The Counselor-at-Law: A Collaborative Approach to Client Interviewing and Counseling

Description

This book takes a collaborative approach to legal interviewing and counseling. It suggests that clients will be best served when lawyers and clients work together to resolve problems. Under a collaborative decision-making model, the client controls most decisions, but the lawyer structures the process and provides advice in a manner that is likely to yield wise decisions. The Counselor-at-Law explores the major approaches to legal interviewing and counseling and outlines the available research on the psychology and the sociology of clients and lawyers. This book explores communication and decision-making theory, memory and recall, power and submission, personality types, and ethics. From this base, the authors construct a model of interviewing and counseling based on the techniques that are effective in real-life encounters. They also include psychological type theory and explain how it can be used to improve a lawyer's communication, interviewing, and counseling skills. This innovative casebook provides students with a template for effective legal interviewing and counseling. The most effective legal counselors are the ones instilled with respect for the client, cognizant of building rapport, aware of the psychological dynamics of the lawyer-client relationship, and equipped with technical communication skills to gather information without sacrificing rapport. Cover Page Prefatory Material LexisNexis Law School Publishing Advisory Board Title Page Copyright Page Terms Of Use Dedication Acknowledgment Table of Contents Chapter 1 — THREE MODELS OF LEGAL COUNSELING § 1-1. INTRODUCTION § 1-2. THE AUTHORITARIAN MODEL § 1-3. THE CLIENT-CENTERED COUNSELING MODEL § 1-4. THE COLLABORATIVE DECISION-MAKING MODEL Chapter 2 — HOW LAWYERS CONTROL CLIENTS § 2-1. INTRODUCTION § 2-2. TRANSFORMING THE CLIENT’S CASE § 2-3. CONTROLLING THE CONVERSATION § 2-4. INSIDER STATUS FOR SALE § 2-5. STRUGGLING FOR POWER § 2-6. TRANSLATING THE CLIENT’S STORY § 2-7. CRAFTING THE LAWYER-CLIENT RELATIONSHIP THROUGH COLLABORATIVE NEGOTIATION § 2-8. CONCLUSION Chapter 3 — COMMUNICATION SKILLS § 3-1. INTRODUCTION § 3-2. LISTENING § 3-2(a) Paying Attention § 3-2(a)(1) Paying Attention Physically § 3-2(a)(2) Paying Attention Mentally by Active Listening § 3-2(b) Actively Listening to the Client’s Nonverbal Messages § 3-2(b)(1) Body Language § 3-2(b)(2) Eyes § 3-2(b)(3) Facial Expressions § 3-2(b)(4) Using Knowledge of Body Language § 3-2 (c) Using Knowledge of Psychological Type § 3-3. BUILDING RAPPORT § 3-3(a) Mirroring § 3-3(a)(1) Mirroring the Client § 3-3(a)(2) Mirroring the Client’s Language § 3-4. WHAT TO AVOID § 3-4(a) Professional Blindness § 3-4(b) Hardening of the Categories § 3-5. VERBALLY RESPONDING TO THE CLIENT § 3-5(a) Responsive Statements § 3-5(a)(1) Clarification Responses § 3-5(a)(2) Reflective Statements § 3-5(b) Kinds of Reflective Statements § 3-5(b)(1) Paraphrasing § 3-5(b)(2) Reflecting Content Alone § 3-5(b)(3) Reflecting Emotion Alone § 3-5(b)(4) Reflecting Both Content and Emotion § 3-5(c) Summarizing § 3-5(d) Silence § 3-6. ASKING QUESTIONS § 3-6(a) Closed-Ended Questions § 3-6(b) Open-Ended Questions § 3-6(c) General Guidelines for Using Open and Closed Questions § 3-6(c)(1) The Advantages and Disadvantages of Each Type of Question § 3-6(c)(2) Asking These Questions in Context § 3-6(c)(3) Summary § 3-6(d) Leading Questions § 3-7. FINAL WORDS Chapter 4 — BEGINNING THE LEGAL INTERVIEW § 4-1. INTRODUCTION § 4-2. EFFECTIVE LEGAL INTERVIEWING: BUILDING RAPPORT AND GATHERING INFORMATION § 4-3. THE GENERAL ELEMENTS OF AN EFFECTIVE LEGAL INTERVIEW § 4-4. THE STRUCTURE OF AN EFFECTIVE LEGAL INTERVIEW § 4-4(a) Overall Goals § 4-4(b) Structure § 4-5. THE OPENING STAGE OF THE CLIENT INTERVIEW § 4-5(a) Physical Surroundings § 4-5(a)(1) The Office Building § 4-5(a)(2) The Lawyer’s Office § 4-5(b) Opening the Interview § 4-5(b)(1) General Guidelines § 4-5(b)(2) Building Rapport: Conveying Acceptance § 4-5(c) Opening the Interview: Meeting and Greeting the Client § 4-5(c)(1) Introductions § 4-5(c)(2) Ice Breaking Gay Gellhorn, Law and Language: An Empirically Based Model for the Opening Moments of Client Interviews Gay Gellhorn, Law and Language: An Empirically Based Model for the Opening Moments of Client Interviews § 4-5(c)(3) Time Constraints and Purposes of the Interview § 4-6. EXPLANATIONS § 4-6(a) Confidentiality § 4-6(a)(1) Discussing Confidentiality § 4-6(a)(2) Talking About Confidentiality at the Initial Interview § 4-6(b) Fees § 4-6(b)(1) Talking About Fees § 4-6(b)(2) Talking About Fees at the Initial Interview § 4-7. SAMPLE DIALOGUE TO OPEN A CLIENT INTERVIEW § 4-8. CONCLUSION Chapter 5 — HEARING THE CLIENT’S STORY § 5-1. THE FRAMING STATEMENT § 5-2. GETTING THE CLIENT’S STORY § 5-2(a) Opening Questions § 5-2(b) Avoiding Narrow Frames § 5-2(c) Providing Context Gay Gellhorn, Law and Language: An Empirically Based Model for the Opening Moments of Client Interviews § 5-3. HEARING THE CLIENT’S STORY § 5-3(a) Getting Past Framing Statements Gay Gellhorn, Law and Language: An Empirically Based Model for the Opening Moments of Client Interviews § 5-3(b) Identifying the Client’s Goals and Interests § 5-4. LAWYER DISTORTIONS § 5-4(a) Interruptions Linda F. Smith, Interviewing Clients: A Linguistic Comparison of the “Traditional” Interview and the “Client-Centered” Interview § 5-4(b) Narrow Questions and Premature Diagnosis § 5-4(c) Cross-Examination § 5-5. CLIENT DISTORTIONS § 5-6. SUMMARY Chapter 6 — DEVELOPING THE CLIENT’S STORY § 6-1. FRAMING STATEMENT: REPEATING THE HIGH POINTS § 6-2. CLARIFYING AND EXPLORING THE CLIENT’S STORY § 6-2(a) Funnel Sequences § 6-2(b) Helping Clients Explore Their Memories § 6-2(c) Statements of Understanding § 6-3. AN EXAMPLE OF SUCCESSFULLY EXPLORING A CLIENT’S CASE Gay Gellhorn, Law and Language: An Empirically Based Model for the Opening Moments of Client Interviews § 6-4. ENDING THE INITIAL INTERVIEW § 6-4(a) Defining the Role of the Attorney § 6-4(b) Things to Do at the End of Every Interview § 6-4(c) Things to Do When No Decision About the Case is Made at the End of the Initial Interview § 6-4(d) Things to Do When a Decision About the Case is Made at the Initial Interview § 6-5. CONCLUSION Chapter 7 — DECISION-MAKING § 7-1. LEGAL AND THERAPEUTIC COUNSELING: SIMILARITIES AND DIFFERENCES § 7-2. APPROACHES TO LEGAL COUNSELING § 7-2(a) The Client-Centered Approach § 7-2(b) The Authoritarian Approach § 7-2(c) The Decision-Counselor Approach § 7-2(d) Collaborative Legal Counseling § 7-3. COMMON ELEMENTS OF EFFECTIVE LEGAL COUNSELING § 7-3(a) Relationship Building Practices § 7-3(b) Decision Process Practices § 7-4. FACTORS THAT INTERFERE WITH EFFECTIVE DECISION-MAKING § 7-4(a) Satisficing § 7-4(b) Elimination by Aspects § 7-4(c) Information Processing Flaws: Heuristics and Biases § 7-4(c)(1) Heuristics § 7-4(c)(2) Biases § 7-4(c)(2)(i) Availability Biases § 7-4(c)(2)(ii) Representative Biases § 7-4(c)(2)(iii) Anchoring and Adjustment Biases § 7-5. DEALING WITH UNCERTAINTY § 7-5(a) Risk § 7-5(b) Framing Gains or Losses § 7-5(c) Guidelines for Accurately Framing Risk § 7-6. CONCLUSION Chapter 8 — CLIENT COUNSELING § 8-1. THE LAWYER’S RESPONSIBILITIES IN COUNSELING CLIENTS § 8-2. THE RHYTHM OF COUNSELING § 8-3. DESCRIPTION § 8-3(a) Accuracy, Objectivity, and Completeness § 8-3(a)(1) Assess the Client’s Case § 8-3(a)(2) Identify the Alternatives § 8-3(a)(2)(i) Minimal Acceptance Criteria § 8-3(a)(2)(ii) Cover a Wide Range of Options § 8-3(a)(2)(iii) Generality of Options § 8-4. DISCUSSION § 8-4(a) Client/Lawyer Collaborative Deliberation § 8-4(b) Structuring the Discussion § 8-4(b)(1) Agree on the Options Under Discussion § 8-4(b)(2) Agree on the Criteria Used to Evaluate the Options § 8-4(b)(3) Apply the Criteria in a Rigorous and Systematic Fashion § 8-4(c) The Decision Sheet § 8-4(c)(1) The Consequences to the Client § 8-4(c)(2) The Consequences to Others § 8-4(c)(3) Consequences for the Client’s Self-Image § 8-4(c)(4) Consequences for the Client’s Reputation § 8-4(c)(5) Reviewing the Decision Sheet § 8-5. DECISION § 8-5(a) Choosing the Option that Best Meets the Client’s Values and Goals § 8-5(a)(1) Making an Optimal Choice § 8-5(a)(2) Making Comparative Judgements § 8-5(a)(3) Making the Decision § 8-5(a)(4) Reviewing the Decision § 8-5(b) How to Structure the Decision Phase § 8-6. GIVING CLIENTS BAD NEWS § 8-7. CONCLUSION Chapter 9 — MORAL CHOICES IN THE LAW OFFICE: WHO GETS HURT? AND WHO DECIDES? § 9-1. INTRODUCTION § 9-2. AUTHORITARIAN LAWYERS: THE GURU AND THE GODFATHER § 9-2(a) The Lawyer as Guru Harrop Freeman, The Rabbi and the Horse-whip Lawyer § 9-2(b) The Lawyer as Godfather § 9-3. CLIENT-CENTERED COUNSELORS: THE LAWYER AS HIRED GUN § 9-4. COLLABORATIVE LAWYERS: THE LAWYER AS FRIEND Anthony T. Kronman, The Lost Lawyer § 9-5. AVOIDING LAWYER DOMINATION § 9-6. MORAL DISCOURSE WITH CORPORATE CLIENTS § 9-7. CONCLUSION Chapter 10 — TO SUE OR SETTLE?: COUNSELING ABOUT DISPUTE RESOLUTION § 10-1. INTRODUCTION § 10-2. COUNSELING CLIENTS ABOUT NEGOTIATION § 10-3. COUNSELING CONCERNING ALTERNATIVE DISPUTE RESOLUTION Chapter 11 — DEALING WITH CLIENT-LAWYER DIFFERENCE § 11-1. INTRODUCTION § 11-2. THE IMPACT OF DIFFERENCES ON THE LAWYER-CLIENT RELATIONSHIP § 11-2(a) Cultural Encapsulation § 11-2(b) Sensitivity to Different Cultural Rapport-Building Rituals and Patterns § 11-3. STEPS TO BECOMING MORE AWARE OF CULTURAL ENCAPSULATION § 11-3(a) Expectations § 11-3(b) Empathy § 11-4. CAUTION NOT TO STEREOTYPE BY ATTRIBUTING GROUP PREFERENCES TO INDIVIDUALS § 11-5. DO’S AND DON’TS § 11-6. SUMMARY Chapter 12 — LAWYERS, CLIENTS, AND PSYCHOLOGICAL TYPE THEORY § 12-1. INTRODUCTION § 12-2. AN OVERVIEW OF PSYCHOLOGICAL TYPE THEORY § 12-2(a) Two Mental Functions, Perception and Judgment, Influence Communication Between Lawyers and Clients § 12-2(b) Two Directions of Energy: Extraverting or Introverting § 12-2(c) Two Lifestyles § 12-3. REFLECTING ON YOUR TYPE PREFERENCES § 12-4. VALUE OF TYPE KNOWLEDGE § 12-5. TYPE AND SKILL DEVELOPMENT § 12-6. THE FOUR PREFERENCE SCALES APPLIED TO LEGAL INTERVIEWING AND COUNSELING § 12-6(a) The Perception Functions: Sensing or Intuition § 12-6(b) The Judgment Functions: Thinking or Feeling § 12-6(c) Direction of Energy: Extraversion or Introversion § 12-6(d) Lifestyles: Judgment or Perception § 12-7. TYPE DYNAMICS § 12-8. USING TYPE IN PROBLEM SOLVING § 12-9. CONCLUSION