The Art of the Interview
By: Claude Ducloux
Board Certified, Civil Trial Law and Civil Appellate Law, Texas Board of Legal Specialization, Director of Education, LawPay
While interviewing skills are critical to a lawyer’s success, few are ever trained how to do it. While colleagues in the medical profession spend a great deal of time learning how to “take a history” and probe the client for clues as to the source of their ailment or discomfort, no one seems to understand the importance of that process for lawyers. The value of properly interviewing proposed clients is immeasurable. A good interview can result in candor, trust, credibility, and choosing the most appropriate remedy for the issue presented.
The true purpose of a legal interview should result in the following: realistic expectations as to the limits of the legal rights involved, timelines and costs, as well as alternatives that may be available to the client.
The Incoming Client
Always keep in mind that as a lawyer you are first and foremost a problem solver. People very rarely go to see a lawyer to communicate their personal joy. Usually a trip to the lawyer (like a trip to a doctor) represents a problem in their lives. Moreover, it could be a personal failure, an unexpected tragedy, or being confronted with a legal situation which requires sage advice. Therefore, keep in mind that you rarely see people at their best during a client interview. Think of your own hopefulness when you have a debilitating medical problem and go to the doctor hoping that he or she will fix it for you. Expect the same hopeful expectation in the person consulting you: to fix a problem.
Though you may have wonderful technical skills (you may know how to file a mechanic’s lien, prepare an extraordinary writ, or file a complex consumer case), all of those skills are simply tools for you to solve problems. So, always look at every legal matter as a problem which requires resolution.
Resolve Potential Conflicts of Interest Early
Older lawyers generally have learned the importance of resolving potential conflicts of interest early into the interview. If you wait 45 minutes into the interview, after the client has poured out his entire financial, moral, family history and goals, and only then discover a conflict, you likely have already formed an attorney-client relationship, regardless of your being paid, or your intention to handle the matter. Remember, whether an attorney-client relationship has been formed is in the mind of the client and not in yours. If, by your action or inaction, you have encouraged the prospective client to disclose all of his most serious, confidential information to you and only then do you determine that a potential opposing party is a client of your or the firm’s, you may be completely conflicted from handling any portion of that case, even for your existing client.
So, as I mention, good lawyers attempt to discover in the first 5 minutes the names of parties or entities that may be involved, and quickly determine whether a conflict exists. This is a hard lesson, especially for young lawyers who may not have had but a few dozen clients. Early on, a young lawyer may have few conflicts, however, that chance frequently becomes a strong possibility after 35 years of practice, even in a large city. Anecdotally, I can tell my readers that in my very broad general practice of nearly 40 years I discover conflicts of interest regularly, and if you have a reputation for skill and special ability in an area of law, your opposing counsel will waste no time trying to remove you from a case. So, just like checking the gas in the tank before you take off on a long trip, always check your conflicts before you get too far into an interview.
Form an Early Bond of Trust
Remember the old adage: you never get a second chance to make a first impression. This applies to your initial interview. Look like a lawyer. You want an aura of professionalism, confidence, and dedication. I apologize to those who will call my thinking old-fashioned, but if you show up in a T-shirt and flip flops to a first meeting, you are diminishing the client’s assessment of your professionalism, and setting yourself as perhaps a cheap alternative to a “real” lawyer.
Next, when the meeting starts, stop checking emails, hold all your calls. Feel free to make notes (I take very precise notes of the facts) and dedicate yourself 100% to attending to that client. Take a clue from our psychotherapy colleagues, who believe that “healing begins when people believe they are being listened to.” Listen closely, carefully, and make sure the client appreciates your concentrated efforts to understand their issue. Remember: you are a problem solver. Often, the client communicates what you need to know in the first 30% of the interview, but if the client has unreasonable expectations, you need to make sure you hear the entire story (even irrelevant facts) to have credibility when you need to “push back” on unreasonable expectations, which I will discuss below.
If you show interest, concentration, and ask intelligent questions, you very often are forming not only an attorney-client relationship, but a friend for life.
Always End with “Reasonable Goals:” The Magic Questions
After you have listened carefully, your interview must ultimately end with both parties having reasonable goals and expectations. With regard to goals, you must determine: what do they hope to achieve? This can tell you a lot about the personality of the client you will be dealing with. Also, what are their motivations? Are they doing this for the right reasons or to inflict pain on someone else? After you have listened carefully, I urge that there are two magic questions you must ask: “What do you think I can do for you?” And, if the matter has an opposing party: “If we were listening to the person who is on the other side of this transaction or claim talk about you, what would he/she be saying about you?”
The best answer to the first question is some version of: “You’re the lawyer, you tell me.” In any event, the answer to these questions will be hugely illuminating. If, for example, they have presented a small personal injury or consumer case which you assess has maybe $20,000 in potential damages, and they express an expectation of $1 Million, you have a problem that you must resolve before you can take the case, or you must absolutely pass. You cannot take that case unless you both agree that the goal you are trying to receive is reasonable and supported by the law and that the client has sufficient means to get you to the goal line. If you know that this client doesn’t have the means to take this matter all the way through what could be a long process, hearing or trial, then your retention by the client should be subject to that agreement and understanding, which may include some contingency fee for you.
I Want to Sue for the Principal of It!
My most serious “red flag” warning is the siren call of those potential clients who inform you that they “want to sue for the principal of it.” I.e., they have been wronged, and dagnabbit, they’ll show that wrongdoer what’s for! Be aware of this unalterable, immutable, and bitter truth: YOU will never make that client happy, as they enter the relationship with completely unrealistic expectations, and they expect you to meet those expectations 100%. If you decide to take this on, raise your rate, as you’ll earn it. Later, you can send me your regrets.
Also, I think it is very important to encourage the client to ask you questions. Be prepared that one of their earliest questions will be “Do you do this [type of legal work]?” If you have not, do not exaggerate your skills or experience, or there is an 80% – 90% chance that such exaggeration will come back to haunt you.
Always be sure to give your client options. Be sure you explain options and how they might affect outcomes. For example, you might assess in a consumer case that a partial refund is a reasonably quick possibility, but a full refund will likely take a lawsuit and all the time and expense that entails. “If you get 80% of your money back now, would that be sufficient? More than that will likely mean litigation and a much longer and more expensive timeline.” Make good notes of those conversations.
The single most important word in the practice of law is communication. Communicate with everyone: your client, your opposing counsel and the Court and its staff when necessary. Never leave any stone unturned if there is a possibility of a miscommunication.
Please understand the importance of this going forward: by communicating carefully and thoughtfully with your client, you control the narrative. If you allow your client to respond with a changed narrative and you do not correct that, you are setting yourself up for problems in the future. If, for example, you informed the client that the cost of the legal services, depending upon the response of the other side, will be between $1,500 to $10,000, and the client writes back confirming that you have told the client that you will do the whole case for $1,500, you are allowing the client to change the narrative. Always respond quickly, effectively and courteously with the correct information that you have discussed. Your failure to correct that, again, is a huge problem, and may be presumed to be evidence against you.
Clear Expectations Result in Good Relationships
If your client interview results in reasonable understandings of what your client wants you to do, your own belief that such results are achievable, and you have carefully explained time frames and likely range of costs, you will not only have a client who trusts you, but a friend and a future source of referrals upon which you can expect more work.
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