Presentation on theme: "Conducting the Initial Client Interview"— Presentation transcript:
1 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.
4 Cognitive Interviewing Definition 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.
5 Cognitive Interviewing Techniques Four broad techniques:Report everything (i.e., as many details as possible), even if it seems trivial or irrelevant.Reconstruct the circumstances (i.e., the physical and mental contexts that occurred at the time of the events)Recall the events in a different orderRecount the events from a number of different perspectives or points of view
6 Cognitive Interviewing Considerations ExpectationsAvoid before interview (either by what you expect based on presentation or what you have been told)
7 Cognitive Interviewing Considerations Report everything: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.This detail, however can be critical.
8 Cognitive Interviewing Considerations 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)Instead – let them know everything is important, then sort out what you need and follow upExample: 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: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?Mood, setting, and experiences the individual felt before, during and after the event.
10 Cognitive Interviewing Considerations Reconstructing the circumstances:Use to overcome difficulty in sequencing events (exact hour and day something happened)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)Build on what they tell you (use their words) and continue to construct the events
11 Cognitive Interviewing Considerations 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.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.
12 Cognitive Interviewing Considerations Reconstructing the circumstances – Why?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.Our memory record is more heavily influenced by internal thoughts than external environment.So - just as important to recreate feelings.
13 Cognitive Interviewing Considerations Change perspectiveExample: varying the form of questionsWhy? - 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 orderExample: reverse chronological orderWhy?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.Reverse or out of order sequence recall discourages “filling” gaps with memory from schema rather than the actual event.
15 Cognitive Interviewing Considerations Retrieval (word finding) versus recognitionRetrieval requires pulling something from memoryRecognition requires identifying something that is namedRecognition is a simpler form of recallExample: Examsshort answer = retrievalmultiple choice = recognitionBUT – Be aware of the “power of suggestion” and the distortions that can result
16 Cognitive Interviewing Considerations 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.”
17 Techniques to encourage the Interviewee to tell his/her story Use open-ended promptsRequest detailed descriptionsRecreate the original contextAllow the Interviewee controlEncourage intense concentrationEncourage spontaneous recallEncourage use of imageryAvoid leading questionsAsk compatible questionsExplain the questions asked
18 Techniques to encourage the Interviewee to tell his/her story Avoid interruptingPause after responsesEngage in active listingClarify & summarizeAdopt the Interviewee’s perspectiveMaintain eye contactUse effective body languageMonitor the Interviewee’s body languageEstablish rapport
19 Overview of the Initial Client Interview Ascertaining the Client’s Problem and Legal Position
20 The Three-Staged Interview We will use a structured (i.e., cognitive interviewing) approach in the Initial Client Interview to ascertain the Client’s problem and legal position:THE THREE-STAGED INTERVIEWSTAGE TWO:CHRONOLOGICALOVERVIEWSTAGE THREE:THEORYDEVELOPMENT ANDVERIFICATIONSTAGE ONE:PRELIMINARYPROBLEM IDENTIFICATION
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.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 clients to describe their problems incompletely or inaccurately.
22 THE THREE-STAGED INTERVIEW STAGE ONE:PRELIMINARYPROBLEM IDENTIFICATIONSTAGE TWO:CHRONOLOGICALOVERVIEWSTAGE THREE:THEORYDEVELOPMENT ANDVERIFICATIONThe Interviewer asks the Client to provide a general description of at least the following:The underlying transaction which caused the problem, andThe relief that the Client desires.
23 Stage One: Preliminary Problem Identification During this stage: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 allows the Client to proceed in a free-flowing manner.The Interviewer asks for a general description only and avoids asking for details.
24 THE THREE-STAGED INTERVIEW STAGE ONE:PRELIMINARYPROBLEM IDENTIFICATIONSTAGE TWO:CHRONOLOGICALOVERVIEWSTAGE THREE:THEORYDEVELOPMENT ANDVERIFICATIONThe Client is encouraged to provide a step-by-step chronological narrative of the underlying transaction.During this stage: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.
25 Tentative DiagnosisAt 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.
26 THE THREE-STAGED INTERVIEW STAGE ONE:PRELIMINARYPROBLEM IDENTIFICATIONSTAGE TWO:CHRONOLOGICALOVERVIEWSTAGE THREE:THEORYDEVELOPMENT ANDVERIFICATIONDetailed 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.Goal is to verify, refine, and/or reject and replace the tentative diagnosis.
27 Advantages of the Three-Staged Interview 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.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.
28 Advantages of the Three-Staged Interview Chronological Overview Stage:Same advantages as Preliminary Problem Identification Stage plus:Builds rapport through the use of open-ended questions, andPrepares the Client to handle more threatening subjects in the Theory Development and Verification stage
30 Considerations in Conducting Stage One Goal of the Preliminary Problem Identification Stage is to:Gain a general picture while providing the Client with empathetic understanding; andStimulate 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 underlying event (cause)His/her concerns (effect)The solution desired (relief)
32 Considerations in Conducting Stage One 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.
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.Used to establish positive source characteristics:CredibilityLikeabilityMeaningfulness
34 Techniques for Conducting Stage One Interviewing and rapport-building techniques used during this stage include:Open-ended questionsActive listening responsesStructural guides
35 Techniques for Conducting Stage One 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.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.Example:“Tell me a little bit more.”
38 Techniques for Conducting Stage One The Interviewer should:Not expect to be able to alleviate the Client’s feelings.Understand that not all clients will know what relief they desire.Avoid asking the Client to provide details.Let the Client continue until finished.
39 Techniques for Conducting Stage One 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.
40 Techniques for Conducting Stage One Summarization should indicate that the Client has been:HeardUnderstoodNot judged
41 Preliminary Problem Identification In-class Exercise:Preliminary Problem Identification
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.Techniques employed during this stage include:Questions,Requests for clarification and elaboration,Active listening to recognize feelings with sufficient frequency to build rapport, andUse of the “Recognition” facilitator.
44 Techniques for Conducting Stage Two 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.
45 The Preparatory Explanation 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.The Interviewer’s questioning pattern.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:Level of sophisticationSense of emergencyOther factors, including demeanor and degree of anxiety
47 The Preparatory Explanation 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.)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.Example: “What happened next?”Focuses interviewee on chronological trackMinimizes risks of interrupting interviewee’s train of thoughtUses interviewee’s sense of relevancyConsistent with rapport-building goals
49 Techniques for Conducting Stage Two Clarification and elaboration: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.Example: “Tell me more about that.”
50 Taking Notes An appropriate amount of note-taking is essential: If too extensive, it is impossible to keep the interview moving.If too little, important information is forgotten.If too selective, there is danger of omission.Suggested method is:Jot down key words as each new topic is introduced.Do the same for specific facts.Use the Client’s words if possible.After interview, prepare a detailed memorandum of the facts.
51 Taking NotesElectronic 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).Note that verbatim transcripts are expensive (3-12 hours/hour of interview), and an outline is still necessary to capture specific facts.
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.Task is to attempt to determine:What legal theories are possibly applicable, andWhich 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.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:“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: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);Refer the Client to the attorney; orInvestigate 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: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.); andThe 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.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.
60 Use of Checklists Disadvantages: Sets the order of inquiry. May be illogical or conflict with the client’s sense of importanceSometimes incomplete.May not include unusual causes of action and defenses or fail to list exceptionsCan 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: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.
62 Pattern of Questioning 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.
63 The T-Funnel Questioning Sequence Open-ended QuestionNarrowQuestionThink 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.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: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.
66 The T-Funnel Questioning Sequence 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.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.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.Too much “pressing” can be leading or can cause “filling”.
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.
71 AdjournmentAt 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.
72 AdjournmentThe 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.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 AdjournmentIf 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 evasivenessThe result is likely to be a set of reactions in which the Client grows increasingly unhappy with the interviewer.
74 AdjournmentIf 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 AdjournmentThe appropriate method of adjourning the interview is for the Interviewer to:Tactfully announce the conclusion 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; andMaintain the connection with the client by providing for on-going communication.