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Handout on Lawyering Skills

By Samuel Willis,2014-09-29 22:42
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Handout on Lawyering Skills

     37 No. 1 Prac. Law. 13 Page 1

    communication with clients (or potential clients) is where it all begins. If the communication is Practical Lawyer ineffective at the start, it is likely that the entire January, 1991 process will be endangered. *13 INTERVIEWING CLIENTS ETHICALLY

    The Canons of Professional Ethics Roy M. Sobelson

     So what do the rules of ethics have to offer us

    in terms of our communication with clients? The Copyright 1992 by The American Law Institute; Roy

    M. Sobelson Canons of Professional Ethics (1908) had very little

     to say about it.

    WESTLAW LAWPRAC INDEX

     Specific Canons

    ADV--Advocacy & Lawyering Skills

    ETH--Ethics & Conflicts of Interest Canon 8 says A lawyer should endeavor to

    GPR--General Practice Approaches, Articles & obtain full knowledge of his client's cause before Issues advising thereon, and he is bound to give a candid

    opinion of the merits and probable result of pending or contemplated litigation . . . . Whenever the GOOD INTERVIEWING AND controversy will admit of fair adjustment, the client COUNSELING SKILLS are important to lawyers on should be advised to avoid or end the litigation. at least three different levels: Canon 32 advises that No client . . . is --Malpractice--The better I am at developing entitled to receive nor should any lawyer render any these skills, the better evaluator, pleader, litigator, service or advice involving disloyalty to the law . . . . negotiator, counselor, and problem solver I become. He advances the honor of his profession and the best *14 The better I am at developing these skills, the interests of his client when he renders service or better my relationships with clients will be. Both of gives advice tending to impress upon the client and these things should reduce my susceptibility to his undertaking exact compliance with the strictest malpractice claims. principles of moral law . . . . --Ethics--The more I communicate with my

     client, the less likely it is I will have an ethics

    The Code of Professional Responsibility (1969) complaint filed against me. The better I am at

    developing these skills, the more likely it is that I will The only place the Code of Professional fulfill my ethical obligations to maintain the integrity Responsibility addresses interviewing and counseling, of the profession, make counsel truly available, albeit indirectly, is under the rubric of Canon 7, preserve confidences and secrets, exercise which states A Lawyer Should Represent a Client independent professional judgment, and serve my Zealously Within the Bounds of the Law.

    clients competently and zealously. Specifically, EC 7-7 provides In certain areas of

     legal representation not affecting the merits *15 of

     --Business--The more I know, the more the cause or substantially prejudicing the rights of a effective I can be. The more effective I am, the better client, a lawyer is entitled to make decisions on his my reputation will be. The better my reputation, the own. But otherwise the authority to make decisions is more freedom I have, both economic and exclusively that of the client and, if made within the intellectual. framework of the law, such decisions are binding on

     the lawyer. As typical examples in civil cases, it is

    for the client to decide whether he will accept a settlement offer or whether he will waive his right to WHAT DO INTERVIEWING AND COUNSELING plead an affirmative defense. (Emphasis added.) SKILLS HAVE TO DO WITH JUSTICE? Perhaps the key to effective lawyering is good Further, EC 7-8 states A lawyer should exert communication skills. A lawyer must communicate his best efforts to insure that decisions of his client with clients, witnesses, interested parties, adversaries, are made only after the client has been informed of lawyers, judges, juries, and others to be effective. But

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     relevant considerations. A lawyer ought to initiate lawyer-client relationship.

    this decision-making process if the client does not do

    so. Advice of a lawyer to his client need not be Specific Rules

    confined to purely legal considerations. A lawyer

    should advise his client of the possible effect of each Rule 1.1 states A lawyer shall provide

    legal alternative. A lawyer should bring to bear upon competent representation to a client. Competent this decision-making process the fullness of his representation requires the legal knowledge, skill, experience as well as his objective viewpoint. In thoroughness and preparation reasonably necessary assisting his client to reach a proper decision, it is for the representation. According to Rule 1.2, A

    often desirable for a lawyer to point out those factors lawyer shall abide by a client's decision concerning which may lead to a decision that is morally just as the objectives of representation . . . and shall consult well as legally permissible. (Emphasis added.) with the client as to the means by which they are to

     be pursued . . . . A lawyer may discuss the legal

     Mutual Trust and Respect Important consequences of any proposed course of conduct with

     a client and may counsel or assist a client to make a

     It is unfortunate that the Code of Professional good faith effort to determine the validity, scope, Responsibility does not raise any of these points to meaning or application of the law. (Emphasis

    the level of enforceable disciplinary rules. added.)

    Nevertheless, one common thread that runs through

    the Canons and the Code of Professional Rule 1.3 provides A lawyer shall act with

    Responsibility is the notion that a lawyer and client reasonable diligence and promptness in representing have a relationship of mutual respect and trust, where a client. Additionally, A lawyer shall keep a client the lawyer and client may speak openly and honestly reasonably informed about the status of a matter and about options and objectives, and the lawyer can help promptly comply with reasonable requests for the client achieve objectives in a lawful and moral information . . . and explain a matter to the extent manner. reasonably necessary to permit the client to make

     informed decisions regarding the representation.

     Therapists' findings are instructive on this Rule 1.4. (Emphasis added.)

    point. Most experts say that people dealing with

    therapists and others in the helping professions Neglect a Common Problem

    value the following elements the most in their

    relationships with helpers: There is good reason to make the duty to

     inform clients an enforceable one. Studies

     --Trust in the counselor; consistently show that the failure to keep the client

     apprised of a case's progress is one of the most

     --Being understood by the counselor; common problems in attorney-client relationships.

     The most frequent complaint is based on neglect of

     --The counselor's acknowledgment that the a matter, which often means nothing more than that client is allowed to make independent choices; and the lawyer has not kept the client informed of the rate

    at which matters can be expected to move.

     --Open and honest communication.

     The duty to keep clients well informed has

    even made its way into the American Bar Association Lawyer's Pledge of Professionalism, which states I The Model Rules of Professional Conduct will keep my clients well-informed and involved in The Model Rules of Professional Conduct, making the decisions that affect them. As part of which are now in force in over half the states, are at this decision-making process, a lawyer shall least a little more explicit than the Code of exercise independent professional judgment and Professional Responsibility in this area. In addition to render candid advice. In rendering advice, a lawyer reiterating some of the lofty goals enumerated above, may refer not only to law but to other considerations they also raise the ante on expectations, thereby such as moral, economic, social, and political factors, raising the specter of both discipline and malpractice that may be relevant to the client's situation. liability. Although the violation of a disciplinary rule is not usually enough to constitute malpractice, the Also, the ABA standards on the Defense behavior itself may be evidence of malpractice. If Function are even more explicit. Standard 4-3.2 states nothing *16 else, the rules are intended to be a As soon as practicable the lawyer should seek to reflection of the expectations the law imposes on the

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    determine all relevant facts known to the accused. In province of therapists and mental health counselors so doing, the lawyer should probe for all legally and that they are unnecessary or superfluous to legal relevant information without seeking to influence the interviews. In my view, how things are direction of the client's responses. communicated (the process) may be at least as

     important as what things are said (the content);

     --Problem solving. If you haven't helped your When Is a Client a Client? client solve the problem, your time and the client's One thing to note is that all of these rules deal time is being wasted. Sometimes solving the with a lawyer's duty to a client. As obvious as that problem means letting the client know that the is, it is worth mentioning that how a person *17 problem cannot be solved through legal means; and actually becomes a client is not covered by the rules of ethics, but by the substantive law of contract. The --Planning for the future. You and the client test is a subjective one, focusing on the lawyer's and must have a common understanding of the goals to be client's states of mind, especially the client's. achieved and the method(s) for reaching those goals. Nevertheless, courts focus on objective factors such The success of your venture is directly related to the as the payment of fees, the request for and receipt of clarity with which your shared goals and methods are legal advice, reliance upon the lawyer, and the like in communicated. It is essential that you have a very deciding whether a lawyer-client relationship has clear understanding of what your client's real goals been created. are. Sometimes those goals are beyond the province of the legal system. In recent years, several cases have dealt with the question of whether a person became the lawyer's *18 In terms of direction, having a method for client even though the lawyer and client never conducting interviews is important. More on that explicitly entered into a long-term relationship. In later. other words, people sometimes become clients, thus invoking all the principles relating to

     malpractice and discipline, without the lawyer's

    specific agreement to become the person's lawyer. HOW GOOD ARE MY INTERVIEWING SKILLS?

    Therefore, you must tell the interviewee exactly There are two common myths about where you stand (preferably in writing following the interviewing. One is that everyone can do it and that initial interview) when you have made your decision training is unnecessary. This myth is encouraged by about continuing a relationship with the interviewee. traditional legal training which makes no attempt to

     teach the three skills most often used in practice:

    interviewing, counseling, and negotiating. The second myth is that people are born as good or bad WHAT IS AN INTERVIEW ALL ABOUT? interviewers and that training is a waste of time. An interview has been defined in many ways, but perhaps the best definition is this: An interview My own experience tells me that neither one is a (face-to-face) conversation with a purpose (or of these myths is true. You can and should learn purposes) and a direction. You might want to ask proper interviewing techniques. Since it's never too yourself whether your interviews have both purpose late to learn, here are some questions that may prove and direction. In terms of purposes, there are at least helpful in evaluating your own interviewing five: techniques. Every no answer points to a potential problem. --Getting information. Keep in mind that information comes in many forms and the process

     is a continuing one. Sometimes the information that

    is conveyed is that which you least expect or desire to Did I Break the Ice First?

    gather; Studies indicate that people may fear going to

    lawyers as much as opposing them. Lawyers need to

     --Giving information. Unfortunately, however, acknowledge the fear by making explicit attempts lawyers tend to talk too much and in tongues; to put people at ease by reducing the strangeness of

     the experience.

     --Expressing and exploring feelings. This is

    the least well understood and executed by lawyers. Lawyers are apt to think that feelings are the Did I Explain the Interview Process to the Client

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    Before We Got Started? telephone to a client's peculiar habits, looks, speech,

     Was there really a process at all? Once I etc. Notes are often nothing more than a distracting explained the process, did I live up to the contract crutch. Do you listen more than you talk?to conduct the interview in the manner promised? If

    not, did I acknowledge the reason for varying from my stated format? Did I Control the Interview Without Being Controlling? Suggested Five Stages in the Process Lawyers often approach clients as if they were cases that can be handled by using a checklist, My interviews are composed of the following whether that list is in the lawyer's head or on paper. five stages: Consider who determined what subjects were covered in the interview and at what time. --Icebreaker. Noncontroversial introductions, including an introduction to the process (i.e., methods, time limits, follow ups, etc). This is also a good place Did I Ask Mostly Open-Ended Questions Before to initiate the conflicts screening process. You Closed-End Questions? must get enough information to decide whether it is Open-ended questions and narrative answers even appropriate to continue; elicit more information than closed-ended or directed questions and answers. Although open-ended --Initial problem identification. Sometimes questions are generally better at getting the known as the gush, this is where the client first gets conversation started, they may not always be to talk openly. In addition to identifying the preferable. Varying the types of questions is helpful. problem, the lawyer should ask the client about expectations and goals. Try to limit note taking to trigger notes (i.e., notes that will trigger later Did I Periodically Check My Understanding with the questioning); Client? Summaries are valuable. They tend to: show --Chronological overview. This is the stage the client you are listening; keep the interview on where the client retells the story, with an emphasis on track; aid memory; and clarify things for the speaker chronological order. It's still too early to ask too and the listener. many questions. Whatever questions are asked should be for clarification only; Did I Avoid Concluding Too Early in the Interview --Verification. The aim here is to support What the Problem Was? potential solutions to the problem by filling in gaps. The danger of the premature diagnosis is a This is the point when you start to funnel your very real one. It can mislead and stifle the process. questions, using secondary or follow up questions; Did I Find Out What the Client's Real Objective --*19 Closure. Where do we go from here? Was? The most important question to deal with is whether Find out exactly what it is that the client you now have an attorney-client relationship. wants. Lawyers think in terms of legal solutions and approach problems accordingly. The fact that a client

     *20 has sought a lawyer's help does not mean that the Did I Explain Confidentiality? best solution is a legal one.

     There is little, if any, evidence that

    confidentiality plays a major role in the

    attorney-client relationship. Nevertheless, you must Did the Client and I Nonjudgmentally Explore make the client understand that a relationship of trust Alternative Solutions?

    is partly supported by the promise of confidentiality. Did I recognize the existence of non-legal

     problems or solutions? Brainstorming with the client

    is essential. Did I Give the Client My Undivided Attention? Think about possible distractions here. They Did I Communicate Empathy and Understanding? may range from the papers on the desk to the ringing The evidence is overwhelming that clients are

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    more likely to be complete, accurate, and honest if Mutual Respect, Trust, and Understanding? they believe the listener is empathic. Keep in mind that although the client *21 is

     the boss and you are the employee, this relationship

     is unique and requires open communication. Did I Effectively Handle Questions I Was Unable To

    Answer Immediately?

     Did I say I don't know when I didn't know? Does My Client Know What His Role Is?

    Did I say no instead of maybe when the answer Clients should not be treated as passive should have been no? Did I make sure that recipients of services. Give them a stake in the important questions or concerns were adequately enterprise and they will be more likely to help you. addressed? They'll also be more likely to accept responsibility if

     things don't turn out exactly as planned.

Did I Hear Things the Client Didn't Say?

     Did I pay attention to when and how DO I KNOW HOW TO LISTEN?

    things were said? Pay particularly close attention to: Contrary to popular belief, talking is not the word emphasis; unresponsiveness; adjectives; and lawyer's most important task in conducting gestures. interviews--listening is. The following are some rules

     for learning how to listen.

    Did I Acknowledge and Respect My Client's --Be attentive and create a positive Feelings? atmosphere through both verbal and nonverbal

     Although you are not expected to be a behavior. When you are alert, attentive, and therapist, remember that feelings are facts. Even if nondistracted, the other person feels important and you can't make the problems go away, you can at more positive;

    least acknowledge them. This will help in your

    honest evaluation of your client's strengths and --Don't tune out to difficult material. You can weaknesses, as well as showing the client that her always come back to it later on if need be; feelings count. Try to focus on what questions

    instead of why questions. --Learn to listen actively and passively.

     Active listening consists mostly of mirroring what

     is heard, summarizing occasionally, and encouraging Did I Leave the Situation Where Fairness and the client to continue along productive paths. Passive Honesty Demand That It Be Left? listening consists primarily of using extralinguistic

     Sometimes the hardest thing to do is to say sounds to demonstrate your interest (Uh huh, I see,

    no. Considerations of fairness and honesty, as well hmm);

    as potential liability, demand that you give clients the

    bad news when it is warranted. --Don't interrupt, unless you need to change

     the subject;

    Did I Deal With the Hard Stuff Myself? --Don't imagine things or compare your own

     Some lawyers don't like to talk about money experiences to those of the client;

    with their clients, leaving fee agreements, etc. up to

    their secretaries, paralegals, assistants, or (even worse) --Don't rehearse in your own mind; the mail!

     --Don't cross-examine;

Did I Pay Attention to the Environmental Factors? --Don't teach or lecture;

     These factors include proximity, lighting, and

    seating. They are very powerful in communicating --Don't be afraid of silence; and messages about importance, sharing of

    responsibilities, etc. Are they communicating the --Use and pay attention to eye contact, body

    messages you want them to communicate? language, facial expressions, posture, etc.

Do My Client and I Have a Relationship Based on Inhibitors

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     Inhibitors are those factors that make a client

    unable or unwilling to communicate accurately. --Chronological confusion. Once events occur, Some typical ones are: people often remember things out of chronological

     order. It's not best to press them on this immediately

     --Competing time demands. If either of you though, so take note and come back;

    really does not have the time to do an adequate job, it

    might be worth exploring the possibility of --Inferential confusion: (a) of induction, when rescheduling; asked to convert concrete instances to higher levels

    of generalization; or (b) of deduction, when a client is

     --General anxiety. Many, if not most, people asked to give concrete examples of categories of are very fearful of lawyers. One way of changing experiences;

    their perceptions *22 and fears is to acknowledge

    them and send them a message that is different from --Stereotypical expectations, in the acquisition, what they expect; retention, and retrieval of information. People often

    have expectations regarding certain types of

     --Ego threat. This comes in several varieties, people's behavior; and

    but it basically consists of refusing or hesitating to

    admit things for fear that the interviewer will --*23 Problems associated with the

    disapprove. Do not automatically assume that the acquisition, retention, and retrieval of information. failure to tell the complete truth is deliberate People's ability to accurately recall information is deception; closely related to their own age, sex, race, and other

     factors.

     --Forgetfulness. Contrary to popular belief,

    people are not able to remember details of traumatic

    events better than other events--exactly the opposite Facilitators

    is true; Facilitators are those things that help you

     conduct an effective interview.

     --Role expectations related to role, sex, race,

    r socioeconomic status; --Empathic and nonjudgmental acceptance. It o

     is well known that showing an empathic interest in

     --Greater need. Sometimes the client is so the client's problem will induce greater preoccupied with something of greater importance, communication;

    that it is best to discuss that first;

     --Recognition--acceptance plus approval.

     --Case threat. Clients often do not give Your cooperation is very helpful and I appreciate lawyers the bad news because of their fear that it will it;

    hurt their case. Do not assume that this is

    intentional. When you discover it has happened, be --Extrinsic rewards;

    open with the client about the results of that behavior,

     --Catharsis; without being judgmental;

     --Trauma of reliving the event. It is --Altruistic appeals;

    sometimes best to let the client wander for a while to

    reduce the pain and tension associated with a --Fulfilling expectations. You should try to particular event; create a set of realistic expectations about the client's

     behavior. When they do fulfill the expectations, it's

     --Expectancy and pragnanz. Pragnanz is an good to encourage them to continue. When they do attempt to derive meaning from something that is not, try the feel/felt/found technique often used in unsatisfactorily incomplete. It is the result of negotiation. (I understand that you feel uneasy about reinterpreting past events so that they make sense. It discussing this. I've often felt that way myself. But may even occur if a person thinks that remembering I've usually found that if I just try to come back to it will make him a good person or not remembering a after I've covered all the other ground, it's easier. bad person; Why don't we try that?); and

     --Etiquette barrier. Lots of information does --Enforcing the contract. If you and the

    not flow equally well among all persons in society; client have certain specified duties, your fulfillment

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of your duty makes it easier to encourage the client to

    fulfill his or hers. --What other factors come into play?

     Paying attention to the matters mentioned COUNSELING CLIENTS: EXPLORING THE above should help make you a better listener, and that ALTERNATIVES should ultimately make you a better lawyer. Happy

     The lawyer who employs good listening and listening!

    communication skills in interviewing is well over

    half way home in terms of counseling his or her

    client. Counseling clients consists mainly of two BIBLIOGRAPHY OF MATERIALS ON

    things: identifying possible methods of meeting the INTERVIEWING

    client's stated goals and deciding which methods will Adler, How to Speak, How to Listen (1983). be used. The most important part of the whole

    process is making sure that both you and the client Binder and Price, Legal Interviewing and keep an open mind while exploring the alternatives. Counseling: A Client-Centered Approach (1977). In the words of Roger Fisher and William Ury,

    Focus on interests, not positions. Since important Dawson, You Can Get Anything You Want: decisions are up to the client, this openness must be Secrets of Power Negotiating (1990). actively communicated to the client.

     Epstein, Talking and Listening: A Guide to

     As suggested before, try to concentrate more the Helping Interview (1985).

    on the what type questions than the why type

    when you and the client are evaluating choices. In Fast, Body Language (1970). other words, ask:

     Fisher and Brown, Getting Together: Building

     --What alternatives could conceivably a Relationship That Gets to Yes (1988). address this problem? In exploring alternatives, it's

    best to first name them without judging them. This Fisher and Ury, Getting to Yes (1981). serves at least three purposes. First, it prevents the

    premature rejection of a creative idea. Second, it Gilligan, In A Different Voice (1986). gives you and the client the sense that you've

    exhausted all the alternatives and you've *24 reached Loftus and Doyle, Eyewitness Testimony: the best one. Third, it is helpful when entering into Civil and Criminal (1987).

    negotiations later on;

     Molyneaux and Lane, Effective Interviewing:

     --Which alternative would you like to Techniques and Analysis (1982).

    discuss first? Take three factors into account here.

    One is primacy, one is recency, and the third is status. Nierenberg, Fundamentals of Negotiating The order in which things are discussed, and who (1973).

    actually chooses the order, can greatly influence the

    decision; Stewart, Interviewing: Principles and

     Practices (1974).

     --What do you see as the advantages of this

    solution? Instead of challenging the client, get the Tannen, You Just Don't Understand (1990). client to articulate his or her own views about what is

    productive about this solution; Watson, The Lawyer in the Interviewing and

     Counseling Process (1976).

     --What do you see as the disadvantages of

    this solution? and What consequences will Yarmey, The Psychology of Eyewitness probably follow from the implementation of this Testimony (1979).

    solution? In addition to understanding the cause and

     effect relationships inherent in certain decisions, it is

    important to be able to judge the likelihood that

    END OF DOCUMENT certain things will happen. Once that is done, clients

    can compare choices by comparing their likelihood of success, among other things; and

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