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Lawyer Counseling: Part IV

Shafer and Elkins conclude with some practical tips about client interviews:

25. Be especially careful with “why” questions. “Why” questions connote disapproval, displeasure, insinuate that the client has done wrong or behaved badly. “Why” questions put the client on the defensive.

26. Be aware of clients’ non-verbal communications – what people tell us without trying. Watch for tenseness, rigid posture, clenched hands, facial expressions, dress, physical condition, gait, tears. If tears come, try acknowledging them sympathetically e.g. “You’re having some feelings…” Then wait quietly and respectfully for the client’s composure to return. Keep tissues nearby.

26. Be aware of your own non-verbal communications – the unstated message of your law office environment, your dress, sitting across from instead of next to the client, extensive note-taking with eyes down, etc. Engage the client, don’t just encounter her.

27. Be especially aware of the client’s opening and closing sentences. The opening sentence may tell you what’s uppermost on your client’s mind. Her last sentence may tell you the most about her perception of your lawyer-client relationship.

28. If the client shifts the conversation abruptly, it may be a defensive maneuver, away from something he doesn’t want to discuss. Try, “Did you want to say more about _____?”

29. Listen for recurrent themes and references. They may reflect deep client concern. Try, “I believe you mentioned ____ several times. Is there something more you wanted me to know about that?”

30. Listen for inconsistencies and gaps. What the client leaves out may be most important. Try, “I’m trying to make the connection between _____ and ____. Can you help me with that?”

31. Giving the client feedback can be helpful, but be sure it’s non-judgmental. In giving feedback, stick with your reactions. Don’t try to describe the client’s behavior, e.g. “I sensed that you were distracted” rather than, “You weren’t listening”. Then follow up with something constructive, e.g. “Would it help if we went over that again?”

32. Don’t give feedback without an invitation from the client. It’s best if the feedback invitation originates with the client, e.g. your client asks, “Do you think I’m being selfish?” or “Does it sound as though I’m fooling myself about this matter?” If the client doesn’t invite feedback, you might invite yourself but first ask permission e.g. “Would you like some feedback from me about our conversation to this point?” If invited, begin with something like “This is what I’m hearing: …”

33. Like TV’s wrinkled detective Colombo played by Peter Falk, let the client know you’re struggling to understand her story and its meaning. If you discover something the client isn’t aware of, try, “Let me see if I understand” rather than, “Isn’t it true that…?” Try, “I don’t understand” rather than “What do you mean by…?”

34. Open-ended, non-judgmental questions work better. Save cross-examination and leading questions for the courtroom.

35. Let the client set the pace. If the pace is too slow, the client will become bored, which often means angry with the lawyer. If the pace is too fast, the client may become confused, and that comes across to the client as rejection by the lawyer – which it usually is.

36. Be Colombo.

Gerald Le Van

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