To our loyal readers, posts will crawl to a minimum now that I am studying for finals.  Enjoy the NBA playoffs.

Please remember that the information in this blog is NOT LEGAL ADVICE. It is provided for EDUCATIONAL USE ONLY. If you need legal advice regarding a criminal matter, please contact a licensed attorney.

While you cannot file this one under the TV ratings conspiracy theory, this may fall under the conspiracy theory involving the NCAA wanting BCS teams to win national championships.  However, that is even pretty far out there for me to buy into.  Maybe, as a life-long tar heels fan, I really did not want to see Duke win.  However, they had a great team and hats off to them and Coach K.

I stumbled upon this while looking for the Hayward charge video.  It is “One Shining Moment” sans Jennifer Hudson.  Someone who could not win American Idol should not be singing the best montage in sports.  Take it away Luther Vandross:

“The selection committee knew the NCAA is in the process of deciding whether to opt out of the final three years (2011-13) of its 11-year, $6 billion contract with CBS. If the contract is put on the open market, it is smart (TV) business to attempt to maximize – big-time – the 2010 tourney’s ratings.”  NY Daily News (commenting on why Duke was given the easiest regional bracket).

Clearly Zoubek did not have position and Baylor was posed to take over before the “and 1″ was taken away.

You make the call:

The attorney conference should take about 5 minutes. It takes place after the client has left. It gives the attorneys a chance to talk about the issues without the client present.

i. Talk about the issues

You are going to want to speak with your partner about the legal issues you see—especially the ones you do not want to mention in front of the client. It is also important to talk about your reaction to the client; whether you thought they were being truthful or not, or even whether you believe they will be able to pay your attorneys’ fees. It is also important to talk openly and debate whether it is even worth taking the case on.

ii. Ethics

The ABA is big on ethics and they will usually put some sort of ethical problem in the fact pattern. This could be something like you have represented the adverse party, the client has already spoken with another attorney, or the client has asked you to do something illegal. It is important to address the issues to let the judge know you have noticed them. If you are unsure of what to do, you can always say, “I will call the ABA ethics 1-800 number and see what our ethical obligations are.” Also, make sure to say something about your attorney is running a check for any conflicts of interest.

iii. Make a list.

Talk with your attorney on the things you need to do, legal questions you need to research, and people you need talk with before the next client meeting. I would also suggest writing this down as you are making the list. One judge advised our team that we listed all these great things to do but we did not write them down; in the real world you will have a million other things to do and will forget about what you talked about if you did not write it down.

Good luck

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c. Ending

The ending of the client consultation is where you need to cross your t’s and dot your i’s. Unlike the middle of the round, here the attorneys should be doing most of the talking. Attorneys should be making sure that anything the client wanted addressed in their consolation is addressed.

i.  Catering to the client’s needs

After an attorney has “looped” a clients narrative back to them, it is time to make sure the client is satisfied with the meeting. This can be accomplished by asking questions like “based on our conversation today, do you have any other questions for us?”. Or “Is there any question you have that we have not addressed?”. These questions make sure you satisfy the client by directly asking them if they are satisfied, instead of just guessing.

At this point, I also like conveying to the client what I believe the theme of their case to be. For instance, “you were following your boss’s orders and the cops arrested you”. Another example would be “it seems like you have not had a lot of hands on action”. This is an effective way to summarize the 45 minutes into one sentence and show the client you have been listening the whole time. Furthermore, if you have missed something, the client has the opportunity to correct you.

ii.  Right to an attorney

Again this is a good time to remind the client that they have a right to an attorney and should not talk to authorities without one. Reminding the client of this helps meet ethical obligations and will score points with the judges. “Keep in mind if you choose to retain us, or go with someone else, make sure you do not speak with anyone without council present. This includes cellmates, relatives, coworkers, etc. This is your constitutional right and we suggest you exercise it to prevent any incrimination on your part.”

iii.  Attorneys’ Fees

At some point in the round, you have to talk about fees with the client. Our team chose to do this at the end because it seemed evasive and off putting to do in the introduction when the client does not know you. Better for them to see how good of an attorney you are before discussing your hourly rate.

We actually made packets much like large firms do. These consisted of a bound folder with a fee schedule and hourly rates inside. The judges complimented us on these and I would suggest other teams utilize them. We also had business cards which we would give the clients. We would write a cell phone number on the back and hand a card to the clients. This was a nice personal touch which the judges also liked.

The script went something like this:

“If you do choose to retain us, we each charge $200 an hour, which is comparable to, if not below, market rates. ” Maybe… “we can reduce the fees for a financial hardship”
“Everything is summarized in this packet you can take home with you and review at your convenience.”
“Here is our card, our # is on the back of the card, we understand the seriousness of your charge, feel free to contact us day or night, especially if your circumstances change.

iv.  Wrapping it up

Along with the small talk in the beginning, wrapping it up can be one of the most awkward parts. It takes practice to be able to smoothly transition into kicking the client out the door. At this point, you want to also convey to the client what you will be doing if they choose to retain you. We would usually start with “It has been a pleasure meeting you, if you make the decision to go with us, we will start looking into the issues”. “We will send you an engagement letter shortly.”

Just as it is important to tell the client what you will be doing, it is also important to convey what the client needs to do. My partner would be writing on a sticky note throughout the process of what we needed from the client. Every time we asked the client about something and he told us he could get it, we marked it down. Usually these were subpoenas, warrants, files, contact information for witnesses, etc. My partner would usually say, “we will need you to produce those documents we wrote down and give us the names and contact info of the witnesses”. Then she would put the sticky note on the billing packet. You can also tell a client that you will need to schedule a follow up interview after legal research has been conducted. Also, make sure to recap any options the client has at the end of the meeting. Tell the client to follow up with you or that you will call them.

Finally, I liked to end the meeting with something positive. I would usually tell them, “We hope we have been helpful, you are not out of the woods, but coming to us was a good first step”. Also, you may need to establish why it was a good first step. For instance, if they have a very small time frame to make a decision or they are about to be arrested.

Shake the client’s hand and then walk them out the door.

Facts: The General Allotment Act of 1887 gave each male Sioux head of household 320 acres of land and most other individuals 160 acres. Act provided that the allotted land would be held in trust by the US. Rather than farm the land, the Sioux leased the land to white farmers and lived off of the rentals. But, over time, there was a great fractionation of interests on land; therefore, a small piece of land was owned by hundreds of people. This made a bookkeeping nightmare when distributing rents to the owner. With § 207 of the Land Consolidation Act, Congress tried to say than no fractional interest of less than 2% could pass by intestacy or devise; but instead escheat to the tribe.

Issue: Does the “escheat” provision of the Indian Land Consolidation Act affect a taking of property without just compensation?

Holding: Inappropriate for the government to abolish both descent and devise of these property interests; §207 frustrated even when the passing of the property to the heir might result in the consolidation of property.

Here the right of people to pass property by hership or by will is being taken away. The court identifies the ability to pass property on after death is a valuable right which cannot be substituted by complicated intervivos measures (revocable trusts). The court holding cedes that this may be a taking, but States have great latitude to regulate the descent and devise of property.

Hodel modifies assumed complete governmental power to abolish rights to transmit that had never been tested; it only irresolutely establishes a farther boundary, does not influence any of the normal regulations found in state law on the right to transmit.

A little G&R to get you through your day

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.