Initial Interview with a Client

Client interviewing is one of the most important skills required of a lawyer. The primary aims of an initial interview are to establish good working relations with a client, to gather information and ascertain the facts of the case, to develop a theory of the legal issue involved and to create a feeling of confidence in the client as to lawyer’s professionalism, competence and commitment to their case. A lawyer should plan the first interview with a potential client in advance. This will allow him or her to determine what is relevant and to structure the interview so that all the relevant information is obtained. Nevertheless, the constituent parts of a typical interview include listening, questioning and advising.

All initial interviews typically begin with so-called ice breaking, where a lawyer gets a client to talk, engaging him in a brief small talk. The topics of a small talk are quite diverse. You as a lawyer may ask the client whether he had any trouble finding the office or finding a place to park, apologize if he had to wait, get him to give you a bit of personal background about himself. You may also determine if the client needs to place any time constraints on the length of the interview. It is a good idea to advise the client on the confidentiality of your communication at the very beginning of the consultation. It is also essential to discuss fees you are going to charge. The rules of professional conduct require that the fees must be reasonable. There are several factors which are taken into account in determining whether a lawyer's fee is reasonable, i.e., the time and labour involved, the novelty and difficulty of the question involved, the skill required to perform the legal service properly, the likelihood that acceptance of the fee will preclude other employment by the lawyer, the time limitations imposed by the circumstances and/or the client, reputation and ability of the lawyer.

To get a clear picture of the client's goals and concerns, a lawyer ought to employ essential listening skills. Listening is different from hearing as it involves deep mental analysis of what you have heard: it includes the way in which things are said, and the body language displayed while they are being said. To show the client that a lawyer is listening to him attentively it is important for the latter to give continuous feedback in the form of short phrases. It is a good idea to encourage the client to speak by using phrases and words like ‘I see’, ‘that’s interesting’, ‘go on’, ‘right’, ‘yes’, etc. Even meaningless encouraging noises (‘mmm’, ‘uh-huh’, etc.) can be helpful in this context. Feedback may also be used to summarize what s/he has been told by the client and clarify it with the client. This process allows the lawyer to investigate further the matters being summarized and invite the client to expand upon or clarify certain issues. Proper feedback helps to encourage the client to communicate with the lawyer, for example, when the client seems to lack confidence about the relevance of an issue. Giving positive feedback at this stage enables the lawyer to obtain fuller information from the client than might otherwise be possible.

It is important for a lawyer to demonstrate interest in the client and in what the client is telling him, paying attention to the body language in this regard. Speaking to a client a lawyer should face him squarely, adopting an open posture that indicates involvement and suggests that you are receptive to the client. A slight lean forward will also show the interest in the client. Eye contact indicates lawyer’s concern and interest as well.

Effective listening is impossible without clarification and asking questions. When a lawyer wishes to probe, he usually starts with open-ended questions, e.g., who, what, when, where, why, and how, and follows that with specific narrow questions, which require short answers, for example: What was your best offer then? An interviewer can not do without closed questions that can only be answered with “yes” or “no”. Leading questions are a particular kind of closed question in which the question contains the answer. Disjunctive questions perfectly serve this purpose. These kinds of questions are useful in client interviews when you require specific information or admissions of specific facts from the client.

A common problem in interviews is that the client may become confused or frustrated because he cannot see the connection between the questions he is being asked and the issue on which he is seeking the advice. The client never thinks like a lawyer, and may therefore perceive the questions as irrelevant. The only way to tackle this problem is to explain carefully to the client why the question is relevant to the issue on which the advice is being sought.

After receiving all the necessary information from the client a lawyer proceeds to advising him on the case. It may be best to start by identifying the client’s aims concerning the outcome of the case and top priorities. Then a lawyer provides the client with a quick rundown of the applicable law and outlines the client’s options. Finally, a lawyer and a client must agree what follow-up actions are to be taken.

Advising a client a lawyer must try to avoid using legal jargon. Jargon has its uses within the legal community –it is a shared language full of familiar terms and common expressions. But it is likely to mystify and alienate the client. If a lawyer wants to be an effective interviewer and a communicator he should speak plainly, using everyday terms and find alternatives for legal jargon.

When you as a lawyer have to deal with difficult or sensitive subject or difficult or sensitive people, it is sensible to choose words carefully. There are a few suggestions which may soften the way in which you express yourself. The use of “would, could or might” makes what you say sound more tentative. For example, you might say, ‘this could be a problem’ instead of ‘this is a problem’, in order to leave open the possibility that it may be possible to find a solution to the problem. If you present your view as a question rather than a statement, it will indicate that you are ready to leave the matter open for further discussion. For example, you might say, ‘how about offering them…? ’ instead of ‘we’ll offer them…’. The use of a comparative (better, more convenient) softens your message. For example, ‘It would be better if you could agree to… ’instead of ‘This proposal is not acceptable. We want...’

If you are going to conduct an initial interview with a client the following tips will be of great importance for you:

· Legal interviewing is not just about obtaining information. It helps establish an effective relationship with the client.

· Plan your interview, but leave enough flexibility and time for the client to be treated as an individual with a unique set of issues.

· Show empathy, rather than sympathy, with the client's situation.

· Pay attention to your behaviour when the client is speaking. Stay attentive and interested.

· ‘Listen’ to the non-verbal signals the client sends out as well as the words they say.

· Clarify what the client tells you by paraphrasing or questioning.

· If necessary, take notes to help you remember key information.

· Offer potential solutions to the client, but let them decide which course of action to pursue.

· Listen to the client's worries. Be clear about fees and timescales.

 

 

EXERCISES

Exercise 1.

Read 2 lawyer-client interviews. Which techniques do lawyers use to establish a contact with a client and keep the conversation going? Study the checklist which is supposed to help a lawyer to prepare for and structure the first client interview. Which recommendations mentioned in the checklist do the lawyers follow? Support your ideas with the examples from the dialogues. Which points from the checklist have not been covered? What would you add to improve the dialogues?

Dialogue 1

Lawyer: Hello, Mr. Berger?

Client: That’s right.

Lawyer: I hope you’ve managed to find us alright?

Client: Yeah, no problem. Sorry I’m a bit late, by the way. I’ve got caught up in a bit of traffic by the railway station.

Lawyer: Yes, it’s terrible round there, isn’t it? They’ve been digging up the road for I don’t know how long – at least a year I guess. Putting in new gas pipes I’m told. But traffic’s a nightmare there at the best of times.

Client: Well, I’ll know for next time anyway.

Lawyer: Anyway, come on through. How can I help you?

Client: (looking at his watch): Right, well I’m a bit pushed, so I’ll get down to business, if you don’t mind.

Lawyer: Of course.

Client: Right. I’m the CEO of a local construction firm, Maynards, as you probably know, and I’m after some advice on employment issues, particularly on unfair dismissal. Basically, the problem I’ve encountered recently is that I discovered that one of my managers, Brian Turner, who came to us a year ago from a rival firm – had previously done time. He hadn’t disclosed the fact to us. Now I’ll tell you straight up, I’m strict on that sort of thing – I expect complete frankness from my people, and they know they’ll get the same from me in return. So I took the view this was a serious breach of trust and decided he had to quit.

Lawyer: Sorry to interrupt, but on what date did this happen?

Client (takes out a diary): Just a moment... Right, here it is – exactly four weeks ago.

Lawyer: (makes notes): Thank you. Please carry on.

Client: Yes. So the issue we’re facing now is that he’s threatening to take us to the employment tribunal for unfair dismissal.

Lawyer: OK, I see the problem. Do you happen to know what Mr. Turner was sent to prison for – what offence – and how long ago was this?

Client: No, I don’t. Are those relevant issues?

Lawyer: They are, yes. To put the thing in a nutshell, the whole issue essentially hinges on whether the conviction which led to Mr. Turner being sent to prison could be classified as a ‘spent conviction’ at the time he was dismissed. If it was a spent conviction, then the law says that dismissal is automatically unfair. If not, the question of whether it was unfair or not depends on a number of criteria that are really to do with Mr. Turner’s general conduct and capacity to do the work, but perhaps we can leave those issues to one side for a moment...

Client: I’m sorry but what does this ‘spent conviction’ thing actually mean?

Lawyer: Right, sorry. It comes from a bit of legislation called the Rehabilitation of Offenders Act. The general idea is that if you’re convicted of an offence – unless it’s extremely serious – and you’re sent down for less than 2.5 years, then your conviction will eventually be ‘spent’ if you’re not convicted again of another offence during a specified period. This is called the rehabilitation period. Generally speaking, the more severe a penalty is, the longer the rehabilitation period.

Client: OK, I get the point. So where do we go from here?

Lawyer: Well, I’d need to know (1) what offence Mr. Turner was convicted of, and (2) how long ago this was, and (3) whether he was convicted of any other offences in the rehabilitation period, in order to work out whether the conviction was spent at the time he was dismissed.

 

Dialogue 2

Client: Hello, Mr. Langston and thanks once again that you managed to fit me in at such short notice.

Lawyer: Not at all, Mr. Hall. I think the quicker we can work out a response to this matter the better. Now, let me see. I have here a copy of the original contract between Pixeltechnik and Digital Work and I also have a copy of the correspondence which was exchanged between the two companies. But can I start by asking you to describe what happened?

Client: Well, in June I was contacted by my production manager. He informed me that our random sampling was showing inconsistencies in every screen and that we were going to shut the production down.

Lawyer: Hmm…and what happened next?

Client: I joined him in the production area and we arranged a series of checks to find out what the problem was. It turned out to be a minor error in chemical processing. It meant that the screens were not consistently as bright as they should have been.

Lawyer: Could you explain to me what you mean by ‘not consistently’?

Client: Well, the screens might still have conformed to the agreed product specification, but they didn’t pass our stringent tests. And that’s what matters. You see, the whole process is patented. It means that our digital display screens can be seen perfectly – even in bright sunshine and…

Lawyer: Yes, but let me take you back to the question of these defects. Are you saying that the screens were not defective as defined in Annex 1 to the contract?

Client: I think as far as the contractual specifications are concerned the screens were probably still OK. But we knew there was a processing error. The screens might have developed malfunctions at a later stage. We just thought it was better for the reputation of Pixeltechnik not to take any risk.

Lawyer: Ok. Can you explain why you had to recall so many screens? 5, 000 wasn’t it?

Client: At first, we thought only one batch – 500 units – were affected. But when we checked it became clear that we had had the error for about ten days.

Lawyer: So, if I understand you correctly, you are saying that your production manager only found the production error ten days after it started.

Client: I’m afraid, that’s right. For ten days the test results showed slight inconsistencies in screen brightness but it seems that our technicians misinterpreted the results and thought the screens were fine.

Lawyer: What did your company do then?

Client: We contacted Digital Work immediately and informed them about the product recall.

Lawyer: And how did they react?

Client: They were not very pleased but we agreed on a schedule for delivery of 5, 000 screens and Pixeltechnik accepted the full financial consequences of late delivery.

Lawyer: This would be clause 1.4 …er… ‘for every week or part thereof by which the delivery date is exceeded, the purchaser can reduce the agreed price for the order by 2%.

Client: Quite a lot of money, I might add.

Lawyer: Have you calculated precisely how much?

Client: I haven’t got the exact figures from our Finance Manager yet, but it’s somewhere about 15, 000 euros.

Lawyer: So, reasonable compensation for any inconveniences, I suppose.

Client: Indeed.

Lawyer: Did you deliver the 5, 000 screens according to the agreed schedule?

Client: Yes, we did. And the product quality was 100 % as well. That’s why I was so shocked to receive this letter yesterday. I mean, they can’t just terminate the contract with 21 days’ notice, can they? Surely this is breach of contract.

Lawyer: Well, they are invoking clause 8.1, which refers to unsatisfactory performance. That could be a slight problem for us. Was this the first time you had had the quality problems?

Client: Yes, it was. In my view, it’s completely unfair. We did a lot of development work on our product – just for Digital Work – and we won’t begin to make a profit on this deal until after two years of production. So, if we get thrown out of this contract now, we’ll suffer an enormous loss.

Lawyer: I suppose that’s why the contract was to run for a minimum of two years.

Client: Exactly. And our patented product really gave Digital Work the edge over its competitors.

Lawyer: I must say, it does seem unfair. It’s possible that Digital Work could be using this production problem as an excuse to get out of the contract that it no longer wants for strategic reasons.

Client: But is there anything we can do about it?

Lawyer: Well, as I see it, Digital Work’s conduct goes against the whole spirit of your agreement. In view of this, our best option would be to refer to a dispute resolution clause in your contract and then start to prepare for legal action. I will ask you to provide me with the following documents: …

 

 

CHECKLIST Opening · Greet the client and conduct a preliminary small talk; · Find out client’s concerns and goals; · Explain preliminary matters including fees, retainer, what can and cannot be done for the client, and the nature and proposed structure of the interview. Listening and questioning · Listen actively to the client and show understanding of it; · Use appropriate questioning techniques (open, closed and leading questions) where necessary to prompt, clarify, prevent deviation or probe. · Identify the aims of the client; · Give feedback. Summarizing · Summarize the client’s goals; · Identify the relevant facts; · Identify deficiencies in the facts available; · Avoid giving premature legal advice; · Seek further information from the client. Advising · Give a brief introduction to the advising process; · Give a brief outline of the relevant law; · Outline the available legal and non-legal options; · Discuss the available options with the client. Concluding · Describe clearly the follow-up action to be taken by you as a lawyer; · Describe clearly the follow-up action to be taken by the client; · Give clear time-frames for action and future meetings; · Confirm the follow-up procedures with the client;

 

Exercise 2.

Make questions using words and word combinations given below. Use the correct tense form of the main verb. Do not forget about an auxiliary verb where necessary. Which questions are open-ended, narrow, closed, leading? Explain your point of view.

1. You/to expect/as a result of this/to lose/your customer?

2. What/to be/ the price of the shares?

3. What/to happen/to the CEO/during the meeting?

4. What/to be/for you/an ideal outcome?

5. This point/to be mentioned/in the contract, to be it?

6. Why/not support you/your colleagues?

7. Try/you/to contact/anybody else?

8. The goods/to have/to be delivered/within 30 days/didn’t they?

9. How/can/exactly/help you/I?

10. Fulfil/the obligations/completely/you?

Exercise 3.

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