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Interviewing, Counseling and Negotiating
University of South Carolina School of Law
Connolly, Kim Diana

Counselor-at-Law Chapter 1- Three Models Of Legal Counseling
I.    Introduction-Studies show that clients judge lawyers primarily by their relational skills
with clients, not by their advocacy skills or the results obtained.
II. The Authoritarian Model “The Guru”
A. Definition-A lawyer who exercises “predominant control over and
responsibility for the problem-solving delegated to him passively by the client.
B. Assumptions of the Model (p. 2):
1.   Lawyers are able to give adequate and effective service;
2.   Lawyers are able to be disinterested and make objective decisions;
3.   There is usually a correct solution to a legal problem; and
4.   Lawyers are experts in the legal information needed to arrive at the correct solution
C. Problems with the Authoritarian Model (p. 3):
1.   Inconsistent with client dignity and the ability of clients to make the decisions that affect them;
2.   Client control is likely to yield better results, because of the goals held by the clients themselves;
3.   Clients are the best judges of their own interests;
4.      Inconsistent with professional responsibility rules
III. The Client-Centered Model “The Hired Gun”
A. Based on a belief in autonomy, intelligence, dignity and basic morality of the individual client
B. Definition includes several elements (p. 5):
(1)               1. Lawyer helps identify problems from a client’s prespective;
(2)               2. Lawyer actively involves client in the process of exploring solutions;
(3)               3. Lawyer and client identify consequences to client of each option;
4.   Lawyer encourages client to make decisions with substantial legal/nonlegal impact;
5.   Lawyer accepts client’s values and gives advice based on them;
6.      Lawyer acknowledges client’s feelings and recognizes their
7.   Lawyer repeatedly conveys a desire to help
A. Problems with the Client-Centered Model (p. 5-6):
1.   Decisions made solely in the client’s interests;
2.   “One size fits all approach”-sometimes, clients want lawyers to make decisions for them;
3.      Lacks the flexability to deal with a variety of client demands for legal services;
4.      May deny clients the very thing they are searching for: help in making legal decisions
IV. The Collaborative Decision-Making Model
A.    Designed for the client to make the decisions, but for the lawyer to structure
the process and provide advice in a manner likely to yield wise decisions.
B. Benefits over other models (p. 7):
1. Provides an opportunity to consider the effects of decisions on others;
2. Provides an opportunity for the lawyer to use “practical wisdom”
a. The ability to make “wose judgments”
b.      Acting like a friend to the client, taking their interest seriously and having a wish to see them advanced.
Chapter 2 – The Games Lawyers Play
2.                  The games lawyers play: How lawyers control clients (chapter 2 Counselor at Law)
1.                  Rosenthal’s authoritarian lawyer appears to be alive and well. Lawyers control the content, sequence, and structure of face to face meetings with their clients. By doing this, they control the frame in which the client’s case is presented. Therefore, everything is steered toward what is most comfortable for the lawyer
2.                  The one exception to this is in the corporate environment. Corporate lawyers are the bitches of their clients.[1] They are played, manipulated, and trained to serve their client. Therefore, the client centered approach is prominent in the corporate environment.
3.                  The ways a lawyer controls the clients case
1.                  Transforming the clients case
1.                  Lawyer transforms the definition of the case. Basically, each case belongs in a category
2.                  They simply listen to the clients story, pull out the right legal rule for the situation, and then proceed to handle the matter for the client. In this conventional view, interviewing and counseling is just a task.
3.                  Once the case is categorized, the lawyer starts the Alaw machine@ to take over the case. 
2.                  Controlling the conversation
1.                  Lawyers may transform the client’s case by channeling the conversation into areas of the law that are more familiar to and more comfortable for the lawyer. When lawyers control the conversation, clients are often unable to resist this transformation. 
2.                  Ways lawyers do this
(1)               content – example: lawyers controlled content because they were predisposed to one form of bankruptcy and did not consider or discuss other forms
(2)               sequence – example: lawyer more familiar with chapter 13 bankruptcy, as opposed to chapter 7. During the meeting, the lawyer spends more time explaining chapter 13, and only passively mentions chapter 7. 
(3)               structure – example: lawyers do this by using forms to gather information. Through use of these forms, interviewers control the structure, sequence, content, and length of the interview and generate information that supports standard solutions.
(4)               topic – lawyers exercised floor control by indicating who should speak, by speaking in the absence of permission by the client, and by interrupting the client.
 3.       Insider status
Lawyers steer the conversation toward their status as legal insiders. Rather than discuss how legal rules affect their clients’ cases, lawyers discuss how their inside knowledge of the legal system and its participants will decide the case. In short, lawyers do not sell their legal knowledge, they sell their insider status
4.                  All this chapter suggest:
1.                  A client’s story will inevitably be transformed by the lawyer
2.                  Lawyers in many situations dominate their clients
3.                  Lawyers tend to control the content, sequence, and topics of lawyer-client conversations
4.                  Lawyers tend to transform their clients’ stories into ones with which the lawyers feel more comfortable or more familiar
5.                  Thinking about lawyering as translation guards against lawyer domination
6.                  Even the best-intentioned lawyers can mistranslate their clients story. This mistranslation occurs when the lawyer places the client’s story into a legal category that minimizes important aspects of the clients story
7.                  Lawyers and clients should collaboratively negotiate the lawyer-client relationship
8.                  This negotiation should include determining mutual goals, ways to achieve those goals, the division of responsibility, and the amount of client participation in the representation. 
3.                  What makes a client come back?
1.                  Good personable skills
2.                  Ways lawyers can improve service quality
1.                  Are the client’s expectations of the lawyer, and the lawyer’s expectations of the client defined up front by an engagement letter
2.                  Are the staff polite and helpful when dealing with clients
3.                  Are telephone calls promptly returned by the lawyer or, in his absence, by a paralegal, etc
4.                  Were all cost and expenses justified before they are incurred and then thoroughly explained
5.                  Is the client consulted before an associate or paralegal is assigned to the file
6.                  If so, are associates and paralegal’s properly educated about the file so that client questions were answered completely and competently
7.                  Does the lawyer genuinely listen to the client’s ideas and concerns
8.                  Does the lawyer do what he or she promises within the time frame set by the client
9.                  Are billing questions answered promptly
10.              Does the lawyer take an interest in the client, always taking care to make sure the client is met promptly during appointments and otherwise comfortable
11.              Does the law firm have internal policies and procedures that focus on quality of client service and make it a priority for the firm
3.                  Retainer agreements
1.                  Put it in writing
2.                  Areas to address
1.                  Format / style
2.                  Identify parties
3.                  Scope of representation / scope of services
4.                  Staffing – who is the attorney, and who may assist
5.                  Responsibility – of both the client and the lawyer
6.                  Fees / disbursements
7.                  Confidentiality / conflicts
8.                  Limitation of liability / ADR
9.                  Withdraw / termination
10.              Late fees
11.              SOL’s
3.                  Review the Retainer agreement simulation evaluation form
Chapter 3 – Communication Skills. 
1.         Client interviewing and counseling requires effective communication
2.         Listening
            3.         Pay attention
1.                  Paying attention requires that:
(1)               the listener be mentally engaged to hear and understand what the speaker is saying; and

allows the lawyer to verify manageable amounts of information
(3)               moderates the pace of the interview
2.                  Summaries can indicate transition points in the client’s story and signal the client to continue with his or her narrative
3.                  The effective summary requires
(1)               organize the elements of the client’s story for presentation in the summary
(2)               choose an appropriate tone for summary
(3)               select an appropriate time for the summary
16.              Silence – this can be an effective response
1.                  Silence may be appropriate after the client has divulged a difficult and emotionally traumatic event. It can be helpful when the client pauses in her communication. Silence may be appropriate when the when the lawyer wants the client to continue. 
17.              Asking questions –
1.                  Don’t ask too many. This signals control and the client will just sit back and wait for the next question. 
2.                  You need to know when to ask and what to ask
3.                  Close ended questions – narrowly focused and seek specific info. 
(1)               advantage is efficiency
(2)               disadvantage – client may neglect to include important info; they can distort client’s recall; and they may inhibit rapport
(3)               the correct time for close ended questions is when the lawyer needs to nail down precise details, open up a new topic of conversation, or confirm a specific fact. 
4.                  Open ended questions – broad
(1)               they give client more control. They can still limit the scope of the client’s story. What happened at the meeting?
(2)               these questions produce more accurate info
(3)               more efficient b/c they produce a great deal of info in a short period of time
(4)               they also build rapport by enhancing the clients role
5.                  When to use, when not to, when to give up.
(1)               ask open ended when:
(1)               beginning of interview and at early stages
(2)               when lawyer has no idea why client is there or what nature of client’s legal problems
(3)               when lawyer is undertaking a new line of inquiry.
(4)               when lawyer is interviewing a new client
(5)               when time is not a factor
(2)               ask close ended when
(1)               to obtain specific info
(2)               to quickly clarify something
(3)               to narrow the focus of the interview
(4)               to explore the applicability of alternative theories to the client’s case
(5)               to focus on specific aspects of the client’s story
18.              Leading questions – generally ineffective in legal interviewing, they rob the client of control
1.                  They are useful in some situations (e.g. to get the client to continue talking if client unsure if he should continue; also good to verify something client has said
19.              Author’s note: This is all common sense
Chapter 4 – The Legal Interview
1.         Review the model interview he passes out during class. 
2.         The goals of effective legal interviewing are to:
1)   Establish rapport with the client; and
2)      Gather information necessary for the lawyer to represent the client
3.         Establishing rapport
1)      Establishing a level of trust between the client and the attorney
2)      Making the client feel comfortable confiding in the attorney and
[1]This is just a figure of speech. The author does not hold sexist views. I apologize if this language offends anyone.