One of the significant functions of a lawyer is to advise the people who seek assistance in knowing the legal implications of their actions. The lawyer is looked upon to facilitate decision making in certain critical legal matters. This function of the lawyer influencing and facilitating decisions is called counselling.
In this article, Team YLCC attempts to provide valuable insights on client counselling for lawyers. Read on!
In a lawyer – client meeting, the client opens up and talks about his problem and concerns and expresses his expectations. The lawyer listens, notes down and questions the client for necessary information. There is a sharing of information, views and needs through verbal communication. This communication which is the life blood for effective counseling is called ‘interviewing’. Client interviewing is a prominent part of legal profession. Giving options, suggesting alternatives, effective client representation, drafting of documents, pre-trial preparations etc. are all dependent on this client interviewing.
The process of client counselling in the field of law has two functions:
1. To help the person talk about, explore and understand his or her thoughts and feelings and workout that what he or she might do before taking action.
2. To help the person decide on his or her own solutions.
The lawyer must understand the following before counselling a client-
1. The facts pertaining to the clients’ situation
2. Clients’ perspectives and expectations
3. Clients’ concerns as to costs, consequences and risks
4. Law applicable
5. Considerations of justice, fairness and morality
6. Bar Council Code of Ethics
REMOVING THE COMMUNICATION DIVIDE
Lawyers usually do not talk like ordinary people. Clients are ordinary people. This is a problem. Like doctors, computer coders, and engineers, lawyers may communicate by technical jargon incomprehensible to the client. Furthermore, a lawyer’s advice and counsel rest on a platform of legal knowledge, culture and experience unknown to the client. Thus, concepts like personal jurisdiction, venue, preliminary injunction, motion in limine, motion for summary judgment, and burden of proof bounce off a client with no real comprehension. It can be said that three main difficulties exist in this area:
- Many legal words have no, or uncertain meaning to the client without definition;
- Many words may mean different things to the lawyer and the client; and
- Words in the legal context may carry embedded, unrecognized concepts not known to the client.
The lawyer must overcome these difficulties when communicating with a client, much as an experienced translator would.
UNDERSTANDING THE CLIENT’S LEGAL KNOWLEDGE
In the process of client counselling, the lawyer should ask the client to describe prior experiences with the legal system. Using active listening, the attorney can then determine how much or how little the client knows of the legal process and culture, and where the lawyer must start. It is to be noted that different clients hold different individual experiences. Stereotyping the client may mislead the lawyer about the client’s experience with the legal system. Before advising the client on the case at hand, the lawyer must also determine what the client understands about the case. It is recommended that the lawyer ask the client to explain where the client thinks the case is in the overall legal process. This will show the lawyer how little or much the client understands about the case, and how the lawyer should communicate options to the client based on that level of understanding.
UNDERSTANDING THE CLIENT’S MYTHS AND BELIEFS
To fully counsel clients, the lawyer must also understand what the case means to the client. Many clients maintain cultural myths and incorrect beliefs about the legal system. They incorporate these myths and beliefs in their perceptual set of the case. The client may reject legal advice from the lawyer if it conflicts with the client’s myths and beliefs.
For example, many clients believe that a verdict will publicly vindicate or correct a wrong, or force corporations to change practices. The hidden myths and meanings often explain why a client will reject a settlement or negotiated transaction when it makes perfect legal and economic sense to accept the offer. For many clients, it is not about the money. Notions of pride, honour, loyalty, integrity, and right and wrong may be more important to a client than settling a matter on rational economic terms.
UNDERSTANDING THE CLIENT’S PRIORITIES
Separate and apart from the client’s value and belief systems, the lawyer must also appreciate the client’s personal and professional priorities, and how those priorities may influence the client’s approach to the legal matter. No case occurs in a vacuum. The client’s situation outside the case may ultimately determine how the client disposes of the case. A business that is fighting to survive for a year and which must win at all costs to survive differs from an established business that seeks to minimize litigation costs and concentrate on its core business. Similarly, an individual client who is relying on a litigation to fund college tuition and pay off debt is not the same client who has achieved financial independence and is comfortably retired. The lawyer must appreciate these background realities for the client.
UNDERSTANDING THE CLIENT’S EMOTIONS
Client emotions are impossible to ignore. Some lawyers may do so at their peril. This holds true in the courtroom, when negotiating, and when advising clients. The lawyer must understand and address the emotions between the parties, or the client’s emotions as to the case. Otherwise, the lawyer cannot effectively advise a client, or establish the necessary professional relationship. It is advisable that where emotions run hot and deep, the lawyer should be curious and gently probe for their source. The lawyer is not a counselor or therapist and should not become one. However, the lawyer can show the client that the lawyer “gets it,” i.e. he or she truly understands why the client holds the emotions displayed. This may allow the client to be more receptive to the lawyer’s recommendations and message.
YLCC would like to thank its Content Team for their valuable insights in their article.
