Observation & Memory
-People’s memories are malleable
-We like to think we’re good at remembering what we saw/experienced (but we’re actually bad at remembering accurately)
Factors that affect observation
-Length of time you might be exposed to the event
-Whether the event stood out or blended into background
-Whether anything interfered with event
-What witness was doing at the time
-Whether the witness is generally a careful observer
-Was the witness under stress
-What we believe to happen
Factors that affect memory retention
-Amount of time that has passed between event & time asked
-Whether memory has blended with other memories & factors
-Everytime you recall an event, it changes that event
Cognitive Interviewing
-Useful tool to get the most info from the client when interviewing
-Reinstate context
-Ask witness to tell everything
-Recall the event in different orders focusing on different thing
-Change perspectives
Purpose of interviews
-Form the attorney-client relationship (rapport, education, EL)
-Define scope of relationship pursuant to Rule 1.2
-Learn the client’s goals
-Learn as much as possible about the facts
-Ease stress & anxiety
Model Rule for Scope of Representation
Model Rule 1.2 Scope of Representation
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstance and the client gives informed consent.
Inhibitors to interview (factors that create barriers to the client telling you everything)
-Interrupting the client
-Client is embarrassed
-Cultural differences
-Asking too narrow questions too quickly
-Client doesn’t want to tell you something that they think will hurt their case
-Your demeanor to the client
Facilitators to interview (factors that help the client tell you as much as possible)
-Emotional intelligence based on your client’s needs
-Attorney-client privilege & confidentiality
-Being prepared
General organization of the client interview
-Preparation
-Opening/introductions
-Info gathering
-Probe
-Review facts
-Goal identification
-Preliminary strategy
-Closing
Preparation stage
-Research first the general area of law if you know the topic
-Basic, relevant law
-Research the client if you can
-Ask the client to bring any relevant documents with them
-Write down questions in advance if you know anything about the general topic
Goal identification stage
-Don’t explicitly ask what their goals are
-true goals aren’t stated - pay attention to what is said & what isn’t said
-Costs are major decision
Good goal questions to ask the client
-What would be the best outcome
-How will this dispute affect the client
-How will this dispute affect their family
-How will this affect your personal relationships
-What outcomes are they worried about
-What do you want to make sure that doesn’t happen
Preliminary strategy stage
-Some initial problem solving methods
-Broad strokes based on brainstorming in client interview - where you will start
-Too early to be detailed
Closing stage
-Ask client if they want to retain you/move forward with you
-If they do, draft an engagement letter
-Client & lawyer decide on their next steps
-Agree on what the client should do next or not do anymore
-Get relevant docs if you don’t already have them
