Chapter 12
Chewing the Fat: Legal Interviewing
IN THIS CHAPTER
Conducting the initial client interview
Interviewing witnesses
Preparing clients and witnesses for giving testimony
You’ll find that you often get the most valuable information for a case when you interview clients and witnesses. Paralegals often have an advantage over their supervising attorneys when it comes to conducting interviews. Clients may be less intimidated by paralegals and find them to be more sensitive and more approachable than attorneys. So, you may be able to gain more information from a client or witness in an interview than an attorney can.
The majority of the interviews you hold serve one of two purposes: to gain information about a case from a client or witness or to prepare the client or witness to give testimony. This chapter shows you how to set up an interview with a client or witness, gives you ideas for the types of questions you ask, and provides tips on how to prepare clients and witnesses for testifying at trial.
Gauging Whether the Case Is Valid: Initial Client Interviews
The first and, perhaps, most important interview for any case is the initial client interview. The primary goal of the initial client interview is to gather enough information to determine whether the client has a valid case and to develop a proper investigation of the case if it turns out to be valid. Your supervising attorney may trust you to perform this important task. At the very least, you may be present during the interview to take notes and provide support to the client and your supervising attorney.
Successful client interviews require proper preparation. The initial interview provides the client with the first, and probably most lasting, impression of the law firm, so you must present yourself as a competent and caring professional. To make for a comfortable client and an enlightening interview, you, as the interview director, set the stage, control the discussion, and provide a natural ending point.
Setting the mood
You need to keep a couple things in mind when you set the stage for a client interview. The room you choose and the way you position those involved in the interview within that room can affect the success of the interview.
The room where you hold the interview should be comfortable and free of clutter with a room décor that doesn’t detract from the matter at hand. A good choice would be a conference room, a general meeting room, or the office of an attorney or paralegal.
Law libraries and reception areas make bad choices for an interview. You don’t want the client’s interview interrupted by an attorney or paralegal wandering into the law library trying to do some legal research. Even worse, you definitely don’t want to hold a client interview in a public area where other clients, messengers, and delivery people could happen by. Your client needs to trust the law firm’s ability to keep her affairs confidential.
After you settle on a location for the interview, you need to consider the arrangement of the people in the room. Usually, interviews are set up in one of three basic seating arrangements:
- The interviewer and interviewee face to face across a desk (see Figure 12-1A): This arrangement is the most formal of the three. Corporate clients may prefer this type of meeting with attorneys in their law firm to discuss company litigation, but other clients may find this situation too intimidating and formal.
- The interviewer and interviewee face to face at an angle on a corner of a desk (see Figure 12-1B): This arrangement is more personable than the preceding one but still maintains a professional atmosphere. This position allows you to share documents very easily with the client, and it allows you to lend support during emotional or traumatic episodes.
- The interviewer and interviewee side by side (see Figure 12-1C): This arrangement offers the most personable, unimposing atmosphere. You can either eliminate the desk and table completely and converse from the comfort of two cozy chairs, or you can sit side by side at a table. Sitting at a table gives you space to work with when you have documents to discuss. This arrangement may limit your eye contact with the client, but because the client may feel less intimidated with this arrangement, he may feel more comfortable giving out information.
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FIGURE 12-1: You have options when it comes to seating arrangements.
After a while, you’ll instinctively know the best location and seating arrangement for interviewing clients. Then, you’ll be able to focus on preparing for the content of the interview rather than its setting.
If you adopt a more casual interview style, don’t get too complacent about how you conduct yourself. Although the content of the interview is important, first impressions are lasting. How your client perceives the law firm in the initial interview setting will make a huge difference in building and maintaining credibility with the client. The relationship you develop with the client in the initial interview sets the tone for rest of the litigation process.
Directing the content
Before you interview anyone, you need to have a plan. Know what you want to accomplish from the meeting and put it in writing so you have something to refer to as you move through the interview.
Relying on a checklist
Before you meet with clients or talk to them on the phone, create a checklist of items you need from the clients as well as a list of questions they have to answer. You can mark items off the list as you receive the information. With a checklist, you can be certain you’ve covered all the important topics. It also gives you a subtle tool for containing an interview if the client starts to veer from the topic.
Many clients love to tell you their life stories, but time is a valuable resource in a law office. You’ll be pressed for time just like everyone else on staff, so you’ll generally have a specific amount of time allotted for a client interview. Not only does the checklist help you to keep the client focused on the task at hand, but it also gives you a polite way to bring an interview to a close. Review your checklist with the client at the onset of the interview so she knows what you plan to cover during the interview. The client knows the interview is over when you’ve worked through all the questions.
The client is often just as concerned about time as you are. In cases where an attorney charges clients by the hour, clients usually don’t want to spend too much time discussing trivialities!
Don’t be so rigid about your checklist that you don’t allow the client to stray a little. When you let the interviewee go off on a tangent, you may get some information that you would never have uncovered had you stuck to the checklist religiously.
Creating and following an interview checklist
Organize your checklists so that the flow of information has some continuity. Use any information you may have about the case before you see the client to formulate your questions and organize the interview. Ask background questions first to establish a foundation. Then use the logical sequence of events as a guide for ordering the questions you ask about the event or incident in question. For example, in divorce, estate, and other legal matters that concern finances, you gather information on a client’s assets and debts. It’s customary to ask about assets first and then use the asset information as a guide for gathering the information on debts.
Successful client interviews use a combination of open-ended questions (ones that can’t be answered with a simple fact or “yes” or “no,” like “What did the accident scene look like?”) and closed questions (ones that ask for simple answers, like “Was the car damaged in the front?”). The open questions allow the client to tell the story, while the closed questions help bring focus and additional detail to the interview.
Online at www.dummies.com/go/paralegalcareer2e we’ve provided you with an extensive sample checklist that you could use for the initial client interview in a divorce matter. You can customize this list for other situations.
You can break the content of the interview into four stages:
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Secure background information.
Ask questions about the client’s biographical data and other information about the client that’s pertinent to the case. You can find checklists of background questions for all kinds of cases in the American Jurisprudence Proof of Facts (POF). (You can find out more about this helpful resource in Chapter 11.) For example, if a client is seeking assistance with a drunk driving charge, you’d ask about the client’s driving record to get insight into his driving background.
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Find out what happened immediately before the event.
In the pre-event stage of questioning, ask the client to thoroughly explain the circumstances leading up to the incident in question.
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Find out what happened during the actual incident.
The initial interview focuses on the event stage, which may be the most emotional part of the interview for the client. Be prepared to handle the client’s anger, sadness, or fear as he recalls the details of the event. Pay close attention; sometimes seemingly insignificant details can have a crucial bearing on the success of a case.
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Discovering what occurred after the event.
Have the client finish the accounting with information about what happened immediately after the event and what relevant matters have occurred up to the time of the interview. This information helps you determine the client’s damages and the extent of his pain and suffering.
Here’s a sample scenario to help you work through the initial client interview process. Suppose your supervising attorney asks you to interview a prospective client by handing you a memo like the one in Figure 12-2.
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FIGURE 12-2: An attorney’s memo requesting an initial client interview.
The memo includes a police report. Sometimes the law office will have preliminary information you can ponder before you meet the client. Figure 12-3 shows you the narrative report referred to in the memo.
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FIGURE 12-3: A narrative police report in the Cary Careless case.
Based on the information provided to you and using the four stages of an event as a guideline, you may come up with a checklist of questions like the following to ask Mr. Careless in the initial interview. Note: You ask follow-up questions based on the answers you get for the original questions.
- Background questions
- Full Name
- Contact information: address, phone number, Social Security number, date of birth (Client is only 18. Does he live with his parents? If not, what are his living arrangements?)
- Attend school?
- Employed? If so, where? How long?
- When did he receive his driver’s license?
- Any citations on record?
- Does he own the car? If not, whose car was he driving?
- Who carries insurance? What type and amount of coverage?
- Pre-event questions
- Why were you driving on that road? Where were you going?
- What was your physical condition? Were you tired? Taking any medications with or without prescription? Consumed any alcohol? Any illegal or nonprescription drugs?
- Any physical limitations? Eyeglasses? Hearing aids?
- Were you in a hurry for any reason?
- Did you know the speed limit?
- What were the road conditions?
- What was the weather like that day?
- What was the general condition of the car you were driving? Had it been serviced recently?
- What are the names and ages of the two passengers in your car?
- What is your relationship to the two passengers in the car?
- Why were they traveling with you?
- Event questions
- What time of day did the accident occur? What was the weather like at the time?
- Explain your version of the accident. Take this one step at a time: Speed? Position of passengers? Radio or other music playing? What were the other passengers doing? Anyone on a cell phone? Anyone eating?
- Was the road familiar or was it one you hadn’t driven on before?
- When did you see the other car?
- Was there a stoplight or stop sign? A yield sign? Do you know who had the right of way?
- When did you realize how serious the accident was? How did your passengers react?
- When did the police arrive? How were they summoned?
- Relate your conversation with the officer at the scene.
- Anyone go to the hospital? How were they transported?
- Did you contact your family? The family of other passengers in the car?
- Did you take photos of the scene?
- Post-event questions
- Describe your injuries.
- Have you received any medications? Any ongoing care? What is your prognosis?
- When did you learn of Ms. Fortunate’s hospitalization? Have you received grief counseling or other ongoing psychological support?
- Do you understand your responsibilities and/or the choices you will have to make?
- Has your insurance agent contacted you?
- Has Ms. Fortunate’s family or attorney attempted to contact you?
The success of any interview depends upon the client’s ability to provide the necessary information. One means of persuading the client to talk is to have him explain the stages in story fashion. If possible, encourage the client to recount the events in chronological order and avoid interrupting the client during the account. At the end of the client’s story, summarize the chain of events and repeat it to the client. This gives the client the chance to correct any of your misperceptions and allows the client to recall additional details to fill in the original account.
Ending the initial interview
Before you end the initial interview, ask whether the client has any additional questions about the case. The odds are pretty good that the client won’t remember every single detail about the incident or her actions during the first interview, so encourage her to contact you or your supervising attorney if she remembers something else or has additional questions. Before the client leaves the initial interview, be sure to tell her to refrain from discussing the case with anyone other than members of the law firm.
Right after the client leaves your office, take a few moments to summarize the interview. While your memory is fresh, record the date and time of the interview and jot down a statement of the pertinent facts of the case, your evaluation of the client, a list of documents and other evidence that may help the case, a list of potential witnesses, and other pertinent information.
Completing the Story: Witness Interviews
You conduct witness interviews in much the same way you do client interviews. The major difference between the two is that you go into the witness interview with a more definite goal for the interview.
Before you interview any witness, you must first determine whether that witness is represented by an attorney in the case. If so, get the attorney’s consent in writing before interviewing the witness.
As in the initial client interview (see the previous sections), you’ll have a checklist of questions prepared in advance. To give you an idea of the kinds of questions you may ask a witness to an accident, we return to the Cary Careless incident (see “Creating and following an interview checklist,” earlier in this chapter). Imagine your supervising attorney hands you the memo in Figure 12-4.
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FIGURE 12-4: Attorney’s memo requesting a prospective witness interview.
To complete the assignment, you first find out whether Mr. Nosy has an attorney to represent him in the Careless matter. Then you choose a location for the interview. You may call the retirement center where he lives to find out if they have a quiet, comfortable room where you could talk to Mr. Nosy, especially if he doesn’t live alone. After you’ve established the site and scheduled an interview with the witness, you prepare a set of questions like the ones in Figure 12-5.
© John Wiley & Sons
FIGURE 12-5: Checklist for a witness interview.
As you conduct the witness interview, note whether you think the witness would provide effective testimony in the event of a trial.
Preparing Clients and Witnesses for Testimony
Now that you’ve interviewed your office’s client and the prospective witnesses, you know exactly what they’re going to say during questioning if they’re deposed or in court if the case goes to trial, right? Wrong! One of the best ways to sink your client’s case is to let your client or any of your witnesses get on the stand without training them for questioning.
Never assume that people you’ve interviewed will say the same things under questioning that they’ve told you in an interview. Witnesses can freeze up and get flustered when they’re under oath and facing questions from attorneys.
To prepare clients and witnesses for testimony during a deposition or trial, let them know the purpose of the questioning. Give them a thorough description of the questioning process and provide them with insight into the opposition’s perspective and how the opposition may use the answers they give to make its case. Here are several time-tested pointers to give to a client or witness, especially if she’s giving testimony to a jury:
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Tell the truth. Telling a lie may lose the case. In a lawsuit, as in all other matters, honesty is the best policy. If you tell the truth, nobody can cross you up. And you could face criminal perjury charges for intentionally lying under oath.
Never tell a client or prospective witness to say anything under oath that’s untrue. Not only is it against professional ethics to encourage a witness to lie, but you could also be prosecuted for perjury or witness tampering. - Don’t guess. If you don’t know the answer to a question, don’t speculate. Simply state that you don’t know the answer.
- Understand the question before you give an answer. You can’t possibly give a truthful and accurate answer unless you understand the question. If you don’t understand the attorney’s question, ask him to repeat it.
- Take your time. Think about a question before you provide an answer. Take as much time as you need to formulate your answer, but keep in mind that if you take too long to answer a question, the jury may think you’re making up an answer.
- Answer only the question that’s asked. Don’t volunteer any information that isn’t required by the question.
- Make yourself heard. Don’t chew gum, and keep your hands away from your mouth.
- Answer audibly rather than with gestures. It’s easier for the court reporter to record a “yes” than a head nod.
- Don’t look to the lawyer for help when you are on the stand. If you look at your lawyer during questioning from the opposition, the jury may interpret this as a sign you’re being untruthful.
- Beware of questions involving distances and time. If you provide an estimate, make sure you clarify that you’re estimating. Think clearly about speeds, distances, and intervals of time, and make reasonable estimates.
- Know your vital statistics. Your truthfulness may be suspect if you can’t recall basic information about yourself, like your address, how old you are, and when you were married.
- Don’t argue with any lawyer who questions you. Maintain as much composure throughout the process as you can.
- Don’t lose your temper no matter how hard you’re pressed.
- Be courteous. Showing good manners is one of the best ways to make a good impression on the judge and jury.
- Avoid making jokes and wisecracks. A lawsuit is a serious matter.
- Address the jury during questioning.
- Dress conservatively so as not to distract a jury. Nose rings and tank tops may send the wrong message to the jury. Dress for trial as though you’re attending a job interview. Suits, dresses, and sport coats and slacks in dark blue, brown, or black are good options.
In addition to going through this list with clients and witnesses, you’ll probably prepare them for specific questions they can expect to answer.
To avoid unpleasant surprises, you should try to anticipate the questions the opposition will ask of your clients and witnesses and give them a mock questioning to help them form their answers before the trial or deposition.
One of the most important factors in the success of your client’s case is the quality of the evidence that your office’s legal team presents to the jury. A big part of that evidence consists of witness testimony. The more credible your client and witnesses appear to the jury, the better your office’s chances for a successful outcome in the litigation.