What is inquiry mode?
Learning
Definition: open-ended curiosity and interest in exploring things regardless of the consequences
What is persuasion mode?
Manipulation
Definition: thinking and talking that manipulates a situation.
Cons: treat others as types rather than individuals, listening for ammunition, manipulative or controlling
What are the 6 steps of diagnosis?
- recognizing and defining problem
- preparing: gathering and evaluating info
- generating options
- evaluating options
- deciding
- acting
What is Convergent thinking?
Narrowing and inquiry to find a single right answer
ex) multiple choice
What is Divergent thinking?
Broadening the inquiry by thinking in several directions at once to find more answers or strategies
ex) how many uses for a brick can you think of
Active Listening
Definition: ability to listen well by encouraging communication w/o asking questions
Inhibitors: embarrassing/traumatic info, fear of sharing info that undermines their case
Facilitators: building a trusting relationship, comfortable environment, nonverbal communication
What is the purpose of Client Interviewing?
- Form attorney-client relationship
- learn the client’s goals
- learn as much as the client knows about the facts
- reduce the clients anxiety w/o being unrealistic
How is a Client Interview Organized?
- brief opening
- info gathering: broad to narrow questioning
- identify client goals: what do they want to accomplish/prevent?
- Form preliminary strategy: start generating solutions
- Closing: Are you hired, next steps, finances
Crafting Client Interview Questions (Dispute)
- ask all the questions to find the story in the facts
- ask questions that would reveal what arguments the other side might make
- explore for other evidence
- evaluate the client’s value as a witness in court
- ask whether the client has talked to anyone else about this
Crafting Client Interview Questions (Transaction)
- learn the posture of the deal so far
- learn the parties’ interests
- ask whether the client has talked about this problem with another lawyer
Crafting Client Interview Questions (General)
- raw facts and client’s source of knowledge
- all the details
- questions to prevent the 3 disasters
- pieces of paper
What are the 3 big disasters in Client Interviewing?
- Accepting a client who creates a conflict of interest
- missing a statute of limitation or other deadline that extinguishes or compromises the client’s rights
- not taking emergency action to protect a client who is threatened with immediate harm
Organizing Client Interview Questions
- Get a general sense of the case then move to more detailed exploration
- separate topics
- for each topic go broad to narrow, ending with probing questions
Formulating Client Interview Questions
- phrase questions carefully
- a good question does not confuse, provoke resistance, or distort memory
- probe for more info with active listening and body language
- one question at a time
- NO LEADING QUESTIONS, create potential for false answers
What are the types of fee agreements?
- by the hour
- flat rate
- contingency
- working with retainers (initial or perpetual)
Problems with Client Interviewing
- ethics: confidentiality, avoiding perjury, preserving evidence
- distraught client
- handling private/embarrassing material
- client fabrication
- when the client wants a prediction on the spot
In what ways can a client fabricate?
- unconscious reconstruction of memory
- semiconscious fudging
- conscious lying
Cognitive Interviewing Techniques
Techniques:
- reinstate context (return to the scene)
- tell me everything
- recall the event in different orders
- changing perspective
Structuring Fact Gathering:
- open-ended narration stage: don’t interrupt
- probing questions stage
- review stage: confirm/clarify understanding
6 Steps of Decision Making in Client Counseling
Part 1: Preparation
1. identify the problem
2. gather and evaluate information and raw materials
3. generate options
4. evaluate each potential solution (pros, cons, outcomes)
Part 2: Counseling
5. Go through steps 1-4 w client and ask them to choose the best option
6. act on the option they choose
Predicting Outcomes of Each Potential Solution
- Pros and Cons
- Best, worst, most likely
- finances (transaction costs, expected value, time value of money)
Motivations for ADR
- save time and money
- “better” processes - more responsive to needs of participants
- “better” results - outcomes serve real needs
- enhancing community involvement
- broadening access to justice
- protecting turf
Client Meeting
- mood + setting
- beginning the meeting
- discussing the options
- asking the client to decide
What are Interests?
needs, desires, fears, things one cares about or wants
What are rights?
independent standards that demonstrate the legitimacy of a party’s position
