b. The Middle
The middle of the interview is actually the longest segment. It is also the portion where the client will do the most talking. Although, as an attorney, you are going to need to ask follow up questions and explain the law to the client, you really want them telling you everything they can. The more the client talks, the more information you have to work with to make informed decisions.
i. “Seven Second Rule”
When I worked as an LSAT teacher at Kaplan, they taught us something called the seven second rule. This is where you ask aquestion to someone, and you do not say anything until there has been at least seven seconds of silence. Although this can make for some awkward pauses at times, it is helpful for a few reasons. First, because the client is going to feel as awkward as you do during the quiet points, usually they will continue to talk or say something to fill the void. This technique is an excellent way to receive information that the client would not have told you if you had started talking or asking them another question. Secondly, the 7 seconds of silence before you speak shows that you are really thinking about what they have just told you.
ii. Client background
Before going into the actual event that has brought the client to your office, it is good to find out a little bit about the client. Ask about their family, employment, or anything else that could have an impact on their current situation. A good way to start this conversation is by saying “tell us about your business.”
There is another reason for asking about the client’s background. One of the most important things you need to know when choosing to retain the client is if they can afford you. I do not think it looks good if you were to explain you fee schedule to them and then ask what they do for a living. This way you have the background information you need without being rude. If they tell you they are on welfare or are in bankruptcy, they are probably someone you don’t want to take on as a client. You also have the opportunity to see if they have other resources like wealthy parents or siblings.
iii. The Client’s Problem(s)
Once you have the necessary background information, you can ask the client to tell you about what happened on the day of the incident. During this phase of the conversation, ask very open ended questions and let the client talk. It is very important not to interrupt the client during their first narration of the story. It is also very important to not seem like you are judging the client. Instead of saying something like “what have you done”, instead ask something like “what are they saying you have done”. It can also be useful to continue to remind the client that he needs to be open and truthful with you since everything he says is confidential. For instance, saying something like “we are on your side, lay it all out there”, can help remind the client you are in fact his advocate “if he chooses to retain you”.
If you have points you are going to need to go back to and ask them about, write them down. Once they have proceeded through their first narration, then you can go deeper into the issues. If you interrupt the client, you may miss facts and you will never know that you need to further develop those issues.
A. Active Listening
It is important to give the impression to the client that you are genuinely interested in their problem. There are a few different ways to convey your interest to the client. Sitting up straight and leaning in towards the client are good mannerisms. Facial expressions can also be helpful. I personally like to have an “open face” when listening to a client. An “open face” means you make your eyes wide and raise you eyebrows. It may feel a little funny a first, but this is a technique that skilled plaintiff’s lawyers have been using for years to connect with juries. Avoid fidgeting, shaking your leg, playing with a pen, and writing down too much.
The jury is out on whether you should nod along with the story. After watching the ABA Client Counseling Competition videos from the past two years, I felt it was distracting when teams constantly nodded, especially in unison. I think at a few points in the story it may be useful, but as a general rule, I would refrain from moving your head. Instead focus more on facial expressions.
As for the actual listening, think about everything the person says, it is usually important. From the competition standpoint, there were only a few red herrings in the fact patterns. If the client tells you he is in business with his friend, make sure to ask for the friend’s name. If the memo says the client is worried about an illegal government contract, and he tells you the FBI showed up to his house saying his business was being investigated for anti-trust issues, ask him about the anti-trust accusation. If he tells you the FBI will be coming back to his house next week, you need to explain to the client their options in this short time period. If a man tells you he has not seen his boss since he was arrested for following the boss’s orders, ask him if he is still working or has a new job. Listening to the client is the difference between a good team and a great team in the ABA competition.
B. Developing the problem
After the client has finished his narration and you have waited through seven seconds of silence, you can begin to focus the issues. This can be done simply by asking “tell me more about…”. Make sure to use short declarative questions like “what do you remember” or “do you remember”. I suggest using the funnel sequence which is used in depositions. Start with broad open ended questions, and move to more narrow questions. Try to avoid using any legalese.
If something smells fishy and you don’t think the client is shooting straight with you, it is important you let them know (without alienating them or becoming judgmental) that you need to know the truth. This can be accomplished by asking “what is your explanation for …” or “this does not make sense, tell me how it happened”. Again it can be a good time to remind them of how the process works by saying, “only way this will work is if you tell me the truth, what else happened…”.
When building a case, you are going to need to talk with other individuals and witnesses. Another very important question to ask is if anyone can substantiate the client’s claims. Also ask will these individuals be willing to testify if this case were to go to court. Hopefully these individuals can be contacted before a follow up consolation.
In certain situations, it is important to know how the client felt during the event. If the client has not told you while narrating his story, ask them. Questions like “how have you felt about the events so far” or “how have these events made you feel” allow you to connect with the client on a kinesthetic level. These questions can also help you decide whether a client is in fact telling you everything. If the client tells you they do not know why they were arrested, you can follow up by questioning what was going through their mind when they were arrested. If they don’t say something regarding their surprise, they probably knew they were doing something wrong.
C. Recapping the Story
Telling the story back to the client as you understand it is a very important part of the client consultation process. This can be done by saying “it seems to me that …” or “so it sounds to us like this is your situation, correct us if we misunderstood”. Recapping shows the client that you are in fact listening to what they have told you. Recapping also allows you to make sure you have the story correct before you start advising the client on his legal options. If you have misunderstood something, this gives the client a chance to correct you. You want to make sure all your facts are straight before you start advising the client on the law.
D. Explaining the law and the client’s options
As one judge told me, it is important to have as many details as you can before you start explain the law to the client. Before you get to this stage, make sure you know everything you can and have exhausted your questioning. Once you are done questioning, explain the law to the client and how their facts fit into the law.
Tell the clients what you still need to look into (if they choose to retain you) and what their options are. If it is a criminal case, the options are usually: (i) case dropped; (2) settle case w/ DA; (3) take the case to trial. If it is a civil case, there are usually more options, but settlement and trial always exist. For ethical reasons, make sure you tell the client that the ultimate choice of which option to pursue is theirs, you can merely advise them in their choice.
It is also important to explain to the client what his causes of actions are against others and who has causes of actions against them. In other words, explain “who can sue you” and “who can you sue”.
Parts III and IV to follow.
Recent Comments