LLB102_Study_Materials_Week_1

Legal Interviewing and Questioning

Learning Outcomes

• Key to effective legal practice is the proper appreciation of relevant facts.

• Assembling facts requires skillful discussions with the client compared to a military campaign.

• Preparation and execution are crucial for successful interviews.

• Students will acquire an understanding of the complexities of the legal interviewing process and demonstrate questioning skills.

Study Material

• Prescribed Reading:

  • Allan Chay and Judy Smith, Legal Interviewing in Practice (1996) - Chapter 10 available on QUT Course Materials Database.

• Recommended Reading:

  • Ross Hyams et al., Practical Legal Skills (3rd ed, 2007) - Chapter 2.

  • Bobette Wolski et al., Skills, Ethics, and Values for Legal Practice (2nd ed, 2009) - Chapter 3.

• Access materials and interactive tutorials on legal interviewing and questioning on the QUT Canvas Site.

• Participate in exercises to develop interviewing and questioning skills in tutorials before the Client Interview and Advice assessment.

The Importance of Communication

• Communication quality affects professional relationships with clients.

• Effective communication ensures efficient interviews.

• Good communication skills are essential in interactions with clients, peers, and courts.

• Enhances relationships and lowers risks of professional indemnity claims.

Rules for Good Communication

Listening:

• Maintain eye contact.

• Be attentive and aware of biases.

• Avoid premature diagnosis and listen for auditory clues.

• Observe body language.

Speaking:

• Wait for the client to finish before speaking.

• Identify the purpose of your message and plan its delivery.

• Use appropriate tone, pace, and loudness; direct conversation to the client and maintain eye contact.

Verbal Communication:

• Keep language positive and concise.

• Use simple, powerful words, and understand multiple meanings of words.

• Utilize silences effectively.

Auditory Clues

• Voice Indicators:

  • Monotone - boredom

  • Slow speed, low pitch - depression

  • High voice, emphatic pitch - enthusiasm

  • Abrupt speech - defensiveness

  • Tense speed, loud tone - anger

  • High pitch, drawn-out speech - disbelief

Visual Clues

• Posture/Activity Indicators:

  • Arms folded - closed

  • Hand on chin - listening

  • Hand on face - bored

  • Constant scratching - nervousness

  • Frowning - worried/disagreement

Body Language Awareness

• Maintain an involved posture, appropriate body motion, and eye contact in a non-distracting environment.

Caveats on Interpreting Body Language

• Avoid relying solely on body language.

• Be aware of personal biases and transference in conversations.

Listening Techniques

Passive Listening:

• Let the client talk; communicate reactions non-verbally.

Active Listening:

• Verbally reflect understanding of the client’s statements, framing them as questions.

Questioning Techniques

Types of Questions:

• Closed Questions: Yes/No (e.g., "Was the car yellow?")

• Narrow Questions: (e.g., "What colour was the car?")

• Open Questions: (e.g., "Tell me about ...")

• Value-laden Questions: (e.g., "How fast was the maniac speeding?")

• Check Questions: (e.g., "Are you saying that ...?")

• Reflective Questions: (e.g., "So you felt abandoned.")

• Leading Questions: (e.g., "You worked hard for promotion?")

• Hypothetical Questions: (e.g., "What if the Magistrate doesn’t believe you?")

• Choice Questions: (e.g., "Was the car green or blue?")

Questioning Technique: T-Funnel Questioning

• Start with open questions then narrow down to close questions following the discussion’s specificity.

Overcoming Barriers to Communication

• Use motivational statements to encourage discussion.

• Provide progress reports to recap established ground.

• Emphasize confidentiality of the discussion.

• Request feedback regarding the client’s feelings about the session.

Cross-Cultural Differences

• Considerations: Language, gestures, attitudes, personal space, and conversation dynamics.

The Context of Legal Interviewing

• Legal interview is personal and complex, serving as a primary legal access point.

• Important for resolving legal and emotional issues effectively and providing clients with decision-making support.

• Focus on enhancing lawyer-client relationships during legal interviews.

Approaching Interviewing

Relational Approach:

• Focus on client’s interests in collaboration, considering legal and non-legal aspects.

• Help clients identify options, implications, and evaluate their choices collaboratively.

Comparisons: Relational vs. Instrumental Approaches

Abilities Needed for Interviewing

• Effective communication

• Building rapport

• Adhering to professional obligations

• Strategic overview (helicopter vision)

• Providing direction during interviews

• Investigative and analytical skills

• Advising appropriately

• Creative problem solving

Suggested Interviewing Model

Pre-Interview

1. Prepare:

   • Learn client and matter background

   • Prepare the interview environment

   • Conduct preliminary research

   • Self-preparation

The Interview

2. Start the Interview:

   • Effect introductions

   • Collect personal details

   • Determine structure of the interview

   • Begin with an opening question

3. Reach Shared Understanding:

   • Understand client’s concerns and expectations.

4. Identify and Evaluate Alternatives:

   • Discuss alternative actions and their implications.

5. Take Instructions:

   • Collect informed instructions from the client.

   • Define roles and expectations for both parties.

6. Closing the Interview:

   • Clarify future relationships and confirm agreed actions.

Post-Interview

7. Reflect:

   • Analyze content and outcomes of the session.

   • Record instructions and confirm details through writing.