I handle traffic violations. It is a volume business, and I have spoken to thousands of potential clients over the years. Over time, I found myself starting to slip into the ‘seen one, seen them all’ mentality, often thinking “let’s just cut to the chase.” Speeding is strict liability and my clients usually have the same defenses, which means variations in the facts rarely matter.
The challenge is to treat each client and their circumstances as unique (which they are). This will make you a better lawyer, and it will also help you turn more potential clients into paying clients.
The catharsis of storytelling
In the case of a speeding ticket, the client will either admit to me that they were speeding, or they will have one of the commonly-used excuses — none of which actually work because speeding is strict liability. (In NY, police don’t even need to use radar; a visual estimate of speed can be enough for a conviction.) Because of this, variations in the facts rarely matter, even though the facts are usually the central element in the case. Pretty much every case fits one of a very few templates.
But there is a good reason lawyers are referred to as “counselors.” People who call a lawyer are not just looking for a quick fix; most are also looking for a sympathetic ear. The ability to listen attentively — even if it won’t change the outcome — can lead to a catharsis of sorts for the client.
Remember that in most cases a potential client is coming to you with a weight on their shoulders. They want you to help alleviate their stress in addition to solving their legal problem. Whether you are dealing with someone who has been charged with a crime, injured in an accident, or who recently lost a loved one and is looking for assistance with probate, letting them tell their story will help them relax and relieve some of that pent-up tension.
Besides, unless a potential client feels they can trust you, they are unlikely to hire you. If they get the sense that you are not really interested in them or their story, you probably won’t get the client. I have spoken with many potential clients who told me they spoke with other lawyers first who “didn’t seem very interested in helping me.”
When a potential client tells her story and knows you are listening and interested in hearing what she has to say, that is a very important part of establishing rapport.
The devil might be in the details
Focusing on someone’s story and how they tell it can make the difference between winning a case and losing a case, and between mediocre representation and representation of the highest caliber.
Clinical psychologists will tell you that they are trained to facilitate conversation and draw out nuances that can be important to understanding not only the person they are dealing with, but the various situations the person might discuss with them. Lawyers who study trial practice are also taught how to “examine a witness,” but this is a misnomer. As an advocate, the goal is not to examine (which connotes objectivity) but rather to elicit the testimony that we want to win our case.
One of the first rules of trial advocacy is “never ask a question when you don’t know what the answer will be.” But when meeting with a client or potential client, you may steer the individual in the direction you think they are going or subconsciously want them to go, especially if you think you have heard their story before, just with different names attached to the same facts.
Avoid leading questions
When meeting with clients and potential clients, stick to the trial rule of not asking leading questions. If you haven’t done a trial or you never took a course in trial practice, this one of the most basic rules. You cannot “lead” the witness on direct examination by asking questions that assume facts not in evidence. Let’s say you are dealing with an auto accident case. You might already know based on your initial telephone intake that the potential client was broadsided when she drove through an intersection. When she comes in for the in-person interview, your first impulse might be to start with a question like this:
“When you drove through the intersection, what color was the traffic light?”
However, in so doing you might miss important details like where the person was going, what time she needed to be there, and what else she might have been doing just prior to or during the time she entered the intersection. If you start with an open-ended question like “tell me about what happened that day,” she may very well come to reveal to you that she was running late to pick her son up from a soccer game and she was on the cell phone with the coach at the time she drove into the intersection.
In addition, asking open questions like these will allow the person to speak for themselves and allow them more opportunities to elaborate. Instead of questions that just call for a yes or no, you should try questions like:
“So why are you here today?”
“Can you please tell me what happened?”
“Ok, so what happened next?”
“What did she tell you?”
“Then what did you do?”
“Why did you do that?”
“What are you looking for an attorney to do for you?”
Your client may be more reserved by nature or inclined not to include details they think are not relevant. Asking these kinds of questions might be necessary to get them to tell you the entire story. Another reason the client might not fill you in on every important detail is the Curse of Knowledge.”
The Curse of Knowledge
In Made to Stick, Chip and Dan Heath explain that the Curse of Knowledge is when better-informed people find it difficult to think about issues from the perspective of lesser-informed people. In other words, since the potential client was there and actually experienced what occurred firsthand, they may assume you understand certain details about what occurred even though there is no reason why you would.
The Curse of Knowledge is often experienced by the actor in a game of charades who might find it hard to believe that his teammates keep failing to guess what he is trying to act out. This is because in his mind he possesses information that they simply don’t have. In one study, individuals were asked to tap the rhythm to a well known song (like “Happy Birthday”) and a second person was supposed to guess what song was being tapped out. The vast majority of tappers were very surprised at how difficult it was for the listener to guess which song was being tapped. The reason they were surprised was because they were invariably singing the song in their heads as they tapped. They knew exactly which song they were tapping out — but the listeners of course did not. As a result, it was hard for them to understand why the person couldn’t guess the song.
A detail as simple as whether or not it was dark outside at the time of the incident at issue can make a huge factual difference in a case that ultimately will end up in trial. From the client’s perspective, it is obvious that the incident occurred in the dead of night with no street lights to illuminate the area in question. Yet he may fail to mention that detail, and you won’t ever get to cross examine the witness on the issue because you won’t want to ask the question if you don’t know the answer in advance.
That’s why it is imperative to ask open-ended questions to bring out details a client may omit in telling his story. You might be very surprised at what you discover. I will never forget the time I was running through a final pre-hearing interview with a client whose case was being heard by a Social Security administrative law judge. While going through her past work history, I asked her to explain where she worked and what she did at each job. I found out she was the manager at a local bagel shop when a different client of mine had been injured there, and she was well aware of a problem that had caused the injury! If I had not thoroughly questioned her I might never have discovered that fact. As it was, I gained a strong witness, which led to a favorable settlement of the personal injury case.
Active listening, with attention to detail
The second part of the equation is listening carefully to the answers you get. Sometimes, it might even be better to ask them permission to record the conversation so you can look them straight in the eye instead of constantly looking down to scribble or type or tap notes. My doctor usually does this, staring at my medical records and taking notes, leaving me unsure whether she is really listening and understanding me. But a doctor may only be able make an accurate diagnosis by picking up on subtle nuances and clues, many of which can be found carefully listening to the person’s description of their medical history or the story of how the problem developed (think House).
The same is true in the legal field; attorneys must develop critical listening skills in order to pick up on the nuances in a client’s story. However, many if not most are simply unable to listen critically and take notes at the same time.
It is also tempting to interrupt the client’s narrative with questions. Your questions might be very important, but if you interject, you might cut off the person’s train of thought so that you lose important details. The better approach is to let them finish telling their story and then ask questions. Critical listening takes work — especially if one’s clients tend to have similar stories.
Listen actively and attentively while your clients tell their story because it will allow them to open up to you and allow you to focus on the nuances of their narrative at the same time. This process will not only build rapport but it will also likely lead to the revelation of information you might not have discovered otherwise that might be helpful or even critical to you being able to represent them effectively.