1.3 The Three-Stage Interview

1. The “Emotional Deck Clearing” stage

2. The “Problem Skeleton (or ‘Overview’)” stage

3. The “Early Theory Verification (or smaller, ‘Ladle’)” stage

A three-stage interview is a flexible, useful model for thinking about the interview itself.

First is a preliminary problem identification stage, which can be labeled “Emotional Deck Clearing.” It is best thought of as a broad survey of the problem and how it is affecting the client and his business. Second is the “Problem Skeleton” or “Overview” stage. The final is “Early Theory Verification,” or smaller “Ladle” stage. 1.3.1 The “Emotional Deck Clearing” Stage

The “Emotional Deck Clearing” stage is a time for the witness to tell you what is most important to him for you to hear. It helps the lawyer get an overview of both what the client knows and how he feels about the situation. It also helps the lawyer guard against making false assumptions, and making inappropriate recommendations, comments, asking inartful questions, and becoming prematurely judgmental.

Open ended questions best prompt emotional deck clearing. The idea is to prolong the client’s description at least until the client asks for your input. The lawyer should interrupt as little as possible, hold taking notes until the problem overview stage, and use nonverbal probes to try to exhaust the client’s knowledge and feelings.

Probes. The following probes, designed to provoke more from the client, are arranged in order of directiveness. The more directive the interviewer’s probes, the more the lawyer risks narrowing too quickly and making false assumptions. Training through courses in law school and involvement in other cases are hard to shake (just as other patient cases are hard for doctors to shake when they take patient history), and early narrowing can lead to misdiagnosis.

Note taking and/or recording. Taking notes usually does not work well, especially in the first stage of the interview. There is too much going on and the interviewer must establish empathy and listening ability. You can always take notes when you are verifying your theories, or after drafting an interview memo that summarizes facts, by confirming times and dates with the client. Recording an interview is a possible alternative.³ Check your jurisdiction for whether recordings can be used for impeachment. Assess the taping’s effect on the client. (Can you offer taping as a cost savings, so that you need not pull away another lawyer or paralegal to take notes?) A better alternative may be a tablet notebook computer. This kind of laptop sits flat on the desk like a thin book, and the user simply writes in handwriting on the surface. This tablet then folds back so that the computer is configured like a regular notebook with a keyboard and a screen.

During this stage, find a beginning, middle and end to the story. You need a skeleton outline of what happened that you will use to give your story its life and personality, its motivations, and themes. Create a time line and fill in the client’s thoughts, feelings, and motivations before, during, and after each key event. Your questions will use time to direct the client to a sequence of events, but then use broad questions as buckets to bail out the client’s knowledge of the subject. “How did the situation first come to your attention?” “What steps did you first take to deal with it?” “What did you do immediately after that?” Also be on the look-out for nonevents and lasting conditions. In addition, think of the problem in terms of its broad topics. “How is this affecting your Management?” “How is it affecting your relations with … shareholders, bankers, suppliers, customers?” Bail with open questions first before you go after the details with questions asking for specific information: like time, and who was present, and how long the meetings lasted, and what exactly was said.⁵ 1.3.3 The “Early Theory Verification” Stage

Though you are still very early in the process, you should seek to confirm your understanding of what has been told. Your questioning technique now uses more leading questions. If the answers surprise you, you need to open back up and ask the client to explain, describe, and elaborate on what happened. You should also use restatement of what the client says, and reflection of what the client felt, in order to reach a good understanding, and to guard against your wrong assumptions or conflicting values.

Where appropriate you can start to confirm your legal theory, your factual theory, and your theme. One danger here! Where the client is hungry for assurance, he may hear these confirmations as advice about the success of his case.

Example Closing Statement:

Why don’t you get me copies of the following documents and correspondence? (Make a list.) While you are getting me these materials, I’m going to do some legal research and prepare a fact investigation plan as to where we go from here. I would predict that this work will take approximately ten hours. My billing rate at the firm is $450 per hour, and if I find out it will take longer than ten hours, I will get back to you to see what you want to do. Why don’t we then get together in a week and I can look over what you have, and I can counsel you on where we should go from there.

Theory Verification attempts to reach an understanding of the client’s position by confirming what has been said. It also is the place where the lawyer can most safely move into the role of writer and producer. More will be said on this in the Witness Interviewing Section.