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Q UINCY COLLEGE Paralegal Studies Program Paralegal Studies Program Interviewing & Investigation Cognitive Interviewing Techniques and the Three-Staged.

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Presentation on theme: "Q UINCY COLLEGE Paralegal Studies Program Paralegal Studies Program Interviewing & Investigation Cognitive Interviewing Techniques and the Three-Staged."— Presentation transcript:

1 Q UINCY COLLEGE Paralegal Studies Program Paralegal Studies Program Interviewing & Investigation Cognitive Interviewing Techniques and the Three-Staged Interview

2 Conducting the Initial Client Interview This topic will explore how an Initial Client Interview may be organized and conducted in order to gather complete information about the nature of the Client’s problem and legal position. This topic will explore how an Initial Client Interview may be organized and conducted in order to gather complete information about the nature of the Client’s problem and legal position.

3 Cognitive Interviewing

4  A structured form of interviewing developed in 1984 by US psychologist Ralph Edward Geiselman (born 1949) and colleagues as an investigative tool in forensic psychology to maximize the amount of reliable information that individuals can recall.  Incorporates several memory-enhancing features, such as reinstating the context of the episode to be recalled and encouraging the interviewee to think about the events in different sequences and from different perspectives. Cognitive Interviewing Definition

5 Cognitive Interviewing Techniques Four broad techniques: Four broad techniques: 1. Report everything (i.e., as many details as possible), even if it seems trivial or irrelevant. 2. Reconstruct the circumstances (i.e., the physical and mental contexts that occurred at the time of the events) 3. Recall the events in a different order 4. Recount the events from a number of different perspectives or points of view

6 Expectations Expectations Avoid before interview (either by what you expect based on presentation or what you have been told) Avoid before interview (either by what you expect based on presentation or what you have been told) Cognitive Interviewing Considerations

7 Report everything: Report everything: One of the main CI techniques is to ask the interviewee to report every detail, no matter how fragmentary or seemingly inconsequential. One of the main CI techniques is to ask the interviewee to report every detail, no matter how fragmentary or seemingly inconsequential. Why? We often edit our recall and summarise what we feel are the relevant points. However, by doing so we may omit a large amount of detail. Why? We often edit our recall and summarise what we feel are the relevant points. However, by doing so we may omit a large amount of detail. This detail, however can be critical. This detail, however can be critical.

8 Cognitive Interviewing Considerations Start with report everything before attempting to reconstruct the circumstances. Start with report everything before attempting to reconstruct the circumstances. Don’t state, “Tell me everything that happened” – this requires editing important information (they may not know what is important and/or have a difficult time sorting through the details) Don’t state, “Tell me everything that happened” – this requires editing important information (they may not know what is important and/or have a difficult time sorting through the details) Instead – let them know everything is important, then sort out what you need and follow up Instead – let them know everything is important, then sort out what you need and follow up Example: Start with, “Where were you when it happened,” then tie it to, “Now tell me everything that happened.” Example: Start with, “Where were you when it happened,” then tie it to, “Now tell me everything that happened.”

9 Cognitive Interviewing Considerations Reconstructing the circumstances: Reconstructing the circumstances: Another of the main CI techniques is to mentally reinstate the physical and personal context that existed at the time of the event. Another of the main CI techniques is to mentally reinstate the physical and personal context that existed at the time of the event. What do we mean by context? What do we mean by context? Mood, setting, and experiences the individual felt before, during and after the event.

10 Cognitive Interviewing Considerations Reconstructing the circumstances: Reconstructing the circumstances: Use to overcome difficulty in sequencing events (exact hour and day something happened) Use to overcome difficulty in sequencing events (exact hour and day something happened) Use “focused open-ended questions” Use “focused open-ended questions” First – establish the interviewee’s routine (this helps sequence day and you can determine if the event happened before or after a daily event) First – establish the interviewee’s routine (this helps sequence day and you can determine if the event happened before or after a daily event) Build on what they tell you (use their words) and continue to construct the events Build on what they tell you (use their words) and continue to construct the events

11 Cognitive Interviewing Considerations Use salient information to assist: Use salient information to assist: Saliency - “emotional strength or pull” of an experience or information - something that puts the individual on alert and has high personal relevance. Saliency - “emotional strength or pull” of an experience or information - something that puts the individual on alert and has high personal relevance. The saliency of information helps all people remember things - good or bad. The saliency of information helps all people remember things - good or bad. If you know what is salient for the Interviewee, you can link that information to the event. If you know what is salient for the Interviewee, you can link that information to the event.

12 Cognitive Interviewing Considerations Reconstructing the circumstances – Why? Reconstructing the circumstances – Why? Memory does not occur in a vacuum. The event was lived through by the Interviewee. Memory does not occur in a vacuum. The event was lived through by the Interviewee. Asking for the recall of a selected part may not produce detailed recall. Asking for the recall of a selected part may not produce detailed recall. Our memory record is more heavily influenced by internal thoughts than external environment. Our memory record is more heavily influenced by internal thoughts than external environment. So - just as important to recreate feelings. So - just as important to recreate feelings.

13 Cognitive Interviewing Considerations Change perspective Change perspective Example: varying the form of questions Example: varying the form of questions Why? - Serves dual purpose: Why? - Serves dual purpose:  De-traumatises the event (e.g., describing it from another person’s view)  Recall mainly recounted from personal perspective: asking the Interviewee to describe event from another physical location enables the Interviewee to recall more detail.

14 Cognitive Interviewing Considerations Recall the events in a different order Recall the events in a different order Example: reverse chronological order Example: reverse chronological order Why? Why? When recounting from “playback” we edit memory. When recounting from “playback” we edit memory. By changing the sequence, the Interviewee can focus on each part of the event independently, much like stills in a film. By changing the sequence, the Interviewee can focus on each part of the event independently, much like stills in a film. Reverse or out of order sequence recall discourages “filling” gaps with memory from schema rather than the actual event. Reverse or out of order sequence recall discourages “filling” gaps with memory from schema rather than the actual event.

15 Retrieval (word finding) versus recognition Retrieval (word finding) versus recognition Retrieval requires pulling something from memory Retrieval requires pulling something from memory Recognition requires identifying something that is named Recognition requires identifying something that is named Recognition is a simpler form of recall Recognition is a simpler form of recall Example: Exams Example: Exams short answer = retrieval multiple choice = recognition BUT – Be aware of the “power of suggestion” and the distortions that can result BUT – Be aware of the “power of suggestion” and the distortions that can result Cognitive Interviewing Considerations

16  Summarizing  “Interviewers should repeat in summary form the interviewee’s account of the to-be- remembered event, in the interviewee’s own words...which can also function as a further retrieval phase.” Cognitive Interviewing Considerations

17 Techniques to encourage the Interviewee to tell his/her story Use open-ended prompts Use open-ended prompts Request detailed descriptions Request detailed descriptions Recreate the original context Recreate the original context Allow the Interviewee control Allow the Interviewee control Encourage intense concentration Encourage intense concentration Encourage spontaneous recall Encourage spontaneous recall Encourage use of imagery Encourage use of imagery Avoid leading questions Avoid leading questions Ask compatible questions Ask compatible questions Explain the questions asked Explain the questions asked

18 Techniques to encourage the Interviewee to tell his/her story Avoid interrupting Avoid interrupting Pause after responses Pause after responses Engage in active listing Engage in active listing Clarify & summarize Clarify & summarize Adopt the Interviewee’s perspective Adopt the Interviewee’s perspective Maintain eye contact Maintain eye contact Use effective body language Use effective body language Monitor the Interviewee’s body language Monitor the Interviewee’s body language Establish rapport Establish rapport

19 Overview of the Initial Client Interview Ascertaining the Client’s Problem and Legal Position

20 The Three-Staged Interview THE THREE-STAGED INTERVIEW STAGE TWO: CHRONOLO GICAL OVERVIEW STAGE TWO: CHRONOLO GICAL OVERVIEW STAGE THREE: THEORY DEVELOPMEN T AND VERIFICATION STAGE THREE: THEORY DEVELOPMEN T AND VERIFICATION STAGE ONE: PRELIMINARY PROBLEM IDENTIFICATION STAGE ONE: PRELIMINARY PROBLEM IDENTIFICATION We will use a structured (i.e., cognitive interviewing) approach in the Initial Client Interview to ascertain the Client’s problem and legal position: We will use a structured (i.e., cognitive interviewing) approach in the Initial Client Interview to ascertain the Client’s problem and legal position:

21 Purpose of the Three-Staged Interview Increase thoroughness with which cases are analyzed by encouraging the Interviewer not to prematurely decide what the problem is and what should be done to solve it. Increase thoroughness with which cases are analyzed by encouraging the Interviewer not to prematurely decide what the problem is and what should be done to solve it. Overcome common causes of incomplete or inaccurate analyses and solutions: Overcome common causes of incomplete or inaccurate analyses and solutions: Tendency of legal professionals to analyze cases on the basis of incomplete information, and to base initial questioning on their own assumptions. Tendency of legal professionals to analyze cases on the basis of incomplete information, and to base initial questioning on their own assumptions. Tendency of clients to describe their problems incompletely or inaccurately. Tendency of clients to describe their problems incompletely or inaccurately.

22 THE THREE-STAGED INTERVIEW STAGE TWO: CHRONOLO GICAL OVERVIEW STAGE TWO: CHRONOLO GICAL OVERVIEW STAGE THREE: THEORY DEVELOPME NT AND VERIFICATIO N STAGE THREE: THEORY DEVELOPME NT AND VERIFICATIO N STAGE ONE: PRELIMINARY PROBLEM IDENTIFICATION STAGE ONE: PRELIMINARY PROBLEM IDENTIFICATION The Interviewer asks the Client to provide a general description of at least the following: The Interviewer asks the Client to provide a general description of at least the following: The underlying transaction which caused the problem, and The underlying transaction which caused the problem, and The relief that the Client desires. The relief that the Client desires.

23 Stage One: Preliminary Problem Identification During this stage: During this stage: The Client is encouraged to describe matters in whatever way is comfortable. The Client is encouraged to describe matters in whatever way is comfortable. The Interviewer refrains from imposing any particular order on the Client’s statements. The Interviewer refrains from imposing any particular order on the Client’s statements. The Interviewer allows the Client to proceed in a free-flowing manner. The Interviewer allows the Client to proceed in a free-flowing manner. The Interviewer asks for a general description only and avoids asking for details. The Interviewer asks for a general description only and avoids asking for details.

24 THE THREE-STAGED INTERVIEW STAGE THREE: THEORY DEVELOPME NT AND VERIFICATIO N STAGE THREE: THEORY DEVELOPME NT AND VERIFICATIO N STAGE ONE: PRELIMINARY PROBLEM IDENTIFICATION STAGE ONE: PRELIMINARY PROBLEM IDENTIFICATION STAGE TWO: CHRONOLO GICAL OVERVIEW STAGE TWO: CHRONOLO GICAL OVERVIEW The Client is encouraged to provide a step-by-step chronological narrative of the underlying transaction. The Client is encouraged to provide a step-by-step chronological narrative of the underlying transaction. During this stage: During this stage: The Client is asked to start at beginning of narrative and follow through to present. The Client is asked to start at beginning of narrative and follow through to present. The Interviewer does not attempt to get a detailed elaboration of points mentioned by client. The Interviewer does not attempt to get a detailed elaboration of points mentioned by client.

25 Tentative Diagnosis At the conclusion of the Chronological Overview stage, a tentative legal diagnosis is made in which the Interviewer, using his/her knowledge of substantive law, reviews the Client’s story and consciously addresses the question, “What are all the possible legal theories that are potentially applicable given this factual situation?” At the conclusion of the Chronological Overview stage, a tentative legal diagnosis is made in which the Interviewer, using his/her knowledge of substantive law, reviews the Client’s story and consciously addresses the question, “What are all the possible legal theories that are potentially applicable given this factual situation?” The objective of this inquiry is to determine what potential causes of action and potential defenses are possibly applicable to the Client’s problem. The objective of this inquiry is to determine what potential causes of action and potential defenses are possibly applicable to the Client’s problem.

26 THE THREE-STAGED INTERVIEW STAGE TWO: CHRONOLO GICAL OVERVIEW STAGE TWO: CHRONOLO GICAL OVERVIEW STAGE ONE: PRELIMINARY PROBLEM IDENTIFICATION STAGE ONE: PRELIMINARY PROBLEM IDENTIFICATION STAGE THREE: THEORY DEVELOPME NT AND VERIFICATIO N STAGE THREE: THEORY DEVELOPME NT AND VERIFICATIO N Detailed examination to determine whether or not there are sufficient facts to establish the existence of each of the substantive elements needed to invoke each cause of action or defense. Detailed examination to determine whether or not there are sufficient facts to establish the existence of each of the substantive elements needed to invoke each cause of action or defense. Devoted to exploring consciously, in a systematic manner, whether or not specific legal theories are viable. Devoted to exploring consciously, in a systematic manner, whether or not specific legal theories are viable. Goal is to verify, refine, and/or reject and replace the tentative diagnosis. Goal is to verify, refine, and/or reject and replace the tentative diagnosis.

27 Advantages of the Three-Staged Interview Preliminary Problem Identification Stage: Preliminary Problem Identification Stage: Increases the likelihood that the Client will perceive the Interviewer as empathetic and one who can be trusted with troublesome information. Increases the likelihood that the Client will perceive the Interviewer as empathetic and one who can be trusted with troublesome information. By listening, and not asking for details, the Client may be able to recall information that might otherwise be forgotten. By listening, and not asking for details, the Client may be able to recall information that might otherwise be forgotten. Encourages the Interviewer to avoid premature diagnosis. Encourages the Interviewer to avoid premature diagnosis.

28 Advantages of the Three-Staged Interview Chronological Overview Stage: Chronological Overview Stage: Same advantages as Preliminary Problem Identification Stage plus: Same advantages as Preliminary Problem Identification Stage plus: - Builds rapport through the use of open- ended questions, and - Prepares the Client to handle more threatening subjects in the Theory Development and Verification stage

29 Stage One THE THREE-STAGED INTERVIEW STAGE TWO: CHRONOLO GICAL OVERVIEW STAGE TWO: CHRONOLO GICAL OVERVIEW STAGE THREE: THEORY DEVELOPMEN T AND VERIFICATION STAGE THREE: THEORY DEVELOPMEN T AND VERIFICATION STAGE ONE: PRELIMINARY PROBLEM IDENTIFICATION STAGE ONE: PRELIMINARY PROBLEM IDENTIFICATION

30 Considerations in Conducting Stage One Goal of the Preliminary Problem Identification Stage is to: Goal of the Preliminary Problem Identification Stage is to: Gain a general picture while providing the Client with empathetic understanding; and Gain a general picture while providing the Client with empathetic understanding; and Stimulate the Client’s ability to recall by allowing the Client to relate facts in any order that he/she feels appropriate. Stimulate the Client’s ability to recall by allowing the Client to relate facts in any order that he/she feels appropriate.

31 Considerations in Conducting Stage One The effectiveness of the Preliminary Problem Identification Stage depends on the extent to which the Interviewer is successful in allowing the Client to state, in his/her own terms: The effectiveness of the Preliminary Problem Identification Stage depends on the extent to which the Interviewer is successful in allowing the Client to state, in his/her own terms: The underlying event (cause) The underlying event (cause) His/her concerns (effect) His/her concerns (effect) The solution desired (relief) The solution desired (relief)

32 Considerations in Conducting Stage One The Interviewer must understand his/her role in solving the Client’s problems. The Interviewer must understand his/her role in solving the Client’s problems. Problems are not strictly legal in nature – the consequences to the Client can be economic, social and psychological. Problems are not strictly legal in nature – the consequences to the Client can be economic, social and psychological.

33 Techniques for Conducting Stage One Should be preceded by self-introduction and some measure of small talk (i.e., “chit-chat”) to put the Client at ease. Should be preceded by self-introduction and some measure of small talk (i.e., “chit-chat”) to put the Client at ease. Used to establish positive source characteristics: Used to establish positive source characteristics: Credibility Credibility Likeability Likeability Meaningfulness Meaningfulness

34 Techniques for Conducting Stage One Interviewing and rapport-building techniques used during this stage include: Interviewing and rapport-building techniques used during this stage include: Open-ended questions Open-ended questions Active listening responses Active listening responses Structural guides Structural guides

35 Techniques for Conducting Stage One Usually begun with open-ended questions calling for a narrative description of the Client’s situation. Usually begun with open-ended questions calling for a narrative description of the Client’s situation. Examples: “How can I help you?” “What brings you here today?” “What can I do for you?”

36 Techniques for Conducting Stage One A structural guide may be provided to encourage the Client to include a description of the underlying transaction and the relief that he/she desires. A structural guide may be provided to encourage the Client to include a description of the underlying transaction and the relief that he/she desires. Examples: “Give me a brief description of your problem, how it arose, and what solutions you hope to find. “Tell me what your problem is, how it came about, and what you think you’d like to have done about it.”

37 Techniques for Conducting Stage One May contain additional open-ended questions to encourage further narration, together with active and passive listening responses. May contain additional open-ended questions to encourage further narration, together with active and passive listening responses. Example: “Tell me a little bit more.”

38 Techniques for Conducting Stage One The Interviewer should: The Interviewer should: Not expect to be able to alleviate the Client’s feelings. Not expect to be able to alleviate the Client’s feelings. Understand that not all clients will know what relief they desire. Understand that not all clients will know what relief they desire. Avoid asking the Client to provide details. Avoid asking the Client to provide details. Let the Client continue until finished. Let the Client continue until finished.

39 Techniques for Conducting Stage One Should be concluded with an active listening response that summarizes the situation. Should be concluded with an active listening response that summarizes the situation. Example: “So the situation is that your landlord wants you out, you’d like to remain, and you’re concerned that the Sheriff will take everything you have if you don’t leave right away.” Demonstrates that the Interviewer understands the cause of the problem, the relief that the Client desires, and the concerns that the Client feels. Demonstrates that the Interviewer understands the cause of the problem, the relief that the Client desires, and the concerns that the Client feels.

40 Techniques for Conducting Stage One Summarization should indicate that the Client has been: Summarization should indicate that the Client has been: -Heard -Understood -Not judged

41 In-class Exercise: Preliminary Problem Identification

42 Stage Two THE THREE-STAGED INTERVIEW STAGE THREE: THEORY DEVELOPMEN T AND VERIFICATION STAGE THREE: THEORY DEVELOPMEN T AND VERIFICATION STAGE ONE: PRELIMINARY PROBLEM IDENTIFICATION STAGE ONE: PRELIMINARY PROBLEM IDENTIFICATION STAGE TWO: CHRONOLO GICAL OVERVIEW STAGE TWO: CHRONOLO GICAL OVERVIEW

43 Techniques for Conducting Stage Two In the Chronological Overview Stage, the Client is encouraged to provide a step-by-step chronological narrative of the underlying transaction. In the Chronological Overview Stage, the Client is encouraged to provide a step-by-step chronological narrative of the underlying transaction. Techniques employed during this stage include: Techniques employed during this stage include: Questions, Questions, Requests for clarification and elaboration, Requests for clarification and elaboration, Active listening to recognize feelings with sufficient frequency to build rapport, and Active listening to recognize feelings with sufficient frequency to build rapport, and Use of the “Recognition” facilitator. Use of the “Recognition” facilitator.

44 Techniques for Conducting Stage Two It is often helpful to begin Stage Two with a preparatory explanation. It is often helpful to begin Stage Two with a preparatory explanation. This is an explanation of what will take place in the remainder of the interview – preview of the length, content, and activities to be engaged in by the participants. This is an explanation of what will take place in the remainder of the interview – preview of the length, content, and activities to be engaged in by the participants.

45 The Preparatory Explanation Helps to avoid several problems involving certain aspects of the “role expectations” inhibitor, such as: Helps to avoid several problems involving certain aspects of the “role expectations” inhibitor, such as: Client perception of how active or passive he/she should be in providing information. Client perception of how active or passive he/she should be in providing information. The Interviewer’s questioning pattern. The Interviewer’s questioning pattern. Client expectancies regarding the length of the interview(s), speed in which solution(s) will be identified, etc. Client expectancies regarding the length of the interview(s), speed in which solution(s) will be identified, etc.

46 The Preparatory Explanation The appropriateness and content of a Preparatory Explanation at this stage of an interview is determined by the Interviewer based on an assessment of the Client’s: The appropriateness and content of a Preparatory Explanation at this stage of an interview is determined by the Interviewer based on an assessment of the Client’s: Level of sophistication Level of sophistication Sense of emergency Sense of emergency Other factors, including demeanor and degree of anxiety Other factors, including demeanor and degree of anxiety

47 The Preparatory Explanation No standard format, may be full or partial, but might include: No standard format, may be full or partial, but might include: Description of what will occur during the remaining stages, with an indication of the approximate length of time of these steps, and a brief explanation of the respective roles of the Attorney/Paralegal and the Client. (Note: be sure to distinguish clearly between the Attorney’s and the Paralegal’s roles to avoid confusing the Client.) Description of what will occur during the remaining stages, with an indication of the approximate length of time of these steps, and a brief explanation of the respective roles of the Attorney/Paralegal and the Client. (Note: be sure to distinguish clearly between the Attorney’s and the Paralegal’s roles to avoid confusing the Client.) Explanation that the Client’s rights and possible legal solutions will be discussed at the conclusion of the final stage. Explanation that the Client’s rights and possible legal solutions will be discussed at the conclusion of the final stage.

48 Techniques for Conducting Stage Two Use questions, particularly open-ended questions, that encourage the interviewee to continue narration. Use questions, particularly open-ended questions, that encourage the interviewee to continue narration. Example: “What happened next?” Focuses interviewee on chronological track Focuses interviewee on chronological track Minimizes risks of interrupting interviewee’s train of thought Minimizes risks of interrupting interviewee’s train of thought Uses interviewee’s sense of relevancy Uses interviewee’s sense of relevancy Consistent with rapport-building goals Consistent with rapport-building goals

49 Techniques for Conducting Stage Two Clarification and elaboration: Clarification and elaboration: Clarification is for vague or ambiguous language or sequence of events – not reasons or motives. Clarification is for vague or ambiguous language or sequence of events – not reasons or motives. Elaboration is an open probe of the subject under discussion – not narrow questions about subjects not mentioned by the Client. Elaboration is an open probe of the subject under discussion – not narrow questions about subjects not mentioned by the Client. Example: “Tell me more about that.”

50 Taking Notes An appropriate amount of note-taking is essential: An appropriate amount of note-taking is essential: If too extensive, it is impossible to keep the interview moving. If too extensive, it is impossible to keep the interview moving. If too little, important information is forgotten. If too little, important information is forgotten. If too selective, there is danger of omission. If too selective, there is danger of omission. Suggested method is: Suggested method is: Jot down key words as each new topic is introduced. Jot down key words as each new topic is introduced. Do the same for specific facts. Do the same for specific facts. Use the Client’s words if possible. Use the Client’s words if possible. After interview, prepare a detailed memorandum of the facts. After interview, prepare a detailed memorandum of the facts.

51 Taking Notes Electronic recording (if Client consents) can be a useful supplement to note taking. Electronic recording (if Client consents) can be a useful supplement to note taking. Not a substitute, since one would have to review the entire recording to locate specific information (too time-consuming). Not a substitute, since one would have to review the entire recording to locate specific information (too time-consuming). Note that verbatim transcripts are expensive (3-12 hours/hour of interview), and an outline is still necessary to capture specific facts. Note that verbatim transcripts are expensive (3-12 hours/hour of interview), and an outline is still necessary to capture specific facts.

52 In-class Exercise: Preparatory Explanations and Chronological Overview

53 Stage Three THE THREE-STAGED INTERVIEW STAGE ONE: PRELIMINARY PROBLEM IDENTIFICATION STAGE ONE: PRELIMINARY PROBLEM IDENTIFICATION STAGE TWO: CHRONOLO GICAL OVERVIEW STAGE TWO: CHRONOLO GICAL OVERVIEW STAGE THREE: THEORY DEVELOPMEN T AND VERIFICATION STAGE THREE: THEORY DEVELOPMEN T AND VERIFICATION

54 Theory Development and Verification Stage Once the Chronological Overview has been developed, the primary informational goal is to develop the maximum number of legal theories upon which a case/defense can be made. Once the Chronological Overview has been developed, the primary informational goal is to develop the maximum number of legal theories upon which a case/defense can be made. Task is to attempt to determine: Task is to attempt to determine: What legal theories are possibly applicable, and What legal theories are possibly applicable, and Which of the possibly applicable theories are potentially viable. Which of the possibly applicable theories are potentially viable.

55 Theory Development and Verification Stage To fully develop any legal theory, it is essential that the interviewer have knowledge of the applicable substantive law. To fully develop any legal theory, it is essential that the interviewer have knowledge of the applicable substantive law. The search for underlying facts will be greatly enhanced if the interviewer begins by reviewing to him/herself the legal elements that must be investigated. The search for underlying facts will be greatly enhanced if the interviewer begins by reviewing to him/herself the legal elements that must be investigated.

56 Theory Development and Verification Stage Ask yourself the following question: Ask yourself the following question: “Given the facts and what I know of the Client’s desires and concerns, what legal theories, regardless of how weak or strong they may now appear, might entitle the Client to the relief he/she seeks?”

57 Theory Development and Verification Stage If the Interviewer lacks adequate substantive knowledge of the potentially relevant legal theories, options are to: If the Interviewer lacks adequate substantive knowledge of the potentially relevant legal theories, options are to: Adjourn the meeting and research the law; Adjourn the meeting and research the law; Go back through the Overview to learn more detail about the story in general (this might aid subsequent research); Go back through the Overview to learn more detail about the story in general (this might aid subsequent research); Refer the Client to the attorney; or Refer the Client to the attorney; or Investigate the theories with which the Interviewer has familiarity and defer those which require further research. Investigate the theories with which the Interviewer has familiarity and defer those which require further research.

58 Determining What Subjects to Investigate and in What Order to Proceed In addition to the substantive elements that must be investigated, consideration should be given to the following matters: In addition to the substantive elements that must be investigated, consideration should be given to the following matters: The specific topics to be investigated in order to explore each of the relevant substantive elements; The specific topics to be investigated in order to explore each of the relevant substantive elements; The extent to which questioning should delve into the existence of credible proof needed to establish the necessary elements (e.g., witnesses, documents, etc.); and The extent to which questioning should delve into the existence of credible proof needed to establish the necessary elements (e.g., witnesses, documents, etc.); and The order in which potential causes and defenses should be examined. The order in which potential causes and defenses should be examined.

59 Determining What Subjects to Investigate and in What Order to Proceed During the Theory Development and Verification stage, it may not be possible to investigate all potentially viable theories simultaneously. During the Theory Development and Verification stage, it may not be possible to investigate all potentially viable theories simultaneously. Prioritization of which to investigate first is often made: (1) on the basis of Interviewer convenience; or (2) on Client convenience and concern. Prioritization of which to investigate first is often made: (1) on the basis of Interviewer convenience; or (2) on Client convenience and concern. Note that if Interviewer convenience conflicts with Client convenience and concern, rapport may suffer. Note that if Interviewer convenience conflicts with Client convenience and concern, rapport may suffer.

60 Use of Checklists Disadvantages: Disadvantages: Sets the order of inquiry. Sets the order of inquiry. -May be illogical or conflict with the client’s sense of importance Sometimes incomplete. Sometimes incomplete. -May not include unusual causes of action and defenses or fail to list exceptions Can limit scope of investigation to specific facts or topics. Can limit scope of investigation to specific facts or topics. -Investigation may be too shallow

61 Planning for the Theory Development and Verification Stage Two considerations: Two considerations: If the Interviewer attempts an inquiry without a formal checklist, he/she should probably not begin the actual examination without at least making a list of the causes of action and basic substantive elements to be investigated. If the Interviewer attempts an inquiry without a formal checklist, he/she should probably not begin the actual examination without at least making a list of the causes of action and basic substantive elements to be investigated. Whether or not the Interviewer uses a checklist (formal or informal), he/she should consider what order the investigation should follow to best serve the Client’s needs for rapport as well as the need for substantive information. Whether or not the Interviewer uses a checklist (formal or informal), he/she should consider what order the investigation should follow to best serve the Client’s needs for rapport as well as the need for substantive information.

62 Pattern of Questioning The pattern of questioning used in the Theory Development and Verification Stage is the “T- Funnel”. The pattern of questioning used in the Theory Development and Verification Stage is the “T- Funnel”. Each topic is explored in order by open-ended questions at the beginning to get facts as the client recalls (usually more than one), followed by a series of narrow questions to ask about possibilities not mentioned by the Client. Each topic is explored in order by open-ended questions at the beginning to get facts as the client recalls (usually more than one), followed by a series of narrow questions to ask about possibilities not mentioned by the Client.

63 The T-Funnel Questioning Sequence Open-ended Question Narrow Question Narrow Question Narrow Question Narrow Question Narrow Question Narrow Question Narrow Question Narrow Question Think of it as a process of “drilling down” to reach the necessary level of information that you are seeking.

64 The T-Funnel Questioning Sequence Some movement back and forth between open- ended and narrow-ended questions will probably not diminish the effectiveness of the T-Funnel concept. Some movement back and forth between open- ended and narrow-ended questions will probably not diminish the effectiveness of the T-Funnel concept. Remember the potential importance of phrasing questions used to encourage the Client’s recall. Remember the potential importance of phrasing questions used to encourage the Client’s recall. -Note the difference between “What else happened?” and “Can you remember anything else that happened?”

65 The T-Funnel Questioning Sequence The list of narrow questions about a specific topic is developed in some conscious and systematic way: The list of narrow questions about a specific topic is developed in some conscious and systematic way: Before commencing open-ended questioning, the Interviewer considers, “What are the possible things that might have occurred in this type of situation?” Before commencing open-ended questioning, the Interviewer considers, “What are the possible things that might have occurred in this type of situation?” Using his/her own actual and vicarious experience, the Interviewer quickly develops a list of possibilities. Using his/her own actual and vicarious experience, the Interviewer quickly develops a list of possibilities.

66 The T-Funnel Questioning Sequence When the list is developed, open-ended questioning is begun. When the list is developed, open-ended questioning is begun. When open-ended questioning is no longer productive, the Interviewer narrows down to subjects on the list that have not been mentioned. When open-ended questioning is no longer productive, the Interviewer narrows down to subjects on the list that have not been mentioned. Questioning is concluded when Interviewer can no longer think of additional possible specifics. Questioning is concluded when Interviewer can no longer think of additional possible specifics.

67 The T-Funnel Questioning Sequence It is important to stay with original topic throughout questioning until that topic is exhausted – beware of sidetracking. It is important to stay with original topic throughout questioning until that topic is exhausted – beware of sidetracking. Several motivational techniques (e.g., empathetic listening, recognition, extrinsic reward) may typically used in conjunction with the T-Funnel to stimulate the Client’s memory. Several motivational techniques (e.g., empathetic listening, recognition, extrinsic reward) may typically used in conjunction with the T-Funnel to stimulate the Client’s memory.

68 The T-Funnel Questioning Sequence “Pressing” the Client to remember more through the use of procedural instructions and leading questions may also be useful, but the Interviewer must consider the issue of the need for legally significant facts vs. development of rapport with the Client. “Pressing” the Client to remember more through the use of procedural instructions and leading questions may also be useful, but the Interviewer must consider the issue of the need for legally significant facts vs. development of rapport with the Client. Too much “pressing” can be leading or can cause “filling”. Too much “pressing” can be leading or can cause “filling”.

69 In-class Exercise: The T-Funnel Sequence

70 Conclusion of Questioning The Interviewer, at the completion of the interview, should review the interview notes and informal checklist to make sure that all substantive points have been covered, and should consider whether investigation of credible proof is complete – if not, then a new interview should be arranged. The Interviewer, at the completion of the interview, should review the interview notes and informal checklist to make sure that all substantive points have been covered, and should consider whether investigation of credible proof is complete – if not, then a new interview should be arranged.

71 Adjournment At the conclusion of questioning, the interview is adjourned by the Interviewer. At the conclusion of questioning, the interview is adjourned by the Interviewer. The Interviewer must understand that the Client has rational and/or emotional needs for prediction regarding the probable outcome of his/her case. The Interviewer must understand that the Client has rational and/or emotional needs for prediction regarding the probable outcome of his/her case.

72 Adjournment The Interviewer must also understand the consequences of responding to the Client’s needs at this point: The Interviewer must also understand the consequences of responding to the Client’s needs at this point: Any prediction may constitute the unauthorized practice of law. Any prediction may constitute the unauthorized practice of law. If the Interviewer makes a prediction when he/she lacks the basis for doing so, the Client’s confidence may be substantially shaken if subsequent events reveal that the interviewer was incorrect. If the Interviewer makes a prediction when he/she lacks the basis for doing so, the Client’s confidence may be substantially shaken if subsequent events reveal that the interviewer was incorrect.

73 Adjournment If the Interviewer is evasive when asked of the likely outcome, his/her evasiveness will breed Client uncertainty and dissatisfaction which in turn is likely to cause more interviewer evasiveness If the Interviewer is evasive when asked of the likely outcome, his/her evasiveness will breed Client uncertainty and dissatisfaction which in turn is likely to cause more interviewer evasiveness The result is likely to be a set of reactions in which the Client grows increasingly unhappy with the interviewer. The result is likely to be a set of reactions in which the Client grows increasingly unhappy with the interviewer.

74 Adjournment If pressed by the Client to make a prediction regarding the probable outcome of the Client’s case, the Interviewer should refrain from doing so, and should instead reiterate his/her role and responsibilities as a paralegal in the interview process. If pressed by the Client to make a prediction regarding the probable outcome of the Client’s case, the Interviewer should refrain from doing so, and should instead reiterate his/her role and responsibilities as a paralegal in the interview process.

75 Adjournment The appropriate method of adjourning the interview is for the Interviewer to: The appropriate method of adjourning the interview is for the Interviewer to: Tactfully announce the conclusion of the interview; Tactfully announce the conclusion of the interview; Provide a brief summarization of the interview; Provide a brief summarization of the interview; Indicate what will happen next and what each person (i.e., the paralegal, attorney, and client) will do; and Indicate what will happen next and what each person (i.e., the paralegal, attorney, and client) will do; and Maintain the connection with the client by providing for on-going communication. Maintain the connection with the client by providing for on-going communication.

76 In-class Exercise: Adjournment

77 Summary THE THREE-STAGED INTERVIEW STAGE ONE: PRELIMINARY PROBLEM IDENTIFICATION STAGE ONE: PRELIMINARY PROBLEM IDENTIFICATION STAGE TWO: CHRONOLO GICAL OVERVIEW STAGE TWO: CHRONOLO GICAL OVERVIEW STAGE THREE: THEORY DEVELOPMEN T AND VERIFICATION STAGE THREE: THEORY DEVELOPMEN T AND VERIFICATION Introduction Structural Guide Summarization Preparatory Explanation Tentative Diagnosis Adjournment

78 End of Cognitive Interviewing Techniques and the Three-Staged Interview


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