What differentiates a great lawyer from the other is his knack to extract the right information from the client, put across their ideas in a clear, concise and confident manner combined with ability to listen effectively. To be effective in working with clients, witnesses, judges, mediators, arbitrators, experts, and jurors, lawyers must have a good understanding of how people think and make decisions, and must possess good people skills.
The skills of a successful lawyer lay in the mastery of human interaction and in the subtle awareness of the emotions, concerns and anxieties of others as well as in the knowledge of how to utilize that awareness to advance the attorney's professional aims in the interaction.
One of the lawyer’s functions is to guide a client into safer and better courses of conduct. Skilled lawyers are excellent practitioners, intuitively exercising psychological skills of a high order. They know how to listen, how to persuade, how to meet emotional and psychological needs of clients, opponents, judges, and even everyone they dealt with emotionally.
Good interviewing is an art, interpersonal relations, maximizing information flow, communication, questioning, selecting, empathy and sharing confidences, total confidentiality, and timing, collecting, verifying, synthesizing, and framing hypotheses.
Client counseling requires lawyer to assist the client in the way he needs rather than the lawyer taking any decisions on behalf of the client. Counseling is all about giving such information which a client would like to know regarding his legal problem. Client may require such information to take some decision about the course of action he may like to take in future.
In general, interviewing and counseling sessions have three main components
Success or failure in building rapport with the client will inevitably affect the attorney's ability to obtain and provide information, and to ethically and effectively counsel the client in this and future sessions.
Interview is a face-to-face interaction between interviewee and interviewer. The interviewer asks questions to which the interviewee responds. In the process, the information is transferred from interviewee to interviewer. Sometimes, information can be transferred in both directions. Interviews usually take place face-to-face and in person. If handled carefully, conduct of interview can be a powerful technique in having accurate information of the interviewee otherwise unavailable. At the same time, if the interview is not handled carefully, it can be a source of bias, restricting or distorting the flow of communication.
“An interview is a purposeful exchange of ideas, the answering of questions and communication between two or more persons.” Scott
“An interview is a procedure designed to obtain information from a person’s oral response to oral inquiries.” Gary Dessler
“An interview is any planed conversation with a specific purpose involving two or more people.“ Thill and Bovee
Interviewing a client, according to Maggie Lourdes, is the first step in judging whether a good attorney-client relationship is likely. It reveals whether the parties have the same expectations for representation and whether they are capable of sharing open, honest communications. The client should give the lawyer all the facts about his legal matter during the interview. As the lawyer, you should determine whether your expertise can be useful based on those facts, and directly disclose your analysis of the circumstances.
Interviewing the client is a continuous process as the matter proceeds. There may be cases of a single interview and counseling. However, generally when the client seeks counseling and assistance in deciding alternatives available and representation in the courts or other means of implementation of the decisions, interview becomes an ongoing process. The first/initial interviewing should be carefully attended to.
While dealing with a client, the lawyer may come across multiple challenges like difficulty in establishing trust, not getting the right questions for extracting the relevant information the client is withholding.
“The client may be unwilling to disclose information for several reasons; for instance, she may believe the information will hurt the legal case, she may not understand its relevance, or she may find the information too traumatic to discuss.” Deborah Maranville
Sometimes, clients are very nervous at the initial interview due to anxiety over their case, including embarrassment or fear of the consequences. The lawyer needs to take steps to reduce the client's anxiety to help the client communicate, since stress can reduce a client's ability to recall aspects of the case.
“The lawyer needs to take steps to reduce the client’s anxiety to help the client communicate, since stress can reduce a client's ability to recall aspects of the case, and to remember any advice given or directions about what to do next.” Colin James
The main aims of a good lawyer-client interview are to:
A primary purpose of the client interview is to identify the client’s problem and to collect information to see suitable ways to solve the problem. In order to convince the client to retain the lawyer, it is necessary to gather as much information as possible about the issue presented by the potential client. Lawyer should confidently explain what can reasonably be done.
“Initial interview is essential to cementing the foundation for the lawyer-client relationship. If the job is poorly done, the foundation will be unable to support the construction of the complex professional relationship needed to conduct a long or emotionally difficult case.” Robert Bastress and Joseph Harbaugh
Interview also serves as an opportunity to develop a relationship of trust and open communication between the lawyer and client. The thoughtful listening encourages a free flow of information. The client responds and openly discusses all the facts in the case, including his feelings about the subject at hand.
The interviewing process is not as simple as asking witnesses to tell everything they know about an event. Many factors influence the information flow, distorting and limiting it. The witnesses themselves will be of all personality types and come from different strata of society.
Lawyer’s personality, attitude, and manner of asking questions will have a profound impact on the information to be received. Interviewing is a vibrant process that depends upon communication between two persons. The efficacy of interviews depends on a thorough training and skill of interviewers
One of the most important requirements for a lawyer during communications with clients is to be an active listener. He should give the client, the opportunity to fully explain the facts. The lawyer should never argue with the client. The interview is an occasion to develop trust and to obtain essential facts. The client should feel confident in your abilities.
Practicing law means working with people. To be effective in working with clients, witnesses, judges, mediators, arbitrators, experts, jurors, and other lawyers, attorneys must have a good understanding of how people think and make decisions, and must possess good people’s kills.1)
Be sure to communicate that the client has your full and active attention during your time together. Some ways to show your commitment include using confident tone of voice, maintaining eye contact whenever possible, ensuring appropriate posture, and confirming information the client has shared by summarizing what you have heard and repeating it back to them. Conversely, if you notice any strange body language on the client’s part, be sure to ask some open-ended questions to probe a bit further, and find out if there is something, they are holding back.2)
It is important to establish a trusting and professional relationship. This can be achieved, if the lawyer is relaxed, caring and sincere. Many clients will trust and relate better to a lawyer who is genuine and modest, rather than a lawyer who is well-informed but arrogant.
The client-centered approach builds rapport and mutual trust. When the client knows his lawyer accepts, cares about, and respects him as a person, the client will be more prone to trust his lawyer. The two can thus feel secure in confronting issues together and can better work as partners. Such partnerships are more efficient and more pleasing for both the client and the attorney.
A counselor cannot be open and accepting unless he is honest with himself and with his client. A counseling relationship based on falsehoods is doomed to failure.
While the lawyer should express to his clients his support and positive regard for them, he must also be open enough to discuss with them the moral and social implications of their cases. The discussion should be full, frank, and non-confronting. If the lawyer becomes convinced that serious moral or social problems are raised, and the client fails to resolve the doubts, then the honesty and integrity of the lawyer require him to sever the relationship (or at least his work on that case). The lawyer should not advocate that which he believes to be morally or socially wrong. If he does, he loses his identity and self-respect.3)
The very top lawyers are not only logical and analytical, but they display a great deal of creativity in their problem solving. Creative inspiration can come from anywhere. By opening yourself up to new ideas, you can spark your creative potential. Curiosity is what keeps us moving forward in life and work. It helps us solve problems and pushes us to branch out further and further in our chosen field. Lawyers may not always be associated with creativity, but it is an important quality to have and to nurture if you want to continue to succeed. Lawyers must continually look at cases from new angles and work out ways to cultivate and communicate ideas. Fostering creativity is an on-going process, even if you consider yourself naturally creative.
Interviewer, according to Schoenfield, should also probe to increase the validity, clarity and completeness of the responses. The client’s statements should not merely be accepted. Careful probing may disclose, for example, that the client is merely speculating about certain actions and has no personal knowledge regarding them.
Section 126 of the Indian Evidence Act, makes all communications between professional advisers like a barrister, attorney, pleader or vakil, and their clients confidential; and it is only when the clients express consent that such a person may disclose any communication made to him in the course and for the purpose of his employment. The proviso to this section, however, rightly provides that the protection of the section will not extend to any communications made in furtherance of an illegal purpose or to any fact showing that a crime or fraud has been committed since the commencement of the employment. The purpose of legal professional privilege is to allow a client to make full disclosure to a solicitor without fear that disclosure of their communication might subsequently be made against his will.
Section 126 not only protects the legal adviser from disclosing communications made to him by his client when interrogated as a witness, he would not be permitted to do so even though he is willing to give evidence unless there is the express consent of his client. Mandesan vs State of Kerala4)
It should be noted that the privilege enshrined in section 126 is not absolute. Where defamatory questions are put by a lawyer to a witness during cross-examination, when so instructed by his client, without any reasonable basis for putting them, such a communication being not professional, its disclosure will not be protected under section 126 of the Evidence Act. Deepchand vs Sampathra5)
The privilege afforded to a legal adviser under section 126 is of a very limited character and protects only such communications as are made to the legal adviser in confidence, in confidence, in the course and for the purpose of his employment. Instructions to counsel are only privileged in the sense of being protected from disclosure to opponent and there is no privilege as against court. But, if the court calls for written instructions, it cannot use them as evidence in the cause which is being tried.6)
Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.