CLIENT INTERVIEWING & COUNSELLING

A. Introduction
1. The market for legal services is now extremely competitive. Clients assume and are
entitled to assume that lawyers have professional knowledge and competence in the law
and they are now looking for something more in their legal advisor. What matters to
clients and ensures not only their loyalty but also whether or not they will recommend
one to others, is how they are treated. Are they treated with respect, listened to, kept
informed and charged a fair and reasonable amount? Are their concerns understood?

2. An interview is usually the first contact that a client will have with a lawyer. Interviews
would also form part of one’s work in the different professions and are held for 3 main
reasons:

a) to enable the client to inform the lawyer about the legal problem and obtain
advice;

b) to enable the lawyer to elicit the relevant information from the client about his or
her case in order to assess the legal position; and

c) to enable the lawyer to advise the clients as to the appropriate course of action.

3. In order to conduct an effective interview, one should posses the following skills:

a) communication skills;

b) be prepared for an interview;

c) be able to establish a rapport with clients;

d) develop listening and questioning skills;

e) develop advising and counseling skills; and

f) have decision making skills.

4. A bad interview would include, but not be limited to the following:

 a) The lawyer (interviewer)

(i) was not listening to the client;

(ii) was nervous or unsure;

(iii) seemed bored;

(iv) had little or no eye contact;

(v) was impatient or rushed;

(vi) showed prejudice

b) The interview

(i) began late;

(ii) was persistently interrupted by phone calls etc

c) The client felt:

(i) he was kept waiting;

(ii) he was not listened to;

(iii) was humiliated;

(iv) was not treated with respect;

(v) physically uncomfortable.

B. Developing communication skills

1. Communication requires a variety of active skills which would include the following:

a) listening;

b) observing

c) responsiveness;

d) questioning; and
 e) explaining one’s views clearly and comprehensibly.

Each of which will be dealt with.

2. The elements which make communication REALLY effective are trust and empathy.
Trust assumes that there is reliability, openness, honesty and integrity while empathy
means the ability to identify with the other person and things from their point of view.

3. Therefore in a lawyer/client relationship, the client must be able to trust the lawyer
absolutely as well as feel that the lawyer really understands the client and his/her
problem.

4. In order for a lawyer to gain the trust of his client, he would have to show that the clients
will be able to rely on the lawyer not just to conduct his case well, but also to keep
information confidential. The lawyer would also have to be transparent in the handling of
the case, in that the client should always be informed of the developments in the case, and
always be honest and work with integrity. In other words, the lawyer must prove himself
or herself worthy of the client’ trust. Note that this is not attained by way of one’s attire
but rather by one’s conduct and substance.

5. In relation to empathy, in order for one to understand another’s point of view, one should
develop a certain amount of self-knowledge. This is crucial as one may have clients who
are very different from one in terms of personality, class, culture and circumstances. In
order to empathize with such a client, one must be aware that one’s views and values may
not be the norm. This is essentially not just in the effective obtaining of information but
also to prevent one from jumping to conclusions.

6. In order to gain self-knowledge, it may help to develop a habit of self-scrutiny and self-
analysis i.e. to watch and listen to oneself as objectively as possible. Alternatively, one
could illicit the help of those close to one for feedback on how one carries oneself, how
one handles particular situations and one’s interaction with others.
C. Preparing for an interview

1. The initiation of an interview is usually via a phone call from a potential client who has a
legal matter to solve. This phone call will usually be to one’s firm and the first point of
contact that a potential client has with one’s law firm will be one’s secretary and/or
receptionist. As such, it is vital that one’s secretary and/or receptionist is capable of
dealing with one’s potential clients in a professional manner.

2. Once an appointment for an interview has been fixed, it is essential that one prepares for
the same. It must be remembered that at this point in time, one would only have a vague
idea of the particular area of the law which one’s potential client has issues in.

3. When one begins to prepare for an interview, one must bear in mind that it takes
approximately 90 seconds to form a first impression of someone and that 55% of that
impression will be based on appearances. As such, the first thing that one must ensure in
preparation for an initial interview is the following:

a) that one is presentably dressed, clean and tidy. This means that one should be
dressed professionally.

b) one needs to ensure that there has been a meeting place set aside for the interview.
This could be a meeting room or one’s own office. In both instances, the area
should be well lit, clean, comfortable and have a supply of stationary if the need
for the same arises.

c) one should also make arrangements to ensure that one’s potential client is
properly greeted when they arrived and made to feel welcomed and comfortable
ie offering them a place to store their umbrella (if any), offering them a drink and
enquiring whether the temperature in the meeting room is at a comfortable level.

d) prepare an interview plan and if one is aware of the area of the law required, one
should then familiarize oneself with the basic principles of that area of law before
the interview.
4. Interview Plan

4.1 Having an interview plan will assist in ensuring that the interview proceeds smoothly and
that one is able to elicit all the relevant information for one’s client. However, one must
remember that part of the objective of an interview is to establish a rapport with the client
as such, although one should have an interview plan, this plan must have sufficient
flexibility to allow for changes in the event that such changes are required.

4.2 An interview plan can be as follows:

a) welcome the client by introducing oneself, shaking hands, exchanging name cards
(this is essential), chatting briefly (to put the client at ease) and ensuring that the
client is comfortable;

b) obtain the following information from the client:

(i) name and address (personal as well as business);

(ii) facts of the case;

c) create an effective working relationship by explaining the form and purpose of the
interview. An example of an introduction to the interview could be as follows:

“I think we should start by letting you tell me what the problem is. Please feel that
you can talk freely. As you know, whatever is said here is strictly confidential,
which means that your visit here and whatever you say will not be made known or
discussed outside this office without your permission. The rule of confidentiality
applies to everyone who works here.

When you have told me everything you want to, I will probably have to ask you
some questions to make sure that I have for it right and at that stage, I will also
take some brief notes, if you have no objections. We should then be in a position
to discuss what might be done to assist you.”

d) encourage the client to put forward his or her views of the problem with the
minimum of interruptions at this stage;

e) listen to what is said and observe non-verbal communication;

f) reflect back on one’s understanding of what has been said;

g) ask questions of the client in order to elicit further facts and clarify any
ambiguities;
 h) give the client an opportunity to ask questions and express anxieties and respond
appropriately;

i) outline the legal options available;

j) take instructions from the client;

k) conclude the interview positively and confirm the next meeting, if necessary as
well as a deadline for one to revert to the client on any particular matter.

D. Establishing a rapport with the client

1. Establishing a rapport with the client is one of the most important considerations at the
first interview as it is only in an atmosphere of trust, confidence and approachability that
one will be able to obtain information, and it can be the most daunting aspect of the first
interview. In order to establish a rapport with one’s client, one should have the ability:

a) to observe non-verbal communication on the part of the client; and

b) be able to listen and question the client (which will be dealt with in the next
section).

2. Non-verbal communication on the part of the client

2.1 Non-verbal communication covers all the outward signs of the client’s state of mind and
allows one to discover not only the substance of the client’s problem but also the client’s
true feelings regarding these problems. This is necessary if one is to properly and fully
assist the client.

2.2 Non-verbal communication has many subtle forms including body language, the
attendant tone and pitch of the voice, the pauses, slowing down or speeding up of speech
and the emphasis on certain words.
2.3 One must also bear in mind one’s own non-verbal communication which might have the
effect of sending the wrong message to one’s client.

2.4 Bad and/or non-verbal communication which shows a distancing or lack of interest:

a) sitting with arms folded;

b) sitting with body turned away;

c) head down or turned away to avoid eye contact;

d) complete avoidance of eye contact;

e) nervous ticking of pen;

f) repeated hand movements;

g) fidgeting and facial expressions

All of the above could show that either one or one’s clients is defensive, bored, lying,
nervous, agitated or aggressive. However, one must always bear in mind that the above
body language must be interpreted in light of the tone of voice used by one’s client eg a
client sitting with her body turned away may not be seeking to distance herself. If she is
speaking in a soft tone on a sensitive topic, she may merely be ashamed or shy.

2.5 While one cannot control the non-verbal communication of the client, one can control
one’s own non-verbal communication to ensure that the client will be able to confide
his/her problem to one in full. One should aim for the following:

a) an ‘open’ posture ie to sit in a relaxed and upright position with one’s arms and
legs uncrossed as this gives the impression of openness and approachability.

b) try to sit as still as possible and be careful of one’s facial expressions.

c) be as non-judgmental as possible and ensure that this is shown in one’s facial

expressions and tone of voice.

d) avoid gesturing too much and/or too much note taking.

e) focus on the client (ensuring that one is keeping a close eye on the client’s
demeanour) and make eye contact with the client.
 f) ensure that one does not appear to be judgmental, prejudicial or condescending
towards the client as this would have the effect of the client not wanting to
confide in one.

3. Dealing with a client who cries

There may be a situation where one’s client becomes overwrought and breaks into tears.
What does one do in such a situation?

a) firstly, one should assure the client that it is perfectly acceptable to cry as it is a
normal human expression of emotion.

b) secondly, provide some tissues, a glass of water or cup of tea.

c) thirdly, if the above does not have any effect, then one should ask whether the
client would like to be left alone for a short while and then leave the room for a
few minutes.

d) once, the client has calmed down, it would be tactful to ask the client if she/he is
able to continue.

e) Note that the prevalent view is that one should never touch the client, except in a
formal way of a handshake at the beginning and end of an interview. This view
would extend to a situation where the client cries especially where one is of a
different gender to one’s client.

4. Dealing with a client who is angry and/or aggressive

There may be a situation where one’s client becomes angry and/or aggressive towards
one. What does one do in such a situation?

a) firstly, try to diffuse the situation by remaining calm and speaking to the client in
a calm manner.

b) secondly, if this does not work, then one may suggest a short break in order to
enable the client to calm down. If not, then suggest another meeting date.

c) thirdly, if the client shows signs of becoming violent, then one should leave the
meeting room and obtain help. One should NOT retaliate physically against one’s
client.
E. Developing Listening and Questioning Skills
1. Listening Skills
1.1 Hearing and listening are 2 distinct activities. Hearing is merely an acceptance of sounds
often while thinking of something else, while listening is a positive activity in that one is
actively considering what is being heard at the same time as hearing it.

1.2 Listening is an essential skill in interviewing as it helps to prevent one from making
assumptions and/or jumping to conclusions on what the client needs as opposed to
listening to what the client actually wants one’s assistance on. As such, one should
develope and practice active listening.

1.3 Active listening can be demonstrated in 2 ways:

a) by an apparent passivity i.e. in there being the minimum of interruptions

accompanied by one making encouraging sounds and signals to show that one is
interested.

b) by using paraphrasing and key word repetition to demonstrate that one is listening
and comprehending what the client is saying.

1.4 Remember that listening skills requires:

a) concentration and patience in order to listen to the client fully and prevent one
from jumping to conclusions and making assumptions.

b) awareness as to whether there are any barriers to active listening eg distractions.

c) demonstrate one’s attention by non-verbal signals.

d) repeat key words and phrases to show active listening and encourage further
information.

e) summarise and reflect back on what had been said as it allows the client to add,
amend or clarify any information.
2. Questioning skills
2.1 In order to get answers, one needs to ask questions. One can elicit information by asking
different types of questions as well as the manner in which a question is phrased and
whether it is ambiguous and/or clear. Note that if one is using a particular line of
questioning which may be sensitive or obscure, the best principle is to explain why one is
using the same.

2.2 There are 2 basic types of questions: open questions and closed questions. It is usually
better for one to use a combination of open and closed questions throughout and
interview.

2.3 Open questions

a) Open questions are question which do not demand or require a specific answer.

b) This type of questions are used to encourage the client to tell one about the
client’s problem using the client’s own narrative. This is usually a good way to
start off an interview as it allows the client to express himself in his own words
and will also allow the client to become more comfortable with one. The client
should feel free and uninhibited in responding to the question.

c) Examples of open questions are:

(i) “what happened next?”

(ii) “how did you feel about that?”

(iii) “what did you do then?”

d) When one uses an open question, one must ensure that the client is given time to
consider the question and the opportunity to think through his problem before
answering the question. As such, it is important NOT to immediately follow an
open question with another question.

e) At this point in time, one’s task is to listen attentively to the client and not
interrupt as this provides one with the opportunity to observe, listen and assess the
client.
 e) Note however, that with open questions, the client may end up ‘rambling’ i.e.
straying from the issue at hand. At this point, one must be able to bring the client
back to focus on the issue at hand.

2.4 Closed questions

a) Closed questions are those which requires a specific answer and are usually used
to clarify information and/or to re-focus a client who is rambling.

b) This type of question is usually used once one has elicited a certain amount of
information from the client and wishes to ensure that the information given is
clear and accurate.

c) Examples of closed questions are:

(i) “what type of car was it?”

(ii) “what time did the accident happen?”

(iii) “was anyone injured?”

d) When one uses closed questions, one needs to be careful not to turn the interview
into a session of interrogation. Therefore, closed questions should only be used to
clarify information or to curtail a client who is rambling.

2.5 When questioning, one needs to be careful to avoid asking leading questions. Leading
questions are those which prompts and directs a particular answer from the client. The
danger is that by asking such questions, one may be in danger of putting words into the
client’s mouth and this is to be avoided at all costs.

Eg. “So your wife and children first came to England in June 19__?”

If the client answers yes, one may fail to discover that not all the client’s children
had come to England in June 19___. Therefore it would be better to break it up to
“when did your wife first come to England?” and “what about your children?”.
This will enable one to direct the client as well as for the client to give
information which is complete in his own words.
3. Note-Taking
3.1 Note-taking is essential in ensuring that one has an accurate record of the information
which the client has given. However, note-taking should preferably be kept to a minimum
during the interview itself, save for some essential details. And one should always inform
the client that such note-taking will be carried out.

3.2 Some of the essential details which should be taken down are as follows:

a) detailed information of the client’s contact;

b) the date and time of the interview, including the starting and finishing time and
the names of those who attend the interview;

c) the basic problem which the client is concerned with;

d) the basic details of the factors surrounding the client’s problem especially dates,
times, details of document and the persons involved;

e) the information or advice which one offers;

f) action which is to be taken either by the client (eg. for documents to be forwarded
to one) and by oneself (eg. written advice which one is to prepare and forward to
the client)

g) the next meeting date or any deadlines which is to be met by either the client
and/or oneself.

3.3 The above information should be sufficiently clear and in detail to enable anyone who
takes over the case to understand and piece the case together without one’s assistance. It
should also be able to serve as a record of what one has done as an aid to one’s memory
and in order to avoid any dispute which might arise.

4. Dealing with a client who may be or is lying

4.1 During the course of an interview or at the end of the same, there may arise a situation
where one may feel or know that a client is lying about certain facts and/or issues.
Generally, this would not bode well in terms of the trust between one and the client. In
this situation, one should not accuse the client of lying as the client may be lying or
omitting certain facts due to shame or discomfort.
4.2 However, it is necessary for one to ascertain all the relevant facts as well as the truth of
these facts, as such, while one should not be confrontational or accusatory, one must
attempt to elicit the truth from the client. One could say the following:

“There are things here which don’t quite add up. Perhaps we could go through the facts
again since it is really important for me to know everything in order to advise you and
represent you properly”.

This will give the client the opportunity to clarify matters.

F. Advising and counseling skills

1. Ultimately the purpose of a client engaging the services of a lawyer is to obtain advice
and/or counseling on a legal issue. As such, the importance of an open interview becomes
obvious at this point as one will only be able to give complete and practicable advice to a
client if one possesses information which is clear, complete and verifiable.

2. Advising a client
2.1 When one refers to advising a client, this refers to the giving of legal advice as a possible
solution to a client’s problem. Legal advice can be given in 2 forms:

a) verbally; and/or

b) by way of a written opinion (the drafting of a legal opinion will be dealt with in
Legal Practice)

2.2 Before one gives any legal advice, one should do the following:

a) ensure that one has understood the client’s problem. The best way of doing this is
by summarizing one’s understanding of the facts given by the client as well as
what the client wants to achieve. At this point, one should carefully observe the
client as the client’s demeanor will give an indication on whether one is correct.

b) before giving the advice, ensure that one is well versed in the particular area of
the law. It is better to inform the client that one will be conducting some research
before giving advice than to give the client wrong advice.

c) once one is clear on the facts, the client’s wants as well as the relevant, one may
proceed to advice the client in a clear, concise and precise manner.
2.3 The advice given should be an application of the law to the client’s facts and problems
which will enable the client to make a decision on the course of action which the client
wishes to pursue. The advice should NOT be a statement of what one has decided would
be best for the client.

3. Counseling a client
3.1 Once one gives advice to a client, it may be necessary to counsel the client. Counseling
here is NOT concerned with sympathizing with the client or taking over the client’s
problem and making a decision for the client.

3.2 Counseling refers to the situation where the lawyer as a counselor assists the client in
reaching solutions which are best suited to the client’s wants and needs. Therefore
counseling needs to be client-centered but with the client making the decision.

3.3 A lawyer can best serve as a counselor by setting out the advantages and disadvantages of
each legal solution as it relates to the client’s case. This is to enable the client to consider
the same as objectively as possible and ensure that the client retains freedom of choice.

3.4 At this stage, one must always remember that it is the CLIENT who must make the
decision and not the lawyer. This is to ensure that the clients maintains the
responsibility for the consequences of the actions taken and does not surrender this to the
lawyer and/or hold the lawyer responsible for any repercussions arising from the decision
made.