns?; get the facts – what happened?; find out client‟s
expectations, what client wants to do about situation

        Advantages: Empathetic, client tells story, builds trust

        Key things to solicit: (1) statute of limitations (2) where situation happened –
jurisdiction (3) try to find what remedy the client desires. (Perhaps not litigation)

        Example questions: “How can I help you” “What brings you here today” ”what
can I do for you”

Example Statements: “Give me a brief description of your situation, how it arose, and
what solutions you hope to find” “tell me about your situation, how it came about, and
what you think you‟d like to have done about it” Don‟t get too narrow. Use good
transitions such as “can you tell me a bit more about that?”

        Preparatory Explanation -
        Explain how long the interview will take; what going to cover; you want to set
proper expectations. This depends on the sophistication of client. Ask: “Have you been
to an attorney before?” Mention attorney/client confidentiality & privilege. You want to
establish client expectations, or else the client‟s uncertainty may turn to frustration. Tailor
to client‟s sophistication (1) brief description of what will take place (2) explain that at
the conclusion (Theory Development Stage), you will explain rights as well as solutions.
If you need to do research, tell this to the client. Tell client you will jot down some notes.

   B. Chronological Overview Stage

   Gather 80-85% of facts here using active listening skills. Client should be left free to
answer and tell their story. You may interrupt to clarify. Example: “who is „she‟”

    Goals here: (1) Obtain the nature of problem/situation (2) what led up to it and (3)
what are the consequences. Don‟t assume the client will begin the story in the
chronologically relevant place. Ask client to back up. If you use open-ended questions
you can sit back and listen. The client is encouraged to provide a step-by-step
chronological narrative of the past transaction which underlies the client‟s problem
[client will remember better]. Tell the client he is doing a good job: facilitator /

       C. Theory Development and Verification Stage

        Lawyer mentally reviews the entire story to determine what potential causes of
action and possible defenses are available. Need to bring up ALL potential claims. Wait
until this point to list options. Do not give a premature diagnosis. Watch your
questions to make sure they support the cause of action for this point. Remember that
what client tells you is usually the “tip of the iceberg”

   Send client all correspondences including briefs.
   Agree to meet again later and research, learn more from client, or refer client to
another lawyer.

    Figure out (1) what topics to investigate (2) proof [documents, witnesses] (3) in what
order should the causes be examined – here a checklist comes in handy. Should conclude
interview with understanding of the issues and what client‟s needs (wants). Give the
client something to do for you [bring documents back to you, bills, records, hospital
reports, tickets etc]. If you have a solid case, sign the client up. Explain how payment
works: contingency, retainer etc.

    T-Funneling: focus into finer and finer points. Lawyer should determine (1) what
legal theories are possibly applicable, and (2) which of the possibly applicable theories
are potentially viable.
Research line: “I want to make sure I am absolutely up to date on the law before we
discuss what we might do.”

VI. Chapter Seven Witness Interviewing
   Have idea of facts and develop a theory.
   Four Necessary Fact Sets:
          (1)     Facts establishing the existence or nonexistence of the substantive
                  elements entitling the plaintiff to relief;
          (2)     Facts corroborating the client‟s version of the case;
          (3)     Facts constituting the adversary‟s version of the case; and
          (4)     Facts contradicting the adversary‟s version of the case.

           It is sometimes difficult to motivate witnesses. Witnesses may feel threatened
           by lawyers. Rapport is the key.

           Facilitators: (1) substitute rewards [tell witness not to hide behind their
           statements] (2) altruistic appeals [civic duty – “you could keep an innocent
           man from going to jail”]. Don‟t tell witness what to say, but how to say it.
           Don‟t always buy the “I don‟t know.” Say “if you were in my shoes, you
           would want to do what I am doing.”

VII. Chapter Eight The Nature of the Counseling Process

     It is the client‟s case and as a matter of professional responsibility the client makes
the (nonlegal) decisions. Remember to take into account (1) economic and social
consequences and (2) client has to live with decision (implications). (You don‟t go to
jail with your client)

Look at alternatives: what can I do? And what should I do? – You & the client. Never
be afraid to confront client with reality of their case. “We have a problem.” Tell them
the economic ramifications of the legalities of court. Litigate, settle, alternative bases, or
similar criminal cases.

Do not blind plea – get to know the judge‟s positions on issues. Be realistic. Develop a
process of looking at consequences [assets & liability] and predicting consequences.
This is a selective intuitive process.

VIII.    Chapter 9 Conducting the Counseling Process

Preparation for Counseling
Identifying the Alternatives.
    “These are the choices I have thought for us to discuss; can you think of other
alternatives to consider?” Avoid creating anxiety. Clients want to know the options and
likely outcomes. Once they have heard this, clients are more open to listening.
Five possible results: (1) best possible, (2) best likely, (3) most probable, (4) worst likely,
(5) worst possible.
Always tell about settlements. Describe the consequences of trial. Consider
psychological consequences. Use the “advantages or disadvantages” list. Give the client
the freedom to jump between alternatives. Never talk down to a client. Let the client
think about it overnight, and send a letter.

        After a good interview, you will know what the client wants to do.


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