Chapter ONE. Client Interview PDF

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Client interview notes/ summary very handy for civil litigation classes...

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CHAPTER ONE

CLIENT INTERVIEW

Contents Introduction 1.1 The purpose and scope of client interviews 1.2 Interview Approach 1.3 Interview Components 1.4 Interview Stages 1.5 Information Gathering 1.6 Questions in a Client Interview 1.7 Special problems in Client Interviews 1.8 Handling Clients 1.9 Client Counseling Introduction Client interviewing is one of the most important skills required of a lawyer, yet law students rarely spend much time practicing it. As is truism, practice makes perfect. Clients want to deal with someone they trust and like, so it is important for you to conduct the initial interview to the best of your ability. Learning Outcomes By the end of this chapter and the relevant readings you should be able to:  illustrate the purpose of client interviews  explain the scope of client interviews  describe the interview approach  identify the key components in the client interview  explain the stages in an interview  demonstrate on the gathering of information by client conferencing  explain the questions to be asked in a client interview  identify the special problems that may arise in client interviews  demonstrate how to handle clients  describe the need for client counseling.

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1.1 The purpose and scope of client interviews •

to establish an effective relationship with the client;

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identify the nature of the client’s problems;

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obtaining enough information from the client to reach a potential solution;

NOTE: Advocate-Client Relationship The interview heralds the fiduciary relationship that is cemented by the retainer. The knowledge acquired by the advocate in the interview from the client, should be treated as confidential and should not be disclosed to anyone else without the client’s consent.1

1.2 Interview Approach An interview should have a logical sequence and structure without being too rigid. There should be flexibility to allow the client to be treated as an individual with a unique set of issues, rather than just a legal problem. Remember that an effective client interviewing technique will create a positive atmosphere between you and the client. Successful interviews require the right atmosphere and empathy. Atmosphere An interview is not the same as a conversation: it has a specific purpose. In an initial interview this purpose is to identify the nature of the client's problems. A client will outline the nature of his or her problem and the effective interviewer will probe for the salient information. Remember, that ultimately it is the client who gives instructions! In a legal context, a lawyer should be able to give options. The need for empathy Empathy is difficult to define but essentially involves the interviewer attempting to understand the client's experience and the implications for them. Empathy is developed by effective interviewing skills. Remember that you will interview people from across the social spectrum, some of who may have acted in a way you morally disagree with. As a lawyer it is not for you to judge the client. You must make your verbal and body language reflect this non-judgmental stance.

1 King Woollen Mills Ltd. v. Kaplan & Stratton Advocates (1990-1994) EA 244

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Top tip: Empathy not sympathy — you do not need to feel sorry for the client, just understand their situation and their needs.

1.3 Interview Components The three key components in a legal interview are listening, questioning and advising. Listening It is impossible to give good advice without having first listened to your client. Listening is actually quite difficult to do effectively as it involves deep mental analysis of what you have heard. Effective listening therefore involves not only hearing what is being said, but noting the way in which things are said, and the body language displayed while it is being said. You should try to evaluate the behavior of the client as they speak. Are they nervous, apprehensive, fidgety or speaking too quickly? If so, try to calm them down. Are they reluctant to open up and reveal information? If so, try to reassure them and encourage them to share their thoughts. Are they spending too much time focusing on irrelevant points? If so, try to steer them onto the important matters. Your own behavior is also important. Think about what you are doing when the client is speaking. Are you showing interest, or looking bored? Make sure you avoid looking down or away, glancing at your watch, or doodling on your pad. Top tip: Silence can be an effective way of reflecting on what has been said. Questioning Often clients will present information in a disorganized or incoherent manner. Questioning allows you to probe a little more about the issues raised by the client. Top tip: Different clients have different ways of presenting information. For example, a business client might behave very differently to a ‘high street’ client. Effective questioning obtains the information you need in order to provide the client with full and informed advice, so that they can make the right decisions about the action they wish you to initiate on their behalf.

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Top tip: Paraphrasing or summarizing information is a useful way of highlighting areas where further information or evidence is required. Advising The overall purpose of a legal interview is to enable your client to reach a decision as to which course of action they wish to pursue. By combining the results of listening and questioning, you should be able to identify what the client's problem is and what potential solutions are available. Remember, though, that your role is advisory, that is, to put those potential solutions before the client, but leave it to them to ultimately decide which course of action they wish to pursue. Outline of the interview plan 1. Welcome the client. Greet, seat and introduce yourself. Make sure the client is comfortable. 2. Create an effective working environment. Make sure there will be minimal interruptions: switch off telephones, and tell others not to disturb you during the interview. 3. Encourage the client to put forward his or her perceptions. 4. Listen, without interrupting, if at all possible. 5. Remember that listening also involves noting non-verbal communications. 6. Reflect on what you are being told, through paraphrasing and questioning. 7. Question more deeply to establish salient facts, clarify ambiguities and check relevance. 8. Summarize your findings. 9. Allow the client the chance to ask questions, clear doubts or express anxieties. 10. Outline the options, both legal and non-legal. 11. Assist the client in making an informed choice of action. 12. Take instructions. 13. Explain any follow up to be undertaken by the lawyer, including costs involved. 14. Confirm that the client agrees to the course of action. 15. Check if there is any other business. 16. Provide an idea of timescales. 17. Conclude. 18. Say goodbye and show the client out. 1.4 Interview Stages (a) Preliminary This is the introductory stage where the counsel makes the initial contact with the would-be client. This may be in the form of a simple phone call or a short visit with the client. The purpose is to get a rough outline of what the case involves and allow the advocate to prepare for a substantive interview. 4

Preliminary stage Because of the mistrust lay people have for lawyers, an advocate must endeavor to be forthright and approachable. They should also prepare such information as fees and other costs that may be incidental to the case and be ready to discuss this at the very onset so that the client knows that they are getting into. It may also be useful at this stage to examine any prejudices or biases that the advocate may have which may have an impact on how they handle the case. It would also be prudent for the advocate to reflect on what the client expects from them. In this regard it is useful to think of the case from the client’s standpoint. Regardless of the feelings of the advocate towards the client’s case, the advocate should let the client know that they will do their best to champion their cause and get them the best possible outcome given the facts of the case. The initial communication with the client may also serve to give you an idea of the education, legal knowledge and sophistication of the client. This will then help the advocate identify the best way of communicating with the client. The advocate should also purpose to be positive in their attitude/approach to the client. This does not mean that they should be overly optimistic and mislead the client about the possible outcome. It simply means that they should be prepared to put the best spin on the information provided and the facts that they will receive from the client. After forming an initial opinion of the case, the advocate should then decide what basic information they need to get from the client. The advocate can also ask the client to bring any documents that they deem from their initial perception to be relevant to the case e.g. title documents in a conveyance transaction. Once the advocate has identified what they will need for the interview, they proceeds to set down a date for the same. It is important to stick to the date and time that is agreed on with the client and also not to schedule any other things at the same time. This will enable them to give enough time to the client and their case and will also go a long way in making the client feel that their case is important to you. (b) Commencing the interview The advocate should take time to make the client feel comfortable before the interview starts. He should bear in mind that in addition to people’s foreboding attitude towards advocates; they also find them and their offices intimidating. If possible, the advocate should personally meet them at the reception and walk them into their office or conference room, whichever is preferable. Do not take your client into your office if you have an “ego wall”- a wall that is adorned with your achievements, photos of you with celebrities or newspaper clippings of your success story at the

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first meeting. Do not let the clients see the “ego wall” before they have seen you and thus had a chance to form an impression independent of your achievements. Introduce yourself to the client. If you had not been formally introduced, seek to know the clients name and request to know how they would prefer to be referred to. Ensure that you have exchanged contacts and also confirm to the client that any communication should be made through the adduced contacts. It would also be prudent to determine how you should make contact with them therefore their correct contacts details would be invaluable! You may engage in some informal talk so as to break the ice. Make sure that the room is comfortable for both of you and that it has a writing area if you plan to take notes. You can offer the client some refreshment as a way of putting them at ease and making them feel even more comfortable at your office. The way you receive your client says a lot to them about how you will handle their matter. The advocate should also prepare to be uninterrupted. They can ask the assistant to ensure that this happens for instance; ask them to hold their calls. However, it is important to note that the discussion with regard a retainer or fee on account would be very important to bring at this moment. Let the client know that the basis of this retainer or fee is to create a legally binding advocate-client relationship. It also goes to show the client that you have put some value interest to what they have to say.

1.5 Information gathering This is the most important aspect of the client interview, and what counts is the type of information you get and how you go about gathering it. The best way to get information is to let the client tell the story in their own words. This should be done by asking open-ended questions. At this point you should put the law in the back-burner! You should avoid legalese. You are interviewing a client and not cross-examining counsel. Therefore keep the language as simple as possible. To encourage them to tell their complete story it will be necessary to let the client know that the rules of confidentiality cover any information that is divulged by the client in the client interview, and will extend to the initial consultation, regardless of whether the client decides to engage your services. State to them clearly that only they can waive that right to divulge such information and incase the advocate should want to consult on the client’s case, they can only do so by seeking the consent of the client. When they start to tell their story, listen without interrupting. Employ active listening skills such as nodding and making eye-contact to let them know that they have your attention. You can jot brief notes about what they are saying and mark the issues that need clarification. Do not

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interrupt the client unless it is absolutely necessary. Let them also tell you what they are hoping to get from you. Inform them that you need to hear ALL the information relating to their issues. One tidbit that they consider inconsequential may provide crucial legal leads. Once they have explained their situation, go over the summary of the client’s story in light of the relevant facts to ascertain that you have identified the issues. It would be advisable to let them go through your summary so as to let them identify any issues you would have missed out. Seek clarification on anything that did not come out clearly. When seeking clarification, avoid judgmental cross-examination! Confronting the client with the gaping holes in their story will come at a later stage, when you are preparing the client for trial. Do not patronize them; neither should you be haughty. At this stage, the advocate should make room for vagueness; memory lapses and lies. These are the natural responses from clients who think that they must convince the advocate of their saintliness. However, in the interests of getting accurate information, ensure that you engage openly with your client and encourage them to be as forthcoming as possible. Ask close-ended questions to narrow down the client’s story to pertinent issues, but do this without condemning them or seeming to be short. Go through the list that you made in preparation for the interview from the benefit of the preliminary meeting/contact and make ensure that you have captured the basic information from the client that you will need to advise on the case. Address the client on your assessment of their case. At this point, you need to maintain eye contact so that they know that you are attentive to them and that what you have to say is important. Do not speak over their head; avoid legal jargon and take time to explain what is happening to the client. Go over the elements of the case with your client and bring out the legal issues that arise. If they have not brought any documents, ask them for documents which can support their case. If the client is charged with a crime, try to bring out possible defenses by asking questions that will bring out important witness or alibi information. You can also find out whether they have potential character witnesses. The information that you gather can also help you identify whether or not there are any possible conflicts of interest arising or whether what the client’s issues border on illegality or unethical conduct. With reference to conflict of interest, you would act in the best interests of the client if you inform them from the onset about the conflict and where necessary advice them that you cannot continue to act for them. However, let them know that the information they passed on you is still covered by legal privilege. It is also important to let the client know that the advocateclient privilege does not cover instances where the information that they have revealed to you is in contemplation of a criminal act.

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From the information you gather from their story and by asking questions, develop a case strategy. However, be careful to identify the problem, fully investigate it and strategize upon it before you give firm dispositional advice. If you need more time to clarify the law and to consult, especially where the area of law is not familiar with you, let them know and schedule another meeting where you can advise them more authoritatively. At this point you can also decide whether you want to take up the case. Consider if you have doubts as to whether you can function effectively; possibly because of conflict of interest, lack of sufficient practice in the particular area of law that the case relates to or some other sufficient reason.2 It could also be that you can tell at the initial interview that the client is walking trouble and that you do not want to undertake representation. You can decline the case orally and by letter. If you decline because the case does not fall within your area of expertise, you can recommend another advocate that would be suitable. However, if you decide to continue with the case, let them know the best and worst case scenario based on your experiences. Establish trust with the client and treat them with respect. How you speak to the client is an indication of how you will represent them. Discuss the fees with the client again, this time as comprehensively as possible having insight to what the matter will entail. Clients do not like to be ambushed with legal fees grossly in excess of what they thought they would be paying. Let them know what you plan to do and how much it is likely to cost them. Explain to them how you calculate your fees, making use of the Advocates Remuneration Order3, and agree with them on how the same will be paid. If possible, sign a fee agreement and secure a deposit on account of your legal fees. 1.5.1 Closing Explain to the client what you plan to do based on the strategy that you have come up with, what steps they have to take in that regard, for example, signing affidavits, depositing money for court fees, etc.4 You can thereafter arrange another meeting to explain the progress that you have made. Studies show clients are impressed with advocates who put extra effort, provide extra information and who consistently keep in touch. Make a point of giving your best to the client’s case and keeping them appraised on the status of their case.

2 See Oriental Commercial Bank Limited v. Central Bank of Kenya [2012] eKLR. 3 See the Advocates (Remuneration) Amendment Order, 2014 (Legal Notice No. 35 of 2014), the Advocates (Remuneration)(Amendment) (No. 2) Order, 2014 (Legal Notice No. 45 of 2014) as read with The Advocates Remuneration Order, 2009 (Legal Notice No. 50 of 2009). 4 See In the Matter of the Estate of M’Magiri M’Mugira (Deceased) [2005] eKLR.

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1.6 Questions in a client interview (a) What questions to ask the client When preparing for an interview, an advocate has to consider their information needs. To achieve this, the following need to be asked: Personal information: Name, address, telephone numbers, family ties, work, age, nationality, income and health. Other parties concerned: Their basic personal details and their connection with the client (if any), advocate(s) instructed (if any). Witnesses (if relevant): Basic personal details, witness to what and for whom, connection with client. The events that took place: Dates, times, place(s), people involved, the cause and course of events, people affected, property affected, incident which precipitated the visit to the advocate. What the client wants: Identify the main problem, desired outcome, difficulties in achieving outcome, people to be affected by outcome. Previous advice and assistance offered to the client on the same subject matter: a. Anyone else consulted and details of consultant; the advice given, action taken, effects of the action. b. Existing legal proceedings: Nature of proceedings, parties; stage of process; past or future hearing dates. Based on the above information needs, the advocate must be sure to explore the following questions with the client: ...