1.2 Client Interviews
You should not think of interviewing as a generic skill. Interviewing clients takes a different skill than interviewing neutral witnesses, interested witnesses, or hostile witnesses.
The appropriate interviewing model depends on the eagerness of the interviewee to talk. The interviewing techniques will differ from the situation where the interviewee does not trust the lawyer and does not see it in his best interest to talk. The following model assumes a basic willingness on the part of the interviewee to talk, and uses the client as an example. It expects that the client has thought out or is in the process of thinking out their problem and its legal implications, and is willing to trust the lawyer with a full description of the problem. The following model also assumes a client-centered approach to information gathering in which the lawyer is viewed as a professional, capable and desirous of, first and foremost serving the client’s interests. Finally, this model assumes that the lawyer subverts their self interest to the interests and goals of the client 1.2.1 Goals of The Client Versus Goals of The Lawyer| CLIENT GOALS | LAWYER GOALS |
| To get and give information that can solve their problem | To get legally relevant information that is “valid,” complete, and accurate |
| To get reassurance | To get information that is likely to lead to other relevant information |
| To get empathy and an empathetic ear | To develop rapport |
| To get recognition | To begin to evaluate the client as a possible witness |
| Catharsis | |
| Assess the lawyer | |
| Determine cost |
A number of goals are in conflict here.
The reassurance and sympathy (as opposed to empathy) needed by the client may not be the lawyer’s to give. Cost may also get in the way of the client’s giving complete information. The lawyer’s need to evaluate the client’s case may also block the information exchange. These goal conflicts create competing motivations, which can be described as inhibitors and facilitators.| Inhibitors include: | |
| Ego threat | The client withholds information that threatens self esteem |
| Case threat | The client withholds information that threatens their view of the case and its result |
| Role expectations | The client may expect that the lawyer will take control and do the questioning and may be too quiet |
| Etiquette barrier | The client and lawyer may think that there are things one does not talk about information related to personal finances, religion, politics, or sexual conduct |
| Trauma | The client may resist thinking about unpleasant memories such as anger, bad conduct, injury, or embarrassment |
| Perceived irrelevance | The client may feel there is no need to provide this detailed information |
| Greater need | The client may be unwilling or unable to attend to the lawyer’s question because he feels there is something more important that the lawyer needs to know that the lawyer hasn’t asked about, or that the client has avoided saying |
| Forgetting | Memories fade, people perceive things differently1 |
| Chronological confusion | The client recalls events but is unsure of sequence |
| Inferential confusion | The client is desirous of a certain result and infers facts from the desire; he knows the employee is honest so he infers the client would have told him if something went wrong, and therefore must have told him all was going well—the confusion could either be from induction or deduction |
In order to counteract these inhibitors the lawyer must use certain facilitators.
More will be said about these in the section on Witness Interviewing.| Facilitators include: | |
| Empathetic understanding | Including various probes and active listening skills2 |
| Fulfilling expectations | Lawyer may say, “I understand how hard it is to recall; I’ve often had that difficulty myself. Often I find, however, that if I concentrate for awhile, and try to put myself back in time and place, things start to come back. So take your time and think a little more” (Use memory flood) |
| Recognition | Lawyer may say, “You’re doing a good job” or “That’s important—what you have said so far” |
| Extrinsic rewards | Where appropriate, the lawyer might say, “This information will be helpful in avoiding liability” |
| Catharsis | Where the lawyer determines that the client is inhibited by strongly held emotions, the lawyer might try to release them by encouraging their expression, in order that the witness can put them behind him and give more detail |
| Need for meaning | The lawyer might create cognitive dissonance by raising conflicting information, in order to spur the client into giving more information. If the lawyer uses this technique he should raise the conflict as coming from the opposition, or the jury, or the judge, rather than from the lawyer, in order to protect the client from a feeling that the lawyer is not on the client’s side. The lawyer might say, “You know a judge might be curious about this letter? Does it not indicate you knew at the time you renewed the insurance that you had a problem? How would we answer the judge’s concern?” |
The following interview model is offered so the lawyer can start to control behavior and make choices about what he does and asks about, rather than to simply react.
Skills learning models are not meant to be cookbook tricks for successful client relationships, but are meant to allow the lawyer to ask questions, not because he can’t think of anything else to say, but because he has a reason for asking a question.1.2.3.1 A “Bucket Bailer” Approach
The “bucket bailer” approach proceeds from the perspective that client interviewing is like bailing out a boat with a bucket. The client or business wants their boat bailed of the litigation problem, so that the client’s boat doesn’t sink. It wants the lawyer to either empty or carry the load. It is much more efficient for the client to give first than for the lawyer to give the scope of the problem, and how it is affecting its business, than for the lawyer to guess what is going on. Using the bailing the analogy, it is better for the lawyer to use big buckets to bail out the client’s boat, than to use cups or ladles. Question form relates to the size of the bailing instrument. The “bigger” the question, the more efficient the bailing.
The exercise playing “Twenty Questions” helps demonstrate this point. It also reminds the lawyer how important the form of the question is to getting the witness to talk (the old who-what-when-where-why approach).
| Examples of open ended questions | |
| What can I do for you? | How did it happen? |
| What happened? | Why did this happen? |
| What else happened? | When was this? |
| Describe what happened. | Who was involved? |
| Explain that to me some more. | Where did the events take place? |
Please tell me all you can.
To guard against making false assumptions, and creating too passive a role for the interviewee (making it too easy for him to fail to disclose threatening information and prolonging the interviewing process), the funnel approach attempts open questions first, and saves more directed questions for follow up, detail, confirmation, and theory verification.
1.2.4 Ice BreakingIf it is true that a willing interviewee provides better, more complete information, faster than a reluctant interviewee, then taking the time to look to the client’s comfort is worth some thought and preparation. Remember, the psychiatrist places the interviewee on the couch for good reasons. While the couch is a little much for the lawyer, picking a non-threatening place (around the coffee table on a couch) may facilitate comfort and rapport. Asking after the person’s health and welfare, offering a beverage, and talking weather or sports, communicates far more than one might expect. It communicates a broader interest in the client and develops the rapport that can lead to trust and a full and frank conversation.
Also, if you pick the right ice breaker you can get valuable information about the case. (For example, “How’s business?” or “You taking a vacation this summer?” can tell you much that may relate to the case.) Ice breaking also sends the message that this person is important to you, rather than some cog in a legal production assembly line.
Leave the statistical information to your secretary or receptionist. Develop a routine about fees. Usually it is best not to lead with this but to raise it where it may become an issue or at the end when you can make a better assessment of what arrangement you need to make. (You have professional responsibility obligations to explain the nature of your fee structure.)