By Russell Cocks, Solicitor

First published in the Law Institute Journal

Clear communication

Lawyers are not taught communication skills in university. It is something that they learn ‘on the job’ and often with little supervision. It is little wonder that it is the root cause for many complaints made by clients about their lawyers. This is most evident in the area of costs, where clients complain that the lawyer has failed to communicate the way that costs are calculated, or indeed that costs would be charged for certain work. It is for this reason that parliament has seen fit to legislate minimum levels of information that must be disclosed by a lawyer to a client in relation to costs.

Lawyers spend much of their time communicating with other lawyers, engaging in legal-speak. Successive generations of lawyers fall under this spell as it is assumed that something that has worked in the past will continue to work in the future. But this fails to recognise that society changes and as the wider community has become more educated it has been less prepared to accept the obfuscation of the legal profession’s modes of communication.

Lawyers need to recognise that modern clients want advice communicated to them in a language that they can understand. This applies to both face-to-face contact and written advice. Client interviews need to be conducted in an environment where the client feels relaxed and not intimidated and written advice needs to confirm the problem, summarise the applicable law and give the client clear alternatives for further action.

It goes without saying that the costs consequences of those actions needs to be clear.

Client interviewing – principles and techniques

The interview room

If it is accepted that a client needs to feel comfortable in an interview, then it is reasonably obvious that reasonable efforts should be taken to make the client feel comfortable and thereby to increase the prospects that the client will instruct – and continue to instruct – the firm. Simple things matter – like being on time, or having the client notified if you are delayed; offering the client a glass of water, or tea and coffee; taking the time to ask how their day has been before launching into the deepest secrets of their life.

Client may feel more comfortable in a dedicated interview room, with a ‘round-table’ environment, as opposed to an across-the-desk interview in the lawyer’s office. Many firms have adopted an interview room where the client can feel that they are participating in a process, rather than being subjected to an examination. Additionally, the absence of clutter – a perennial problem with lawyers’ offices – in a dedicated interview room allows the client to feel confident that the client is, at least for that moment, the sole focus of the lawyer’s attention, rather than just another of the lawyer’s many problems. It also suggests that the lawyer is well-organised and professional. However, a stark interview room with just table and chairs is not particularly inviting and efforts must be made to make the environment warm and friendly. Plants, cushions and some nice prints or photos can do wonders!

If a separate, dedicated room is not possible then the lawyer’s office should be as tidy as possible and any documents or files which might identify any other client must be removed or obscured. A client is hardly likely to be filled with confidence if they see other people’s personal details spread out on the desk so that they can see them – they instantly think that next week their details will be similarly exposed to the next new client.

Preparing for a client interview

Preparation is essential for a good interview. But this applies equally to both sides. The lawyer must be prepared with a basic idea of the matters to be discussed, but equally steps must be taken to prepare the client. Requesting that the client make some notes before coming to the interview, indicating the basic questions that will be asked and ensuring that the client brings any relevant information will aid in ensuring that the interview proceeds smoothly.

Review the By Lawyers Retainer Instructions before the conference – and use them in the client interview – to ensure that no relevant information or issues are overlooked. Also review the By Lawyers commentary for the area of law about which the client is coming to see you – having the law and practice fresh in the mind when taking instructions prompts the lawyer to ask the right questions and give the right advice.

Make sure you have sufficient time for the interview – don’t schedule appointments too close together, especially if you don’t really know what a client is coming to discuss. A complicated narrative which raises many issues cannot be squeezed into twenty minutes and once instructions are provided there may be consequent or urgent matters to attend to immediately.

Also make sure you will not be interrupted. If there are urgent things requiring your attention – a call to take, a document to sign – tell the client this at the start of the interview and seek their permission for you to attend as required. It will never be withheld, but it is courteous and professional to ask for it.

Taking a witness statement

All of the comments relating to client interviews apply equally to interviewing witnesses and taking their statements. Witnesses can be critical to a client’s case and should be treated with care and respect. Witnesses are also, frequently, future clients.

Interviewing and the use of interpreters

The need for an interpreter can dramatically complicate an interview. Lawyers can become frustrated by the ‘downtime’ involved in translations. Clients can be frustrated when, despite an interpreter, they feel disconnected from the interview. Extra care must be taken to ensure the client understands the advice and that clear, cogent instructions are received.

Expense often militates against a professional interpreter and a friend or relation of the client undertakes that role. This can lead to the interpreter putting their own ‘spin’ on the interview. Using a member of staff to interpret can overcome this difficulty but is not always possible and cultural differences can impact on that arrangement. Patience is required in abundance and consideration should be given to scheduling two interviews to obtain the information that might be obtained from one interview not involving an interpreter.

Giving advice – identifying options

There is never one answer to a legal question. Lawyers know that a decision may come down to a 4/3 split in the High Court, but clients believe that there can only be one answer and it will favour them. All possibilities, from the worst to the best, must be identified and then some attempt made to predict the most likely. The client must know and understand that the lawyer does not guarantee any particular outcome and that severe consequences may flow from an unfavourable decision. The lawyer must protect him or herself by a detailed letter setting out those possible results.

How can I be sure my client understands me?

Confirmation of oral advice in writing is the only way that a lawyer can prove the advice that was given. As to whether the client understands that advice, the lawyer can never be too sure. Asking a client in an interview may elicit a positive result and asking a client to sign and return a copy of the written advice will at least provide objective evidence of the advice. But there is no way of knowing absolutely that the client truly understands the advice.

One basic step that should always be taken is to ask a client if they can hear and see properly, if they can read and if they understand English. Many people are, for example, embarrassed that they cannot read, so asking them to read something is not a guarantee that they have understood it. If in doubt, ask questions – and make notes of having done so.

Plain language advice

One way of improving the possibility that the client will truly understand the advice is to adopt plain language. Lawyers who communicate in legalese including obtuse Latin phrases virtually sentence their clients to ignorance and it is accordingly hardly surprising that when the client gets a result that were not expecting, the client refuses to pay the bill and lodges a complaint. It can be even more rankling for the lawyer when the client achieves an outcome that the lawyer regards as successful, but the client still complains as the client has not been able to understand the advice and that a successful outcome has been achieved.

Plain language letter writing

Writing in plain language is simply writing from the recipient’s point of view and expressing yourself in clear, straightforward language within a structure that is simple and logical. Avoiding repetition and tautology – the lawyer’s favourite mistake – will go a long way to simplifying letters. Avoiding long paragraphs, by setting out a series of thoughts in dot-point form, will make the letter easier to read. Always think of it from the client’s point of view and write accordingly.

Negotiation – principles and techniques

Dealing with clients is only one of the essential skills that a lawyer requires. Dealing with other lawyers is another. The practice of law is about being able to sift from a set of facts what is important and what is not and then understand the possible legal consequences of those facts. There is never one legal answer, there are a range of possibilities and it is the lawyer’s function to achieve the best outcome for the client in the circumstances. This is where negotiation skills are important, again a skill that is not taught at law school and must be acquired on-the-job.

Negotiation – the principled approach vs. the positional bargainer

There are a range of methods of negotiation; from the bull-at-the-gate blusterer who tries to intimidate the opposition, to the silent assassin who lays in wait until the very last minute, then pounces. Most people however adopt a middle ground, designed to leave some room for the other side to manoeuvre in. Most experienced lawyers can pick a person operating at the edges and maintain their position, but occasionally the ‘positional bargainer’ will enjoy success. However that success is not usually repeated a second time round.

Brinksmanship is a common, but dangerous, negotiating tool. If adopted, always retain the means of climbing back from the brink and be prepared to eat humble pie if the need arises.

All the ethical constraints attached to court proceedings are equally applicable to the negotiation process as to any litigation at the end of that process: see for example Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352 – probate matter, which also makes the point that merely attaching a ‘without prejudice’ label to communications will not excuse professional misconduct.

Mediation

The lawyer should be the ideal person to be involved in a mediation, either as a representative of a party or as a mediator. The lawyer is trained and experienced in distilling the important facts in any given situation and identifying the crucial issues. And the lawyer knows that achieving a 100% outcome from a legal dispute is at best, very expensive and at worse, very unlikely. Indeed, some lawyers have embraced the mediation model of dispute resolution very successfully, but the average lawyer is in fact not well suited to mediation. This is because the average lawyer still relies heavily on processes that delay decision making and serve to confuse and mystify participants. Mediation to such lawyers is an unwelcome challenge.

Clients are best served by lawyers who embrace and facilitate mediation.

That 90% of settlements appear to be achieved in the last half hour of an all-day mediation is probably no more due to the tactics of the lawyers than the intransigence of the clients.

A lawyer is prohibited from misleading their opponent during the conduct of court proceedings. That prohibition applies equally to mediation: Legal Services Commissioner v Mullins [2006] LPT 012 (Queensland).

Drafting terms of settlement

Terms of settlement can often be drafted in an emotional and stress-charged environment. Great care needs to be exercised and some preparation by way of having draft terms of settlement ready should always be undertaken.

A client must be provided with information relating to legal costs at the time of settlement: Section 177 Legal Profession Uniform Law.