Академический Документы
Профессиональный Документы
Культура Документы
OUTLINE
course of action will satisfy one or more needs without unduly interfering with others.
Self-esteem is usually a very high need.
B. Motivation in Legal Interviews
Try to get information from clients even if embarrassed. Might be a situation
where inclusive, yet non-threatening question might be asked: Example: So, how long
have you been gay?
Most Common Psychological Factors. 2 types (inhibitors and facilitators)
1. Inhibitors can intertwine; seven factors; not mutually exclusive
a. Ego Threat very common; lawyer must recognize -- Can range from
mild embarrassment to strong feelings of guild or shame. The client is
often afraid of knowledge becoming public; key to overcoming ego threat is
conveying a sense that you will never breach confidentiality.
b. Case Threat Need to get client to tell everything, so you can help.
Sometimes, client feels that revealing certain information will hurt the
case or that telling information to lawyer means it will come out at trial.
Example: passengers in a car wont say driver has been drinking. If you
evaluate your witnesses in a positive, confident manner, they will treat you
in the same way. You want to build self-esteem. You need to know
everything, however. Case threat also appears with witnesses.
c. Role Expectations beliefs people have about what kind of behavior is
appropriate within the confines of a particular relationship. Many times the
client sees you in power position; usually the client is afraid. Client might
perceive that if a topic is not discussed, it probably is not important.
Realize these roles and create a relaxed atmosphere where the client can
speak freely.
d. Etiquette Barrier Some people only communicate with like persons.
You need to convey to client that NO TOPIC IS TABOO, and that nothing
should be withheld; client should feel its OK to talk. Usually involves (1)
sexual matters or (2) violence. Client may not want to discuss info that will
be shocking or uncomfortable to the attorney. Example: sexual
dysfunction told by male client to female attorney. Clear the air or the client
will not open up.
e. Trauma When witness/client recalls experience which evokes negative
feelings, client relives the trauma. This can really affect a testimony.
Example: Fear, anger, humiliation, or sadness. Recognize and let the client
get comfortable dont force issue. Sometimes good to change subject and
refocus client/witness.
FACILITATORS
Empathetic understanding
Fulfilling expectations
Recognition
Altruistic appeals
Extrinsic reward
[all can be used to get client participation]
Some people dont perfect their listening skills because they experience discomfort
at first. You will perfect listening skills over time. Be genuine. Active listening enhances
your skills.
Let a client speak if he begins to outpour. Remember that although the client may
be experiencing very negative feelings, they may be positive about the overall outcome of
the interview with you.
Your goal is to gain information. Do not probe for voyeuristic reasons. If you fail
to gather full amount of information because emotions hindered you, you are not
exercising professional responsibility
E. How Much Active Listening
Purpose of the active listening response is to provide non-judgmental
understanding and thereby stimulate full client participation. Goal is to help client feel
free to discuss and think about their situation in a comfortable and open manner. Build
rapport. Will vary from client to client. USE ACTIVE LISTENING and figure out
how much rapport needs to be developed. Exercise good judgment.
IV.
leading questions, pressuring the client for too much detail, obtaining conclusions
which distort].
V.
The Three Staged Interview Process: (1) Preliminary Problem Identification with obory
Explanation (2) Chronological Overview and (3) Theory Development and Verification.
A. Preliminary Problem ID
Step by step tell me what happened find:
(1) Underlying transaction which caused the situation and
(2) Relief client desires
(Client will tell you what is important; concludes with a summary of situation);
what are clients concerns?; get the facts what happened?; find out clients expectations,
what client wants to do about situation
Advantages: Empathetic, client tells story, builds trust
Key things to solicit: (1) statute of limitations (2) where situation happened
jurisdiction (3) try to find what remedy the client desires. (Perhaps not litigation)
Example questions: How can I help you What brings you here today what
can I do for you
Example Statements: Give me a brief description of your situation, how it arose, and
what solutions you hope to find tell me about your situation, how it came about, and
what you think youd like to have done about it Dont get too narrow. Use good
transitions such as can you tell me a bit more about that?
Preparatory Explanation Explain how long the interview will take; what going to cover; you want to set
proper expectations. This depends on the sophistication of client. Ask: Have you been
to an attorney before? Mention attorney/client confidentiality & privilege. You want to
establish client expectations, or else the clients uncertainty may turn to frustration. Tailor
to clients sophistication (1) brief description of what will take place (2) explain that at
the conclusion (Theory Development Stage), you will explain rights as well as solutions.
If you need to do research, tell this to the client. Tell client you will jot down some notes.
B. Chronological Overview Stage
Gather 80-85% of facts here using active listening skills. Client should be left free to
answer and tell their story. You may interrupt to clarify. Example: who is she
Goals here: (1) Obtain the nature of problem/situation (2) what led up to it and (3)
what are the consequences. Dont assume the client will begin the story in the
chronologically relevant place. Ask client to back up. If you use open-ended questions
you can sit back and listen. The client is encouraged to provide a step-by-step
chronological narrative of the past transaction which underlies the clients problem [client
will remember better]. Tell the client he is doing a good job: facilitator / recognition
KEEP GOOD EYE CONTACT. WRITE CLIENT NAME DOWN & USE
C. Theory Development and Verification Stage
Lawyer mentally reviews the entire story to determine what potential causes of
action and possible defenses are available. Need to bring up ALL potential claims. Wait
until this point to list options. Do not give a premature diagnosis. Watch your
questions to make sure they support the cause of action for this point. Remember that
what client tells you is usually the tip of the iceberg
Send client all correspondences including briefs.
Agree to meet again later and research, learn more from client, or refer client to
another lawyer.
Figure out (1) what topics to investigate (2) proof [documents, witnesses] (3) in what
order should the causes be examined here a checklist comes in handy. Should conclude
interview with understanding of the issues and what clients needs (wants). Give the
client something to do for you [bring documents back to you, bills, records, hospital
reports, tickets etc]. If you have a solid case, sign the client up. Explain how payment
works: contingency, retainer etc.
T-Funneling: focus into finer and finer points. Lawyer should determine (1) what
legal theories are possibly applicable, and (2) which of the possibly applicable theories
are potentially viable.
Research line: I want to make sure I am absolutely up to date on the law before we
discuss what we might do.
VI. Chapter Seven Witness Interviewing
Have idea of facts and develop a theory.
Four Necessary Fact Sets:
(1)
Facts establishing the existence or nonexistence of the substantive
elements entitling the plaintiff to relief;
(2)
Facts corroborating the clients version of the case;
(3)
Facts constituting the adversarys version of the case; and
(4)
Facts contradicting the adversarys version of the case.
It is sometimes difficult to motivate witnesses. Witnesses may feel threatened
by lawyers. Rapport is the key.
Facilitators: (1) substitute rewards [tell witness not to hide behind their
statements] (2) altruistic appeals [civic duty you could keep an innocent
man from going to jail]. Dont tell witness what to say, but how to say it.
10
Dont always buy the I dont know. Say if you were in my shoes, you
would want to do what I am doing.
VII. Chapter Eight The Nature of the Counseling Process
It is the clients case and as a matter of professional responsibility the client makes
the (nonlegal) decisions. Remember to take into account (1) economic and social
consequences and (2) client has to live with decision (implications). (You dont go to jail
with your client)
Look at alternatives: what can I do? And what should I do? You & the client. Never
be afraid to confront client with reality of their case. We have a problem. Tell them the
economic ramifications of the legalities of court. Litigate, settle, alternative bases, or
similar criminal cases.
Do not blind plea get to know the judges positions on issues. Be realistic. Develop a
process of looking at consequences [assets & liability] and predicting consequences. This
is a selective intuitive process.
VIII.
11