Clinical Law Review, Vol. 13, p. 505, 2006
36 Pages Posted: 16 Feb 2006 Last revised: 6 Feb 2013
Date Written: 2005
In teaching client interviewing, we assume that the lawyer has the power and right to control the conversation. We benevolently encourage the lawyer to give the client substantial control by asking and permitting the client to summarize the problem and to give a time-line history before the lawyer controls with topical questions. This framework has many advantages and is largely respectful of the client's autonomy. Nevertheless, there is a flawed assumption underlying this instruction - that the lawyer is in charge of the interview. This article argues that an interview of a client is essentially a conversation. Here I present basic theories about conversation from the disciplines of discourse analysis, conversation analysis, linguistics, sociology and philosophy and apply these theories to transcribed interviews.
Philosopher Grice famously proposed the cooperative principle - that a conversation is, fundamentally, a cooperative activity in which both conversation partners comply with Grice's four maxims (quantity, quality, relation and manner) - by making their contributions as informative as is required, being accurate and truthful, relevant and brief, orderly and clear.
Sociologist Erving Goffman's theories of facework involve each speaker acting to save face and protect the other's face. Brown and Levinson's theory of politeness builds upon Goffman's theories about face. Certain ways of expressing ourselves - especially the tendency to be indirect - advance politeness but may harm clarity.
Conversational analysis contends that conversation partners actively create order through their talk. They proceed in orderly ways, taking turns, maintaining topics and including certain typical structures (greetings, spoken narratives, accountings, self-disclosures).
In order to properly teach, critique, and theorize about how attorneys should interview clients, we must accept that clients will be inclined to engage in this conversation as they engage in any other conversation. We should learn the characteristics of client-lawyer talk.
Greetings - Conversation analysis teaches us that there are conventions and learned greeting rituals that may differ with cultural differences and social distance. Gay Gellhorn's work contends that her SSI clients demonstrated they will reveal critical material as soon as they have an opportunity to speak, which students often miss, believing they are merely at the ice breaking stage of the interview. This is evidence of the interview as a conservation - a cooperative endeavor that the client and attorney both control - and proof the attorney must listen.
Narrative - Clients often prefer to present themselves and their problem through a spoken narrative rather than as a problem type. A client with a face-threatening situation loses face when he baldly states the problem. People desire to control how they make disclosures and to disclose naturally, in the course of the conversation, in order to save face.
Spoken Narrative Structure - Student interviewers often have little patience for the client who says irrelevant things. But seemingly irrelevant statements may be part of the structure of the spoken narrative: 1) abstract, summarizing the point of the story, 2) orientation giving background information, 3) complicating action giving the events in chronological order, 4) coda shifting to present time to restate the meaning and 5) evaluation commenting upon the story from outside of it. Many clients, when given the opportunity to talk, will include these various components of the spoken narrative form. The lawyer should have patience in listening to the client introduce the story and conclude the story with a coda/evaluation telling the lawyer how the client feels about the situation and what she wants done.
Narrative Before Questioning for Clarity - Texts wisely encourage students to obtain a chronology of the problem prior to asking questions. Obviously the attorney is better able to consider legal theories and frame questions once she knows the whole story. However, the operation of Grice's cooperative principle in an interview driven by attorney questioning is a second reason for this structure. Clients will try to be relevant and responsive to whatever the attorney asks, giving enough but not too much information. At the same time, the client will also try to include the information that he thinks is important and relevant to whatever topic the attorney appears to be raising. The result can be that disconnected pieces of information are conveyed simply to set the stage for an answer that the client is called upon to give. Moreover, because the client will insert information she thinks is important whenever it seems marginally relevant to the topic the attorney has selected, the attorney will receive a jumble of important facts that she did not anticipate. They will be told in an order that makes them difficult to understand or remember. Because clients are persistent in trying to convey important and relevant information, attorneys should permit a client-controlled narrative early in the interview and before directing conversation with topical questions.
Topics are More Important than Question Form - Grice's cooperative principle establishing that conversation partners make their contributions informative, accurate, truthful and relevant suggests that clients will try to provide any information they believe is relevant. Clients will do this even if they are not explicitly asked and even if they have no notion of a legal theory making certain information relevant. Accordingly, even if the lawyer asks a narrow or yes/no question, the client will provide information beyond that explicitly asked for if it seems necessary for the lawyer to have the understanding the client wants. Given the attorney-client relationship that is being formed, the client's equal status as conversation partner and the client's high interest in conveying a particular story, poor choice of question form will rarely, in-and-of-itself, produce a poor interview.
Empathy and Active Listening Lead to Disclosure - The value of active listening or reflective techniques is supported not only by psychological counseling theories, but also by principles of conversation analysis. Clients who engage in face-threatening self-disclosure are more willing to continue if they receive encouragement and support from their conversation partner providing empathetic responses.
Keywords: Conversation analysis, Discourse analysis, Lawyer-client interviews, Lawyering Skills training, Linguistics
Suggested Citation: Suggested Citation
Smith, Linda F., Client-Lawyer Talk: Lessons from Other Disciplines (2005). Clinical Law Review, Vol. 13, p. 505, 2006; NYLS Clinical Research Institute Paper No. 05/06-15. Available at SSRN: https://ssrn.com/abstract=885360