Client Counselling Procedure

LAWYERS AND CLIENTS: THE FIRST MEETING
LAWYERS,
what they do and their competence, have become
subjects of great interest both among lawyers and the community
at large, in this country and in the United States.’
The general interest has been fired by consumerism and
dissatisfaction with lawyers’ work and lawyers’ charges in the
United Kingdom and by the “unethical and illegal practices and
actions” of lawyers in government service during the “Watergate”
episode in the United States’ coupled with reaction there to Chief
Justice Warren E. Burger’s 1973 Sonnett Memorial L e ~ t u r e . ~
LAWYERS, LEGALWORKAND LEGAL COMPETENCE

The intellectual tradition of the “Realist” movement has helped to
settle the focus of academic observers down from the heady heights
of appellate court work into factual uncertainty at the negotiation
and trial court level. From this it has been a short step down to the
everyday work of the lawyer’s office and a concentration on the
basic skills of the lawyer. The combination of Realism with the
progress of the “social science” movement in law has brought
intellectual acceptability to the study and analysis within law itself
of the skills of lawyering. Thus, the early work of socio-legal
scholars was concerned mainly with the study of subjects such as
the trial courts, disputes settlement processes generally and juries.
Although these remain central areas of interest, some more recent
work4 has begun to look at the lawyer/client relationship.
A clear understanding of the lawyerklient relationship is a
fundamental step in the testing and application of current social
theory on the legal profession. It is also an essential step in the
development of teaching and training methods for a more able
profession.
INTERVIEWING AND COUNSELLING

There seems to be a general recognition, even in jurisdictions
without a separate Bar, that the maior part of lawyers’ work takes
See e.g. ALUABA Conference Proceedings, Enhancing rhe Comperence of Lawyers
(1981); L. Trakman, “Competence and the Law” (1982) 11 Capital Univ. Law Rev. 401;
P. Carrington, “On the Pursuit of Competence” (1976) 12 Trial 36; A . Paterson,
“Professional Competence” [1983] J.L.S. 385 and sources therein cited; R. Abel, “The
Decline of Professionalism?” (1986) 49 M.L.R. 1.
“Law Schools and Professional Education” American Bar Association Special
Commirree Report (1980), p.10; H. Kestin, “Bridging the Gap Between School and
Practice” 70 A.B.A. J . , January 1986, pp.56 et seq.
’ 42 Fordham L.Rev. 227 (1973-74).
e.g. D . Rosenthal, Lawyer and Client: Who’s in Charge? (1974); “Evaluating the
Competence of Lawyers’’ (1976) 11 Law and Soc.Rev., 257; M. Cain “Towards a Theory
of General Practice L a w y e r s A Radical Approach” (1979) 7 Inr.Jo. of Sociology of Law
331 and M. Spiegel, “Lawyering and Client Decision-making: Informed Consent and the
Legal Profession” (1979) 128 Univ. of Penn.L.Rev. 41.
323
324 THE MODERN LAW REVIEW [Vol. 49
place in the lawyers’ office using the skills of interviewing and
counselling, negotiating and drafting.s American social scientists
certainly seem to have spent much more time on the “Perry
Mason” or “Rumpole” image6 of the trial court lawyer than is
warranted by the proportion of time spent by most lawyers in the
courtroom.
The first interview between client and lawyer is a crucial period
of mutual assessment. Mutual confidence must be built up, the
lawyer must be given basic information on the client’s case and the
client be given some understanding of the way the law operates in
relation to hidher problem. The lack of communication skills
possessed by lawyers has been well noted in the Consumers’
Association survey in 1977’ and the Benson Report suggested that
good communication was the most important reason for clients’
satisfaction with their solicitors and bad communication a major
reason for their dissatisfaction.8 One can only speculate how many
potential clients are put off by the profession’s poor reputation in
communication skills. Many of the complaints received generally
about lawyers concern this problem.
Traditional legal education spends a great deal of time
familiarising potential lawyers with the law as it is found in statutes,
law reports and textbooks, but very little time is spent looking at
the lawyerklient relationship. If the handling of a case hinges on
the information obtained from the client and the client’s agreement
to a course of action, the efficiency of lawyers’ interviewing
techniques is a crucial area for investigation. A study of
communication on the first occasion the lawyer and client meet
would therefore seem to be a useful beginning for an understanding
of that relationship, and what may go wrong. This fact has not
escaped the recognition of the major researchers. Research in this
area however, has not progressed easily partly because of the
reluctance of the profession to be involved.
Rosenthal in Lawyer and Client: Who’s in Charge?’ notes his
own failure to be allowed to sit in on lawyerklient interviews or
tape them. Others, such as Harrop Freeman,” Brenda Danet et
_ _ _ _ ~ ~ ~ ~
See, e.g. G . Goodpaster, “The Human Arts of Lawyering: Interviewing and

Counselling” (27) Jo. of Leg.Ed. 5; Danet et al., at note 11 below; and D. Riesman,
”Towards an Anthropological Science of Law and the Legal Profession” 57(2) American
Journal Sociology 122: “[Mlost lawyers today recognize that their most important work is
done in the office, not in the courtroom; the elaborate masked ritual of the courtroom
holds attraction only for the neophyte and the layman.’’
See, e.g. R. Levy, [1974] North Carolina Law Review 1083.
’ Which? Consumer’s Association Report, May 1977, p.297.
The Royal Commission on Legal Services Final Report, Cmnd. 7648, 7648-1
(“Benson”). See, e.g. Vol. One 3.3637, 22.2%31, 22-62, Tables 22.3, 22.4; Vol. Two
8.228-230, 2.238, 8.252-272, Tables 8.34, 8.35, 8.36 and 8.37. See also B. Curran, “The
Le a1 Needs of the Public” (1978) 64 A.B.A.Jo. 843-52.
#See note 4 above.
lo Counselling in the United States (1967), p.53.
MAY 19861 LAWYERS AND CLIENTS: THE FIRST MEETING 325
a1 l 1 and Maureen Cain’’ have recorded similar results, although
some uork in progress has shown more success re~ent1y.l~ Rosenthal
in 1976 returning to the theme of lawyer competence in general
compared the amount of work carried out in the evaluation of the
medical profession and cried out for research to take lawyers at
least as far as the medical evaluation has reached.I4 Among
Rosenthal’s suggested areas of interest15 are recordings of lawyer-
client consultation “especially initial client interviews.”
RESEARCH
DESIGN
This article describes research into lawyers’ abilities to interview
clients and reports the first part of an experiment aimed at assessing
the value of training young lawyers in interviewing skills. In this
part of the experiment some 27 articled clerks in their first weeks
of practice were filmed interviewing clients and their performances
assessed. l6
Sample
Some 20 firms of solicitors were approached, and nine of those
firms permitted articled clerks to participate in this study. The
sample generated for this study was thus based on the co-operation
of a few firms and clerks newly appointed to those firms. The fact
that the research involved a training scheme for these new law ers
may well have acted as a major incentive to their involvement. 1 7
The question of sample” is probably the most difficult one to be
faced by any researchers into the ways lawyers operate. As Danet,
l1 Danet, Hoffman and Kermish, “Obstacles to the Study of Lawyer-Client Interaction:
the Biography of a Failure” (1979) 14 Law and SOC.Rev. 923 (herinafter referred to as
“Danet”).
l2 See note 4 above. It seems that Cain was allowed to observe some interviews but
not to tape them.
l 3 See, e.g. Janet Gilboy, The Perspectives and Practices of Defense Lawyers in
Criminal Cases, Ph.D. dissertation, Northwestern University, Evanston, Illinois, 1976 and
(1979), 70 Jo. of Crim. Law and Criminology, p.1. There has also been participant
observation in Holland by Miek Berrends in Gronigen and in California and New York
by Austin Sarat and William Felstiner. Where lawyers have been studied closely it has
often been the public sector of “legal-services-for-the-poor.’’ See, e.g. Carl J. Hosticka,
“We don’t care about what happened, we only care about what is going to happen:
Lawyer-Client Negotiations of Reality” (1979) Social Problems Vol. 26, No. 5, p.599.
l4 “Evaluating the Competence of Lawyers” (1976) 11 Law and Soc. Rev. 257.
lS Ibid. at p.285.
l6 In the second part of the experiment they were divided into three groups (a) one
group receiving training in interviewing by traditional teaching methods and audio-visual
replay of their interviews, (b) one receiving traditional teaching methods only and (c) a
“control” group receiving no interviewing training at all. They were then all filmed
interviewing other clients. The results were thus intended to show how untrained lawyers
interview and the relative benefits of training, different forms of training and of learning
by experience without training. This part of the experiment is reported elsewhere.
Rosenthal, in 14 Law and Soc. Rev. 923 hypothesises that the failure of researchers
to obtain access to the legal profession might be connected with the absence of a “fixed
social objective” that the researchers declare they are trying to attain. In this study the
participating firms have been able to accept training as such an objective.
For the second part of the experiment the clerks were randomly assigned to one of
the three experimental treatment groups, thereby ensuring that if any systematic bias
existed such as the particular selection biases of the firms the clerks came from, it would
be equally present in all three groups.
Hoffman and Kermish” found, it is not easy to gain the co-
operation of lawyers for any such project and a system of random
selection of a sample will almost certainly have to be sacrificed in
favour of obtaining any sample at all.n’
Procedure
An attempt was made to recreate reality within certain confines in
order to sharpen the focus of the experiment onto a minimised set
of factors. The clients were drawn from a pool of previous and
existing clients of local Legal Advice and Law Centres. They were
paid f4-00each to attend and relate their problem in the same way
as they would have done when meeting their lawyer for the first
time. This enabled control over the subject matter of interviews
which in turn enabled some control over lack of legal knowledge as
a factor in lawyer’s performance (see text between notes 22 and 23
below). It also circumvented many of the problems of confidentiality.
The Research: How Good Are They?

The first section of the research programme aimed to investigate
how well newly qualified lawyers were able to conduct a first
interview with a new client and to find where particular problems
lay.” The clerks had all written their Final Law Society
Examinations and were therefore at their peak of general, across-
the-board, legal knowledge; but had not yet had contact with
clients.” By using this group it was intended to control for any
l9 See note 11 above.
However a random sample is only one way of ensuring that uncontrolled variables
are considered. By using strictly random procedures for selecting populations one can be
statistically confident that variables have an equal chance of distribution within the
resulting sample as in the population at large. But, if perfect random selection in this way
is impossible, another way to account for uncontrolled variables is to control them within
the actual sample: this was camed out in the second half of this study-the design of
which allowed for such manipulation. The results of the study reported here do not allow
for such manipulation. It is worth noting that even a random sample of lawyers’ firms
may be subject to systematic bias by allowing the lawyer to preselect the cases which the
researcher may view. This seems to be accepted as a precondition of such research. See,
e. Cain, note 4 above.
The organisation of the experiment was an exercise in administration as well as hard
physical work (for an account of some of this see David Andrews, “In Camera” The
Guardian September 23, 1981). Special thanks are due to David Webb, Ed Denehan,
John Flood, Viv Gerrard, Rob Ross and Lorraine Sherr for bussing, shepherding,
entertaining and coffeeing clients and guiding and filming lawyers; and to the Audio-
Visual and Psychology Departments and School of Law at Warwick for their assistance.
Thanks, also to Dr. Derek Rutter now at the University of Kent at Canterbury for
he1 ful advice from idea to inception.
$Two of the subjects had taken their Finals six months previously whilst the
remainder had just completed them, but none had yet experienced individual contact
with clients.
MAY.19861 LAWYERS AND CLIENTS: THE FIRST MEETING 327
differences in legal knowledge which might have affected interview
perf~rmance.’~
All 27 subjects (17 male and 10 female) conducted a 20 minute
interview. They were randomly ordered, and randomly assigned to
clients. The nature of the clients’ own particular cases was not
considered as a variable, as it was interviewing technique and not
“the law” that was to be investigated.” An underlying hypothesis
of the programme was that there can be a set of interviewing tasks
and skills which operate whatever the legal content of the case.
The lawyers were instructed to interview the client for up to 20
minutes treating the interview as a first interview with a new client
on a new case. The interview was recorded on video-tape. The
lawyer was required to draw up case notes for the “file.” The case
notes and the video-tapes were then analysed as shown in Table I.
Table I
System of Assessment
Data Assessment
Information Tasks Performance Skills Performance
Video- Information emerg- (a) By practising (a) By practising law-
tapes ing during the inter- lawyers. yers
view (b) By legal inter- (b) By legal interview
view trainer trainer
File Information noted
Notes down by lawyer
Information
The prime objectives for the first meeting between lawyer and
client are a subject of some discussion in the academic literature.
Some seem to suggest that it is most important to set up a rapport
between the two, to engender mutual confidence.= Others point
out the need for the lawyer to ascertain with some urgency what
the client has consulted the lawyer about.26 There is agreement
that a basic outline of the problem should be obtained and this
Although they would have all studied basically the same subjects for the Solicitors’
Finals. some might have studied more of certain subjects at University, than others. In
order to balance this, some two weeks before the experiment, all clerks were given a
“top-up” course of reading in the law relating to any subject matter the clients would
raise which was not covered by Solicitors’ exams.
24 Cases involving only welfare benefit calculations were excluded since interviews in
these cases typically might involve long periods of reading and checking calculations
against scales and would therefore not be good material for our exercise.
25 See, e.g. A. S . Watson, The Lawyer in the Interviewing and Counselling Process
(1976) pp.11-16 and Benson, note 8 above, Vol. 1, 22-29; M. K. and B. P. Schoenfield,
“The Art of Interviewing and Counselling” in The Practical Lawyer’s Manual on Lawyer-
Client Relations ALI-ABA 1983, pp.3, 7-8.
26 See, e.g. D. A. Binder and S. C. Price, Legal Interviewing and Counselling, A
Client-Centered Approach, (1977) p.59.
would seem to conform to the practitioner’s view of the process.”
The interviews in this study were therefore assessed first in terms
of the information the lawyers elicited.
Andrew Watson in “The Lawyer in the Interviewing and
Counselling Process” discusses the “‘diagnostic’ mind-set” of
lawyers.28He says they too often do not try to understand why the
client has come to see the lawyer or what motivates clients and
their actions. It is not easy to gain a full understanding of this area,
not least because the client may not “‘know’ exactly what he
wants.” Hosticka, in his empirical study of the work of some
publicly funded lawyers in Boston, shows results which echo
Watson’s criticism.29Watson also cogently argues3’ that “the client’s
goals will shape the outcome of the interview regardless of what
the lawyer does or does not do.” It is therefore more sensible to
take these into account and work with them, rather than ignore
them. It was thus interesting to see how successful the lawyers
were in gathering such information as well as the information
which seemed more relevant to the legal position.
Method
Information was broken down into 12 major ~ a t e g o r i e s as
, ~ ~set out
in Table I1 below. These categories were adapted from the
categories of information used in D. R. Rutter and G. P.
McGuire’s, work on medical students’ history taking techniques
( R ~ t t e r )The
. ~ ~ Rutter categories were adapted to this form after
testing them out on a small number of interviews. Added to these
headings was a category for assessment of how understandable the
file notes would be to another lawyer picking up the case without
having met the client.
The work of assessment of information was carried out by two
objective observers with graduate legal knowledge who were
randomly assigned to mark. The observers manually recorded the
information on to prepared record sheets enumerating the 12
major categories and some 85 sub-categories. The observers were
instructed how to code the information systematically into
the categories and sub-categories resulting in a comprehensive
breakdown of all information for subsequent analysis.
See, e.g. Laurence Sherman, The Practical Skills of the Solicitor (1981) pp.4-12.
pp.1&16.
29 See above, note 13.
y, pp.32-33.
31 There were also numerous sub-categories such as the following relating to heading
1. “1. Client Personal Information: (a) full name, (b) full address, (c) telephone number,
(d) work, (e) marital status, ( f ) children, (g) form of residence, etc.” The analysis of
these details is not reported here, but the full breakdown of information headings are on
file with the author.
32 “History Taking for Medical Students. I Deficiencies in Performance, I1 Evaluation
of a Training Programme” (1976) Lancet 11, 556-560.
Ratings of the quality of the information for each lawyer for
each category were assessed on a seven point scale ranging from 1
“bad” through 4 “neither good nor bad” to 7 “good.” Assessment
in this manner was carried out on the basis of information
observable emerging during the interviews by reference to the
videotapes as well as information which was noted down by the
lawyers in their case notes for the “file.”
Results
Table I1 compares the ratings of information emerging in the
interview (by reference to the video-tapes), with information noted
by the lawyer in file notes. The scores shown here are the
percentage whose performances were bad at a “failure” level (i.e.
1-3 score on the 7 point scale).
Table I1
Information Emerging and Information Noted By Lawyer
% Scoring % Scoring
Category of Information 1-3 on notes 1-3 on tapes
1. Personal Information about client 56 30
2. Other parties 63 41
3. Witnesses 85 71
4. Problem (legal) subject categorisation 56 71
5. Events 67 41
6. What the client wants 70 41
7. Previous advice and assistance 96 78
8. Legal Proceedings 93 82
9. Next client/lawyer contact 85 78
10. Work to be done by lawyer 48 63
11. Work to be done by client 83 78
12. Advice given 82 59
13. Clarity of notes 56 -
The information noted by the lawyers was poor. 56 per cent. of
the lawyers failed adequately to record the clients’ personal
information including full names, addresses, telephone numbers,
e t ~ 85. ~per~ cent. failed to obtain adequate information about
witnesses and 70 per cent. failed to identify what the client wanted
as a result of coming to the lawyer. 56 per cent. of the lawyers
could not place the problem in legal subject category and the
incidents and events involved in the cases were inadequately
elicited in 67 per cent. of the cases.
These problems led to inadequate performance in the rest of the
interview. 96 per cent. of the interviewers failed to inquire about
any previous legal assistance on the matter (this would cause
enormous problems if another lawyer were already handling the
33 See note 31 above.
case) and even more importantly 93 per cent. failed to inquire
about any legal proceedings past or pending. 85 per cent. did not
suggest or plan the next lawyerklient contact which was especially
important since this was a first interview with the client.”
The best score on information noted down by the lawyer, on
which a relatively low 48 per cent. “failed”, concerned the work to
be done by the lawyer. However, the disparity between what the
lawyers noted they had to do and what they told to the clients is
interesting. The analysis of the tapes of what was said in the
interview to the client shows a much higher rate of 63 per cent.
“failure” on this point. This seems to suggest that the lawyers were
aware of the work they had to do and recorded it in their notes,
but did not communicate or feel it necessary to communicate this
to the client, a point noticed in the Which? report on lawyers and
also by the Benson Cornmissi~n.~~ Similarly, there is less failure,
and the lawyers were therefore better, at recording problem subject
categories, in their notes, than informing the client of such
categorisaqion.
82 per cent. of the lawyers did not inform the client of any work
needed to be done by the client such as gathering papers, making
calls, etc. The same number failed in terms of their recording of
the legal advice they gave, although here the situation was reversed
and there is a lower failure rate of 59 per cent. on the analysis of
the tapes of the advice they actually gave the client at the time.
From both the lawyer’s and the client’s point of view it may be just
as important to note down advice given, as to give correct advice.
Even the clarity of the notes, which would be extremely important
for future reference to a file, was failure standard in 56 per cent.
of the cases.
The importance of file notes was stressed to the lawyers before
the interviews but it was also thought that the interview tapes
should be analysed so that it could be determined whether any
problems were simply a matter of remedying note-taking skills
rather than interviewing t e ~ h n i q u eAlthough
.~~ there was generally
a lower percentage of failures on the analysis of the tapes, the
failure rates were still very high, including 71 per cent. of the
lawyers failing to categorise the problem for the client and an
equal number failing to inquire properly about witnesses. The
figures regarding “client personal information” and “other parties”
fared rather better in the actual interview (only 30 per cent. and 41
per cent. failed respectively). However, the lawyers did not feel
this information sufficiently important to put into their files and it
This fact might have been a direct result of the experimental nature of the study and
the lawyer’s knowledge that in reality there would be no follow-up, though they were
instructed to treat this in every way as a real first interview.
35 See above notes 7 and 8 respectively.
Indeed, some previous research in the medical arena has concentrated more on the
notes than on what actually occurred in the interview. See Rutter and McGuire note 32
above.
MAY19861 LAWYERS AND CLIENTS: THE FIRSTMEETING 331
might have therefore been forgotten and not passed on to another
lawyer taking over the case. Inquiries about previous advice and
assistance and any relevant legal proceedings were still particularly
low even on the tapes (78 per cent. and 82 per cent. failing
respectively).
As the information the lawyers obtained was seriously incomplete,
the analysis of the interviews was carried further. A detailed look
at the skills and techniques employed by the lawyers could perhaps
shed more light on this poor information output.
Interviewing: Analysis in Depth

The way the interview was conducted was analysed in two ways.
The interviews were assessed in terms of (i) the necessary tasks to
be carried out in a first interview and (ii) the skills and techniques
used in carrying out those tasks.
I. Tasks
The legal interview can be analysed by division into three main
stages according to the functions involved and the level of active
involvement of each parti~ipant.~’ The first main stage involves
helping and enabling the client to tell the story naturally and is
characterised by little speech on the part of the lawyer, other than
encouragement. In the middle section of the interview the lawyer
begins to take a more obviously active role, questioning the client
on ambiguities or gaps in the factual details or gaining more depth
of information on particular points. This is rounded off by the
lawyer’s summing up of the major facts and the client’s wishes, to
check with the client that they have been properly understood.
Both lawyer and client generally participate about equally at this
stage.
Finally, the lawyer gives the advice or outlines the plan of action
by “counselling” with the client all available options. The lawyer
then makes sure that the client is in agreement, and begins to carry
out the plan of action involved, setting the next contact before
terminating the interview. Here the activity is mainly from the
lawyer.
Method
(a) The Construction of the Tasks Model. In this research the
stages of an interview were broken down further into an organising
plan of some 13 major tasks it was considered important for a
37 These three stages roughly correlate with the first three stages mentioned in
Goodpaster, “The Human Arts of Lawyering: Interviewing and Counselling” (1975) 27
Jo.Leg.Ed. 5, 33; Redmount, “Humanistic Law Through Legal Counselling” (1%9) 2
Conn.L.Rev. 98, 11C111; Binder and Price, op. cit. note 26, pp.53-59 et seq. They also
relate to the six phases of doctor-patient consultations discovered by P. S. Byme, and B.
E. L. Long in their D.H.S.S. study, Doctors Talking to Patients, pp.19-29.
lawyer to cover in the first interview.% The interview was divided
sequentially into these tasks, and the relationship between them
and the three stages enumerated above is set out in Table I11
below.
Table III
The First InterviewThe 13 Tasks by Stages39
Stage One 1. Greeting, seating and introducing 6.
2. Eliciting story with opening question or helpful N
silence
3. Obtaining basic outline of personalities and case 0
from client’s own unhindered words T
Stage Two 4. Questioning on facts for gaps, depth, background E
and ambiguities and relevance
5 . Summing up and recounting lawyer’s view of
facts, A N D checking for client’s agreement or T
amending A
Stage Three 7. Stating advice and/or plan of action
8. Repeating advicelplan of action A N D checking
for client’s agreement or amending
9. Recounting follow-up work to be done by client K
10. Recounting follow-up work to be done by lawyer I
11. Stating next contact between lawyer and client
12. Asking if Any Other Business and dealing with it N
13. Terminating, helping out and goodbyes. G
Viewing such interviews on video-tape one can detect where one

stage ends and another begins from the relative postures, demeanour
and activities of the participants, although there is some blurring at
the edges between stages. Some tasks and stages must occur within
a definite sequential relationship and it would not be good, for
example, for advice to be given before the facts are ascertained. In
other cases the sequence was not important, such as whether the
lawyer’s follow-up tasks were stated before the client’s follow-up
tasks.
(b) Assessment. The interview content was broken down in this

manner so that an assessment rating could be taken of the
performance of each task by each lawyer. Assessment was carried
out by practising lawyers with significant interviewing experience,
This list of tasks was developed out of a teaching and assessment programme at the
University of Warwick and is similar to interviewing task lists used in teaching or
assessment at The University of Miami and in the American Bar Association Client
Counselling Competition.
39 More detail will be given of the somewhat cryptic task headings as the results are
analysed in the text. Note taking, which must occur to some extent before, during and
after the interview, cannot be confined to any one stage. The task categories often refer
to task clusters which are usually carried out together rather than single tasks.
i.e. at least three years of practice in “personal” law. They were
randomly assigned to mark. The assessment was repeated by an
American Law Professor with some 15 years’ practical experience
who was also experienced in training lawyers how to interview.
It was hypothesised that practising lawyers would be viewed by
the legal profession as the best judges. However, such lawyers
would also have been educated and trained within the same system
as the experimental subjects they were assessing. The assessments
of the American lawyer who was also an experienced interviewing
trainer were used as a basis of comparison. The experiment thus
not only judged performance subjectively by the criteria of the
system of legal education and training in England and Wales but
more objectively by an outsider’s view. It was also thought that
somebody who had taught interviewing and counselling might have
a particular insight into the skills and tasks involved.
Results
Stage One: Opening the Story. Since the client’s first reactions
and first impressions are likely to be formed by the first part of the
interview and it will affect everything that occurs subsequently, it is
most important to get off to the right start.40 The social norms of
greeting, rising and seating are all but essential in a culture in
which they are expected between equals.41 The lawyer should also
introduce hidherself and not presume that the client has read a
name off the door or heard the receptionist use it. Such introduction
should perhaps also include a description of status or position in
the firm. Whether the client is to be interviewed by the senior
partner or an articled clerk is something which perhaps the client
should be told right from the start. Too many lawyers assume that
the lawyer-client relationship exists from the moment the client
enters the lawyer’s office. Clients must be given a chance to make
up their minds whether they have sufficient confidence in their
lawyer and whether they are likely to get on well together.42
On absolute measurements (on a Yes/No basis, i.e. not rated
over seven points) taken by the legal interviewing trainer all the
lawyers greeted the clients, 93 per cent rising to greet them and 85
per cent. indicated where the should sit. However, 41 per cent.
did not introduce themselvesa: and 63 per cent. of the lawyers
failed to tell the clients their status or position.
On the qualitative measurement as can be seen from Table IV
there was a 37 per cent. failure rate for the whole exercise.@
A. S. Watson, op. cit., pp.5-11; The Firsr Five Minutes.
41 A. S . Watson, op. cit., pp.54; T. L. Shaffer, op. cir., p.90.
42 A. S. Watson, op. cif.,pp.132-135.
43 Korsch er al.’s classic study of doctors, shows that doctors failed to introduce
themselves in over half the consultations; “Practical Implications of Doctor-Patient
Interactions-Analysis for Pediatric Practice” (1971) American Journal of Diseases of
Children 121, 110.
One lawyer, one hopes in jest, asked the helpers filming the interview beforehand if
the client was to be “paying” or “non-paying” as this might make a difference as to how
the lawyer would want to greet him or her.
Table IV
Task.-Stage One
Rating
Bad or Neither Good or
very bad good nor very good
Task (2-3) bad (4) (5-7)
1. Greetings, seatings and 10 (37%) 11 (41%) 6 (22%)
introductions.
2. Opening questions or 5 (19%) 17 (63%) 5 (19%)
helpful silence.
3. Obtaining basic outline of 7 (26%) 12 (44%) 8 (30%)
personalities, parties &
case.
It is important that the most “open” type of opening question or

facilitation be used by the lawyer to enable the client’s story to
come out naturally, in a way which is more likely to be indicative
of the “real needs” of the client, as well as the factual details of
the problem the lawyer might consider more important. Watson45
notes the necessity of not guiding the first “exploratory” interview
too much so that the client can “set his own direction.” Similarly
ShaffeP notes Kinsey’s method of obtaining information on the
most intimate of subjects by asking the most open-ended
interviewing questions.
A helpful silence on the part of the lawyer is therefore the most
“open” method possible, but a client may need a word or two of
encouragement to begin. This open-ended beginning is likened by
some of the writers to the opening of a funnel,’” and the beginning
of “a series of questions which moves from the general to the
specific.” The lawyer is haunted by time constraints, and legal
training conditions lawyers to narrow down the issues as soon as
possible to a manageable problem with some “legal” relevance
which the lawyer has some training to handle. This is perhaps
partly why theorists such as Johnson4 see lawyers in the guise of
controllers of the clients’ reality. Clients’ problems do not naturally
fall into such easy categorisations without some selection or editing
of possible information. Thus an early insistence on narrowing
down the field of inquiry may prevent the lawyer seeing the client’s
view of the problem (as opposed to the lawyer’s formulation of a
Op. cit., p.22. Any guidance or hints that the lawyer gives about what s h e wants to
hear, will naturally encourage the client to tell the lawyer what it seems to the client the
lawyer wants. This may distort both the area of information the client presents and the
manner or emphasis with which it is presented.
T. L. Shaffer, Legal Interviewing and Counselling, (1976) p.80.
cI Watson, op. cit., p.32.
T. J. Johnson, Professions and Power (1972). Similar in their conception with this
approach are Rosenthal (see note 4 above), Bankowski and Mungham, Images of Law
(1976); I. Illich, Diwbling Professiom, (1977). And see the findings of Hosticka (see note
13 above).
legal “matter”) and also gaining information on what the client
really wants from coming to see the lawyer.
Our results showed some understanding of these difficulties and
only 19 per cent. of the subject lawyers failed on Task 2. 63 per
cent. obtained a mid-level score (“neither good nor bad”) by
jumping off too soon on what seemed to them to be the problem
and immediately narrowing the range of inquiry.
There was a lightly larger failure rate (26 per cent.) on Task 3,
when it came to “active l i ~ t e n i n g , ”and
~ ~ asking infrequent open
questions to keep the flow of the story going. The interview trainer
assessed a much higher level of 44 per cent. failure on this task.
There were, however, some 30 per cent. who fared above average
on this element, all scoring at the 5 level of “fairly good” ability.
The interview trainer, tending generally more to the extreme ends
of the scale, showed 37 per cent. above average.
Stage Two: Questioning, Fact Sorting and Understanding. Task
heading number 4 involves factual questioning, factual sorting and
probing for inconsistencies and uncertainties. These seem to
represent more closely tasks which lawyers see themselves as
needing to carry out, largely because they seem to be related to
the forensic task of questioning in courts.
There may be some need even in a first interview to test the
client’s story. But, in the image of at least the television court
lawyer,50 mercilessly cross-examining witnesses or setting them to
trip up on their own words “Rumpole” style, until they break
down in the witness box, is probably the exact opposite of what is
desirable within the inter vie^.^' A careful use of the whole range
of open to narrow questions, with a strong reliance on the “open”
end of that range is advocated by the l i t e r a t ~ r eBenjamin,
.~~ in his
seminal work on “The Helping Interview” shows how a pattern of
continuous question and answer from which neither person can
extricate themselves teaches clients that it is their purpose to
answer and not ask questions, and only to answer when asked. This
encourages “inappropriate dependence on lawyer expertise” by the
~ l i e n t . ~It’ also allows the lawyer to narrow down the area of
inquiry to subjects which seem appropriate to legal response or can
be placed within common legal Facts can thereby be
cleansed of emotion and lawyers saved from the burden of
understanding the client’s plight instead of just “ t r a n ~ l a t i n g ”or
~~
manipulating it into legal form. This may mean that client’s needs
49 See Shaffer, op. cit., pp.124-125; Binder and Price, op. cit., pp.20-37.
See note 6 above.
I’ Shaffer, op. cit., p.112 et seq., and “Standards for Judging,” of the American
“Client Counselling Competition.” Many also question its desirability at trial, see, e.g. P.
Bergman, Trial Advocacy, (1979), pp.177-178.
” See, e.g. Binder and Price, op. cit., pp.3-8 and Watson, op. cit., pp.36-39.
” Shaffer, op. cit., p.123.
s4 See Cain, op. cit., p.333.
” See note 54 above.
are derogated to lawyer’s needs. It may also prevent the lawyer
from obtaining factual information necessary even from the lawyer’s
view of legal relevance.
Table V
Tasksstage Two
Rating
very bad good nor very good
Task (1-3) bad (4) (5-7)
4. Factual questioning, gaps, 9 (33%) 9 (33%) 9 (33%)
depth
5. Summing up, recounting, 14 (52%) 7 (26%) 6 (22%)
checking client agreement
6. Note taking 9 (33%) 11 (41%) 7 (26%)
The lawyers in our study performed across the board with equal
numbers in each collapsed score category for this heading, Task
number 4. This means that although 33 per cent. scored in the
highest category (all at the “5” score level), another 33 per cent.
actually failed, which failure figure may provide explanation for
some of the poor results already noted in relation to the Information
analysis above.
The lawyer’s tendency heavily to structure an interview into
narrow lines of inquiry may be fatal to a proper understanding of
the client’s problem if there is also no attempt to check the
lawyer’s comprehension of the story with the client. It is implicit in
the concept of the lawyer “collaborating”” with the client that the
lawyer should check back with the client that the client’s intended
story and needs have been perceived by the lawyer. Task 5 was
therefore a vital element in conducting a first interview, and a
crucial first step for the lawyer before proceeding to advise or work
out a plan of action for the client. Byrne and Long in their study
of “Doctors Talking to patient^"^' note how summarising can be
used either to “close off” or “open up” a part of an interview.
Task 5 was intended specifically to measure whether the lawyer
allowed the client to comment, and therefore if necessary disagree
with and modify, the summary. It therefore represents only the
concept of “summarising to open up” in Byrne and Long’s
categorisation.
The 52 per cent. failure (73 per cent. as measured by the expert)
for this task is one of the highest failure rates in this section. It
bears out the frequent complaints about lawyers’ remoteness and
inability to communicate to clients what is going on in their
% Shaffer, op. cit., pp.234 et seq.
57 (D.H.S.S. 1976), at ppS(k53.
MAY19861 LAWYERS AND CLIENTS: THE FIRST MEETING 337
minds.58 It is also interesting to compare the even higher failure
rate for Task 8 below, which similarly involves obtaining the
client’s agreement.
The task of note-taking, which does not naturally fall into any
one categorys9 and should probably take place before and after, as
well as throughout, the interview, receives much discussion in the
literature. The content of the notes has already been analysed in
the Information section above, and here the assessment was of the
manner in which notes were taken. Freeman and Weihoffenm
mention the distortion effect resulting from the client’s perception
of those parts of the interview being noted down by the lawyer as
being more “important.” They suggest that no notes be taken and
a recording device used for better recall. Similar views are
expressed by Meltsner and Schrag.61 Some clients however object
to recording devices and lawyers may object to the extra time
needed to listen to recordings. Kinsey managed his research whilst
making short notes in the presence of his interviewees without
affecting their relationship,62 and note-taking during interviews
seems to be the model used by solicitors in England and Wales.63
It is also necessary for the lawyer to take notes during an interview
to remind himherself of questions to be asked later in the interview
itself.
Assessment of Task 6 was therefore on the basis that the lawyers
would take notesb0 when necessary but that it should be done
unobtrusively or in some other way so as to have a minimal effect
on the interview. 33 per cent. of the lawyer subjects failed on their
note-taking largely because it was performed in such a way that
eye contact was lost for long periods of time and the client’s
natural flow was thereby discouraged.
Stage Three: Advice and the Continuing Relationship. In the

Information section an assessment was made in terms of the quality
of the advice given by the lawyer and also what was written down
in the notes about such advice. In the Tasks section, assessment
(this time by the practising lawyers and Law Professor) was on
how well the lawyer subject gave the advice or set out possible
plans of action. The task and the content were here measured
together. The assessors were instructed not to favour lawyers who
knew the immediate answers to the questions asked, above those
who gave a cogent plan of action for dealing with the problem in a
way which was apposite for the client and the problem. What was
Benson, Vol. One, 3.36, 22.29, 22.31, etc., and the Which? Report, note 8 above.
59See note 39.
E‘ West, Clinical Law Training: Interviewing and Counselling (1972), pp.21-22.
Public Interest Advocacy: Materiah for Clinical Education (1974), p.141 and by
Watson, op. cir., pp.3435.
Shaffer, op. cit., p.76.
63 See, e.g. Sherman, note 27, pp.6-8.
a This was necessary in any case for the purposes of the Information section above.
6
.
to be measured was interviewing and counselling ability rather than
specific legal knowledge.
Until this stage in an interview the lawyer will need the
participation of the client to tell the story and answer questions. At
this stage the tendency among many lawyers is to handle the
client’s problem as if it were an examination question on which to
exercise the mind. Douglas Rosenthal’s thesis shows the advantages
of the “participatory” modeP of the lawyer-client relationship,
which participation is perhaps most crucial at the problem-solving
stage since most professional problems “involve open, unpredictable,
individualized choices, understandable to a layman, for which there
is no single best answer.”66 Watson67 and ShaffeP endorse
Rosenthal’s findings and Binder and Price have developed a similar
theory of “Client-centred decision-making.”@The need to involve
the client in making decisions is therefore well recognised in the
literature and in the ethical codes.70
This is, however, only one of the noted difficulties for
professionals giving advice. Even before a collaboration has been
reached, it may be difficult for a client to grasp the advice given,
especially if it is couched in technical language. This is probably
partly because of the combined effect of the atmosphere and
situation in which clients find themselves,’l and partly because
lawyers may not be good at explaining the legal position and what
they have in mind in lay terms. The lawyers’ difficulties stem from
to the need to cover all possibilities and to safeguard their own
legal position from a subsequent negligence suit.zz It is also difficult
for them to take so many steps back to their first day of law study
and remember how it felt to be a newcomer to the strange
language and world of the law.
Another source of difficulty in providing advice arises out of the
client’s expectations and the lawyer’s management of his or her
own image. This is well alluded to in Alfred Benjamin’s book The
Hefping Znter~iew,’~in which he tries to dissuade interviewers from
using questions as a weapon:
“AS for you, the interviewer, you have asked your questions
and gotten your answers; now show your tricks. If you do not
have the solution up your sleeve, if you cannot help after the
@ See note 4 above.
66 Ibid. at p.13.
67 Op. cit. pp.141-143.
Op. cit. pp.234-253.
@ Op. cit. pp.147-155.
7o ABA Code of Professional Responsibility E.C. 7-7, 7-8, 7-102.
’’ See P. Ley, P. W. Bradshaw, D. E. Eaves and C. M. Walker, “A method for
increasing patients’ recall of information presented to them,” (1973), 3 Psychological
Medicine 217-220 for a similar effect in doctodpatient studies.
M. Spiegel, “Lawyering and Client Decision-making: Informed Consent and the
Le a1 Profession,” (1979) U. of Penn. Law Rev. 41.
(1969) Quoted in Shaffer op. cir. at p.123.
long third degree, what right had you to ask? What are you
good for?”
The lawyer is caught in a quandary. The client may expect some
form of immediate advice or opinion and will need the reassurance
of being given something like that in order to maintain confidence
in the lawyer. However, the lawyer may not be able to give a firm
opinion. The result is often that the lawyer delivers to the client a
vague generalisation and an uncertainty hedged with provisos. This
may have a far worse effect than a straight statement of procedure
and plan of action which might include the admission of the
necessity for legal research and some time for consideration.
Table VI
Tasks-Stage Three
Rating
Very Bad Good nor Very Good
Task (1-3) Bad (4) (5-7)
7. Stating advicelplan of 12 (45%) 8 (30%) 7 (26%)
action
8. Repeating advice and 16 (59%) 6 (22%) 5 (19%)
checking client’s
agreement
9. Recounting client’s follow 17 (63%) 7 (26%) 3 (11%)
UP
10. Recounting lawyer’s 15 (56%) 7 (26%) 5 (19%)
follow up
11. Setting next contact 18 (67%) 5 (19%) 4 (15%)
12. Asking for Any Other 25 (93%) 0 (0%) 2 (7%)
Business and dealing with
it
13. Terminating and 19 (70%) 4 (15%) 4 (15%)
goodbyes
With these difficulties noted in the literature it is perhaps not

surprising that 45 per cent. of the lawyers scored at a failure rate
on the presentation of advice or plan of action. It should be noted
though that the construction of advice is one of the major skills
which is actually taught at the degree and professional qualification
stages, albeit usually advice in a written form. It is the focus of
most examinations and papers. Such a high level of failure in an
area given specific coverage in legal education therefore shows
clearly a gap between legal education and legal practice.
Tasks 8-11 of Stage Three cover some fairly mechanical elements
which are an essential part of giving advice. This particular area
has been covered more extensively in the literature relating to
doctors and patients, than lawyer-client comrn~nication.~~ Surveying
the literature Ley suggests two major cognitive hypotheses for
information failures in doctor-patient communication: failure of
comprehension and failure of memory.” Failure of comprehension
stems from the complexity of the material, the recipient’s lack of
elementary technical knowledge and misconceptions which prevent
proper ~nderstanding.’~ These can be aided by more simplified
explanations and the opportunity for the advisee to express
uncertainty and misconception. Failure of memo can be assisted
also by categorisation of parts of the advice? re etition and
“client specific” rather than general advice statements. ps
On the basis of these findings and the need for participation by
both parties to the interview, Task 8 assesses whether, and how
well, the lawyer subjects repeated their advice or plan of action.
This repetition was in order to gain their client’s understanding and
acceptance, or present a modification acceptable to the client.
There was a 59 per cent. failure for this heading (76 per cent.
according to our “expert” interviewing teacher). This was a larger
failure group than Task 5 the other task involving the need for
client agreement. This suggests perhaps that the lawyer felt even
more clearly that the advice stage was much more the lawyer’s
arena for decision and the client’s agreement even less necessary.
Concerns and findings similar to those expressed in the medical
literature have been repeated in the reports on the legal profession
by both the Consumers’ Association and the Benson Commis~ion.~~
Complaints, when analysed,
“are seen to amount to (often justified) bitterness that the
clients have not been kept adequately informed of progress;
the steps in the conveyancing, negotiating or litigation rocess,
whichever applies, have not been explained in a compre ensible
way. People fear the unknown . . . they are often worried.
K
Not keeping clients in the picture of what is happening (or not
happening) . . . is an indictment of what amounts to nothing
more than thoughtlessness on the part of
Task headings 9, 10 and 11 involve the lawyer in setting in
motion the, now agreed, plan of action. They are also intended to
measure the lawyers’ attention to the above concerns by giving
clear details of what the lawyers expect their clients to do, what
the lawyers will be doing and how the two will next contact. These
tasks mirror categories 9, 10 and 11 in Table 11, the Information
74 P. Ley in S. J. Rachman (ed.), Contributions to Medical Psychology (1977) pp.19-
29.
Ibid. at pp.19, 24.
Ibid. at p.19.
tl Such as, “I am going to tell you: What is wrong with you; What tests will be
necded; What will happen to you; What treatment you will need; First, what is wrong
with you .. Ibid. at p.26.
.‘I
lS Ibid. at p.25.
79 See above notes 7 and 8.
Benson, para. 22.29.
section. In the present exercise the way these tasks were carried
out, including both the quality of the information involved, as well
as the way it was communicated, was rated by the practising
lawyers.
A frequent complaint about lawyers which does not seem
primarily to relate to communication is that of delay.61Even if they
do spend time when meeting the client explaining the law in detail
it still seems to the client a long time after the meeting before
anything occurs. This may of course be due to the lawyer’s pressure
of work, the presence of more remunerative cases, the court’s
schedules or a multitude of other possible factors.62 However,
clients’ dissatisfaction is almost certainly due to one main factor,
the difference between their expectations and their lawyer’s actual
performance. If the client is told precisely what to expect from the
outset, the chances of dissatisfaction must be lessened. There is
also an important reassurance effect for the client in being told
specifically what steps to take and not to take, what papers to
gather and calls to make. It gives clients the feeling that they are
positively involved in the progress of their case.= This detailed
exposition approach gives the “concrete-specific’’ advice suggested
in relation to the doctor-patient relationship above.&l It is also
proper that the lawyer should explain what procedural steps are
going to be taken and how long each of these is expected to last.65
There is no special mystery which needs to be kept from the client
and the greater the client’s awareness of the procedure and
practical steps necessary, the greater the chances of a client’s
expectations being closer to reality. This is most likely to increase
client satisfaction and enable the client to provide real help to the
lawyer, rather than pester the lawyer with telephone calls to find
out what is happening.%
There is a very high proportion of failures on these headings, 63
per cent., 56 per cent. and 67 per cent. respectively, and these are
among the larger rates of failures on all exercises. One possible
explanation is that these “continuation” plans may have been
perceived by lawyer and client alike as the more unreal of the tasks
involved in the “experimental” interview situation which both knew
would go no further. These very poor scores might therefore be
something of an artefact of the experiment. On the other hand the
findings of Benson8’ and the Lay ObserverBB so clearly substantiate
See, e.g. Benson, Vol. I, para. 22.18, Lay Observers Reports.

Benson, Vol. I, para. 22.20.
83 See, e.g. Shaffer, op. cir. Chap. Four, “Collaboration.”
At note 77.
Benson, Vol. I, Table 22.15 and para. 22.30.
See Watson, op. cir., p.39 for clients’ “anxiety” resulting from not being kept
informed leading to hostility, resistance to carrying out instructions and “failure to pay
.. bill.”
the
.. ..--.
87 See note 8 above.
Annual Reports of the Lay Observer 1975-1982 repeatedly confirm “delays and lack
of information” to be the most frequent cause of complaint” see, e.g. 1980, p.5.
exactly these criticisms of lawyers that it is difficult to dismiss these
findings because of the “laboratory” nature of the research.
Clients will often present with one problem which they feel is the
most acceptable, whilst not immediately reporting another problem
or problems which may be more urgent or more crucial.89 Even
where the main problem is well established during the interview,
there may be numerous peripheral issues which are equally
worrying to the client. It is extremely awkward even for the trained
professional to react properly to this situation. It involves
summoning up concentration and empathy, immediately after these
have been relaxed in face of the impending end of the interview,
and returning to Stage One again when the lawyer expected to be
working in Stage Three.go However, it is essential to ask if the
client does have anything else they want to mention, or another
problem.91 A substantial failure rate for Task 12 might have been
expected since, without training, one might only learn such
knowledge from experience. 93 per cent. failure (100 per cent. as
measured by the expert) was however quite overwhelming. Only 7
per cent. managed to ask whether there was anything else the
client wanted to mention, let alone deal with any answers given.
Shaffer talks about a “sunshine termination” of the legal interview
which is clearly based not only on Task 13 but on all that has gone
before it to create a “relation~hip.”~~ Effective termination clearly
also relates to time available and strategies for dealing with time
demands.93Under Task 13 the lawyer has the opportunity of giving
a helpful lasting impression, utilising normal social skills in helping
clients with coats, etc., and their way out of the office. Unlike
Task 1, which one would think intuitively is a similar event, the
lawyers here had a high failure rate of 70 per cent. in closing the
interview. Most of the lawyers managed to complete the interview
on time and some even finished early, one interview taking only
114 minutes. Some, however, had to end rather abruptly and this
89 See, e.g. Watson, op. d . ,Chap. 11, “Learning to Listen,” especially pp.48-57. This
subject is treated more extensively in the medical literature; Balint especially talks of
‘‘using some symptoms as an excuse to get into the consulting room.”
9o Byrne and Long (note 57 above) found only a definite 5.6 per cent. of cases where a
patient’s “By the way, doctor” or “while I’m here doctor” or “My sister asked me,”
occurring right at the end of an interview, turned out to be the real reason for being
there. A larger number of interviews where the real reasons only appear secondarily are
interviews where the clienupatient keeps making indirect reference to the “real” reason
until the doctor notices.
91 A recent example of this problem in a legal context is the client of a local advice
centre who spent an hour, with her mother, talking to a lawyer about her intention to
divorce her husband before she mentioned that, when they left her mother’s home to
come to the advice centre the husband had been waiting outside trying to grab their baby
from a younger sister who was minding the baby. Such was their faith in the power of
the law that the two had felt it was more important to come and talk to the lawyer about
divorce than deal with the more urgent practical situation at home. I am indebted to Dr.
David Metcalfe (now Professor of General Practice, Manchester University Medical
School) for his description of the patients who, with their hand on the door knob about
to leave, tell their real reason for coming.
op. Cit. pp.303-304.
93 See below under Skill heading 14.
accounted for part of the poor score. Many of the lawyers were
more intent on making up their file notes than getting up out of
their seats and seeing the client properly to the door.
Summary
The overall impression on the basis of analysis of the lawyers’
interviews by tasks and stages was that their performance was
worst in the last stage and particularly bad on Tasks 11, 12 and 13.
The lawyers were generally not good at giving their clients the
opportunity to tell their own story and to agree or disagree with
the lawyers’ view of the facts and law. They were also poor at
informing the clients of the details of what was going to happen or
what might happen on their case. The general mode of operation
for the lawyers was to narrow down the factual area of inquiry as
soon as possible with series of questions and to force the issue into
a semblance of legal category with which they were acquainted.
II. Skills
In this section the lawyer’s conduct of the interview overall was
rated in accordance with the level of ability shown in skilful
application of good interviewing techniques. The lawyers would be
using these skills and techniques in order to carry out the tasks
listed above. Unlike the tasks, the usage of these skills would not
necessarily be confined to a particular stage of the interview and
might carry on throughout. By analysing the interview in this way
it was hoped to find out not only what particular tasks presented
difficulties for the lawyers but also, in what particular skills their
strengths and deficiencies lay, thus causing the successes and
failures noted above.
Method
The skills to be used in the first interview were broken down
into categories partly adapted from some of the studies in doctor-
patient communication and supplemented by categories which,
after pilot studies, seemed helpful in analysing the lawyer-client
relationship.
Table VII
Skills Headings
1. Handling personal and confidential topics.
2. Not accepting client’s jargon.
3. Not overusing legal terminology.
4. Precision in obtaining information.
5. Efficiency in obtaining information.
6. Picking up client’s verbal cues.
7. Not over-repeating of same topics.
8. Clarifymg gaps or confusions.
9. Controlling the client and “irrelevant” information.
10. Facilitating the client to talk.
11. Not using “leading” or “closed” questions.
12. Not using complex questions.
13. Ease with client.
14. Empathy with client.
15. Reassurance of client.
16. Time control throughout.
17. Openinglclosing ease and control.
18. Giving advice and counselling.
Skill headings 1, 2, 4 and 6 to 12 are ada ted from Maguire and

Rutter’s work on evaluating student doctors! Heading 3, overusing
legal terminology, was not addressed in that work (in terms of
medical terminology) and was included as a result of the more
general complaints about professionals’ communication problems.
Skill headings 5 and 13-18 were developed out of analysis of video-
tapes of law students’ practice interviews95 and partly out of
discussions with the assessors who found such headings a helpful
complement to the others. Although some of the headings in their
abbreviated form in the list appear tautologous, they each had a
precise meaning which is mentioned below in the text.
Assessment
Assessment was carried out by the same groups of assessors as in
the Tasks section above: the United Kingdom practising lawyers
and the American Law Professor. The skills were similarly assessed
on a 7-point scale ranging from 1 (bad) through 4 (neither good
nor bad) to 7 (good). The United Kingdom lawyer assessors were
randomly assigned to mark.
Results
Table VIII
Skills Results 1-3
Rating
(1-3) Bad (4) (5-7)
1. Handling personal and 11 (41%) 13 (48%) 3 (11%)
confidential topics
2. Not accepting client’s jargon 3 (11%) 20 (74%) 4 (15%)
3. Not over using legal termin- 5 (19%) 8 (30%) 14 (51%)
Oh3Y
Personal and Confidential topics. Heading 1 was designed to
See note 32 above.
These were part of a teaching and assessment programme at the University of
95
Warwick, School of Law.
cover the skills involved in listening to, and asking questions about,
sensitive personal matters which would normally be treated as
confidential outside the lawyer-client relationship.
It is not normal to remove one’s clothing at the request of a
stranger, but when the stranger is licensed to practise medicine the
mere request to do so is taken to be sufficient reason. Lawyers
demand perhaps an even more intimate uncovering of confidential
facts and feelings than physical nakedness, but this may not be
fully appreciated by the lawyers involved.96The lawyer therefore
needs to develop a sense of trust by adopting a “non-
judgmental, non-moralising posture” avoiding critical comments and
acknowledging the possibility of discomfort on the part of the
client.97 The lawyer’s natural discomfort in hearing sensitive
information and outpouring of emotion may also cause conflicts
such as whether to take a passive or active role in relation to what
is said and whether to demonstrate or hide any emotion that the
client stir nu late^.^^ Only 11 per cent. of the lawyers fared well on
this heading, although 48 per cent. managed to reach the average
point. This was the lowest number of lawyers reaching the 5-7
(Good to Very Good) marking group for all the skills headings,
but not the largest number failing.
Language. Headings 2 and 3 are opposite sides of the same coin.
It was hypothesised that some communication problems between
professionals and lay clients were the result of the use of language
inadequate for the communication task in hand, by both parties,
the interviews were analysed from the point of view of the lawyer’s
abilities. Treatment of language is therefore divided into lawyer’s
acceptance of client’s incorrect, imprecise or ambiguous expressions
(Skill 2), and lawyer’s over-use of legal terminology which might
confuse, put off or frighten the client or in a way that may
dissuade the client asking for explanation (Skill 3).
Watson demonstrates how a person seeking help will “try to
adopt the language and frame of reference which he imagines the
helper uses.”99 Thus clients attempt to use legal (or their idea of
legal) terminology perhaps imprecisely or incorrectly in order to
elicit what they imagine to be the appropriate response.
% “The horrible thing about all legal officials, even the best, about all judges,
magistrates, barristers, detectives and policemen is not that they are wicked (some of
them are good), not that they are stupid (some of them are quite intelligent), it is that
they have got used to it.” G. K. Chesterton, quoted in T. L. Shaffer and R. Redmount,
Lawyers, Law Students and People (1977). p.22.
97 Watson op. cir., pp.7-9.
98 Watson op. cir., p.98, Binder and Price pp.20-37.
99 Watson op. cit., p.12.
’ This is not an area in which easy conclusions can be drawn. Kinsey’s experience (as
related by Shaffer op. cir., pp.78-81) is once again instructive. He explains that
euphemisms should not be used as substitutes for franker terms, since “evasive terms
invite dishonest answers.” On the other hand using the vernacular has the effect of
showing a real understanding of lifestyle and cultural context (an English example might
be using the term “on the sick” for being in receipt of Sickness Benefit), provided the
vernacular is unambiguous.
Matching the results against each other it is interesting to note
that only 11 per cent. and 19 per cent. of the lawyers respectively
failed these tests but the proportion scoring well is far greater for
the second heading than the first. This suggests that legal education
may equip lawyers better to cope with their own output of legal
terminology than with jargon input from their clients.2 It also
confirms the findings of the next section that lawyers are better
equipped generally to deal with law rather than fact.
Table IX
Skills Results 4-8
Rating
Very Bad Good nor Veiy Good
(1-3) Bad (4) (5-7)
4. Precision in obtaining infor- 10 (37%) 11 (41%) 6 (29%)
mation
5. Efficiency in obtaining infor- 11 (41%) 13 (48%) 3 (11%)
mation
6 . Picking up client’s verbal cues 6 (22%) 17 (63%) 4 (15%)
7. Not over repeating same topics 10 (37%) 12 (44%) 5 (19%)
8. Clarifying gaps or confusions 8 (30%) 14 (52%) 5 (18%)
Obtaining Information. The quality of the information itself was
addressed in the first assessment section above. In this section
headings 4 to 8 cover the skills involved in eliciting those facts
from the client. Few university level or professional courses
introduce lawyers to what often becomes the major part of their
work, finding the facts.3 The tenor of legal education is to train
students how to “think like a lawyer” but not how to act like
Legal education concentrates on sifting and presenting legal
arguments and findings relating to a given and finite set of facts.
Young lawyers who have spent some four years being trained only
to answer examination questions with neatly laid out facts, are
likely to feel unease when faced with the uncertainty and complexity
of real life problems whose facts have not been sifted for legal
relevance. Since legal practitioners usually spend far more time on
fact finding than on legal research the ability to obtain information
with precision is an essential item in lawyers’ work.S Yet, on
heading 4, “Precision in obtaining information,” 37 per cent. of our
lawyers scored at a failure rate with 45 per cent. reaching the mid-
point.
Even our expert assessor marked the lawyers as highly on heading 3.
See, e.g. W. L. Twining, “Taking Facts Seriously” (1984) 34 J. Legal Educ. 22 and
more generally J. W. Frank, Courts on Trial (1949), Law and rhe Modern Mind (1930);
“Why not a Clinical Lawyer-School?” (1933) 81 U.Pa.L.Rev. 907.
‘See, e.g. F. K. Zemans & V. G. Rosenblum, The making of a Public Profession
(1981).
See the short summary of research to this effect in Shaffer. op. cit., pp.1-2.
MAY19861 LAWYERS AND CLIENTS: THE HRST MEETING 347
The lawyers performed similarly on Skill 5 “Efficiency in
obtaining information.” Whilst “precision” aimed at a careful
identification of what facts might be necessary, “efficiency”
attempted to measure the general approach of the lawyers and how
effectively they kept to a structure for obtaining the facts.
If lawyers are imprecise and inefficient in obtaining information,
how does the imprecision and inefficiency occur? This was the
subject of the next three headings aiming to isolate or emphasise
particular deficiencies in this area.
Much of the literature concerns the hidden meanings behind
clients’ presentation of verbal information. The form of expression
as well as the content, sudden lapses into silence after implicit
statements,6 and shifts in conversation’ are all taken to be important
sources of information on unconscious feelings, as are “parapraxes”
or “Freudian slips.”8 Just as important, although understudied in
the literature, perhaps because it is so obvious, is the necessity to
listen carefully also to the direct and straightforward meanings of
what is being said by the client. Observation of both experienced
and inexperienced lawyers interviewing has shown numerous
examples of relevant and sometimes crucial facts stated and
repeated by a client which are not picked up by the lawyer. It
seems that the lawyer’s concentration on facts thought by the
lawyer to be strictly legally relevant to the (lawyer’s perception of
the) case may deafen the lawyer to anything else the client may
say. The majority of the lawyers performed at the average point on
“picking up verbal cues” with some 22 per cent. failing.’
The problems mentioned above in Stage Two of the Tasks
analysis regarding questioning of the client arise again here. It is
necessary for the lawyer to maintain the client’s confidence that the
lawyer understands and is supportive of the client. However,
inconsistencies, gaps and confusions will undermine the lawyer’s
belief in the veracity and honesty of the client. lo Questioning must
Watson op. cir., pp.48-53, Binder and Price op. cir., pp.25-28.
’ Shafter op. cit., p.125.
Watson op. cit., p.50.
A good example of problems arising when lawyers fail to pick up verbal cues
happened in one interview where a client who came in for another problem was in fact a
battered wife who alluded to this many times. The cues were not picked up at all by the
lawyer even though this problem was directly relevant to the problem she was presenting
and was far more urgent. Fortunately, the remote control camera crew pointed the
problem out after the interview and the client was then given help by one of the solicitors
involved in a local Law Centre.
lo Watson, op. cir., p.23 describes a method of “cross-corroboration” of the lawyer’s
impressions by introducing questions “at random times and out of context” in order to
give the lawyer a clearer picture, without giving the client too much of a hint about
where the lawyer thinks the inadequacies of the story lie. Such inadequacies, when part
of a truthful story, are likely to result, he says, from a particular psychological motivation
such as the need to block out an incident or person because that memory may be painful.
Direct questioning (although it may be necessary later) will at this point elicit a similar
response from the client, hence the need for a more indirect method. Such a method of
questioning seems more applicable to a later interview in the relationship than the first
time that the lawyer and client meet.
therefore take place, but in a careful, understanding way. Over-
repetition of the same topics was thought to be a problem likely to
be suffered from by inexperienced interviewers. It wastes time and
may show a lack of cohesive plan. It also telegraphs to the client
the lawyer’s lack of understanding of the case and can lead to
annoyance on the part of the client and lack of confidence in the
lawyer’s ability. The larger proportion of the lawyers were in the
average category for Skills headings 7 and 8 but there were still 37
per cent. and 30 per cent. failure rates respectively for these.
Table X
Skills Results 9-12
Rating
0-3) Bad (4) (5-7)
9. Controlling the client and 8 (30%) 13 (48%) 6 (22%)
“irrelevant” information
10. Facilitating the client to talk 5 (19%) 11 (41%) 11 (40%)
11. Not using “leading” or 10 (37%) 8 (30%) 9 (33%)
“closed” questions
12. Not using complex questions 1 (4%) 13 (48%) 13 (48%)
Facilitation and Control. Attention was then turned in headings

9-12, to the manner in which the lawyers started and stopped the
flow of information and narrowed or opened the area of inquiry.
There is a difficult tension in interviewing between the need to
obtain the facts precisely and concisely by testing a client’s story on
the one hand, and the need to gain clients’ confidence by giving
them the chance to express themselves as fully as they may wish.”
This tension is also related to the amount of time spent on the
interview as shown in Figure 1.
I’ Watson, op. cit., p.30.
Figure 1
Time Control in the Interview
T
e
S
t
i
n
9
t
ESTABLISH.
ELlClTlNQ
INFORMATION TRUST
r
Y
C- +>
T I M E
Some sociologists of the professions have described them as

“agents for social control”’* and Terence Johnson in his classic
work “Professions and Power”13 also refers to the professional as
defining “both the needs of the consumer and how those needs
should be met.” An alternative view, by way of a normative rather
than descriptive approach, may be found in the work of R0sentha1.l~
His thesis is that the results of a shared and equal relationship
between lawyer and client, including amounts obtained in
compensation, are greater than one in which only the lawyer is “in
charge.” His observations conclude that although a lawyer should
be aware of the ability to control an interview, more control is
often used than is really necessary or beneficial.
Legal practitioners intuitively seem to have a clear sense of the
need to control the client in order that information which is
irrelevant to the legal case does not pour forth in an interview. It
is, however, questionable whether much or any information given
by a client is likely to be irrelevant to the lawyer’s assessment of
the legal case and the practical needs of the client. It is therefore
somewhat doubtful how much control in this sense is necessary for
the effective handling of a case. Although there is clearly some
relationship between control and time constraints in an interview,
this aspect was to be measured specifically under a later heading.
l2 See, e.g. E. Freidson, The Profession of Medicine (1970).
l3 (1972). See also Hosticka, note 13 above.
l4 Op. cir. pp.13-15.
On this somewhat problematic skill of controlling the client and
irrelevant information (Skill 9) the lawyers were assessed as being
poor, with 30 er cent. faring badly and 48 per cent. operating at
.f:
the mid-point Perhaps unexpectedly, in view of the literature
mentioned above,16 the lawyers were rather better at Skill 10,
Facilitating the Client to Talk.
The discipline of strict legal inquiry, where a logical sequence of
questioning is followed, would assist the lawyers’ training in
marshalling their thoughts so as not to ask “complex” questions, a
term of art meaning more than one question at the same time. It is
interesting that heading 12 should be among the highest of good
scores and lowest of failure rates.
Conversely, the lawyers did not perform as well when it came to
heading 11 by using too often the cross-examining style of “leading”
and “closed” questions. This counterbalance appears on closer
scrutiny to be a further example of the narrowing down aspect
mentioned above.17 The lawyers tended to concentrate in their
questions and thinking process on more and more narrow factual
areas, without giving their clients the opportunity to broaden out
the issues. Seen as a funnel with a wide area at the top, the
questioning seemed to narrow further and further until it was
within the narrow constrictions of the funnel and legally acceptable
or seemingly legally relevant subject area. One approach to escape
from this constriction would be to start off a “new funnel” with
further open questions, and more funnels after that. Questioning
strategy does involve sequential restriction of issues in this way,
and in order to interview effectively it is necessary to close one
issue and move on to the next. This the lawyers seemed to find
difficulty in doing. It would be wrong therefore to view the good
result for Skill 12 without also noting how it was gained.
Table XI
Skills Results 13-1 7
Rating
(1-3) Bad (4) (5-7)
13.
14.
15.
16.
17.
Ease with client
Empathy with client
Reassurance of client
Time control throughout
Openinglclosing ease and con-
16 jJp*j pz/ !b;z/
6 22%
11 41%
12 45%)
11 (41%)
8 30%
10 37%
7 25%
trol 17 (63%) 5 (19%) 5 (18%)
Reassurance and time. Headings 13 to 17 attempted to inquire
Is It may be that the lawyer assessors expected more “control” than, from the
Rosenthal viewpoint, would be necessary and marked accordingly. Our expert thought
the lawyers fared rather better at their control, marking them at 33 per cent. failure, 25
per cent. average and 41 per cent. in the Good-Very Good Category, but his marks
generally tended more to the extreme than the lawyer assessors.
I6 See notes 12, 13 above.
I7 See the Summary at the end of the Tasks section.
MAY19861 LAWYERS AND CLIENTS: THE FIRST MEETING 35 1
into how the lawyers balanced their own “professional” needs of
objectivity, formality and time constraints against the necessity to
reassure their clients, gain their confidence and empathise with
their clients’ difficulties. The time tension can again be viewed
clearly under these headings.
Much of the client’s ease toward the lawyer will result from
attention to the physical surroundings of a lawyer’s reception room
and the office or interview room,l* which were not items within the
lawyer’s control in this experiment. But the lawyer must also adopt
what Watson calls “a non-judgmental and nonmoralising p o ~ t u r e ” ’ ~
so that the client will be able to tell the whole story as the client
sees it and so that the lawyer will be able “to listen more closely to
what his client tells him”20without feeling the need to react other
than showing interest. This may come in the form of what Binder
and Price call “non-committal acknowledgements’’ such as “mmm,”
“really” and “interesting” (or just “head-nodding”),21 or “active
listening” by reflecting back to the client feelings they have
expressed in the interview.22 The lawyers seemed overall to fare
quite well on this skill with 41 per cent. at the mid-point and 37
per cent. above.
Showing empathy is a rather more active skill and may require
more active listening, reflection of feelings back to a client and
“motivational statements” such as explanations of why particular
information is necessary.23 Clear statements of understanding will
often be necessary24 and a consciousness shown throughout the
interview of the needs of the client. The lawyers scored less well in
this category with 41 per cent. below the mid-point.
Benjamin refers to “reassurance” of the client as “directed
toward helping the client achieve a sense of comfort about the
interview relation~hip.”~~ This stands opposed to a more intuitive
understanding of “reassurance.” Such an understanding would be
more directed towards the lawyer removing the anxiety of the case
from the client by taking the responsibility for the case off the
client’s shoulders and on to the lawyer’s. If a collaborative
relationship between lawyer and client is to occur then this latter
form of reassurance is not This is therefore a somewhat
problematic heading for assessment. Our lawyers proved very poor
See, e.g. L. Shurman, The Practical Skills of the Solicitor, and T. L. Shaffer, op. cit.
pp.94105.
l9 Op. cit., p.7.
2o Watson, op. cit., p.7.
Op. cit., p.24.
Op. cit., pp.25-37. For a strong reaction against this “community of two” see W.
Simon, “Homo Psychologicus: Notes On A New Legal Formalism”, 32 Stanford Law
Rev. 487, (1980).
Op. cit., pp.lOS108.
2‘ Watson, op. cit., pp.8-10.
2s See Watson, op. cit., p.92 and A. Benjamin, The Helping Interview (1969) pp.108-
155.
26 Watson, op. cit., p.86.
at this skill, 59 per cent. falling in the 1-3 category and a further
22 per cent. functioning at the mid-point.
The skill of time control in an interview is most difficult to
master in any helping situation where the interviewee is placing
some reliance on the interviewer. The time itself that the
professional “gives” is part of the service offered to the client.”
Rarely is there enough time in an initial interview to address all
the lawyer’s and all the client’s concerns. The lawyer should
therefore concentrate on obtaining an overview of the facts and
needs of the clientB whilst checking that there is nothing urgent
which needs to be carried out before they can meet or communicate
again.
It is helpful to give a client a clear idea of the amount of time
the lawyer has available for the interview so that the client does
not have unreal expectations of what will occur.?9As measured by
the American Law Professor only 15 per cent. of the lawyers
thought of doing this in an open way verbally. The remainder
either chose a non-verbal method of communication such as looking
at their watches, or simply ignored the problem altogether until it
became too late. It is also the job of the lawyer to control the
interview so that it is possible to carry out the necessary tasks
within the time allotted. It was hypothesised that such control
would be more difficult and more crucial at the beginning and end
of the interview. The lawyer would be setting the scene and
creating expectations of time available at the beginning, and would
be even more conscious of time running out at the end.30 The
interview is likely to be a cathartic experience for the client who is
anxious when beginning and and should be more reassured at the
end. If there is difficulty in ending, it could well be because of a
feeling of lack of reassurance, or something more to say, or
absence of agreement with the advice or plan of action offered. It
was interesting to see that many of our new lawyers experienced
difficulty in controlling their allocation of time available, 45 per
cent. failing to reach the mid-point. This rose to 63 per cent. when
the opening and closing critical phases were assessed, which seems
to suggest that the difficulties involved are manifested more clearly
in those parts of the interview.
To summarise this section, there was a tension for our lawyer
subjects between the needs for time control and the needs to show
ease, empathy and reassurance to their clients. They did not
perform highly in either group of skills but they did seem to be
somewhat better at showing the more natural social skills of ease
Watson, op. cit., p.132.
Binder and Price, op. cit., pp.53-86.
r, See how this affects doctors in P. Ley, “Psychological Studies of Doctor-Patient
Communication” in S. J. Rachman, Contributions to Medical Psychology (1977) Vol. 1,
p.9. See also Watson, op. cit., p.31.
a The counselling part of the interview which occurs towards the end, may be
especially time consuming. See Binder and Price, op. cir., pp.1%191.
and empathy. Time.contro1 appears to be a skill which needs some
practice and experience or may need specific training to develop in
a beneficial manner.
Advising and Counselling.

Table XI1
Skill Result 18
Rating
(1-3) Bad (4) (5-7)
18. Giving advice and counselling 18% (67%) 4 (15%) 5 (18%)
The advising and counselling of the client are the main “products”
of the legal interview and the “service” for which the client has
approached the lawyer. In the Information section we looked at
the quality of the advice as noted down by the lawyer and as
occurring during the interview in terms of its informative role. In
the Tasks section assessment by the practising lawyers covered how
well the advice or plan of action were set out by the experimental
subjects. Here in the Skills section more attention was paid to the
interactive skills involved in both advising and counselling clients.
A distinction may be drawn from the American writings on this
subject between “advising” and “counseling” (sic)clients. “Advising”
seems to mean the lawyer suggesting to the client one particular
course of action which the lawyer considers best for the client.
“Counseling” seems to mean the presentation of a number of
options to the client and helping the client go thoroughly through
those options, whilst allowing the client to make the final choice.”
Explained in this way it does not necessarily need to borrow too
strongly from ideas based in the psychotherapeutic relationship.”
“Counselling” is not a word which seems to be easily accepted
by English ears and does not appear in any of the English short
practitioner although almost all of the American texts
refer to both “interviewing” and “counseling” (sic) in their titles.34
Counselling as explained above, the presentation of more than one
option and allowing the client to choose, is essential to a more
collaborative relationship along the lines of the Rosenthal model.35
The American literature does not however in general differentiate
31 See, e.g. Binder and Price op. cir. pp.135-191. It also conforms to Styles 4-7 of the
Byrne and Long diagnostic styles, op. cir., pp.103-112.
32 Watson, op. cir., pp.141-156.
33 See, e.g. Shurman, op. cir. note 23. A welcome harbinger of change is the note by
M. A. Haley, “Legal Services and Counselling: Changing Attitudes for Changing Times,”
(1983) L.S.Gaz. 2293-2294.
Binder and Price op. cir., Freeman and Weihoffen op. cir., Shaffer op. cir. and
Watson op. cir.
35 See Watson op. cir., p.142.
between the work to be carried out in first and subsequent
interviews. The major work of counselling the client seems more
likely to occur in a subsequent interview when all the legal options
have been researched by the lawyer and all the necessary facts
obtained. If any counselling as such is to take place in a first
interview it may concentrate more on the immediate plan of action
rather than the long term goals of the client regarding the case.
There are numerous pitfalls in both advising and counselling
clients. The skills involved cover the more traditional skills of
“thinking like a lawyer,” applying law to facts, as well as the skills
of developing practical alternatives and explaining all of these to a
lay client. Apart from the legal analysis (which was not the primary
focus of this study) errors can also be made for example in the use
of difficult language, withholding background information or
procedure, failing to perceive that advice is often the telling of
“bad news,” and not being aware of client reaction to the advice.36
The high level of 67 per cent. of the lawyers below the mid range
for this heading is the highest “failure” rate noted by the English
practitioner assessors on any of the skills in the list. They clearly
felt the lawyers were not at all skilful in advising and counselling.
The American assessor was not quite so pessimistic, however, with
only 41 per cent. falling in the 1-3 range and an equal number
rising into the 5-7 range. It could therefore be that the English
assessors were looking more for the “advising” model than the
“counselling” one.
Summary
From a general view of the Skills section it seems that the
lawyers were more adept at language skills such as dealing with
client’s jargon, legal terminology, client’s verbal cues and not using
complex questions. They also showed some skill in facilitating the
client to talk. They were poor at investigative skills and even less
able to handle personal topics, show empathy or give reassurance,
although they did show social ease with the client. Finally, control
of time in the interview and advising and counselling were their
areas of least skilfulness. Not surprisingly, the skills items which
were particularly related to the lawyer-client interview seem to
have been more poorly handled than those which the inexperienced
lawyers would have already encountered in normal social discourse.
DISCUSSION
Table XI11
Comparison of Average Numbers of Lawyers Falling in 1-3 Range
by Section
Information Information
(notes) (tapes) Tasks Skills
Average % falling in
1-3 range. 72.2 61 50.2 34.7
Table XI11 looks at the proportions of bad performers in each
36 See below under the Discussion.
MAY19861 LAWYERS A N D CLIENTS: THE FIRST MEETING 355
section of this study. The numbers were computed by averaging
out the percentages falling in the 1-3 category for all the categories
in each section. The highest “failure” rates occurred in the
Information section with 72.2 per cent. average on the notes and
61 per cent. average on the tapes. The Tasks section shows an
average of 50.2 per cent. of the lawyers falling into the 1-3
category and the Skills section comes out best with only 34.7 per
cent. falling below the mid-point.
Table XIV
Comparison of Average Numbers of Lawyers in 5-7 Range by
Section
TaSkS Skills
Average % falling in 5-7 range. 20.03 254
When one looks at the other side of the coin, the “good”
performing category within the 5-7 range, there is not a
correspondingly higher percentage in the Skills than the Tasks
section (see Table XIV above). Although the Skills are still about
5 per cent. higher than Tasks, the previous 15 per cent. difference
has largely been swallowed up at the mid-point (4 grading). Whilst
the lawyers are clearly better at the Skills than the Tasks, there is
not a large percentage falling into the “good” category for either.
Judging from this assessment the lawyer subjects appeared to
possess at least some measure of behavioural skills necessary for
the work of interviewing clients and dealing generally with people
and their problems. They appeared to have much less of a
conception of when and how to use those skills to further the tasks
necessary to be carried out in a first interview. They showed little
obvious framework for the use of their skills. This perhaps caused
them to lose sight of some of the tasks or to carry out the tasks
improperly or in a confusing order. All of this had the effect of
poor information gathering within the interview.
It seems therefore that social experience and legal education do
provide new lawyers with some of the basic skills necessary for
being a lawyer. What is more lacking is an understanding of the
contexts in which these skills are to be used, insight into the roles
and activities of lawyers and proper frameworks for putting such
skills into practice. The subject lawyers appeared to treat their
clients more as walking examination questions to be opened up to
rigorous scrutiny; than as people with problems. The lawyers
showed many of the “controlling” characteristics discussed in the
literature, deciding both what the client’s problem was and how it
should be solved, through the narrow confines of legal categorisa-
tions. The lawyer subjects pounced on words with legal connotation
and concentrated their questioning on areas which sounded legally
relevant long before their clients had finished describing the
elements of their problems.
The lawyers did not give their clients time to tell their stories
properly. They did not check that they had understood the clients’
facts and feelings correctly or that their clients agreed with their
advice or plan of action. Because of this, collaboration between
lawyer and client, or even an agreeable working relationship were
unlikely sequels to these first interviews. The working model was
more clearly that of the “High Priest” of the law handing down
mystical pronouncements to grateful recipients. If the most
important objective of a first interview is to achieve a good working
relationship between lawyers and clients based on mutual
understanding and c~nfidence,~’ our lawyers were not successful.
As we have already seen they were even less successful if the most
important objective is to gather all the information at the first
interview.
Learning the law in isolation of the social context in which it
operates can be seen as a significant gap in legal education which
leaves those emerging into at least the solicitor’s branch of the
profession inadequately equipped to perform competently as
practising lawyers. It may be argued that the appropriate uses of
skills learned at the academic and vocational stages will “come” in
time and with experience during the practical stage of training in
articles. It is however doubted whether experience, untutored and
uncorrected, is by itself a sufficient teacher to guard against the
entrenchment of poor techniques and poor attitudes towards clients.
The clients who have to suffer during this learning process should
also be taken into account. It is also submitted that there are some
aspects of interviewing which are not intuitive and that no amount
of experience can teach. They need to be explained and discussed
and worked with, in the context of a teaching environment.
The second part of this study, which is to be published
e l s e ~ h e r e , addresses
~~ some of the questions raised by this
Conclusion. It asks whether interviewing and counselling can be
taught, whether certain teaching methods are better than others
and whether experience alone is an effective teacher.
This study shows major deficiencies in the abilities of new
entrants to the profession to carry out one of their most important
functions, that of interviewer and counsellor. Neither the new
system of Law Society Finals, nor the new system of supervision in
articles of clerkship39take sufficient account of these needs. The
introduction of a seminar on interviewing and counselling in the
new mandatory post-qualification course is therefore a most
See note 25 above..
uI To be published, 1987. An extract appears in Chapter 7 of A. H. Sherr, Client
Interviewing for Lawyers: An Analysis and Guide (1986).
)9 See A. H. Sherr, “Lip Service Under Articles or Chances Missed (1982) 132 N.L.J.
395, and Evidence of the Law Society to the Ormrod Committee on Legal Education,
Appendix F, p.212 of the Ormrod Report, Cmnd. 4595, pp.56-70.
welcome innovation, and an important first step.40 However, one
two-hour seminar in eight years of legal education is insufficient for
such an important element of solicitors’ work, and such courses
need to be expanded and included earlier in the lawyer’s training
programme.
AVROM SHERR*
40 See the Law Society’s scheme as set out in I19831 L.S.Gaz. 2987-2988. Training in
the “office efficiency” section of the mandatory course (in which interviewing is to be
taught) started in January 1986 and is carried out by the British Institute of Management.
One wonders what image of legal practice they will be portraying.
* Visiting Professor of Law, U.C.L.A. 1984-85; Lecturer in Law, Director of Legal
Practice; Wanvick University. The initial research for this paper was funded by the
Nuffield Foundation Small Grants Scheme for innovations in teaching methods. Thanks
are due to Derek Rutter for initial advice; Peter Smith for some of the assessment,
William Twining, Alan Paterson and Sol Picciotto for reading drafts of the article, and
most of all to Lorraine Sherr for advice; assistance and encouragement from idea through
implementation to final draft. If, faults there be, our combined legal skills will probably
enable us to apportion blame elsewhere.

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What are the main topics discussed in the document?

What are the main topics discussed in the document?

What skills are identified as important for lawyers?

What skills are identified as important for lawyers?

LAWYERS AND CLIENTS: THE FIRST MEETING

LAWYERS, LEGALWORKAND LEGAL COMPETENCE

INTERVIEWING AND COUNSELLING

See, e.g. G . Goodpaster, “The Human Arts of Lawyering: Interviewing and

The Research: How Good Are They?

Interviewing: Analysis in Depth

Viewing such interviews on video-tape one can detect where one

(b) Assessment. The interview content was broken down in this

It is important that the most “open” type of opening question or

Stage Three: Advice and the Continuing Relationship. In the

With these difficulties noted in the literature it is perhaps not

See, e.g. Benson, Vol. I, para. 22.18, Lay Observers Reports.

Skill headings 1, 2, 4 and 6 to 12 are ada ted from Maguire and

Facilitation and Control. Attention was then turned in headings

Some sociologists of the professions have described them as

Advising and Counselling.

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