Wednesday, February 18, 2009

Lawyers & Clients: The Initial Interview

Tomorrow evening (Thursday, February 19) we are going to watch a DVD called Lawyers and Clients: The Initial Interview featuring Professor Robert H. Mnookin of the Harvard Negotiation Research Project. If we have time after our initial discussion, we'll watch it twice.

First, some context. Both at the start of the film and at the end, Professor Mnookin explains how interviewing and counseling fit together with negotiation. He starts by saying that the relationship between attorney and client is itself something that has to be negotiated, and he closes by reminding us that an effective client-attorney relationship is a precondition for productive settlement negotiations. Please keep that in mind, and think about how the three aspects of this course overlap.

Now for your tasks. Before we start watching the film tomorrow, think back to yesterday's class and ask yourself this question: What are the objectives of the initial interview? While we watch the film, look for examples of the attorneys (Eric and Gerald) meeting those objectives and missing them. Notice how the meeting between Eric and the client, Dr. Susan Garfield, becomes an arm-wrestling match. What is at the root of that? What changes could Eric make to his choice of words, his use of silence, his posture and -- most importantly -- his basic assumptions about the purpose of the meeting to prevent the interview becoming a battle of wills?

The second attorney, Gerald, seems to score better than Eric in terms of eye contact, empathy, and active listening, but I think there is something fundamentally wrong about the way he assigns roles. What is it? The picture below will make more sense when we get to that part of the DVD, by the way.

In addition to noticing how Eric and Gerald conduct themselves, and how their clients respond, I would also like you to pay attention to Professor Mnookin. From time to time he says "cut" and steps on stage to give advice. And after each interview he sits down with Eric and Gerald for a debriefing. Watch how he, Mnookin, asks questions, expresses emotions with his face, and uses his hands.

Finally, look out for examples of active listening techniques such as open questions, clarifying or closed questions, requests for clarification, summaries, reframing statements, and acknowledging emotions. Look out for their absence too. Make note of junctures where one or more of those techniques could have moved the interview in a better direction.


  1. This film loses some of its effectiveness with the first scenario because Prof. Mnookin keeps interfering with the discussions with feedback. The feedback he's giving is good but he's giving it in bits and pieces and forcing the actor/lawyer to retain so much and put it to practice on the spot. How anyone can have that much to remember and put it all to practice on the spot? By the end of the first lawyer-client skit, it seemed as though the lawyer was trying to say the lines the professor told him as opposed to putting theory to practice.

  2. There seemed to be a subtle irony in the film when Mnookin addresses Eric. Despite the objective of strengthening an attorney's skills in interpersonal relationships, Mnookin displays his own failings with Eric.

    As we discussed in class, Eric just wasn't "getting it." Mnookin was dancing around the issue at hand - that Eric was grossly ineffective in his methods - but failed to get directly to the heart of the matter, presumably to put a positive spin on it. But by fluffing up his advice, he was losing the message in the packaging, which caused diminishing returns. The moment turned more awkward when Mnookin attempted to make contact with Eric by placing his hand on Eric's arm. This was uncomfortable even for the audience.

    The moral of the story is that every person has their own "best" method of being addressed. Some clients need nuturing, others need to simply be told the cold, hard facts. And there are a multitude of levels in between. In Eric's case, Mnookin should have simply said to Eric: "Okay, we know that was rough. But you really can't interrupt clients, shout over them, or intimidate them. Your emotions got the best of you. Try again, but by listening more - even when what the client is saying is wrong - and talking less. When the client is given a sense that you are listening, she will in turn be ready to listen to you." With this approach, I think Eric would've readily admitted his errors and performed much better the second time around. He knew things went bad, he didn't need things to be fluffed up to the point where the objectives became lost in the "nice try, champ" speech from Mnookin. Sometimes, people just need to be given the facts - especially lawyers. After all, if a lawyer can't take criticism, they're probably in the wrong business.

    Not only did the video provide two examples of poor client counseling (albeit lawyer #2 vastly improved), it also showed a third example of poor counseling. I can't help but wonder how much potential Eric had that went to waste due to Mnookin's failings.

  3. I think what this video really showed is that there is no one "cookie cutter" way to conduct these interviews. While I will not argue that Eric did a good job with the interview, he did follow what Mnookin told him to do and it still went poorly. That is because the client was far too emotionally wrapped in the case to have a rational client interview at this time. Instead of asking any questions, I think it might have been most beneficial for Eric to just put the pen down, and listen to what the client had to say, adding in the good body language (leaning forward, head nodding ect.) and showing that he was intently listening and caring for her situation. I think asking all those questions almost incited her into a more emotional rage than actually helped Eric calm the situation.

  4. I think Eric may have been more technically sound from a legal perspective albeit with terrible social skills. (Combative with client but wants to know every nuance to explore each possible legal issue)

    Gerald on the other hand had much better people skills but failed to address many of the legal topics. (He's going after the other side...despite the fact that his client has the money, the car, and a possible criminal charge.)

    I think Gerald came off as the lawyer people would want to have though if given the choice between the two. This I believe demonstrates the point from the book that building repoire is a greater factor in client satisfaction than legal expertise.

    -Mike Colandrea