INTERVIEWING, COUNSELING, NEGOTIATING
REVIEW OF SELECTED ARTICLES
Ronald Golini
I have found three articles to be particularly useful in further understanding the Binder and Price1 approach to the client-centered interview, by way of expansion, contrast and practical organization.Gay Gellhorn, Professor of Law, University of the District of Columbia, has provided a research data base through a meticulous analysis of 29 tapes and a smaller number of transcripts of interviews taken between 1992-1997 in both client-lawyer and physician-patient contexts.2 The model he derived from this empirical data demonstrates that clients reveal critical self-information in their opening words, regardless of when those words occur and regardless of the legal interviewer's role in eliciting them. Since the transcripts indicate that the interviewers did not perceive that the client was in fact providing critical information in the earliest stages if the client-lawyer interview, his model proposes some concrete changes in interviewing methodology and pedagogy as an extension to Binder and Price.
When the interviewer failed to appreciate the significance of the information imparted in the opening moments, negative consequences ensued, and the clients recycled their concerns until acknowledged.
After its introduction, the article examines the empirical data revealing a pattern of client revelations in the opening moments of the interview. When misheard, unheard or unacknowledged, the clients reiterated their concerns until receiving some degree of acknowledgment. Consistent with research on doctor-patient encounters, the dominant pattern was for the lawyer to control the floor and begin a series of closed-end questions, testing various hypotheses. Because the legal and medical data both reveal a revelation of key, emotion-laden information in the opening moments of the interview, Gellhorn proposes lawyers should modify their interview protocols to utilize this phenomenon in a positive way.
Next follows Gellhorn's examination of revelations supplied during three sets of interviews:
(A) Revelation in response to open-ended questioning
Using open-ended questions in response to and in acknowledgment of the client's revelation of critical emotion-laden information, the interviewer can invite a narrative response containing some self-revelation by the client. Examples would be, "I'd like to hear what's on your mind" or "why don't we start where you'd like to begin."3
(B) Revelation during "ice breakers"
Here clients often express their sense of self as soon as they are given a chance to speak. If the legal interviewer ignores such revelation communicated during the initial ice-breaking moments, the client is left to struggle with changes thrust upon him such as financial independence, a disability, or the role of being cared for and helped rather than caring and helping.
(C) Revelation initiated by the silenced client
Here interviewers paid no attention to the client's attempt to gain floor and topic control. This was evident where concern for forms and paperwork shut out key contextual information.
Gellhorn sees several things demonstrated. First the ice-breaking phase is far from neutral; clients often embed key contextual material. Second, clients often embed cryptic and yet critical contextual material in responding to an open-ended question. The lawyer who does not expect revelations in the opening moments is more than likely to miss the point.
Part two of the article presents studies of medical interviewing and again discusses several areas of research relevant to and supportive of the proposal that legal interviewers should be taught to pay particular attention to opening moments. Howard B. Beckman and Richard M. Frankel's study of the effect of physician behavior on the collection of data, especially the effect of physician interruption in opening moments, is seen as an area of potential interest to lawyers.4 The authors were struck by the fact that after a patient was interrupted by a doctor, that patient returned to and completed a statement of concern in only one out of fifty opening statements. The physician's interruption is seen as marking a transition from client-centered to physician-centered questioning, resulting in lost relevant information and an early hypothesis. The primary linguistic technique that encouraged patients to continue and complete their statement of concerns was the use of neutral utterances known as continuers: "Mmh hmm," "Go on," "I see." In view of this, the authors advocate a model of interviewing based on partnership and co-participation in which patients have a more active role, starting with the opportunity to state their concerns without interruption.
In a follow-up study, Beckman and Frankel demonstrated that patients who are interrupted early in their encounter are more likely to bring up additional concerns later in the visit.5 Premature interruption was found to add time and organizational costs to treatment; the open-ended encounter proved more cost effective in the long run because it captured both the content and context. Wendy Levinson found that there is less dissatisfaction with the physician and less likelihood that of being sued with more use of facilitation statements to encourage patients to talk without interruption.6
In the third part of the article Gellhorn presents a model for opening moments of a client interview. His stated goals for this beginning are to hear, begin to understand and acknowledge the client's particular concerns, problems and point of view. He wants clients to be encouraged to tell their stories so that he can relate their legal issues to what is going on in their world. There must be a mutually acceptable agenda at the outset. He must listen to the client's words, record them in quotation marks. Medical interviewing literature convincingly shows the importance of not interrupting, because it inhibits expression and cuts off expression of concerns and prematurely defines the focus of the conversation. Emotional expression, verbal or nonverbal, are part of the client's first words and vital clues.
The model draws on medical interviewing by straightforward questions such as: "Is there anything else on your mind?" or "I can hear that you're concerned about that, but before we discuss it, is there anything else you'd like me to know about?" especially if the client is recycling a topic. During the solicitation of the client's concerns or story telling, the interviewer should avoid probes, elaborators, recompleters and closed-ended questions.
Gellhorn's modifies Binder and Price's client-centered model in two ways. First, interviewers must expect revelation of key data in opening moments; the model plans for and encourages this exchange. Second, in drawing on research from other disciplines, some active-listening techniques should not be used in opening moments of client interviews, because they cut off the client's story.
In contrast to the Binder and Price approach, we have that of Linda Smith, Professor and Clinical Program Director, University of Utah College of Law.7 She notes that professionals in various fields increasingly questioned the long-held assumption that professionals have the right to control their clients or patients in the interest of serving them. Douglas Rosenthal drew upon growing literature in other sciences to argue for client participation in place of professional control.8 This "participatory" model has several advantages: it promotes the dignity of the client, makes the client a doer who is responsible for his choices, increases client satisfaction, aids the client to achieve a range of control over his life, and reduced anxieties. Rosenthal's model was implemented in two works by clinical legal educators during this period Binder and Price's Legal Interviewing and Counseling 9 and Bellow and Moulton's The Lawyering Process10 which became the most widely used law school texts. Using linguistic strategies, particularly linguistic indicia of power and dominance in conversation, Smith seeks to ascertain whether these theories and models produce the client empowerment that is sought.
Hostica's first published study concluded that poverty lawyers "exercised considerable control" and "exclusive control" in defining a client's problems and what, if anything, was to be done.11 Brenda Danet's study concluded that the lawyer defined the client's problem in a way which was most convenient for the bureaucracy of the legal aid office.12 Felstiner and Sarat's ethnographic study of divorce case interviews focused on the way in which the lawyer characterized the legal system and counseled clients about choice and strategy emphasis on the uncertain and personal nature of the judicial process increasing the clients' dependence on their lawyers.13 In 1986, Professor Neustadter reviewed bankruptcy interactions and classified them as falling in the "product" category rather than "client-centered."14 "Although each of the lawyers seemed 'well versed in the relevant legal rules and procedures' and was 'courteous' to clients,15 most of the lawyers behaved as if they were selling a product...and the client had already chosen the solution."
These studies confirm some of the criticism that have been leveled against "traditional" legal professionals. They show the lawyers as sometimes dominating their clients, controlling the conversation and the definition of the client's problem and dictating its resolution. The primary aim of this article is to compare the theoretical model of the client-centered interview taught in law schools with the students' actual performances.
Students were taught about client-centered representation; they were all enrolled in an upper division law school course on lawyering skills using the Binder and Price textbook.16 The text defines interviewing as "the task of gathering information" about (1) the nature of the underlying occurrences; (2) the basic difficulties which now confront the client as a result of the occurrences; and (3) the results the client desires. Smith then presents a fine and convenient summary of the Binder and Price approach which is reproduced in Appendix A.
For this study the four actor-clients were all professional actors, and all learned the same role: a "pink collar" worker who was having a dispute with her landlord. The videotaped and transcribed study attempted as much as possible to approximate a "typical" attorney-client interaction. The procedure to be followed and the client's problem was well defined for the actors, as well as her feelings, goals, and past experiences with the landlord.
Smith then presents an analysis of the client-centered interview through the following findings:
(A) Interruptions
An "Interruption" was defined as simultaneous speech by two speakers. It can show cooperation or competition. Interruptions were designated as "cooperative" in which the speaker repeated the client's emotion, expressed empathy, reflected the client's emotion or began to supply an answer while the client was still speaking. These usually occur at the end of utterances. Competitive interruptions include those where the interviewer changes the topic, insists on an answer to a question the client might have been avoiding, or ignores what the client is saying. Competitive interruptions typically occur in mid-utterance, indicating an attempt to control the conversation.
This study did not find interruptions indicative of a struggle for control and was the case with researchers who studied "traditional" legal interviews. Rather, most interruptions by both interviewer and client were cooperative and more frequent than typical, informal conversations, probably because both partners have significant goals and only so much tome to accomplish them.
(B) Control of the floor
The study looks at "topic control" and calculated how often the attorney introduced a new topic or changed the topic. When the attorneys spoke, they spend less than half of their time asking questions. This trend is inconsistent with Binder and Price's suggestion that in an "interview, the majority of communication from lawyer to client takes the form of questions."17
(C) Directives and question form
This set of interviews suggests that questioning may not be important in eliciting a narrative from the client. It is important to recognize that a successful narrative may depend more upon the interviewer's listening receptivity than upon his or her asking questions in a particular form.
Although the interviewers used many leading questions, the vast majority of these questions were elicited by the client's statements and confirmed important information, goals or facts the client had already stated in her rather lengthy monologue.
(D) Control of subject and interview structure: initial problem-goal identification
While the client-centered format does much to give control to the client, the attorney's attempt to structure the format--beginning with a summary and then a chronological recounting--met with avoidance by the client. The client wanted to tell her own story in her way, without the introductory frame that the Binder-Price text suggests, and in fact insisted on telling "her" story. The interviewer met with resistance from the client when trying to make the client summarize the problem. The client's goals were expansive and made more sense after the story was told. Smith found that there does not seem to be a strong need for an attorney to obtain identification of both problem and goal at the outset.
(E) Questioning to develop legal theories
The transcribed interviews failed almost entirely to include any of the recommended "funnel" sequences. The successful "theory development" did not follow the recommended pattern nor did it arise from the interviewer's conceptualization of legal theories followed by questions designed to explore them. The first lesson Smith draws is that novice interviewers often do not--and probably cannot--consciously think of and pursue relevant legal theories in an organized way during an initial interview. Second, even without a conscious awareness of which legal theory to pursue, the client-centered interviewers tended to ask questions that were relevant, useful and communicate a desire to understand. Smith concludes that there must be more study of inexperienced and experienced attorneys conducting client-centered interviews to understand what type of questioning is appropriate. In the meantime, she would not require or expect students to conduct linear, logical, theory-driven questioning, but encourage creative, exploratory thinking so long as it is sensitive to the client's concerns and related to the problem presented.
(F) Definition of client goals
Smith studied the content of each interview to determine whose definition of the problem controlled, i.e. did the attorney "pigeon-hole" the client's concerns into convenient doctrinal categories, or come to understand the client's problems and goals from the client's perspective? It is a matter of goals during an interview, and this is ultimately a joint effort between the client and attorney.
Smith's conclusions? This study has demonstrated that the client-centered interview is not an exercise in professional dominance and control. It is conversational, with the power and control more evenly balanced than in the "traditional" interview.
(1) The narrative is crucial; the client is allowed to give an uninterrupted narrative about his or her problem. Confirming questions should be asked. Asking the client to summarize her problems and goals is not essential and may even be dysfunctional. Something happened in chronological order, but sometimes a client does not have a "dispute," but rather a desire to create something, e.g. a corporation. Sometimes clients feel wronged, feel their case is weak, or feel as if they something wrong--and cannot be impelled to present a narrative. Sometimes clients have difficulty communicating, have less verbal skills, are intimidated by lawyers or have impaired mental abilities.
(2) Reflection is useful; emotional reflection was not terribly frequent nor appear to be crucial in eliciting more facts or establishing greater trust and rapport.
(3) The question stage must allow for questions to confirm facts and to explore problem solving ideas in a creative fashion. Questioning driven by legal theory, i.e. opening with a legally relevant topic followed by related narrow questions, did not occur in these interviews. This and other examples suggest that we should be open to and encourage a wider variety of questioning formats following the client narrative.
Finally, Mary McCusker, a South Dakota family law attorney,18 presents practical concerns that must not be overlooked in the initial interview. First, and this in within the context of a family law practice, were there signs or clues at the first or second conference that indicated the client should see another lawyer, such as unlikeable personality traits, drug dependence, alcoholism? After passing this hurdle she considers:
(A) Advanced preparation
Materials can be prepared in advance because certain matters must be discussed with every client. e.g., handouts to cover office procedure, court procedure, attorney's fees, further reading materials, child support guidelines and office data. McCusker has her secretary do much of this with a client in order to build up their rapport; since it is the secretary who will receive and deliver messages during the course of divorce action.
(B) Initial phone contact - verbal information
It must be made clear in an office policies manual and general office management what information a secretary or receptionist is authorized to release. This includes items such as hourly rates, office hours and the range of law practiced. Oftentimes the initial screening takes place here or on the telephone to save time. The client can be asked to bring in certain documentation or materials for the initial interview, such as pleadings or real estate descriptions. McCusker's outlook regarding fees is that attorneys should not be embarrassed or ashamed that they work for a living.
(C ) Initial conference with attorney
This follows after a briefing with the secretary regarding any unusual response or reaction during the intake interview. Many times clients will ask secretaries questions they would not ask attorneys and assume the information will be passed on.
After "ice breaking" the attorney begins to analyze his or her behavior, language, eye contact, inflections, nuances, vengeance, biases. Two helpful questions for all clients are: "What do you want me to know?" and "What do you expect me to do?" Since clients usually come with an agenda, even if not organized, the attorney records the responses to these questions in to be able to recall the client's primary focus and not grandiose promises than never be fulfilled. The attorney explains his style and looks for mismatching, e.g. client wants hostile and angry letters generated and the attorney is a peacemaker. He take notes on paper and mentally, looking to see if the client is there to vent anger, exaggerate problems, get security, seek legal advice. Such questions are important for the attorney to determine whether he can keep control of the client, and whether the client will demand more of his time than warranted by the case. He cannot assume that the client understands anything and must ask if he is being understood.
(D) Determination of counseling
The attorney must determine whether there is need of mental health counseling so that later the client will understand that he will be involved with legal issues and not the emotional issues.
The attorney will determine whether the client or spouse has an alcohol- or drug-related problem. Such situations have far reaching effects and if the client becomes difficult to control, usually the attorney can only withdraw from the case if a clause was included in the employment agreement stating under which conditions he would represent, or continue to represent, the client.
(E) Transference
The attorney is on guard to any overreaction by the client to his interest and concern about his or her case. Since such clients appear for help and some previously close to them is gone, it is common for them to transfer affections. McCusker feels that if the attorney is emotionally or sexually attracted to the client and not sure how to deal with these feelings, he should not take the case.
(F) Limits of the initial interview
Most clients can be focused for an hour, and an interview should not last longer than two hours. The client will always need time to think about the issues raised. The attorney will cover basic procedures in accordance with state laws, including such items as grounds, filing, waiting period, discovery, property division, alimony, separate maintenance, child support, visitation, mediation, custody, fault, fees and anything else related to the client's fact situation. A follow up letter here will summarize a plethora of details and avoid data overload.
(G) Client homework
McCusker has her client take notes regarding needed documents and information needed. She asks clients to write a novel about their married life. Even though frightened at first, she has found that clients are delighted with the results, learn more about themselves and make final decisions about staying in a marriage because they have had to reflect. She now makes this mandatory. I would see this as a combination of the client's initial summary of a situation and subsequent chronological recitation of events.
(H) Closing the initial interview
An estimate is given to the client of how often meetings will be necessary and the procedure for sending copies of correspondence and pleadings is explained.
(I) Reviewing the initial interview
Before moving to the next case, the attorney dictates notes for the file; this can be done with the client present and sometimes serves to clarify any ambiguities. If the attorney decides to take the client, he must determine if all necessary topics were covered and if a followup meeting is needed. He dictates the terms and conditions he wants in the retainer agreement so it can be sent out immediately. He does no further work on the case without a signed retainer agreement.
(J) Summary
McCusker sees the initial client interview as one of the most critical tasks to accomplish successfully. She is definitely in charge in the "traditional" style, and if there is a client-centered approach, it is procedure- and competition-oriented.
Appendix A
Summary of the Binder and Price Client-Centered Approach
Binder and Price set forth an orderly structure for the interview. After appropriate introductions (or "ice breaking"), the attorney should ask the client to provide a general description of the problem, how it arose and what relief the client desires. Next, the lawyer should obtain "a step-by-step chronological narrative of the past transaction which underlies the client's problem . . . from the point where . . . the problem began. . . . up to the present." Then the attorney should mentally review the entire problem to see what legal theories might apply and question the client in greater detail about the specific topics that are legally relevant. Finally, the attorney should adjourn the interview, without necessarily assessing the client's legal position fully. Binder and Price recommend that the attorney provide "a basic legal analysis of the situation without turning the analysis into an overall evaluation" in order to achieve the goals of reassuring the client, appearing competent and remaining honest.
Besides recommending a Structure for an interview, the authors also address question form: open questions, narrow questions, yes/no and leading questions. Open questions are recommended-to "permit clients to report events in their own terms," so as to encourage better recall. Open questions also provide a "climate of openness and empathic understanding," allowing the client the freedom to select what is important to him or her and the opportunity to raise sensitive topics in the way s/he feels most comfortable. However, open questions often do not elicit sufficient detail to reach legal conclusions, and they allow the reluctant client to avoid what may be definitive topics. Accordingly, narrow questions must be used to elicit detail and to motivate inhibited clients. Leading questions may produce more accurate reporting in situations in which the client feels inhibited about admitting some negative fact which the lawyer suspects is true.
Open questions are particularly recommended at the outset of an interview (problem/goal identification) so that the client may "Set forth his/her dilemma in any manner which feels comfortable, and in as much detail as seems appropriate. Similarly, during the timeline, the attorney should ask primarily open questions which prompt the client to tell "what happened next" but with no other strictures on what information to provide. Here, too, open questions are "in accord with the rapport-building goals" of this stage, "since the client is encouraged to speak about what is important to him or her. During the "theory development" stage of the interview, the lawyer is advised to begin each new topic with an open question ("Tell me more about . . .") to maximize recall. Then, the attorney should follow up with various narrow questions to obtain details that may be legally relevant.
Binder and Price advise attorneys to do more than simply question during the initial interview. At certain points the attorney should provide the client with information - about what will happen during the interview and about what will happen at its conclusion. However, throughout the interview the attorney should also respond to the client. Binder and Price promote "active listening," the technique developed by mental health professionals to reflect the feelings expressed by the client. They also advise the lawyer to provide the client with "recognition" by telling the client s/he is doing a good job at providing information.
All these recommendations--format, questioning pattern, empathizing with and responding to clients-arise from the same concerns. Binder and Price hope to stimulate the "client's willingness to participate fully in the interviewing and counseling process." Relying upon Maslow and Carl Rogers, they assert that clients bring to an interview the full range of psychosocial needs and that various inhibitions (ego or "case" threats, role expectations or etiquette barriers) may block full participation in the interviews Accordingly, the interview should be structured and conducted so as to meet the hypothesized psychosocial needs of the typical client. Allowing the client to define the problem and desired solution recognizes the fact that most problems have "both legal and nonlegal dimensions" and that "any solution ... involves a balancing of legal and nonlegal concerns." Allowing the client to give a chronological narrative of the problem in his or her own words promotes accurate and complete recall, as well as drawing upon natural conversational style. Although Binder and Price assert that "[i]n an interview, the majority of communication from lawyer to client takes the form of questions," they recommend that lawyers engage in "active listening" and reflect the client's feelings during the interview.
1 David A. Binder & Susan C. Price, Legal Interviewing and Counseling: A Client-Centered Approach (1977).
2 Gay Gelhorn, "Law and Language: An Empirically-based Model for the Opening Moments of Client Interviews," Clinical Law Review, Vol. 4, p. 321 (1998).
3 In medical education, students are required to ask such questions at the beginning of taking a medical history and to record the patient's response in quotation marks. The medical consensus here is that what is on the patient's mind is critically important and relevant both to diagnosis and subsequent treatment.
4 Howard B. Beckman and Richard M. Frankel, "The Effect of Physician Behavior on the Collection of Data," Annals of Internal Medicine, Vol. 101, p. 692 (1984).
5 Howard B. Beckman and Richard M. Frankel, "Soliciting the Patient's Complete Agenda: A Relationship to the Distribution of Concerns," Clin. Res,. Vol. 33, p. 714a (1994).
6 Wendy Levinson et al., "Physician Patient Communication: The Relationship With Malpractice Claims Among Primary Care Physicians and Surgeons," J. Am. Med. Assn., Vol. 277, pp. 553, 558 (1997).
7 Linda F. Smith, "Interviewing Clients: A Linguistic Comparison of the 'Traditional' Interview and the 'Client-Centered' Interview," Clinical Law Review, Vol. 1, p. 541, (Spring 1995).
8 Douglas Rosenthal, Lawyer and Client: Who's in Charge? p. 7 (1974).
9 David A. Binder & Susan C. Price, Legal Interviewing and Counseling: A Client-Centered Approach (1977).
10 Gary Bellow & Bea Moulton, The Lawyering Process: Materials for Clinical Instruction in Advocacy (1978).
11 Carl J. Hosticka, "We Don't Care About What Happened, We Only Care About What is Going to Happen: Lawyer-Client Negotiations of Reality," Soc. Probs, Vol. 26, p. 598 (1979).
12 Bryna Bogota & Brenda Danet, "Challenge and Control in Lawyer-Client Interaction: A Case Study in an Israeli Legal Aid Office," Text, Vol. 4, p. 249 (1984).
13 Austin Sarat & William Felstiner, "Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office," Yale L. J., Vol. 98, p. 1663 (1989).
14 Gary Neustadter, "When Lawyers and Client Meet: Observations of Interviewing and Counseling Behavior in the Consumer Bankruptcy Law Office," Buff. L. Rev., Vol. 35, p. 177 (1986).
15 Id. at 229-30.
16 David A. Binder & Susan C. Price, Legal Interviewing and Counseling: A Client-Centered Approach (1977).
17 Supra, note 16, at 20. 18 Mary McCusker, "The Initial Client Interview: Practices and Procedures," American Journal of Family Law, Vol. 1, No. 4, (Winter, 1987).