The Very Basics Of Legal Interviewing

The Very Basics of Legal Interviewing

By Deborah Maranville

(1) Motivate the Client’s Participation (Develop Rapport through Active Listening): A legal interview often concerns sensitive topics that an individual would not necessarily tell a stranger. Thus, the first step in the interview is developing rapport and motivating the client to talk freely.

The client may be reluctant toreveal information for several reasons—for instance, she may believe the information will hurt the legal case, she may not understand its relevance, or she may find the information too traumatic to discuss. Countervailing factors will motivate the client to talk, however. The client’s desire to resolve the problem favorably may overcome her reluctance to talk. Or she may respond to: appeals to helpothers, recognition of her efforts, or simply the expectations expressed by the lawyer. The lawyer can gently bring into play each of these factors.

Perhaps most importantly, the lawyer can try to put herself in the position of the client, to really understand and empathize with the client’s problems, and use active listening techniques to reflect back the client’s feelings. (Active listeningcan also involve non-verbal signals of attention, such as head nodding, eye contact, or phrases of reassurance.) For instance:

Client: “I don’t want to testify in court. It sounds like a bad experience—all those questions, people looking at me—I would probably be so uptight, I’d say the wrong thing.”

Lawyer: “You feel anxious about getting up on the stand and perhaps embarrassing yourself(Lawyer reflects client’s feelings).* Don’t worry. Before the trial we will practice your examination and visit the courtroom where you will testify (lawyer responds to client’s concerns).”

(2) Use Questioning Techniques Appropriate to Your Purpose (Open-ended, Narrow, Yes-No, Leading Questions):

“The form of the question will dictate the answer.”
(A wise old lawyer)

Consider likelyresponses to the following questions in normal conversation:

Hi! What’s up?
(Open-ended question:
Listener has total freedom of response)

How are you feeling today?
(Open-ended question selecting topic)

How’s your cold?
(Narrower question, selects aspect of topic)

What did the doctor say about your cold?
(Narrow question, selects aspect of topic)

Did the labreports show strep throat?
(Yes/no question)

You really feel awful, don’t you?
(Leading question:
suggests, attempts to force the response)

Open-ended questions encourage the client to talk, and allow her to provide information that the lawyer would not otherwise obtain. Begin interviews with broad, open-ended questions that allow the client to tell her story in her own words,and “get her problem off her chest.” Content free questions avoid skewing the data received. Keep the client talking with prompts like, “What happened next?” and then what?”

In later stages of an interview open-ended questions often do not elicit enough detail and will not stimulate the client’s memory, so you will need to use narrow questions to probe for more information. Leading questionssuggest an answer and thus pose the risk for distorting the client’s answer and promoting unethical behavior by the lawyer (“You saw Bob reach for a gun just before you pulled the trigger, didn’t you?”). Use leading questions only to confirm information provided by the client, or to obtain information that the client may be reluctant to admit. Ex: “I guess you’ve had trouble with the policebefore.”*

(3) Allow the Client to Tell the Story Initially. The client comes to the interview with crucial information – what brings him to the lawyer, and usually, what result he wants. The lawyer has important information also – knowledge about the law and what facts are relevant given the law. Lawyers tend to use their knowledge to focus on the specifics of the case, and take control before giving...