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

Feature

Instrumental Approach

Relational Approach

Focus

On matters solely

On clients’ holistic needs

Context

Legal problems framed only

All aspects considered (legal and non-legal)

Lawyer’s Role

Commands the interview

Works alongside client

Client’s Role

Source of information only

Active participant

Relevant Facts

Only legal facts seen as important

All client-relevant facts considered

Control

Lawyer controls the interview

shared control with client

Lawyer Autonomy

High autonomy in handling matters

Collaborative decision-making

Options Considered

Only traditional legal options

All options including alternatives to litigation

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

  1. Start the Interview:

    • Effect introductions

    • Collect personal details

    • Determine structure of the interview

    • Begin with an opening question

  2. Reach Shared Understanding:

    • Understand client’s concerns and expectations.

  3. Identify and Evaluate Alternatives:

    • Discuss alternative actions and their implications.

  4. Take Instructions:

    • Collect informed instructions from the client.

    • Define roles and expectations for both parties.

  5. Closing the Interview:

    • Clarify future relationships and confirm agreed actions.

Post-Interview

  1. Reflect:

    • Analyze content and outcomes of the session.

    • Record instructions and confirm details through writing.

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