instructor’s guide - client science...

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved.

THE CLIENT SCIENCE COURSE

INSTRUCTOR’S GUIDE

By

Marjorie Corman Aaron Professor of Practice

Director, Center for Practice

University of Cincinnati College of Law


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TABLE OF CONTENTS

INTRODUCTION .................................................................................................................................................... 1

ALTERNATIVE COURSE STRUCTURES ....................................................................................................... 2

THE FOUR‐DAY PRE‐SEMESTER CLIENT COUNSELING WORKSHOP .................................................... 3

WORKSHOP TIMING ................................................................................................................................. 3

LOGISTICS ................................................................................................................................................. 3

Workshop Days .................................................................................................................................. 4

Faculty Coverage ................................................................................................................................ 4

THE TEN‐WEEK CLIENT COUNSELING COURSE .................................................................................... 5

Timing and logistics ........................................................................................................................... 5

Logistics ............................................................................................................................................... 5

OTHER FORMAT OPTIONS ....................................................................................................................... 5

A Walk through Content, Method, and Intent .............................................................................. 6

PRE‐COURSE PREPARATION TASKS FOR THE PROFESSOR AND ADMINISTRATIVE ASSISTANT ........... 7

CONSIDERATIONS IN SETTING DROP‐ADD DEADLINES ........................................................................ 8

When the Deadline is Breached ....................................................................................................... 8

ROLE ASSIGNMENTS ................................................................................................................................ 9

PRE‐COURSE COMMUNICATION WITH STUDENTS (ABOVE AND BEYOND THE ORDINARY) ............ 11

PRE‐COURSE SUBMISSION: CASE ASSESSMENT EXERCISE ................................................................... 11

THE CASE ASSESSMENT EXERCISE: WHY AND WHAT IT IS ................................................................. 12

EARLY WARNINGS ON DECISION ANALYSIS AND SOFTWARE ............................................................ 13

AT LAST, PREP FOR THE FIRST – THE OPENING SKIT........................................................................... 14

POWERPOINTS AND LAPTOPS ............................................................................................................... 15

Regarding Laptops and Role Information .................................................................................... 16

LET THE COURSE NARRATIVE BEGIN ...................................................................................................... 16

INTRODUCTION TO METHOD AND COURSE STANCE .................................................................... 17

AT THE VERY BEGINNING ..................................................................................................................... 17

PARADIGM OF INTERVIEWING, COUNSELING AND DECISION‐MAKING: WHAT’S PERFECT

(POWERPOINT9) ............................................................................................................................. 18

THE LAWYERING SKIT ........................................................................................................................... 18

Act One – Client Centered Lawyer ................................................................................................ 18

Act Two – The Authoritarian Lawyer ........................................................................................... 19

Obvious Third Act – The Collaborative Lawyer ......................................................................... 20

EFFECTIVE LEGAL INTERVIEWS – PHASE I ............................................................................................ 21


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OVERALL GOALS FOR EFFECTIVE LEGAL INTERVIEWS ........................................................................ 21

TO REVIEW OR NOT TO REVIEW THE STEPS OR STAGES IN AN INITIAL INTERVIEW? ........................ 21

JUST DO IT –A TERRIBLE JOB OF THE FIRST FEW MOMENTS OF AN INITIAL INTERVIEW! ............ 22

SHIFT FROM TERRIBLE TO GOOD…THE SOLER METHOD AND BODY LANGUAGE ....................... 23

INITIAL INTERVIEW EXERCISE – IN TWO STAGES, WITH SKILLS EXERCISES IN

BETWEEN ................................................................................................................................................................ 24

FIRST STAGES OF THE INITIAL INTERVIEW, IN CONTEXT AND IN REAL TIME .................................... 24

Confidentiality in the Initial Interview ......................................................................................... 24

As to Fees .......................................................................................................................................... 25

Launch the Initial phase of the initial interview in Hapless Harvest and Family Matters .... 25

Pause on Pausing: Provide a Helpful Hint on Conveying Complex Information .................. 25

Yet More Prelude: Encouragement and Exhortations on the First Real In‐Role Simulation 26

The Initial Interview phases in Hapless Harvest and Family Matters ..................................... 26

To Re‐Pair or Not to Re‐Pair? ......................................................................................................... 27

Balance of Debriefing....................................................................................................................... 27

Back to Confidentiality .................................................................................................................... 28

On to Fees .......................................................................................................................................... 29

EFFECTIVE LEGAL INTERVIEWS PHASE II .............................................................................................. 32

ON NARRATIVE AND CONVERSATION ................................................................................................. 32

HEARING FACEWORK ............................................................................................................................ 34

SUBSTANTIVE SEGUE ON STRUCTURE ................................................................................................... 36

THE UP FRONT OVERVIEW – NICE, BUT NOT NECESSARY .................................................................. 38

UNOBSTRUCTED, UNDIRECTED NARRATIVE IS NOT JUST POLITE, IT’S BETTER ................................. 38

ABOUT FUNNELS .................................................................................................................................... 41

A SECOND PRELUDE TO HEARING THE CLIENT’S STORY: FACT GATHERING INTERLUDE ON

PSYCHOLOGY OF MEMORY AND PERCEPTION ............................................................................. 41

MAKING MEMORABLE IMPRESSIONS OF MEMORY .............................................................................. 42

MEMORY IS SUGGESTIBLE AND CONFUSED .......................................................................................... 43

PERCEIVED DOESN’T MEAN POSITIVELY TRUE .................................................................................... 43

ON LISTENING ..................................................................................................................................................... 45

REGARDING OPEN AND CLOSED QUESTION FORM ............................................................................. 50

WHAT ABOUT RUN‐ONS? ..................................................................................................................... 50

WORK THROUGH THE BALANCE OF THE INTERVIEWS ........................................................................ 50

RESERVE JUST A BIT OF TIME FOR A BRIEF DEBRIEFING ....................................................................... 50

CLIENT COUNSELING AND DECISION‐MAKING ............................................................................... 52


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PROFS’ TOP 10 LIST OF INFERRED BELIEFS ........................................................................................... 54

CHALLENGE #1: CLEAR AND COMPLETE COMMUNICATION .................................................... 55

CHALLENGE #2: CLIENT COUNSELING—SHARED UNDERSTANDING OF CLIENT

INTERESTS .............................................................................................................................................................. 59

THE DALE DORAN EXERCISE ................................................................................................................ 60

Insider Information and a (Gleeful) Confession .......................................................................... 60

Now for the Consequences (Chart) ............................................................................................... 65

CHALLENGE # 3: EMOTIONS AND THE CORE CONCERNS MODEL .......................................... 66

PHASE ONE – READ, IDENTIFY, AND DISCUSS ..................................................................................... 73

PHASE TWO – SMALL GROUP, TARGETED ACTIVE LISTENING ........................................................... 73

CHALLENGE # 4: WISDOM IN THE FACE OF INEVITABLE UNCERTAINTY ........................... 75

4 BASIC STEPS TO STRUCTURING A DECISION TREE ............................................................................ 76

1. Define the Decision .................................................................................................................. 77

2. Identify the Possibilities .......................................................................................................... 77

3. Judge the Likelihood ................................................................................................................ 77

4. Figure Net Gains and Costs .................................................................................................... 77

ANATOMY OF A DECISION TREE ........................................................................................................... 78

LITIGATE OR SETTLE GAME ................................................................................................................... 80

QUALITATIVE RESISTORS SURRENDER: WHAT’S THE SETTLEMENT VALUE? ...................................... 80

Prose vs. Percentages ....................................................................................................................... 80

END OF THE SEGMENT/DAY .................................................................................................................. 81

NEXT DECISION TREE ANALYSIS SEGMENT ......................................................................................... 82

AFTER THE BREAK .................................................................................................................................. 86

1) Walk through Real Life Examples ......................................................................................... 86

2) Demonstrate How One Might Use the Tree in Discussion with a Client ........................ 87

3) Student Practice with Clients ................................................................................................. 87

CLOSING POINTS .................................................................................................................................... 87

CHALLENGE # 5: WORKING WITH PSYCHOLOGY............................................................................. 89

TALKING POINTS.................................................................................................................................... 90

1) EGO CENTRIC US ........................................................................................................................... 90

2) SELECTIVE PERCEPTION, PARTISAN PERCEPTION BIAS, JUDGMENTAL OVER CONFIDENCE,

BIAS BLIND SPOT. ........................................................................................................................... 90

Selective and Partisan Perception Bias .......................................................................................... 90

Judgmental Overconfidence AND Lawyers’ Predictions .......................................................... 91

Bias Blind Spot .................................................................................................................................. 91


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3) NAÏVE REALISM AND FEELING RIGHT ....................................................................................... 92

4) ENDOWMENT EFFECTS .................................................................................................................. 93

5) COMMITMENT ................................................................................................................................ 93

6) ANCHORS AWAY – ON THE PHENOMENON OF ANCHORING .................................................... 93

The Impact of Anchoring on Willingness to Accept Offers ....................................................... 95

7) FUNDAMENTAL ATTRIBUTION ERROR ......................................................................................... 95

8) EQUITY SEEKING (AND SELF‐SERVING EQUITY) VS. RATIONALITY ............................................ 96

9) RISK AVERSION AND GAIN, RISK SEEKING AND LOSS AVOIDANCE .......................................... 97

10) PROSPECT THEORY (POSITIVE AND NEGATIVE FRAMING) .......................................................... 98

FINALLY, FINALLY, WE TURN TO THE VIGNETTES TITLED: WORKING WITH CLIENT ..........................

PSYCHOLOGY ............................................................................................................................... 100

DRAMA DOES IT! ACTORS’ ADVICE FOR LAWYERS’ CHOICES IN GESTURE & VOICE . 101

ACTORS’ TECHNIQUES IN BODY POSITION AND GESTURE (AUTHORITY, CLARITY, CONNECTION) . 102

On Authority, the Appearance of Competence and Confidence ............................................ 102

On Clarity and Connection ........................................................................................................... 103

Body Language and Gesture for Connection ............................................................................. 104

On Vocal Choices for Connection, Authority and Clarity ....................................................... 104

Warm Up with One‐Liners ........................................................................................................... 106

ABC Exercises in Emotional Range ............................................................................................. 107

20 ‐25 minutes, including debrief ................................................................................................ 107

ABC Exercises in Synchrony ........................................................................................................ 107

10‐15 minutes .................................................................................................................................. 107

ABC Exercises in Gravitas ............................................................................................................ 108

15 minutes ....................................................................................................................................... 108

SOUP TO NUTS – INTERVIEWING AND COUNSELING WITH BAD NEWS GLOSS .............. 109

READING ASSIGNMENTS ..................................................................................................................... 110

Selecting the students, invitation with an opt out ..................................................................... 110

THE INTERLUDE ON BAD NEWS: FOR DOCTORS & PATIENTS, LAWYERS AND CLIENTS ................. 113

Insensitive Delivery by a Pro ........................................................................................................ 114

No Avoiding It! .............................................................................................................................. 115

CLIENT COUNSELING IN UPSCALE ACCUSATIONS ............................................................................ 116

FINAL COUNSELING SKILLS EXERCISE ................................................................................................ 119

FINAL WRAP‐UP SESSION ............................................................................................................................ 120


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THE CLIENT SCIENCE COURSE

INSTRUCTOR’S GUIDE

Introduction

Since 2004, the University of Cincinnati College of Law’s curriculum has included a 2L two credit

client interviewing and counseling requirement. Since then, we’ve traversed the ugly initial

resistance to a new requirement, the not‐too‐bad, the good and the pretty‐darned‐great response,

and have learned much along the way. I’m pleased to say for the last several years, we’ve

successfully delivered a substance‐rich, interactive, and valuable course that teaches client

interviewing and counseling, with specific introduction to formal risk analysis within decision‐

making and a focus on voice and gesture as part of effective communication.1 Most gratifying:

students often express appreciation for its contribution to their future success in legal practice.

This guide is intended to articulate everything an instructor would need to know to teach the

current fully evolved version of this course, either in a four‐day workshop or somewhat more

conventional course format, through ten weeks of a semester.

After the classroom hours are (almost) complete, each student participates in the “Final

Counseling Skills Exercise” (“FCSE”), a 30 minute recorded session with an actor as client and

professor as coach. To complete the exercise, the student‐as‐lawyer must deliver “bad news”—a

pessimistic and unexpected prediction—to the client, explain some fairly complicated law for the

bad news to make sense, and obtain client authority for settlement in an amount far lower than

the client would have imagined earlier. Success is declared when the student‐lawyer

accomplishes all of this and facilitates the client’s comfort with the decision and confidence in the

lawyer and the lawyer‐client relationship.

Over the years, the insights and experience I gained from coaching law students with client‐

actors in the FCSE informed numerous course revisions and became the foundation for my book,

Client Science: Advice for Lawyers On Counseling Clients Through Bad News and Other Legal Realities

(Oxford University Press, 2012) (hereafter referred to as Client Science). After two years of

distributing various chapter drafts as “optional” readings, I assigned the entire book for the first

time in 2012, and adjusted classroom presentation components as a result. For professors who

adopt Client Science as their course text, this manual includes syllabi, agendas, and powerpoints,

all premised on the assumption that students have read assigned portions of Client Science.

(Professors who have not assigned this book will likely want to supply some additional content

1 At the risk of providing too much information about our curricular evolution, this client counseling course

had gained acceptance and much appreciation by 2010. However, we decided that providing student choice

would be better and that having a requirement taught by only one faculty member was probably unwise.

Thus, beginning in the 2011‐2012 academic year, our Professor of Practice who focuses on business

transactional work developed and taught a version of client counseling in a transactional context. Thus,

course dubbed “Client Counseling” came to be (and to be listed as) “Client Counseling (dispute context)

and Client Counseling (transactional context).


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from it in class lecture and powerpoint, unless that content can be covered through other

readings.)

When putting together my first syllabus with Client Science the course text, I faced my book’s

deficiency for that purpose: it lacks a chapter on interviewing! That choice made sense for a book

focused on client counseling challenges for lawyers. But of course, law school courses always

(appropriately in my view) package client interviewing with counseling and decision‐making.

Mine does too.

For that first time, I did some modest research and cobbled together materials on interviewing to

assign. Since then, I have written my own “chapter” on interviewing, available on the course

website. Without pretense to originality, the piece synthesizes what I found to be the most

insightful and useful advice for structuring and conducting client interviews – with particular

focus on the initial interview. Professors who adopt Client Science for their courses should feel

free to distribute it to their students, without copyright guilt, or have them download it. It’s

yours.

In prior years, the course text was Cochrane, DiPippa, and Peters, Counselor‐At‐Law: A

Collaborative Approach to Lawyering, 2d Ed. (LexisNexis 2006). I have great respect for that book

and remain committed to articulating and recommending its collaborative approach, consciously

balancing between client‐centered and authoritarian models.

Alternative Course Structures

Faced with the original annual challenge of delivering a valuable, contentful, and interactive

course to approximately 110‐120 students, we developed two different structures: a four day, pre‐

semester workshop and a ten week course, meeting once per week during the semester.

Our learned constraint was that our students were not comfortable with more than 30 or so

students in a single section. Thirtyish is about the limit when students are asked to take part in

simulations and participate in meaningful debriefings. With much larger groups, some students

were reticent to talk freely in about what they found challenging in the simulation exercise just

completed. While listening to lectures, watching demonstrations or even participating in

exercises or discussion aren’t universally intimidating in a large group, some students tend to

disengage, knowing that others will speak. They rely on slipping under the professor’s radar

screen and engage less fully in simulation work. (I have never favored cold‐calling in a course

such as this. It generally cuts against the spirit of what I teach.) I’ve also learned that cold‐calling

2Ls in a required class is toxic; resentment grows and smothers most impulses to participate

voluntarily. This guide frequently offers strategies for encouraging volunteer participation at

various junctures.

Experience suggests that maintaining a relatively small size seems just as important, if not more

so, in the ten‐week course as in the workshop. Because students meet only once a week, there is

less opportunity to form relationships or feel group cohesion until substantial time has passed.

The workshop students have more immediate “esprit de corps” because it is their sole focus

during that pre‐semester week.


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Moving away from our small mid‐western school, this workshop or the ten‐week course

theoretically could be delivered to a greater number of students, divided into more sections. The

January negotiation workshop at Harvard Law School is taught with six instructors and six

sections of twenty‐four students. All 144 students participate in plenary session together, but

much time is spent in sections. Students’ comfort level with class size will have as much to do

with their expectations and the law school culture as the absolute number.

The Four‐Day Pre‐Semester Client Counseling Workshop

Workshop timing

The workshop runs from approximately 8:30 or 9:00 a.m. to 4:30 p.m. for the first three days, and

until approximately 3:00 p.m. on the fourth day.2 Each day includes an hour for lunch and at

least one 15 minute break in the morning and the afternoon. Class consensus often eliminates or

shortens lunch and breaks on the Friday, in favor of earlier end time.

After the workshop, each student is scheduled for a 30 minute “Final Counseling Skills Exercise”

(“FCSE”) with a client actor. This is instructional time as the professor actively coaches the

student through the exercise. I require students to hand in a simple decision tree right before

their FCSE session.

A final one‐hour to 90 minute wrap up session is scheduled after all of the FCSEs are complete. It

is our practice to hand out the course evaluations in the last 15 minutes or so of this wrap up

session.

Logistics

Reserve one or more rooms with much, much greater capacity than the enrolled number of

students. For our sixty‐student/two section workshop, we reserve two adjacent rooms that are

both quite large (the largest two rooms in the law school building). Even in plenary session,

students will be asked to participate in short interactive exercises. It’s helpful to have both rooms

large enough for students to spread out into pairs or triplets for separate conversations.

It is not necessary and may not be desirable for each student lawyer‐client pair to have a separate

break‐out room for simulation work. (We don’t have that choice as our building doesn’t have a

sufficient number of such rooms.) The time allotted for in‐class simulation work is relatively

short, even for the lengthier counseling simulations that occur toward the end. Too much time

would be spent in transit and then rounding up the stragglers. Keeping students in one large

room permits you to roam and observe, and discourages them from slipping out of role. If your

2 When the course began, the ABA’s required instructional time was 700 minutes per credit or 1,400 minutes

for a 2 credit course. 9:00–4:30, is 7.5 hrs, less 1.5 hours for 1 hour lunch and 2 fifteen minute breaks is 6.0

hours or 360 minutes x 3 days = 1,080 minutes, plus 4.5 hrs or 270 minutes‐on Friday = 1,350, plus 30

minutes for the FCSE and 60 minutes for the wrap up class is a total of 1,440 minutes. The newer total

requirement of 750 instructional minutes or 1500 for a two credit course is easily met by adding 30 minutes

on two mornings, or on one morning and onto the wrap up session. As you’ll see from this guide’s text, you

will often feel pressed for time. The additional 60 minutes, distributed wisely, will seem like a gift rather

than a burden.


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law school’s physical set up permits or requires it, you might let student pairs inhabit nearby

nooks and hallway benches, with an emphasis on nearby.

Perhaps it should go without saying, but a projection unit for powerpoints and video will be

needed.

Workshop days – If possible, start on Tuesday, end on Friday

Thus far, we’ve scheduled the workshop for Tuesday through Friday of the week before the

regular semester begins, either in August or January (or, in some years, both).

Beginning on Tuesday permits students to come back to town and to campus over the weekend

or on Monday morning, take care of pre‐semester business, and/or blitz on the course readings

before a Tuesday start. At the least, they’ve used Monday to check the syllabus and the course

website (or TWEN or Blackboard—whichever the on‐line interface). Thus, they understand and

can fulfill their obligation to be prepared for the first day’s assigned simulation roles. While the

reading is important, their preparation for the role simulation is more so, as it affects the

classmates assigned to play the counterpart role.

The advertised Tuesday start may encourage students to elect the workshop option (and not to

drop it). When Mom and Dad decide to extend the family reunion over New Year’s weekend, or

a friend’s out‐of‐town wedding is the weekend before the workshop, students feel comfortable

knowing they’ll have Monday to get ready. From the co‐faculty perspective, that Monday

permits a relaxed flight in, and time to review and prep together. For faculty and administrative

assistant, the free Monday creates a window to resolve last minute logistical and technical

glitches (eg. students can’t download simulation materials) and alert the waitlist of spaces that

opened up over the weekend.

Faculty coverage

For 60 students in one workshop, I’ve co‐taught with an esteemed professor colleague from

another law school (Richard Reuben, University of Missouri at Columbia). The course is

delivered partially in plenary session with all 60 students, and partially in two sections of 30,

where sustained simulation work and significant debriefings take place. My co‐faculty and I

divide up the plenary material and sometimes use each other for staged demonstrations. In a

four‐day marathon on any topic, the audience appreciates different presenters’ voices and

presentation styles. That would be true even if my co‐faculty never brought a different

perspective or experience to the discussion. Of course, the opposite is true. While we agree on

the core material and course stance, my co‐faculty does bring another view and alternate

responses to student questions, all to the good.

The attached annotated course agendas indicate where the workshop has stayed in plenary

session and separated into sections as well as how students’ section and simulation role

assignments are made. (The section and role assignment process carries a bit of complexity, as

does the process of accommodating authorized and unauthorized drop‐adds. Suggestions for

managing these are included later in this guide.)

Solo‐teaching the four day workshop for 30 or so students also has been a pleasure for me. I have

done so—in January 2011 at the University of Michigan and in August 2012 in Cincinnati—and


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will no doubt continue in the future.3 Thus far, student experience seems similar to that in our

small weekly section, though intensified and, I believe, enhanced by the compressed workshop

format.

The Ten‐Week Client Counseling Course

Timing and logistics

The ten week version of the course has been delivered in weekly 2 hour and 10 minute sessions

(130 minutes) to 2 hour and 30 minute sessions (150 minutes), finishing approximately a month

before semester’s end. This permits time for each student’s FCSE exercise (30 minutes, plus

preparation) and a collective wrap‐up session (60–90 minutes).

Given the ABA’s switch to 750 minutes per credit hour, the minimum would be 140 minutes, or

150 minutes if you want to schedule a short break. While flagging student energy is not

generally a problem when class time is taken up with simulations and exercises, a break is

helpful for sessions long on presentation and discussion. For sessions in which a significant

break seems unnecessary or would interfere with the class flow, you are always free to end a bit

early.

Logistics

As indicated for the workshop, the class is best conducted in a room large enough to

accommodate student pairings and triplets with a great deal of elbow room and space to separate

from other groups during role simulation work.

Other Format Options

Because this is a required course for 2L students, we make every effort not to schedule the

semester version opposite large 2L classes. We have sometimes taken some or all of the lunch

block in the law school schedule and encouraged students to bring a brown bag lunch. That way,

even a relatively lengthy class session conflicts with only one other course block. (Inevitably, this

does conflict with lunch speakers and other student organization meetings.)

There is no reason one couldn’t become more creative with scheduling, particularly if the course

were NOT required. For example, I have taught this course at a law school summer institute over

four evenings and two weekend days. It might work well in a Thursday evening, Friday

3 At the time of UC Law’s curriculum initiative to require client counseling for all, I was its sole provider,

but we had learned the hard way that the 2L class was NOT happy to be there on masse. Thus, offering a

workshop for 60, with visiting faculty co‐teach and enable two sections of thirty was a creative solution for

us. We covered the rest of the 50 or 60 2Ls via two ten week course sections. In the interim, we’ve added a

Professor of Practice who designed and now delivers a two‐credit client counseling course in the

transactional context. Because he now covers half of the students, we have each shifted to combination of

workshop and ten week course offerings, but there is no need for visiting faculty and a 60 student

workshop.


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afternoon format. That would permit delivery of the course material in three or four weeks. Not

as compressed as the four day workshop, but worth trying.

While I’m liberal as to format, I prefer orthodoxy regarding inclusion of the Final Counseling

Skills Exercise (“FCSE”) in the course mix, if at all possible. As you will no doubt recognize from

the FCSE problem and this guide’s description of its mechanics, it is time intensive and

somewhat costly. Still, because it is profoundly valuable to our students, I believe it well worth

the time and cost to run with actor‐clients. Less valuable, but also possible, is a written

submission responding to the FCSE prompt, also included in the website.

A walk through content, method, and intent

This instructor’s guide aims to cover the content, method, and intent of each lecture and

discussion segment, role simulation, and other exercise in The Client Science Course, from

preparation assignments through the FCSE and wrap up session.

First, an overview seems appropriate. The course begins with an articulation of its goals: a well‐

counseled and satisfied client. We explain that the 1L year was dedicated to “thinking like a

lawyer” and now they are “becoming lawyers.” We frame the course as a gift,4 enabling students

to be “practice ready,” and indeed, to distinguish themselves from other young lawyers when

they graduate. We emphasize the wisdom of using the course to become autodidacts henceforth,

in summer jobs and early in their careers. Law students and younger lawyers can and should

critically observe more experienced lawyers engaged in client interviewing and counseling.

Their observations should inform their own practice. We return to and emphasize the themes of

critical awareness, observation, auto‐didacticism and reflective practice throughout the course.

The course structure is previewed: some initial work on interviewing and then a full shift to more

extensive work on client counseling, and what I’ve labeled the “Five Counseling Challenges” that

inform and create the agenda for the balance of the course (explained in more detail below).

After some open discussion of what qualities people seek in their lawyers and what might make

client counseling difficult, I use the vehicle of a light‐hearted skit to recommend a collaborative

approach, as described in Cochrane, DiPippa, and Peters, Counselor‐At‐Law: A Collaborative

Approach to Lawyering, 2d Ed. (LexisNexis 2006), in contrast to purely client‐centered or

authoritarian models.

The first day of the workshop and first few sessions of the ten‐week course cover through

elements of a successful initial interview, including ice‐breaking and establishing a relationship,

suggesting agenda, explaining confidentiality and fees, gathering information, setting next steps,

and building trust and rapport along the way, of course. The balance of the course is built

around my deconstruction of what makes client counseling difficult: the “Five Counseling

Challenges”, “Clear Communication”, “Deep Understanding of Client Interests”, “Working with

Emotion”, “Making Decisions Under Conditions of Uncertainty”, and “Dealing with

Psychology”. The readings, presentations, and simulations are designed to teach practice skills

and strategies for each challenge. By way of polish, the course includes a segment on the use of

voice and gesture to enhance the lawyer’s clarity and connection with the client. It closes with a

4 I admit, framing the course as a gift was inspired by anticipated (and sometimes real) resistance to its

requirement for 2Ls.


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short segment on the added difficulty of communicating bad news before working through a

“soup to nuts” interviewing and counseling exercise in a difficult case.

One might observe that the course’s claim to teach students to meet “the five counseling

challenges” is ambitiously writ. More challenges could no doubt be named; skills and strategies

are introduced that may require experience and practice to execute at the highest level. Yet,

articulating great aspirations seems an appropriately optimistic way to position the course. More

accurate is to say, as we do, that the course offers an introduction to skills and strategies essential

for excellence in their future practice. Through simulation exercises, it requires students to

wrestle with some but not all of the difficulties in clear communication, understanding interests,

and working with psychology, emotion, and decision‐making when interviewing and counseling

clients.

At another level, the course encourages students to reflect upon deliberate choices in lawyering,

the nature of the lawyer‐client relationships they aspire to, and how others will perceive them in

the lawyer’s role. We are convinced that playing the client role in class simulations is as valuable

as playing the lawyer’s role. As clients, students observe and respond to their peers‐as‐lawyers’

affect, word choice, and efforts to persuade or counsel. Even without an actor’s ability to be fully

in role, the engaged student‐as‐client will feel an inkling of what a client might feel in response to

a lawyer’s phrasing or actions. This enhances students’ awareness of their foibles and strengths

in client interactions. Aware that they are on the precipice of professional practice, we encourage

attention to how their phrasing, voice, and other aspects of delivery will contribute to a client or

colleague’s perception of their competence and confidence.

And now, from overview to the nitty‐gritty: the pre‐course preparation, delivery, materials, and

content of the course.

Pre‐Course Preparation Tasks for the Professor and Administrative Assistant

Administrative Advice (because someone should benefit from my administrative

struggles!)

Particularly if you are teaching in pre‐semester workshop format, advance preparation and

posting of materials is more important and more complicated.

Drop‐Adds (especially, but not only, with a wait‐list in a pre‐semester workshop)

I strongly advise you to adopt an early‐inviolate drop‐add date5 for the purposes of making role

assignments that will stick. The early drop‐add date should be noted prominently in the course

registration materials.

5 If an early inviolate drop‐add date is inconsistent with the registrar’s rules, it’s worth announcing a less

official but strong professor’s notation of “good faith” rule that students remaining on the course list after a

certain date are making a good faith commitment to stay. Do send a reminder email or two of the

impending deadline and emphasize that other waitlisted students will lose the opportunity to add if they

drop late. Also dropping after the deadline will wreak havoc on role assignments to the disadvantages of

students who remain in the class. Do strongly urge students who must drop after your deadline to email


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Early drop‐add is important because you REALLY want to make student simulation role

assignments, and you want students to have their roles in time to prepare for the first workshop

day.

When the course is wait‐listed, there’s an equity issue. If a spot opens up because a registered

student drops, you will want to offer it to a waitlisted student. AND you want the new student

to have the role assignments necessary to make pairings work and in time to prepare. At UC

Law, the fact that the course is required provides additional incentive. If five students drop the

workshop, and I can’t take from the wait‐list pool, I will end up with five net additional students

in the ten‐week course or the second workshop of the year. The ten‐week course population

becomes too large and the workshop operates with fewer‐than‐capacity: inefficient and sub‐

optimal all around.

As always, reminders and warnings are helpful. Even though your posted syllabus and perhaps

a memorandum (sample included) will contain reference to the early drop‐add deadline, I

suggest sending out an email or two as the last semester winds down and/or just before and/or

just after the Christmas holiday for an early January workshop. If you’re teaching in August or

during a fall or spring break, the same principle would apply: send out a reminder of different

drop‐add deadlines, with reassurances about the availability of course materials for students who

will be in remote locations.

As soon as drop‐add has passed, and the role assignments are theoretically final, I suggest

entering them in a separate pairings sheet available on the course site. If you are working with a

website administrator, he or she will have to change the web text, and upload a revised

document. (Redundancy is good: provide many ways for students to learn that they’ve been

assigned to a group with particular exercises and simulation roles.) If you’re working on TWEN

or Blackboard or another web‐based application, you or your assistant will make the quick

switch.

Considerations in Setting Drop‐Add Deadlines

When the workshop is scheduled for the second week in January (say January 10‐13), our drop‐

add deadline is December 28 or so. While it would be administratively simpler to make it much

earlier—say December 15—we doubt students will have focused on family vacation plans or

other opportunities affecting their willingness to return to school a week early. Pre‐fall semester

permits a bit more flex. Set the drop‐add deadline on a date by which students would have

started to think about school, but leave a sufficient window for making role assignments and

working with the waitlist.

When the deadline is breached

Of course, the dog dies, non‐refundable airline tickets are gifted and received, the appendix

bursts: some students reasonably and unreasonably seek permission to drop the course after the

deadline. Life happens. When a space opens up, I suggest alerting the waiting list en‐masse,

you or your administrator immediately so that waitlisted students can be notified and role assignments

adjusted.


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allowing entry into the course in the appropriate order, with short deadlines for response. (This

is different from our law school’s general waitlist policy to notify the first two or three waitlisted

students of an opening, with 24 hours to respond, and then notify the next on the list.) We tell

the newly admitted students to disregard the alphabetical categories for their role assignments.

In effect, the new admit is filling in for one who dropped and assumes his or her role assignment.

(Mr. Zacharias adopts Ms. Adams’s last name for the purposes of role assignments.)

Role Assignments

We divide students into four groups for role assignment purposes, primarily because the initial

case assessment exercise involves four different cases.6 Each member of a group has the

consistent role assignments throughout the workshop, with the exception of the Dale Doran case

(as noted in more detail below). Thus, when Groups I and III will be the lawyers, Groups II and

IV will be the clients, and vice versa. The role assignment sheet’s columns constitute a checklist

for every student, enabling an easy view of all of his or her assigned roles and exercises for the

course, as indicated in the following sample.

One advantage of labeling four groups in a large workshop with two instructors is that it

facilitates even student exposure to each instructor. For example, if I know that Professor Reuben

debriefed student client‐lawyer Groups I & II in breakout sessions today, while I debriefed

Groups III and IV in the other room; we can make a clean switch tomorrow.

In a single section workshop (one instructor only), having four groups makes it easier to avoid

pairing the same student lawyers and clients. For one simulation, you can instruct the lawyers

from Group I to pair up with clients from Group II (and so on). For the next simulation, you can

pair lawyers from Group II with students from Group III (instead of Group I).

6 You could divide a class into two groups only, if you elected not to use the four‐piece Case Assessment

Exercise, or if you use only two pieces of the Exercise, which should still be worthwhile. Additional creative

ways to manage role assignments may of course be possible.


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Sample

Client Science: A Course for Law Students on Interviewing and Counseling Clients

Group and Role Assignments Sheet

Group I

Last names between

_______and _______

Group II

Last names between

___ and ______(Except in

Deciding exercise below)

Group III

Last names between

______and_____

Group IV

Last names between

____and _____(Except

Deciding exercise below)

Eval/Estimation Ex:

Calculations in Confidence

Due before workshop

Case 1

Hapless Harvest Interview‐

Client

Case 2

Family Matters – Atty

Prepare for first day

Case 3

To Ditch or Not to Ditch

Design Display

General Information;

Instructions for Attorney

Prepare for second day

Decision Analysis

Problems

Simple Hypotheticals:

plaintiff’s side, defense side,

optional

Balanced Trees on Balance

Beams

Prepare for third day

Upscale Exhibit

Interview Exercise

Counseling Exercise

Lawyer and Client Roles

Prepare for fourth day

Eval/Estimation Ex:

Predicting What’s Probable

Due before workshop

Case 1


Atty

Case 2

Family Matters – Client


Case 3


Design Display


Names: _____ ‐ _____

Instrs. for Dale Doran ( 1)

Names: _____‐_____

Instrs for Dale Doran (2)


Decision Analysis

Problems



optional


Beams


Upscale Exhibit

Interviewing Exercise

Counseling Exercise



Eval/Estimation Ex:

Finally A Great Case

Due before workshop

Case 1


Client

Case 2

Family Matters – Atty


Case 3


Design Display


Instructions for Attorney


Decision Analysis

Problems



optional


Beams


Upscale Exhibit

Interviewing Exercise

Counseling Exercise



Eval/Estimation Ex:

Betting on This One

Due before workshop

Case 1


Atty

Case 2

Family Matters – Client


Case 3


Design Display


Names: _____‐ ______

Instrs. for Dale Doran ( 2)

Names: _____‐_____

Instrs. for Dale Doran (3)


Decision Analysis

Problems



optional


Beams


Upscale Exhibit

Interviewing Exercises

Counseling Exercise.




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Role assignments in To Ditch or Not to Ditch Design Display (with clients Dale Doran 1, 2, 3)

The To Ditch or Not to Ditch simulation involves one set of general information (for clients and

lawyers), one set of lawyer’s instructions, but THREE DIFFERENT sets of confidential

information for Clients Dale Doran. These are labeled Dale Doran 1, 2, and 3.

Here’s the trick to making alphabetical role assignments, assuming four groups of students

divided in alphabetical order. The lawyers’ parts are easy: two groups are assigned the lawyer’s

role.

For Dale Doran: take the ENTIRE list of the remaining students, all of whom will end up as Dale

Doran, and divide it in thirds. The first third are Dale Doran 1, the second third are Dale Doran

2, and the last third are Dale Doran 3. If you want to do this just from WITHIN the two client

group lists then, in one group, the first 2/3 of the names are Dale Doran 1; the remaining 1/3 are

Dale Doran 2; in the other group, the first 1/3 of the list are Dale Doran 2, and the remaining 2/3

of the list are Dale Doran 3. (This sounds complicated but becomes easier over time.)

Pre‐Course Communication with Students (Above and Beyond the Ordinary)

I advise you to alert students, early and often, they will have to be prepared and particularly

ready for their first role simulation exercises on the first workshop day.

It’s best to post the syllabus as early as possible, along with on‐line access to assigned readings,

exercises, and assigned role information. Do reassure students, in the syllabus and in a separate

memorandum, that everything will be available to them on‐line. This is important for students

who plan to be out of town, and may be nervous about being able to prepare before the

workshop starts. (These are the very students you want in the workshop, of course.)

Even though you will post your syllabus and perhaps a memorandum (sample included on the

course website) in the normal places, I suggest sending out an email or two as the last semester

winds down and just before and/or just after the Christmas holiday for an early January

workshop. If you’re teaching in August or during a fall or spring break, the same principle

would apply: send out a reminder of different drop‐add deadlines, with reassurances about the

availability of course materials for students who will be in remote locations.

Pre‐Course Submission: Case Assessment Exercise

In addition to assigned readings from the text, the piece on interviewing, and other articles, I ask

students to complete a case assessment exercise and submit it prior to the course (more recently

through the course TWEN site). While one could collect them in the first session, that would

mean more papers to track or lose.


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The Case Assessment Exercise: Why and What It Is

The case assessment exercise is designed to gather data to demonstrate the psychological

phenomenon known as anchoring: even irrelevant numbers act as anchors when people are

asked to make numerical estimates or assessments. (See Chapter Five in Client Science.) It is

important and, I hope, sobering for students to realize how much their advice to clients and

clients’ receptiveness might be influenced by irrelevant but available data.

The case assessment exercise consists of four documents with four different titles: Finally a Great

Case, Betting on this One, Calculations in Confidence and Predicting What’s Probable. Though titled

differently, in fact, each document contains identical descriptions of a sexual harassment case,

including considerable discussion of numbers that would affect a damages estimate (numbers

indicating different claims and calculations regarding lost income and potential damages

multipliers, etc.). However, the documents differ by what is said, after the case description.

In Calculations in Confidence, it states: “This case will be tried in the Federal District Court of

Ohio.” It then goes on:

You are very confident of this case. You seem to be “on top of” your trial game.

Last month, you tried a personal injury case in Kentucky, and brought back a

verdict of $300,000, including $150,000 in punitive damages. This was at least

50% more than you had predicted on the case.

The language in Predicting What’s Probable is identical, except that it reports the Kentucky State

Court verdict in the personal injury case as $6 million, including $3 million in punitive damages.

In the other two Case Assessment Exercise documents, Finally a Great Case and Betting on this One,

the reader is told that his law firm recently LOST a personal injury case in the state court in

Kentucky, leaving settlement offers of $300,000 or $6 million on the table, as follows:

You and your firm could really use the 1/3 contingency fee in this case. Last

month, a personal injury client of the firm refused to take your partner’s

recommendation to accept a [$300,000 settlement offer in Betting on This One,

a $6,000,000 settlement offer in Finally a Great Case] in his Kentucky case.

While the injuries were catastrophic, you knew the liability case was shaky.

Your partner tried the case, which resulted in a defense verdict.

References to the attorney’s prescient concern and settlement recommendation are intended to

mitigate the impact of the reported Kentucky loss on the reader’s confidence in his predictive

accuracy.

Then, all four documents ask the student to record what he thinks is the likelihood of a plaintiff’s

award (finding of liability), an estimate of high and low damages ranges in which an award

might fall, his best estimate of what the damages award might be, and the minimum settlement

he would recommend to the client.

For students handing in hard copies, it’s helpful to create separate folders labeled with each Case

Assessment Exercise document title (Finally a Great Case, etc.). This reinforces the fiction that the

students are assessing different cases.


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After all Case Assessments have been submitted, we create a spreadsheet that tabulates the

separate results for each case/student group. The spreadsheet inevitably reveals a VERY wide

range of estimates on all fronts. The separate averages are tallied. These usually SOLIDLY

demonstrate the anchoring effect. (Note, however, that when the number of students is smaller,

an outlier can dramatically skew the results. My most robust results occurred in the first year,

when the case assessment exercise was administered to approximately 130 students.)

I record the averages for each column, and put these into a powerpoint that is used during the

psychology presentation day in the course. Some of our annual results are also included.

During the psychology presentation/discussion, students are engaged (and I hope, sobered) by

evidence that they too fall prey to cognitive traps, and their clients would be impacted. It

strengthens the impact of the later course presentation and readings on psychology. They are

(and should be) amazed also to see the wide range of assessments regarding the same case facts.

While I can’t produce data, I believe that asking students to complete the Case Assessment

Exercise before the course impacts their expectations and mindset. The exercise puts them in role

as an attorney making a case assessment and considering a settlement recommendation. For a

2L, particularly beginning the first semester, this is a dramatic shift. It introduces them to the

course’s orientation, and to the lawyer’s role as counselor to clients. It may generate some pre‐

course excitement, as well as recognition that there is much to learn.

Early Warnings on Decision Analysis and Software

I have been steadfast in including a unit on the use of decision analysis—more accurately, risk

analysis using a decision tree approach—as part of this course. I use the TreeAge software,

available from TreeAge.com. A complete discussion of how and why I teach the decision

analysis unit is included later in this guide. As an administrative matter, please note:

Though I often use the TreeAge software when creating a risk analysis or decision tree, I am just

as likely to use a sheet of paper. For the most part, I use Microsoft powerpoints (and a white

board or blackboard) to teach this module. (The powerpoints are included with the course

package.) Where the powerpoints include examples of trees created using software, these have

been converted in to images and inserted.

You could teach the unit entirely without the TreeAge or any other decision analysis software. I

do use the software in class after the basics on powerpoints, when working through assigned

problems. My goal is familiarity and ease with the software, to develop lawyers who will

perform litigation risk analysis for more complex cases in their future—cases in which the

software will be a practical necessity. Also, when you use the software in presentation, and the

student raises a question or suggests an alternative tree structure, probability or damages

number, the software enables you to change it on the spot.


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IF YOU PLAN TO TEACH IT USING THE SOFTWARE:

Make sure you have a version of the software loaded onto the computer from which you plan

to project.

Work out with the school and with TreeAge whether additional software or temporary

licenses will be purchased.

Let the students know that they do NOT have to purchase the software for the course; it

won’t create any advantage. That is clearly stated in my syllabus.7

TreeAge offers a three‐week downloadable version of the software, with limited capacity that

is MORE than enough for the problems students will be asked to do. Students might want to

download this trial version before the workshop, or at least before Day Two, when the unit

begins. It is absolutely NOT necessary to use software at all for these problems; they are

simple enough to draw and calculate by hand or with a pocket calculator.

Note: if you will require the students to hand in a decision tree for the FCSE exercise at the end of

the course, they shouldn’t wait too long to do it, lest the three week license expires. Again, the

assignment can be done by hand, without any software, but many students opt to use the

software.

At Last, Prep for the First – The Opening Skit

Last but not least on my list of preparation for the workshop or the course is to think of and set

up the skit that occurs within the first hour or so. I can’t say that a skit is a requirement, but it has

become a tradition.

The opening “skit” is a tongue‐in‐cheek, over‐the‐top way to set up the difference between

authoritative, client‐centered, and collaborative lawyering models, intended to favor the

collaborative. It also very much functions as an ice‐breaker, a light‐hearted opener, and a

common reference point. In the first year, the skit involved a Cincinnati Bengals football player

coming to see a lawyer about suing a rival team football player who may or may not have

intentionally tried to injure him. The actual incident had dominated the sports news. In other

years, we’ve been visited by celebrity husbands seeking justice against celebrity spouses, Lady

Gaga irate at a radio announcer . . . .

You are seeking a situation where a famous person might assert a colorable but somewhat shaky

claim of legal injury, violation of rights or interest. The famous person is angry, irate, upset—

some strong emotional reaction. They will express desire for vindication, enormous damages,

legal action against a range of people and entities (if possible). However, a broader and deeper

understanding of the potential client’s interests, circumstances, and goals would suggest a

7 My Advanced Decision Analysis course does require students to purchase and use the student version of

the software, but it’s not worth it for this short, easy module.


Page 15

strategy other than immediate or aggressive legal action. For example, the injured football player

might not want to sue the player, the network, the football league. If his injury is long term (and

even if it’s not), he might want to be an announcer someday, or a TV commentator. Given his

astronomical salary, he might anger fans by seeming greedy and suing for more money. His real

interest might be a change in the rules, or a way to compensate other injured players.

It’s best if the skit character and plot line arise out of a reasonably fresh news item. If I had an

“Evergreen” episode, it would be included here, but I do not.

In some years, I’ve “crowd‐sourced” creativity, emailing the previous year’s students to ask if

they know of a celebrity legal dispute that might give rise to an opening skit. I also spent some

time searching websites that track celebrity law suits. In some years, I’ve sent an email to

students enrolled in the upcoming course. This does generate some good anticipation for

opening day.

Having selected a character and a circumstance, you’ll have to recruit a student to play the part.

Because our course is for 2Ls, and I don’t teach 1Ls, I sometimes ask first year professor‐

colleagues which students might handle it well, fit the celebrity part and enjoy the limelight.

Because I want participation to be voluntary, I send an email request to several students. The

first positive responder generally gets the part.

Having found a student celebrity actor, you’ll want to meet to work out the skit. A bit of

brainstorming unearths more possible legal claims or angles and hidden interests than initially

imagined. I encourage the student to play it “over the top” and to bring in costume elements. I

review the three stages of the skit, first with the lawyer‐professor playing it as entirely client‐

centered, then as authoritative, then collaborative. The student‐celebrities have been terrific and

the skit has worked wonderfully well.

Note: I have chosen to have the student play the celebrity and the professor(s) play lawyers,

demonstrating various approaches to client counseling. This takes the pressure off student

volunteers: no heavy substantive lifting. And it insures that the lawyer behavior demonstrated

will be as intended. I don’t direct or rehearse the student celebrity clients’ reactions or responses

to the client‐centered, authoritarian, or collaborative lawyer‐behaviors. Yet they always ring

true in class.

PowerPoints and Laptops

I sometimes feel that my brain lives in my powerpoints. After all, I poured my thinking into

those powerpoints and there it remains. Visual value aside, they insure against the many times

that thoughts are not easily retrieved from brain to tongue.

It is my general practice to post the day’s powerpoints after class, on the course’s website or

TWEN site. While I’ve occasionally posted them in advance, I prefer not to do so for two

reasons. First, I often put the “punch lines” to some in‐class exercises on the powerpoints. A

punch line isn’t punchy when read in advance. Also, when students have powerpoints in hard

copy or on laptop, they tend to focus on the page and not the discussion.


Page 16

Most importantly: I have a general “no laptop” policy in class, with some exceptions. I explain

that I want students’ full participation. I explain that even when students are NOT surfing the

web, but rather taking notes “in good faith,” class discussion suffers. A sort of private space

exists in the interface between student, keyboard, and screen that causes detachment and chills

participation. I want students to have a relationship with the class and the professor, not with

the screen. In that context, I promise to post the powerpoints right after class and to create

intentional interludes for laptop note‐taking regarding occasional important and difficult

concepts. I note that most course content not found in powerpoints is contained in the readings.

I remind them that it’s a pass‐fail course, after all, and it’s not rocket science. The client

interviewing and counseling skills are learned from practice and observation in class, not note‐

taking.

Regarding Laptops and Role Information

Because students will have downloaded role information for various course simulations from the

website or TWEN site, many will want to refer to these on their laptops in class when playing the

role. Professors who teach other simulation‐based courses (e.g. negotiation) will acknowledge

that students often choose to have their role information in front of them. A quick reference for a

key fact is fine. But, really reading role information during the exercise is not. When I wander

the class and see a student heavily relying on his role sheet, I conclude the student was not well

prepared. More important, no student can play his role convincingly (to himself or his

counterpart) while reading it.

For some reason, reading the role information text on the laptop screen is even worse. It’s harder

to pick up and just glance for a second to find a missing fact. Eye contact is broken for more time.

The exercise becomes even less real. That’s problematic because so many other factors already

conspire against realism: the classroom environment, classmates as counterparts, and artificial

time constraints.

I don’t know of a perfect antidote, except to strongly urge students to print out role information

and know it WELL before class. Tell them that they can check the hard copies in class, but you

don’t want to see the laptops open. It’s also wise for the professor to bring a few (or five or six)

extra hard copies of the day’s simulations. That way, when a student opens her laptop,

acknowledging that she doesn’t remember her role, you can provide the hard copy to “refresh

her recollection.”

Let the Course Narrative Begin

This guide “tells the story” and sets forth the structure of the workshop and the ten‐week course,

discussing content and teaching methods, exercises and full simulations, tracking and referencing

the powerpoints along the way. It’s divided into topical units, with approximate time allocations,

as well as notation as to where a session would end in the weekly semester course and where a

workshop day would end. To a great degree, the full simulations are self‐explanatory, though

they’re provided with a synopsis and stand‐alone teaching notes on the website. Less obvious

are the in‐class exercises and prompts used to elicit or illustrate important points. These

materials are provided, and this guide describes how to use them.


Page 17

A note, or perhaps disclaimer, regarding the large number of powerpoints posted on the website:

I never, never show every powerpoint, not even close. That’s not my goal. In many instances, I

will pose a question to the class, and then elicit discussion. I look to the powerpoints that follow

the question to see if the class raised salient points. If so, I skip over those powerpoints. If I see

that class discussion has missed something important that appears on a prepared powerpoint, I’ll

raise it before moving on to the next topic. During class discussion, I will often type fresh student

observations into a powerpoint to be integrated into the full set before posting.

Introduction to Method and Course Stance

Time allocation: Approx. 1 hour. This is a very tight hour; it could easily be extended if you’ve allocated

more total hours to this workshop or course. Our overall timing constraints dictate the hour’s time limit.

That and a general preference for moving quickly, particularly in segments that do not involve substantial

student practice.

At the Very Beginning

The course begins with an introduction to its purpose, importance, method, and professor(s).

Perhaps because this is a required course, I’ve opened it with a spirit that is unabashedly “rah

rah,” emphasizing that the course goal is to enable students to distinguish themselves as lawyers

at the highest level of practice from the beginning. You might spend a just minute asking

students what they or their friends or parents WANT to feel when they go talk to a lawyer.

After brief reference to the course method, I directly frame the course as an intentional GIFT

(because I mean it to be a gift and, in part, to remove the sting of its being required). I will make

reference to the fact that I’ve observed many lawyers who might be analytically strong, but are

terribly ineffective with clients. This course is intended to raise awareness, teach skills and

strategies for working more effectively with clients. This leads to happier clients and more

clients, or so we hope. This should attract notice of more senior lawyers, who will say, perhaps

earlier in the student’s future career: “that lawyer might be a bit young, but I think s/he can

handle this client meeting when I’m out of town [etc.].” At this juncture, I also introduce the idea

that the course is intended to equip the student to be autodidacts, and reflective practitioners

(often citing to Donald A Schön, The Reflective Practitioner: How Professionals Think in Action (Basic

Books, 1984). They will observe other lawyers interacting with clients, in an interviewing or a

counseling role, and observe what is effective and what is not. They’ll have a language for

identifying why the dynamics are less than perfect, and how the lawyer’s choices impact the

client’s responses. And so, they will continue to learn and build expertise as they take on direct

client interaction.

As is my practice, I close the basic introduction with a word or two about my practical experience

as it relates to client counseling, and quickly review the day’s agenda. I’ve always included an


Page 18

agenda in professional training workshops. Professionals appreciate knowing where they’re

going for the day; students do too.8

Paradigm of Interviewing, Counseling and Decision‐Making: What’s Perfect

Still within the framework of the course’s general purpose, I pose the question: What does

PERFECT interviewing, counseling and decision‐making look like? After all, isn’t that the goal?

And if we don’t have a vision of the perfect in our minds’ eyes, how will we recognize it? After

entertaining student amendments to the definition or vision of what would be perfect, I pose the

question: Why is the paradigm challenging in practice? What makes it difficult, in real life? The

blank powerpoint is to record student responses. There should be many offered. Professorial

encouragement helps, as does patience, of course. After a while, I’ll flip to the content in

powerpoints, note that the students made most or all of the key points. I may highlight one or

two important ones missing from our discussion, but do NOT read them through. Too boring,

and there’s not enough time!

Close the segment with the observation that a lawyer’s approach to client interviewing and

counseling should be intended to meet those challenges. Next up on the agenda is to look at

some lawyering approaches. This serves as transition to the lawyering skit.

The Lawyering Skit

First, call down the student playing the celebrity role in the skit with some fanfare. Ask for

applause, and do note that the student was asked and graciously agreed to undertake the

celebrity role. It’s important for the students to know this was NOT a cold call; their classmate

coming down to the front is happy to be taking center stage.

As the commotion dies down, and before you begin the skit, it’s wise to make a disclaimer to the

effect that the skit they’ll see will be very short, and will show some combination of initial

interview and maybe the beginning of some counseling. There won’t be sufficient time to

proceed in careful stages, much less explain confidentiality and get a full careful version of the

facts. (Students who have done the reading on initial interviews will notice this.) Explain that

this skit interlude is more of a gestalt, intended to depict overall approach.

Act One – Client Centered Lawyer

With co‐faculty teaching a large workshop, one of us will first play the client‐centered attorney in

a completely over‐the‐top performance.9 We typically place two chairs in front of the class.

When the classroom floor plan has permitted, I have put a small table between lawyer and client.

8 Note my student evaluations generally give me high ratings on “organization.” I suspect that starting with

an agenda helps propagate that happy myth or at least creates a rebuttable presumption in my favor. 9When working with co‐faculty of the opposite gender, we’ve always opted to have the female (me) play the

authoritarian lawyer role and the male faculty play the client‐centered role. In other words, we’ve

deliberately contradicted any gender stereotype. The collaborative lawyer role is up for grabs.


Page 19

The prof‐as‐lawyer sits; the student‐client‐actor knocks on or opens an imaginary door, and

comes “on stage.”

In the client‐centered lawyer’s role, the faculty‐as‐lawyer will be humble and perhaps a bit

fawning or obsequious with the celebrity client. I shamelessly and completely over play this!

Body language is completely engaged and responsive. The client leads, the lawyer follows.

Whenever the client explains what happened, what the other side did, how he was aggrieved,

etc., the lawyer supports the client, empathizes, indeed expresses similar outrage and wonder at

how they could have done such a thing to this client, etc. Whenever the client names a person or

entity he wants to sue, the lawyer nods eagerly and writes it down, with a smile. “Yes of course,

the network and all of the network owners, anyone else?” The lawyer completely accepts the

client’s interpretation of what occurred, and reinforces his framing of the problem.

After a bit of this, break the action and ask students to name the model of lawyering. This is an

easy one. Their reading will have introduced the notion of three models: client‐centered,

authoritarian, and collaborative. Facilitate discussion a bit, asking the student‐actor‐client how

he or she feels about the lawyer; ask students in the class what they observed. Every time, the

student clients report feeling validated and happy that the lawyer is obviously on their side.

The next step is to describe the Client Centered Model. Having poked fun at client‐centered

lawyering, I confess to over‐playing and express strong respect for its focus on honoring the

client’s interests and concerns and its intent to counter the more traditional model.

Act Two – The Authoritarian Lawyer

Professor‐lawyers sits, waiting, student re‐enters, and the scene is replayed with an entirely

different, HIGHLY authoritarian approach. Speech is somewhat clipped, impatient when the

client rambles on. The affect is regal and perhaps somewhat cold (or not warm). Sharply define

the legal problem, and note that nothing outside of the legal problem is the lawyer’s concern. If

the client has named claims that are outlandish, or wants to sue parties who clearly bear no legal

responsibility, DO cut the client off and tell him so. Imperious, impatient, and sure your advice is

the only sensible way to go. Avoid open body language: cross your arms and sit back when you

make a point. (This one is also great fun to overplay.)

Once again, stop action, ask the students to name the lawyering approach. Ask them what they

observed. Ask the student‐client how it made him or her FEEL, and what he thinks about his

lawyer. Over the years, the student‐client reactions have been quite striking. They strongly

register negative feelings. They feel unheard, disrespected, frustrated or dismissed, or all of the

above, and they don’t like it. It may make them feel angry, uncomfortable, or insecure about who

they are (in role, of course). Quickly summarize the Authoritarian Model (or not).


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Obvious Third Act – The Collaborative Lawyer

By now, it’s obvious to all that the third act will demonstrate collaborative lawyering. Unless you

have recruited a student‐as lawyer who is highly skilled, fearless, AND thick‐skinned, I

recommend that the course professor take this on.

Again, the prof‐as‐collaborative lawyer has choices: you can simply play the collaborative lawyer

in the best way possible. Use engaged body language. Listen actively, but maintain some

appropriate distance (no fawning). Reflect what the client has said, but also Invite the client to

think about a full range of interests. Ask about longer term goals. Be candid about prospects for

success under some theories (if appropriate). Encourage perspective taking, etc. Note client’s

authority, but offer to provide input.

Another way to do this is to announce, up front, that you are going to play this in a collaborative

way but you will do one thing “wrong”—not quite in accordance with the collaborative model as

you envision it. Invite students to observe and name it. The students DO pay attention; they like

the sport of naming the “wrong.” And it gives the prof an excuse for straying from perfection,

most likely more than once.

However you’ve chosen to set it up, stop action after just a few minutes. Ask the student‐client

how s/he felt about the interaction. Ask the class what they observed. You might put up

powerpoints regarding the collaborative model. Often, student comments lead to a discussion

about the fact that some clients may prefer a lawyer who tells them what to do, that one size

doesn’t necessarily fit all. You can make the point that NO one is perfect all the time, and that

one client’s definition of the perfect lawyer (if he could define it) will no doubt be different from

another’s.

Eventually, I’ll punctate this discussion with reference to the course stance: “Collaborative

Lawyering” as the ideal model of interviewing and counseling. It’s good to have a shared,

collective stance in mind as we work together in this course. More fundamental is that you

(student) must define the professional you would like to be. It’s good to have a model in your

own head of what that looks like—your own paradigm.

Believe it or not, it’s only an hour into the course, if you’ve moved quickly. The skit, including

introduction and discussion after each “act” will have taken approximately 25 minutes of that

time. Add perhaps 5 minutes for wrapping up and encouraging students to envision and become

the lawyer they want to be. As the student‐client goes back to his or her seat to classmate’s

applause, you might allow for a stand up and stretch, but no break yet.


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Effective Legal Interviews – Phase I

Note on Timing and Organization: The next 45 minutes is spent on elements of an effective legal

interview, followed by a short break. Then work through practice simulations of the interview in Hapless

Harvest and Family Matters, divided (a bit artificially) into two stages or phases.

For the purposes of this manual, I’ve labeled them as Effective Legal Interview, Stages I and II, with the

first focused on goals and initial matters, and the second focused on hearing the client’s story and

determining next steps. They are separate teaching modules, each further deconstructing the stages of an

initial legal interview to highlight and permit practice with essential content, choices, and skills sets.

Overall Goals for Effective Legal Interviews

I begin this segment by articulating the course shift from broad paradigm or vision of lawyering

approaches to the nitty‐gritty: how to be that model lawyer at each step of the way thought client

interviewing and counseling. Teaching and learning involve “deconstruction” of the whole into

its parts, and focused examination and practice of each part. So it is with tennis and golf and any

skilled and serious performance. Now, we’re at the beginning of an initial client interview, and

examining it as a discrete stage, much more carefully than in the skit.

The goals of the initial interview are defined as building rapport and trust, establishing the

relationship, obtaining information, conversational attunement, and understanding the client’s

perspective, priorities, interests and constraints. Depending on time, you can pose questions to

elicit these goals, or just announce them by way of introduction. It is useful to spend a few

minutes on the question of why trust matters so much, and what it is about the attorney‐client

context that may make trust difficult. In addition to naming possible differences in class and

culture, embarrassment for defendants or in divorce and family cases, etc., student will

eventually name the mercenary problem. Much of the time, the lawyer stands to profit from the

client’s legal trouble, either as plaintiff’s counsel or defense counsel, as well as in transactional

arenas. When I get into a cab in a strange city, how can I trust that the cab driver will take me the

most direct route with the meter running?

To Review or Not to Review the Steps or Stages in An Initial Interview?

Here’s a choice point for the professor: you could ask the students to name the steps or stages of

an initial interview, based upon the reading, and to state what occurs at each stage. Or, you

could march through the points made (using the powerpoints, or not) and then go back to focus

on stage one. Having done the latter for some years, I recommend the former.

In other words, I suggest asking students to name what has to happen at an initial interview, and

get out some idea that it generally proceeds in nameable stages. At most, put up a single

powerpoint that just names these things—or just stick to what students generated. Then proceed

to the Initial Stages of the Initial Interview.

It’s important to note, either at this juncture or after the little exercises to follow, that you (or the

course) are offering a default setting—an order of things that makes sense most of the time. But,


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if a client comes in and begins pouring out the story and her anger, it’s not wise to insist on an

ice‐breaker or preliminary chit‐chat. Insistence on backtracking for discussion of your or your

potential client’s background won’t be well received.

One piece of advice to highlight here is that research suggests the VERY first words out of a

client’s mouth are often keys to what is most troubling—what the legal problem means for the

client. Research in the medical arena first gave rise to this observation, thus medical residents

and physicians are now advised to scribble a note about the very first words out of the patient’s

mouth. Imagine a patient or a client who begins with: “I’ve been waiting so long for this day” or

“I’ve been so worried my boss will hate me for this.” These themes are bound to recur and may

impact perceptions and decision‐making.

After that brief note, I’ll make a quick reference to what typically happens at the INITIAL stages

of an Initial Interview: introductions, ice‐breaking, open questions to elicit the client’s purpose;

and discussion of time constraints, confidentiality and (perhaps) fees. Students should be

familiar with this from the reading. The class is more than ready to move from talking to doing.

Just Do It – A TERRIBLE JOB of the FIRST Few Moments of an Initial Interview!

Ask students in adjacent seats to pair up. One will elect to be the client and one the lawyer. They

can imagine themselves in any of the client roles assigned for the day, or they can be themselves

with an imagined legal problem. It really doesn’t matter. All that matters is that the student‐

clients decide who they are within 10 seconds of your instruction. You can encourage some of

the client‐lawyer pairs to spread out in the room, if the spacing is tight.

Once the class has settled into pairs and they have chosen places and identities, announce that the

lawyer’s charge is to do an ABSOLUTELY terrible job at the first two or three minutes of the

interview. Consider what was in the readings, consider what has been discussed about trust and

rapport, and do the opposite. The students love this; the air will be filled with happy hubbub.

Let it go for two minutes or so after they really begin, three minutes at the outside.

Conduct them to a stop, and ask: “So, clients, what did your lawyers do that was REALLY

terrible?” Undoubtedly, clients will report that their lawyers were texting, looking at their

watches, taking or, worse, making phone calls. “That’s great!” “Perfect” you say, after each one.

Lawyers will have called their clients stupid, blamed them for getting into this mess, asked them

for blank checks . . . talked only about themselves—all sorts of great stuff! Each creatively terrible

behavior gets a laugh. You can ask the lawyers how they decided on the most “terrible” things to

do. What was the measure of terrible? What gave them that idea?

Then ask of all of the students, “Have you or anyone you know ever had something like that

happen to them when they went to see a lawyer, or maybe a doctor, or another so‐called

professional? Very often, they have. Maybe their doctors weren’t texting mid‐appointment, but

they will have cut off patients in mid‐sentence, registered disapproval, failed to make eye contact,

etc. You can push the discussion here: how does that make the client/patient feel? (In general, in

this course, if you want students to liven up and register the importance of these skills, just shift

questions and examples to the way doctors treated them, their parents or other relatives and

friends.


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Knowing the negative—what not to do—suggests a sense of the positive prescriptions that

follow.

Shift from Terrible to Good…The SOLER METHOD and Body Language

Announce the shift from terrible to the real aspiration: great practice. Focusing on the physical

foundation in body language, ask students to recall from the readings how they should be seated

with a client. The answer is in the acronym “SOLER.” Ask the same student pairs to face each

other again, switch who is the lawyer and who the client, and do those opening moments well,

with attention to SOLER. Have the student‐lawyers to undertake fresh introductions, an ice

breaker, and an open question about the client’s purpose.

This exercise should take no longer than three minutes; they should NOT get into the substance.

Ask student‐clients how attention to SOLER felt. Some may report that when the lawyer leaned

forward, it invaded personal space. Others may raise what they perceive as a contradiction

between engagement and eye contact and being relaxed. I sometimes ask a student or two to

come up to the front to demonstrate adjustments in body posture and position. I like them to be

able to see that an upright posture can indeed be relaxed; I call it a yoga posture, permitting full

diaphragm space for deep breaths and use of voice, and free arm movement. I may ask if

students are familiar with Alexander Technique, and how it describes optimal, relaxed posture.10

If you have the demo up at the front, they can see how much difference the seated posture can

make, and how a larger person might want to sit back a bit to allow distance to lean forward

without invading personal space.

This has to be done very quickly, given the time constraints. But if you do have time to spend a

moment or two on body language and posture, it’s time well spent, as it connects to the voice and

gesture module toward the end of the course, priming their powers of observation early.

I do like to quickly summarize some of the research supporting the importance of body language

(It’s within the powerpoints for this segment; see also the Client Science book, chapters 6‐9).

Timing: If you started the Initial Interview segment an hour after you began the day’s session, it should

now be 20‐30 minutes later (20 if you’re lucky, but don’t let it go more than 30). In the earlier years of

teaching the workshop, we would introduce the topics of confidentiality and fees here, have the students

perform this stage of “just any” initial interview—raising the issue of confidentiality and fees—devoid of

context. Then we would discuss it, take a later break, and move into sections. That’s not a bad choice, if

co‐faculty haven’t taught together before, or if one faculty member is less comfortable with these topics.

More recently, I favor taking a break at this point, after the SOLER/body language segment. It seems the

more natural time. We explain that, immediately after the break, we’re going to work on how one talks

about confidentiality and fees in their Hapless Harvest and Family Matters cases. This gives them a

chance to brush up on their role information as well as attorney client‐privilege and confidentiality

obligations. If the class is divided into sections, they meet in section after break.

10 For a short description of Alexander Technique, visit Wikipedia at

http://en.wikipedia.org/wiki/Alexander_technique.


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With a bit of luck, you’re breaking 90 minutes in (at 10:30, assuming a 9:00 a.m. start time), and you’ll

pick up at 105 minutes (10:45).

Initial Interview Exercise – In Two Stages, with Skills Exercises in

between

First Stages of the Initial Interview, in Context and in Real Time

Confidentiality in the Initial Interview

First, confidentiality. Depending upon when in the academic year your course is scheduled and

who is enrolled, many students may know very little about the attorney‐client privilege or a

lawyer’s confidentiality obligations. This will be true of any 2L who has not yet taken

professional responsibility. While the relevant rules and a summary of the attorney client

privilege will be in the readings, it’s best to briefly review them in class. You might assert that

it’s important to communicate with a client about confidentiality and fees at some point during

an initial interview. There are choices about how and when, but lawyers must be familiar with

these topics.

On the topic of confidentiality, ask for one or more students to explain what the attorney‐client

privilege is. And ask student(s) to set forth the relevant rule and its exceptions. Elicit some

discussion about the purpose and the origins of these rules, and the potential problems they

raise. Then do put the “right” answers up in powerpoint form and/or refer them to the reading.

Students will ask whether it wouldn’t be prudent (and simpler) to make sure the client has seen a

written description of the attorney‐client privilege and confidentiality obligations before the

meeting, as well as a fee schedule. The answer, of course, is yes, for many if not all clients. And

it’s also true that in a large law firm, the partner might assume that clients are familiar with the

privilege and fee structures, or at minimum, will feel comfortable asking if they are uncertain.

Leaving aside large law firm policies and practices, imagine yourself as an attorney where such

policies are not established or are unclear, or are yours to set. What’s the best practice?

If an administrative assistant hands your potential client a sheet on the attorney‐client privilege

before your initial meeting, can you be confident that he will have read it? That he understands

it? What if you read a summary of an insurance policy before you met with an insurance broker,

would that be sufficient?

Suggest that students abstain from taking a firm position as to their own future policy regarding

whether to rely solely upon a document that describes the attorney‐client privilege. Explain that,

in this class, we will undertake the not‐always‐easy exercise of explaining attorney‐client

privilege and the lawyer’s confidentiality obligation in the early stages of the initial interview

before getting to the client’s full story.


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As to Fees

How and when a lawyer should raise the topic of fees in the initial interview is also a matter of

choice and judgment. In some classes, students in the lawyer’s role were instructed to raise the

fee issue early, right after confidentiality. In other years, they were asked to discuss fees with

their clients at some point during the initial interview, but permitted to reserve it for the end. I

have also instructed half of them to discuss fees early, and half later.

Over time with this exercise, I’ve developed a strong preference for raising the question of order

before they begin it, asking each student‐lawyer to make a deliberate choice regarding when to

introduce the question of fees. This always leads to rich discussion in later debriefing regarding

the pros and cons of each approach.

It is important to mention that, under basic contract principles, if initial consultation session is

NOT going to be free, the fee issue should be raised up front. (As a practical matter, the initial

consultation fee should be prominently mentioned in written materials provided by the lawyer’s

administrative staff and on the firm’s website.)

Launch the Initial phase of the initial interview in Hapless Harvest and Family Matters

Pair students up to play their client and attorney roles in Hapless Harvest and Family Matters.

Explain clearly that they are to conduct ONLY the initial portion of the interview, from

introductions to ice breakers, to an open question about the client’s purpose. Then they should

move to explaining confidentiality—and fees, if preferred and appropriate. The student‐lawyer

should give some thought to each of those elements, whether to set out an agenda or a plan, how

to frame and phrase his or her points in a way that would be understood and appreciated by the

potential client.

Pause on Pausing: Provide a Helpful Hint on Conveying Complex Information

Time permitting (and irony noted), I like to make a quick reference to the power of pausing when

conveying complex information. In that context, I put up the powerpoint titled, a “A Pause on

Pausing.” The text is self‐explanatory but its source is worth explaining. As explained in Client

Science, after watching student‐lawyers struggle to explain complex concepts to actor‐clients, I

have come to understand the value of the pause. This is particularly (but not only) important for

people who speak quickly. The client‐actors assert that the pause time is NOT empty space; it is

completely filled for them as their minds race to process the complex information received. (See

Client Science, Chapter 6, “Choices in Voice”.) I ask that students pay close attention to their own

phrasing, in this instance when explaining confidentiality and the attorney‐client privilege. The

pause is also a wonderful opportunity to clarify and correct. If a student pauses between

sentences when conveying complex information and concepts, he can see by the client’s facial

expression whether s/he is confused. He can ask about what’s unclear, and clarify.

The value of pausing is introduced here to alert students to be mindful. It will come up again as

students explain more law and legal process to mock clients during the course, in the Final

Counseling Skills Exercise, and eventually to real clients.


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Yet More Prelude: Encouragement and Exhortations on the First Real In‐Role

Simulation

Now is the time to state the rules of playing simulation roles. Acknowledge that it’s difficult to

suspend disbelief, to feel like real clients and lawyers, when they are seated in a classroom and

working with a classmate. Stress that when they get into the role, it helps their partner to do so.

It benefits and informs them to simulate and thus feel, even to some degree, how it would be as

client and lawyer.

Emphasize the importance of giving each other feedback within role and within the exercise time.

All feedback is valuable, but in my view, negative feedback is gold. In real life, the client won’t

tell you he felt uncomfortable or didn’t like the way you said something. He just won’t come

back. That’s why the best gift students can give to classmates is negative feedback, privately.

The student‐client could say, “I’m sure you didn’t mean it this way, but when you said X, I

started to feel mad; it made me suspicious about what was going on.” Emphasize that, in these

circumstances, a student‐client’s glimmer of a reaction or an emotion is important, even if faint.

So, if a student‐client finds himself feeling vaguely annoyed at what he perceives to be his

lawyer’s dismissive tone, rest assured that the real client’s annoyance wouldn’t be so vague.

Encourage the students to view direct feedback as a serious obligation, when prompted in the

class, and over breaks and lunch, if class time runs out. Let them know that there may be times

in the class when you’ll ask for reports on what worked well and what didn’t. If students aren’t

comfortable with negative feedback in front of the class, that’s fine, as long as it’s communicated

to each other.

The Initial Interview phases in Hapless Harvest and Family Matters

Pairing the students up will take 3 minutes or so. I typically ask all Group I clients to stand up,

and have the Group II lawyers pick their clients or vice versa. I ask them NOT to pair up with

their classmate in the next seat (with whom they would have worked in previous exercises), their

roommate, romantic partners, etc.

Allocate approximately 10 minutes for the initial interview phases in Hapless Harvest—everything

covered thus far, but only that. CLEARLY INSTRUCT THEM TO STOP JUST BEFORE THE

CLIENT’S FULL STORY OF WHAT HAPPENED. (For some reason, a significant number of

students miss this instruction and forge ahead.) Allocate two minutes for feedback with each

other, about what worked well, what didn’t, and what the client did and didn’t understand about

confidentiality (or any other topic).

Time permitting, it’s good to debrief the class VERY quickly (5 minutes) on what seemed to work

well, and what didn’t. I suggest directing your questions to the lawyers: “Was there anything

you said that, as soon as the words left your lips, you thought, “oops,” or “oh, that was

awkward?” This enables them to self‐report, and the clients don’t feel pressure to “tattle.” The

student lawyers will only report what they are comfortable having the class hear. Usually,

everyone is good‐natured about it. You can ask what moments or phrasings they found difficult.

Why? What choices were hard to make? Turning to the clients, ask them to name a phrasing or


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choice their lawyers’ made that seemed really effective. They will be comfortable reporting the

positive.

With acknowledgements that the second group of lawyers now has had some guidance to work,

move to the same exercise for the Family Matters case.

Note: you could of course do them in the opposite order, Family Matters first and then Hapless Harvest. I

prefer to start with Hapless, because I think Family Matters is a more difficult case, and because the Final

Counseling Skills Exercise will involve the Hapless Harvest plot line. I like the idea of bracketing the

beginning and end of course with the same case at different stage. To add a third reason, the real case upon

which Family Matters was based had a sad ending, which yields an important lesson. It seems better to

make that rather dramatic point at the end of the day, when they’ve just finished working on that case. So,

I aim for Family Matter to be second simulation and thus the later debriefing.

To Re‐Pair or Not to Re‐Pair?

It is easier and takes less time to keep students in the same pairs when switching to the parallel

ten minute, early phase interview stage in Family Matters. But, if you have the time, it’s better to

break up the pairs. That way, the students come to recognize different styles and strengths. And,

the student stuck with a partner who has not really learned his role, or isn’t taking it seriously,

won’t have to work with the same partner. Again, it’s easy to ask all in Family Matters lawyers

to stand up, and have the other students re‐select a lawyer. Or you might ask groups in close

proximity to switch partners (maintaining the no‐roommate, no best friend, no fiancée rule).

Balance of Debriefing

Initially, I’d use the same debriefing plan as above, turning first to the lawyers to self‐report on

what was problematic, and what was difficult. Or you can start with accolades by asking clients

to report on what worked well, and then turn to what did not.

With a little bit of luck, a number of effective choices will be highlighted:

Agenda: clients generally appreciate it when the lawyer sets out an informal order.

Client input: It’s also appreciated, and oh‐so‐collaborative, if the lawyer asks the

client whether he’d like to add anything to the agenda and whether he’s comfortable

with the order.

Normalizing: It’s works well when the lawyer frames the agenda as “normal,”

whenever he meets with a potential new client, it’s his practice to talk about x, y, z.

The lawyer‐client relationship described as one of mutual choice: reference to the

idea that the client and the lawyer have the right to decide if they feel comfortable

working together. (Extra points when the lawyer mentions that the confidentiality

protections apply to this conversation, even if the client decides not to retain the

lawyer.)

Explanation and transparency: clients generally appreciate the lawyer’s explaining

why something is important, or why it’s part of his “normal” practice. For example,

the lawyer might say: I will want to hear what happened, in your own words, the


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way you understood and perceived it. Then I’ll go back over it what you’ve said

pretty carefully. It might seem repetitive to you, with lots of detailed questions,

because there are often details that are important for some legal questions, and we

want to make sure I’ve got those straight.”

Back to Confidentiality

Then, without regard to whether it was in Hapless Harvest or Family Matters, focus on the

challenges and tensions inherent in describing the attorney client privilege. The following points

generally come up and if not, the professor might raise them:

Discussion of confidentiality can make the client feel more comfortable about confiding

in the lawyer.

The exceptions to the confidentiality obligation and the attorney‐client privilege are

confusing and off‐putting. It’s awkward to say to a potential client: “Well, if you were to

tell me that you’re going to commit a serious crime, I would have to disclose that.” It

sounds as if you think this person might be a criminal. And before the client has decided

whether or not to hire you, it sounds odd to talk about future fee disputes or professional

misconduct.

Is it better to just tell the client that “everything you say is confidential” or to note that

there are exceptions without naming them?

If you list the exceptions, are you encouraging the client to lie or to withhold certain

information to avoid the exceptions?

If you DO reference the exceptions, do you have to describe ALL of them?

How can you explain, without offending the potential client, that if s/he were planning to

commit certain crimes, there would be no confidentiality? You would be obligated to

report.

How much of this can be handled through a written handout regarding confidentiality?

As always, it depends, and there is no script, but certain conclusions make sense and usually

emerge from the discussion:

If you do NOT supply the client with written material on attorney‐client privilege and

confidentiality, and real time to review it, these concepts should be explained in the

initial meeting. At minimum, the lawyer should ask if the client is familiar with the

general rule and whether he has any question.

If and when a lawyer does describe the privilege and confidentiality obligations, it’s

simply not accurate to say “EVERYTHING you [client] say in the meeting is privileged

and confidential.” And it’s not good practice to be knowingly inaccurate when speaking

with a client or anyone else. Thus, it makes sense to say, in words or in substance: “In

general, what a client or a potential client says when speaking with his attorney is

confidential and protected by the attorney‐client privilege. There are some exceptions,

which I would be glad to describe and discuss with you.” In other words, at minimum,

mention that there ARE exceptions. One might go further and say: “There are some

exceptions that have to do with criminal activity and future disagreements. I would be

glad to discuss these in more detail, if you’d like, or answer any questions. [Real pause] I


Page 29

am not too concerned about them in this case, but I will let you know if I see that as an

issue further down the road.”

Some lawyers prefer to describe the exceptions more directly. This demonstrates the

lawyer’s commitment to communicating accurately and completely. In debriefing, I

suggest turning to a student pair in which the lawyer did that—described some of the

major exceptions to the client and found it awkward. Ask them what about it was

awkward. Perhaps ask them to re‐play it. Ask for class observations. Generally, people

will observe that when the lawyer mentions exceptions relating to perpetrating a crime,

causing bodily harm or suing for malpractice, it seems as if he thinks the client might in

fact do such a thing. It’s particularly jarring in an initial interview where the lawyer is

also trying to build rapport and trust. Then ask the class how one could deliver the same

information in a less jarring way. With a bit of luck, the students will make good

suggestions. Is there an answer? It seems that using a somewhat lighthearted phrasing,

in the third person, works better. So, the student‐lawyer might say, “Well if a potential

client was meeting with my partner down the hall and tells him he plans to rob a bank,

that would be a problem and he would have to disclose it.”

I suggest raising the question of body language and its impact here. It’s my advice that the

lawyer break direct eye contact and use a “wave away” arm gesture when referencing the

potential bank robber meeting with the partner down the hall. Imagine a sacrosanct channel of

space between lawyer and client—the space in which their conversation takes place. Reference to

the privilege exceptions and any bank robbery (etc.) is best made outside of that channel. (See

Client Science, Chapter 6, “Choices in Voice,” and Chapter 9, “Channel Navigation Notes.”) If

you demonstrate this, or have the students demonstrate it, they will immediately see that

speaking of the exception is less uncomfortable when conducted with a third person reference

and gestures directed off to the side.

On to Fees

Many second year students have NO idea how fees are set or collected, ethical rules that apply to

setting fees and to contingency fee arrangements. Students who have worked in a law firm may

have some idea of the range of hourly billable rates, but they have not witnessed a conversation

about fees. And, as a practical matter, they are unlikely to be party to such a conversation for a

while. Others will have been included in meetings on the topic of fee estimates and litigation

budgets. Those working with in‐house counsel may have been party to discussions about

outside litigation fees and the like.

Limited class time has never permitted detailed discussion of students’ many fee‐related

questions. Sometimes, I provide an overview of the types of cases likely to involve contingency

fees, and point students to the relevant rules. Students are interested to learn basic information

as to the range of hourly rates.

As efficiently as possible, move discussion back to the client communication question: when to

raise the issue of fees. Should it be early—in the initial phase of a client interview—or later in

connection with retention and next steps? Within the debriefing, I’ll ask students for a show of

hands: who brought up the question of fees? Why? Why not? Clients: how did you respond to

that? Lawyers who did raise the fee question: how did it feel? Many if not most students will


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report that bringing fees up early seems awkward. After all, we learn that in the initial stages of

the interview, we’re supposed to be building trust and rapport. It’s hard to do that and talk

about the money we plan to charge. Talking about fees seems to confirm that all the lawyer cares

about is the money, not the client or the client’s problem. Moreover, the interviewing lawyer

hasn’t provided any indication of his value at that early stage. Better to wait until the end, by

which time the client will be better able to judge or feel that the lawyer will be worth the price of

his services.

I sometimes chime in with the fact that, in our culture, many people are uncomfortable talking

about money, particularly earnings. I recall a radio show in which a psychiatrist recounted that

he was once working with a long term patient about whom he knew the most intimate details:

family, medical history, marriage, sex life, everything. Once, the psychiatrist asked: “How much

do you make?” The patient snapped back: “That’s a personal question!”

Turn then to the other side of the coin, and ask: Why did some people decide to raise the fee issue

early, instead of waiting? Why did some clients appreciate that? Even if the initial interview will

be free, many students will note that, if the eventual fee scale will be too high it’s better to know

it now, before wasting anyone’s time. This answer has practical merit. Still, for some cases, an

attorney might be willing to suggest a full contingency fee agreement or a modified contingency.

Ask the students who were in the client role why they might have appreciated the lawyer’s

raising the fee issue early. With any luck at all, a student‐client will say: “Well, if I were worried

about it, or wondering about it, I would be relieved if he brought it up early.” In my view, it

would be best to raise the fee question early IF the client is concerned about it, worrying and

wondering whether he’ll be able to afford the lawyer’s services. After all, those of us without

unlimited funds often check a recommended restaurant’s menu on line to see if it’s out of our

range. Unfortunately, the client who is worried and uncomfortable also may be reticent to raise

the question. But, he will be thinking about it all the way through.

A good piece of advice the discussion often yields (and that I raise if it doesn’t) is for the lawyer

to offer the client an early choice regarding when to cover the topic of fees. For example, when

reviewing the meeting agenda, the lawyer might say (in words or in substance): “Another topic

that is on my agenda when I meet with a prospective client is that of fee arrangements. I’m

happy to wait and discuss that in more detail at the end of this meeting when we’re talking about

next steps and whether you’d like to retain my services. Or, if you’d prefer, I’d be happy to

answer any fee questions you have now.” In short, the lawyer can raise the question and let the

client decide. That gives easy permission to the client who is worried about fees to ask questions

early. For others, fee issues can be handled at the end. From a collaborative lawyering process

and relationship perspective, it is parallel to the lawyer proposing an agenda, but inviting the

client to make changes or additions.

Just as was true for the attorney client confidentiality and privilege, the question of written office

handouts on fees will be raised. If not the professor is wise to raise it. Do you want to have an

administrative assistant provide information as to fee schedules? It would be worth a survey to

see how many lawyers—from solo, to small, medium and large offices—do this. After all, most

offices charge a range of hourly rates; some will entertain full or partial contingency fees in

appropriate cases; some services involve a flat fee. Moreover, rate information will not answer

the question of how much the attorney’s representation in a particular matter is likely to cost. It’s

complicated! Ultimately, the fee agreement should be reduced to writing. But upfront fee


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information documents raise tricky questions (questions we’re not prepared to answer in the

course). Fair to say that it might make sense to offer a general written description of lawyer’s or

the firm’s policies or fee arrangement options.

Timing check: With any luck, it should now be three hours after the start of the workshop, noon

if you started at 9:00 a.m. This is doable—barely—if the actual interview time is just about 10

minutes.

Before the students leave for lunch or other break, DO:

1) Remind them to re‐review their client roles in Hapless Harvest and Family Matters,

because they will get to the factual details in the afternoon; and

2) Ask them to think of a story of a conflict or other not‐so‐great circumstance in which they

were recently involved. It should be a story that could be told in just a few minutes to a

classmate. (A powerpoint in this set states the instructions.) Emphasize that they will

NOT be asked to talk about that story in front of the whole class, but just within a group

of three, shortly after lunch.


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Effective Legal Interviews Phase II

This module consists of various content and skill‐focused preludes to the students completing the

balance of the client interview—hearing the client’s story, distilling facts needed for legal

analysis, and closing steps. It consists of three distinct segments, each involving interactive

exercises, presentation, and discussion. The first segment, on narrative and conversation, was

included in the workshop in 2012, motivated by a desire to teach insights from research on the

topic of legal interviews. The second segment is an introduction to listening skills: not new to

one who teaches in this field, but often new and terribly important for law students. The third

segment consists of an extraordinarily short interlude on the psychology of memory and

perception. While additional topics in psychology are covered later in the course in connection

with client counseling (and in the Client Science book, Chapter 5 “Predictable and Potent

Psychology”), I wanted to introduce important information on failures of memory and

perception, before hearing the clients’ recitation of remembered and perceived facts.

This order—narrative and conversation followed by listening, and then memory and

perception—is the order we adopted in 2012 and it worked well.11 But I have no experience with

possible alternative ordering. Note also that while I generally favor fast over slow movement

through material, this module—three segments in 2 hours of class time—may be overly

compressed. If extra time were available, I would likely allocate some of it here. With these

caveats in mind, we proceed to the module’s teaching structure and experience.

On Narrative and Conversation

This segment was a brand new and, I’m happy to say, successful experiment in 2012, motivated

by research that is summarized in “Client Science: Advice for Lawyers on Initial Client

Interviews,” published at The ClientScienceCourse.com, in a section sub‐titled “Interlude On

Narrative and Principles of Conversation,” at 41‐45, reference notes 34‐38. All of the scholarship

discussed in this portion of the guide is fully reference in this article and subsection. For the most

part, I have chosen not to “re‐reference” here.)

When the students return from lunch, I remind them of the lunchtime assignment to think of a

story about a conflict or dispute in which they were involved, or a “not so wonderful”

occurrence. (In fact, it’s good to alert students to this mini thought assignment in the syllabus.)

First, have students form groups of three with others sitting nearby. It doesn’t seem necessary to

disrupt their natural seating arrangements. Within the groups of three, each was asked to adopt

the number 1, 2, or 3.

Numbers established, all Student #1s are instructed to tell that story (of a conflict or dispute or

something important and not‐so‐wonderful) to the group’s Student #2. Student #2s are

instructed to ask for the story and just listen. They should listen in a normal manner, as in a

normal conversation, and not interrupt the flow too much. Student #3s are instructed to observe

11 If memory serves, and it doesn’t necessarily, I believe that in the January 2012 workshop, the pre‐lunch

segment on the initial interviews ran over time. Thus, while our initial agenda and powerpoint order would

have started with the interlude on memory and perception, my notes indicated that we changed the order

within the post‐lunch series.


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and listen as one who is not part of the conversation, and to take VERY good notes regarding

what the Student #1s—the storytellers—say, how they tell the story. Total time allotted for story

telling is 3 minutes. Then call time and let the hubbub die down. Students should then be asked

to put the story aside temporarily during the coming presentation segment.

A short lecture follows, presenting the idea that client interviewing is a conversation and

referencing the academic fields of communication and discourse theory and study of narrative or

storytelling. I give full credit to Law Professor Linda H. Smith for introducing these ideas into

legal scholarship. The lecture begins with the notion that communication scholars would call a

client interview an “institutional conversation” as it is embedded in and bounded by a certain

legal institutional framework.

If the client interview is a conversation, then we should look to the work of Philosopher H. Paul

Grice, who observed that “conversation is a cooperative activity” and that certain principles

apply to any conversation. These are known as “Gricean Principles of Conversation,” first

articulated in Grice’s now famous William James Lecture at Harvard University in 1967 (later

published in his essay, “Logic and Conversation,” in Syntax and Semantics, Vol. 3 P. Cole and J.

Morgan eds., Academic Press 1975, pp. 45‐46). There, Grice observed that in conversation, we try

to speak in appropriate

Quantity, quality, relation and manner, in other words, to be:

As informative as necessary (but not more – quantity)

Accurate and truthful (quality)

Relevant (in relationship to the topic at hand)

Brief, orderly, and clear (manner)

When a speaker violates these principles in conversation, we notice it. I suggest asking students

to think of people whose conversational and narrative (story telling) habits they find problematic

or annoying. Direct them to the list and see if their habits tend to violate one of the Gricean

principles of cooperative conversation. Let the students have a moment to consider this question

and ask for a comment or two. Depending on their responses you can prompt the students to

think of times they’ve remarked of someone: “She always starts from Adam and Eve” . . . “He

goes off on tangents” . . . “I would take what he says with a grain of salt” and “It always comes

out in a jumble and you have to sort it out.”

Next, move to a short presentation of what are commonly understood by communication

scholars as elements of a “Prototypical Spoken Narrative” (drawn from the work of William

Labov & Joshua Waletzkey, “Narrative Analysis” in Essays on the Verbal and Visual Arts, 12‐44

(J. Helm, Ed., 1967). These are:

A beginning ABSTRACT, a short phrase or sentence indicating the story’s point or

purpose;

An ORIENTATION, a segment briefly filling in background information;

A COMPLICATING ACTION –description of the event, usually in sequence that is the

meat of the story and moves it along;

A CODA – a shift to the present, stating the story’s meaning or moral;

An EVALUATION – in which the narrator comments on the story from the outside.


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After presenting these categories, ask the Student #3s (the observers) to check their notes on the

conversation they witnessed and see if these ring true. Did the story they heard follow this

structure? Were Gricean principles operating? Other students are also encouraged to remember

the conversations, but first target the observers. Time permitting, you could ask each threesome

to consider these questions. But, if pressed for time, just address the question to the whole group,

with a focus on the Student #3s and their notes.

Student responses have involved a great deal of smiles and nodding. They were pleased to

recognize that their stories generally followed Gricean principles.

Students might observe that the distinction between coda and evaluation is a bit nebulous. While

I am not sure it matters for our purposes, you might ask students to think of a distinction using a

commonly known fairy tale. (Remember, you’ve pledged NOT to ask for revelation of their

stories to the class). You could suggest that they consider how Little Red Riding Hood might tell

the story of what happened with the Big Bad Wolf. She might begin with an ABSTRACT, that

this will be about what happened in the woods and at her grandmother’s house. Her

ORIENTATION might be to explain that her grandmother is ill and so she frequently goes

through the forest to visit her and bring her food. The “complicating action” would be the telling

of all of the events of the day, finishing with the demise of the wolf. Perhaps her CODA would

reference the danger of traveling the woods where there are wolves, or of failing to trust her

instincts about the hairy paws in the sleeves of her grandmother’s nightdress. Her

EVALUATION would step back, perhaps, and comment on the general evils of wolves and

thankfulness for good folks who come to the rescue.

Hearing Facework

Next, remaining within their triplet groups, instruct Student #2s to tell their stories to the Student

#3s, and Student #1s to be outside observers and to take VERY GOOD NOTES of what the story

teller says. The Student #3s are to listen attentively and naturally, not interrupt much at all. As

was true for the last exercise, the Student #2s are to tell a story of a conflict, dispute, or something

else not‐so‐wonderful that happened to them. Allot 3 minutes for the telling.

Again, ask the students to listen to your brief presentation about an important scholar’s

contribution in to our understanding. Introduce them to Erving Goffman, a world renowned

sociologist and linguist, who wrote about theories of “Face‐Work” and the way people present

themselves. Do reference some of his early and important works: “On Face‐Work: an Analysis of

Ritual Elements in Social Interaction” Psychiatry Journal for the Study of Interpersonal Processes 18

(1955), and The Presentation of Self in Everyday Life (Anchor, 1959). Goffman wrote that

conversants present their “faces” to each other. We generally try to create and/or preserve our

own positive self‐images and social images in the face we present. We often cooperate in

conversation to preserve face for others. So, when a friend ruefully laments that she neglected to

send a thank you note for a recent gift, you might be inclined to say: “You thanked her in person.

That’s enough. You know and she knows you are so good about that type of thing. But you’ve

been so distracted by taking care of your mother, and the whole college application process with

your son.”


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Goffman also observed that in, conversation, we are sometimes required to “self disclose”. A

self‐disclosure involves revealing information about oneself that was not previously known.

When a self‐disclosure threatens face, we tend to be indirect and to delay. In other words, we

make negative self‐disclosure later in the story than might otherwise be logical, so that our

listeners might evaluate us more favorably.

An “accounting” is Goffman’s term for a justification or excuse to deny or reduce responsibility

for the negative self‐disclosure, to mitigate negative evaluation and “save face.”

Lead the discussion on the application of Goffman’s facework by asking the observers, Student

#1s, to review their notes of stories told in their group. Other group members may also try to

recall and/or you can suggest a few minutes of discussion. The question is: do Goffman’s

descriptions of face‐work and the categories of “self‐disclosure” and “accountings” appear in

their stories? Remind the students that they will not be asked to talk about their actual stories in

front of the entire class. But does their private review of the notes reveal self‐disclosures and

accountings? Did any negative self‐disclosures come relatively late in the story? If so, did the

listener feel mildly annoyed and think, “Why didn’t s/he tell me that before?”

Again, our student responses have been lots of nodding, recognition, and clear engagement in

finding facework through the exercise. At this point, it’s useful to ask: “WHY does this matter?”

I’ll confess that, as the professor, I have a bent in favor of injecting some more academic language

and insight into the class. But why might knowing these categories make students more effective

client interviewers?

The answer, I believe, is that it makes them more attentive and more patient listeners. If, when

telling his story, the client’s self‐disclosure comes later than it logically should have, we can at

least hypothesize that the client fears loss of face, believing the lawyer might judge him

negatively. At the least, we recognize that this behavior is normal. Thus, rather than be

frustrated by the client’s failure to supply the information earlier—to conclude that he’s shifty, or

not a logical thinker—we recognize it as a common human conversational pattern. The same is

true for accountings. If a client makes weak excuses or creates far‐fetched justifications, the

lawyer might evaluate her harshly (ironically) for failure to take responsibility or to see reality.

Knowing that people use “accountings” to save face and avoid negative evaluation might make

us more understanding and more patient. Students will see that impatience and lack of

understanding can undermine a strong attorney‐client relationship!

This segment concludes with a brief lecture noting that certain situations tend to threaten face,

making Goffman’s labeled conversational patterns more likely to occur. The operative factors

include differences in relative power, social distance, and degree of imposition. So, if a client has

lower power, lower social status, and seeks assistance he cannot otherwise obtain, he may feel

“face threatened” from the start of the conversation. In some circumstances, the shoe may be on

the other foot. The lawyer may have lower power and status, and seek client action; the lawyer

may feel face‐threatened. DO ask, if anyone can consider some real life legal practice contexts in

which threats to face might be the norm? Examples would include a lawyer’s initial meeting

with: a divorce client with little income, abandoned by a spouse, seeking immediate hold on a

joint bank account; a small business owner seeking a lien on a contractor; or a client charged in an

environmental enforcement action; just about any criminal defendant.


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Substantive Segue on Structure

Before moving on to the inevitable third exercise involving student stories, I’ve included some

observations relating to the structure of a client interview, with full credit to Professor Linda

Smith’s research. I note that most law school texts in client interviewing recommend a certain

sequence for the “institutional conversation” that is the initial client Interview. While

recognizing that a particular client or set of circumstances will suggest deviation, they suggest

that newer lawyers use this sequence as a guide or default setting:

Icebreakers or Chit Chat;

Reference to the Attorney Client Privilege and confidentiality;

Request a brief problem overview, statement of the client’s purpose;

Request client’s narrative, and listen without directive interruption. But, as long as

you’re non‐directive, do practice active and empathetic listening. (This is emphasized in

the Client Centered and Collaborative Lawyering Models.);

Summarize the client narrative, at the end (and perhaps at key junctures) and explain

that you’re going to review it and ask questions along the way;

Attorney probes the narrative, using open questions first, then funneling from open to

more closed questions to pin down details and chronology;

Attorney summarizes again;

Attorney moves conversation back to client interests and goals;

Move to next steps, formalize the relationship.

It’s worth some collective critical examination of this sequence before presenting some friendly

amendments with research support. You might turn first to ice breakers and chit‐chat. Ask

students what they think? What’s the downside of chit‐chat before moving to the business at

hand? Did any students find it awkward, when in the client or the lawyer role? Why?

Some students will comment that the icebreaker interlude felt artificial. They all knew they were

“doing an ice breaker.” While arguably due to the classroom context, it is also true that, a real

client may experience an ice‐breaker or early chit‐chat as robotic or fake. Haven’t we experienced

what seems like an obligatory ice‐breaker as the customer, client, or patient in other

circumstances? How do we respond? On the other hand, what’s a real potential benefit?

A few additional points can be made here.

First, while starting with chit‐chat or ice breakers is generally a good idea, different

cultures and different people may be more or less comfortable with prologue. For

example, in the South, people generally begin professional interactions with more

elaborate pleasantry rituals. Some people are more or less comfortable with that, by

personality.

Also, exactly HOW you break the ice carries some risk. Without knowing what brought

the client to the consultation, or any familiarity with the person, you don’t want to create

discomfort. Even a simple question about traffic conditions may yield the response that

“since my license was suspended, I can’t drive and had to take the bus.” Or, what would

seem to be a safe comment about the weather might yield a divorcing client’s observation

that he’s been forced to sleep at a cousin’s un‐air‐conditioned apartment in the summer


Page 37

heat since his wife threw him out of their grand (air‐conditioned) house. Would these be

fatal to establishing a positive lawyer‐client relationship? Certainly not, but they do

suggest caution. Perhaps it should go without saying the neither religion nor politics

work well as ice‐breakers, unless you’re following the client’s lead and in his camp on

those topics!

Ice‐breakers and chit chat can be very helpful. The potential client may be

uncomfortable. He or she is soon to confide in you regarding a legal problem that is

impacting personal, home, business or professional spheres. If it wasn’t important, the

client wouldn’t’ be in your office. It’s nice to have an opportunity to converse as human

beings, to adjust to speech patterns, physical presence, voice, and other human

characteristics.

If your chit‐chat relates to something you have in common, or something you observe

about the other person, this can create an immediate connection. So, after introductions,

the lawyer might note that the client had told his assistant that Mrs. X referred her, and

ask: “So how do you know Mrs. X?” You might then learn of a kid’s soccer team, a

distance cycling group, or a work association. Follow up with GENUINE, not fake

curiosity, noting any commonality. “Oh, my son did some distance cycling; that can be

grueling . . . But great for keeping in shape, I’m impressed . . . .” Client: “Oh really, did

your son belong to a team? . . . .” And so on.

Leaving aside the opportunities for making connections and establishing rapport, some

early ice breaking or chit chat can provide a helpful transition to the interview

conversation. In any new interaction, it just takes people a while to orient, to focus. We

need a transition. How many times have I provided a piece of information right at the

beginning of a class, only to field a question a few minutes later, seeking precisely the

information conveyed? I thought I just said that! I did, but it was right at the beginning;

people weren’t focused, they weren’t ready to process it.

Two important caveats regarding chit chat and ice‐breakers:

1) First, as suggested earlier: if you can’t make it sincere and real, don’t! It shouldn’t sound as if

you’ve checked “ice‐breaker” off your to‐do list. Do genuinely listen to and observe the

other’s response to a conversational question. Be interested!

2) Don’t let chit chat render you deaf. A good deal of research indicates that the very first

words out of a patient’s or a client’s mouth are highly significant, often revealing strong

emotions and wishes. “I’ve been waiting so long for this day”, “It’s been so hard to get

here”, “Finally, we’re going to get what’s ours.” New medical residents in some

programs are instructed to record these words. I agree—make it a habit to write down

your client’s first words, or early phrases of this type. They may be telling and worthy of

a later look. Don’t become so caught up in thinking of chit chat that you forget to listen.

(See “Client Science: Advice for Lawyers on Initial Client Interviews,” published at The

ClientScienceCourse.com, at 23‐24, reference notes 17‐18.)


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The Up Front Overview – Nice, but not Necessary

Looking back to the suggested initial client interview sequence, highlight the recommendation

that the lawyer ask the client for a brief overview. In a brief lecture format, I comment that I see

this as a legitimate recommendation, perhaps an aspiration, but surely not required. It is helpful

when a prospective client can articulate a succinct overview of the problem that brought him to

your office: “A key employee is threatening to sue us for age discrimination because we hired

someone younger at a high salary. Frankly, I’d like to fire her . . . and I definitely don’t want to

be sued or to give her a raise.” Or, “I came to see you because I’ve seen what I think are serious

environmental problems caused by my employer. I don’t know what to do. I care about the

environment, but I can’t afford to lose this job.” These statements provide helpful guidance later,

when you are ready to hear it all. But, many people just don’t start this way, notwithstanding a

request for a “brief overview.” Relieved, nervous, or excited—for whatever reason—just launch

into the story. You begin to hear a flood of emotions, facts, dates, and names.

Even without the organizing overview, the client’s goals and the nature of the problem will

emerge naturally as the story is told. Particularly as the client begins, the lawyer should avoid

fighting for control of the conversation.

In the best of all possible worlds (one without time constraints), you might ask students to think

of circumstances in which a lawyer SHOULD insist on interrupting the client’s story, as soon as

possible. However, given real time constraints, I simply have made the following points:

If possible, it’s wise to try to carve out a moment to review the attorney client privilege

and confidentiality obligations (as discussed earlier). You might acknowledge that you

are interrupting what is an important story. “Mr. Smith, I can hear that the

environmental damage you observed is troubling, possibly quite dangerous, and raises

some serious legal questions. I will ask you to describe what you saw and what has

happened in detail in a few minutes. Before that, as your lawyer, I feel obligated to

review the attorney‐client privilege that applies here.”

In some cases, the client will not be deterred and the lawyer need not double‐down on

the effort to delay the story for explanations of privilege and confidentiality. However, if

based upon what you’ve heard, exceptions to the privilege may be relevant, or you

suspect an unforeseen ethical conflict, more insistent interruption is required. (Note that

this speaks to the wisdom of providing clients a simply written document describing

confidentiality and privilege obligations and the exceptions, before they enter your

office.)

Unobstructed, Undirected Narrative is Not Just Polite, it’s Better

Announce that, finally, the Student #3s will tell their stories to Students #1s, with Student #2s as

observers. Students seemed eager to go through this last exercise round. There’s been

considerable pause for lecture; they are ready to interact. And, having completed two

storytelling rounds, they are eager for the “punch line” from the third and last round.

The instructions are mostly the same as before:


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Student #3 tells his/her story to Student #1;

Student #1 hears the story, listens naturally, with minimal interruptions;

BUT, half of the Student #1s get different specific instructions from the class.

Student #2 observes, takes notes.

Invite half of the Student #1s (the designated listeners) to come to the front to get special

instructions. (I’ve done this by calling upon only Student #1s from the right side of the room,

etc.) In a small huddle, I instruct these students to politely interrupt their storyteller Student #3s

with any questions that occur to them as they listen. The point is not to interrupt merely to be

annoying, but to do so when they are curious about a detail, or when they would like some

background information for better understanding the story. One could also hand out slips of

paper to all of the Student #1s—half with the standard instruction stressing natural listening and

no or minimal interruptions and half with the instruction to interrupt to ask questions whenever

more detailed or background information would be helpful to the listener.

Instruct the students that they will have three minutes for the stories, as was true for the other

stories. After three minutes, ask who is not yet finished. Anticipate that there will be quite a few,

and do give them the additional minute or two they need.

For debriefing the exercise, I suggest that you first ask the storytellers how they felt about the

interview. Did it go smoothly? How did it feel to be listened to? Any frustration? Did it seem to

be efficient? Did the story come out as intended, and within the time planned? Depending on

the responses, follow up: how many story tellers felt good about the process? How many felt

some frustration? Go to the groups that felt frustration, and ask how many of the Student #1s—

the listeners—were among those who received special instructions. If you gave those

instructions to students on one side of the room, the more frustrated story tellers will be

concentrated there.

Focus on the time factor: Ask how many of the groups were finished or just about finished at the

three minute mark when time initially allocated was complete? How many really needed the

additional minutes? Again ask how many of them included Student#1 listeners who received

special instruction.

It should be that more of the story tellers were frustrated and needed more time if their listeners

were instructed to interrupt. Explain to the class what the secret instructions were. Ask what

they conclude from these results. They will likely observe that interruptions are frustrating. You

might note that’s hardly a revelation if we’re talking about interruption as a general matter. But

in this exercise, the interruptions were [supposed to be] motivated by genuine curiosity, the

listener’s desire to get the story straight. Often, we interrupt with a question because what we’ve

heard doesn’t make perfect sense. We’re missing a detail or some background information that

would clarify matters. If WE (not the listeners) were telling this story, we would have started in a

different place or supplied certain information along the way. That is what we were asking for.

Why is that problematic? Turn to the Student #3s, the storytellers, and pose the question to them.

With any luck, one or more will explain that they wanted to tell the story their own way, and the

interruptions, even well motivated, threw them off course. The storytellers would have provided

the details and background they thought important. Sometimes, a listener’s questions seemed

patronizing, as if the listener knew what was important, or restrictive, as if dictating the course of

the story.


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You might then transition to a mini‐lecture, noting research support for the proposition that:

Letting your client tell the story is the most efficient and reliable way to get information you

need.

I have described the two contrasting interview transcripts included in Professor Linda Smith’s

article, “Always Judged – Case Study of an Interview Using Conversation Analysis,” Clinical Law

Review 10 (2003‐2004) in which experienced lawyers interview a client in a simulation involving a

legal business problem. The contrast is striking. One interview is much lengthier, reflecting the

lawyer’s many questions, clearly driven by honest curiosity and desire to understand the

business context of the client’s story. Yet, the essential information takes a great deal of time to

emerge, as the conversation travels down many tangents and dead ends. In the other interview,

the lawyer just lets the client talk. While the client’s story does not proceed in the logical order

we might prefer, in fact, the relevant information comes out quickly and efficiently. (This

important article is cited and discussed in “Client Science: Advice for Lawyers on Initial Client

Interviews,” published at The ClientScienceCourse.com, at 36‐38, reference note 29.)

Note: I think it would be better to dramatize this instead of merely describing it, if time allows. One might

pre‐arrange for two students to act out the transcript in class or, in the best of all worlds, create a video of

this or similar interaction.

It’s worth asking students if they can think of a time when they were trying to tell a story to a

friend, spouse, or family member, but all of the listener’s questions made it impossible to get the

story out in one piece! How did that feel? You should get nods and confirmation of frustration.

I have added the personal note that when I read the dialogues in the article, I immediately

recalled a recent, frustrating storytelling attempt with my spouse. I wanted to (or likely did)

YELL: “just let me tell my story, please!”

Thus, the bottom line advice when listening to a client story for the first time is:

Ask as little as possible—just listen;

Make mental note of face issues, disclosures, accountings;

Avoid directive interruptions. Don’t try to turn the conversation;

Active listening is effective and well appreciated, but only very, very short

encouraging, empathetic interruptions . . . mmhmm . . . wow . . . Oh, I see . . .) [Active

listening comes soon in this course.]

In fact, well‐meaning questions can throw the speaker off, sometimes resulting in failure to

convey certain information our uninterrupted narrative might have included. Why?

Conversational principles of cooperation and politeness, as well as face needs will

govern;

Thus, responses to (even simple) questions will pull the narrative off track. We do tend

to respond to questions posed, even if they were not in line with our original

conversational direction;

And, once responding to a listener question, face needs will still govern. Thus, our

responses may be circuitous, delaying self‐disclosure and full of accountings. All of this

may cause the speaker to lose his way within the story;

It will take longer;


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Your client (and perhaps you, the listener‐lawyer) will be annoyed;

The listener‐ lawyer may miss important clues available if the narrative had come out

naturally.

Most law school texts on client interviewing DO recommend that the lawyer hear the client

narrative through with little or no interruption (except perhaps some active listening, but no

directive interruption). Both the short classroom experiment and the research support this

recommendation. AFTER the client’s initial narrative, the lawyer is advised to review it and ask

questions. Anticipating that this might seem and (indeed might be) repetitive, the lawyer could

explain to the client that it’s his or her practice to go over what he heard, so that he can ask

detailed questions. The lawyer might acknowledge that it will seem repetitious at times, but he

doesn’t want to risk missing important points.

About Funnels

When the lawyer does review the statement and ask questions, most texts suggest that the

lawyer’s questioning occur in a “funnel sequence.” Thus, you would focus on a part of the story,

start with open questions and then move to closed questions. And where the lawyer focuses his

question funnel should be doctrinally driven. In other words, if a potential client describes a

situation in which an employee has threatened age discrimination for failure to promote, the

lawyer might start by asking the client to describe hires, fires and promotion within the last few

years, particularly within the employee’s department. As information is gathered about a round

of lay‐offs and a round of promotions, the lawyer might ask specific questions about how many

employees in a recent promotional round were over and under 40, etc. The lawyer zeros in on

possible theories, to build or eliminate them. That would be a traditional funneling sequence.

Professor Smith’s research suggests that for less experienced lawyers less familiar with the law,

asking questions in a doctrinally driven funnel sequence is more difficult. The good news is that

less experienced lawyers will fare just as well—learn as much critical information—by

proceeding chronologically, and just being curious about the facts and circumstances. The form

of the questions turns out not to be critical. When a lawyer poses a closed question where more

information and explanation need to be conveyed, clients tend to ignore the form of the question

and just answer more fully. Gricean principles apply.

One important warning (made more fully in the segment on memory and perception coming up

soon): lawyers SHOULD avoid questions that suggest facts you haven’t heard yet.

Full credit to my main source on applying conversational analysis and discourse theory to legal

context, Linda F. Smith, Professor and Clinical Program Director, University of Utah S.J Quinney

College of Law, author of: “Always Judged – Case Study of An Interview Using Conversation

Analysis,” Clinical Law Review 16 (Spring 2010) 423; “Was it Good for You, Too? Conversation

Analysis of Two Interviews.” Kentucky Law Journal 96 ((2007‐8) 579; “Client‐Lawyer Talk: Lessons

from Other Disciplines,” Clinical Law Review 13 (Fall 2005) 505.

A Second Prelude to Hearing the Client’s Story: Fact Gathering Interlude on

Psychology of Memory and Perception


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Although this course and the Client Science book include substantial material on psychology for

client counseling, I introduce certain elements of the psychology of memory and perception here

as critical to competent interviewing. When the lawyer hears the client’s story, that story is

inevitably a product of perception at the time and memory after the fact. How much is the

lawyer wise to rely upon? What expectations can we have regarding accuracy? How might the

very act of telling the story, and the act of questioning, influence what is communicated and what

is remembered? (Virtually all of the discussion in this segment of this guide references material

from the Client Science book, Chapter 5, “Predictable and Potent Psychology.” Thus, I have

generally not included citations for each reference within the chapter.)

Making Memorable Impressions of Memory

I begin this interlude with a little experiment, asking the students to take a minute and try to

remember speeches at UC Law’s 1L Luncheon attended by all: Who were the speakers? In what

order did they occur, and what was said? The goal is to choose any major ceremony or other

event the students have in common. Then, ask students to pair up with the person next to them

and compare memories. After two or three minutes, do a quick debrief, asking students whether

their memories matched completely and whether they had any memory at all! It is typical for

students to be quite fuzzy on the details of the event, and for some to remember more vividly

than others. It’s also quite common for one student in the pair to report remembering little, but

recalling more as his partner talked. They jointly reconstruct memory of the event by recalling

and discussing it. Then ask: what does that tell us about memory? What if someone asked you

to testify regarding a particular person at your table or sitting at the head table? The conclusion

should be that memories are sketchy and unreliable.

But what about highly emotional events? Maybe the 1L Luncheon wasn’t an emotionally searing

experience. You could note that the “Flash Memory Theory”—that highly emotional events were

“seared” accurately into our memories—has been completely debunked. Or, because this

information is straight out of Client Science, Chapter 5, “Predictable and Potent Psychology,” you

could ask a student to summarize. In fact, our memories of highly emotional events are equally

unreliable. Yes, we THINK we remember them, but the “searing” does not bear accurate witness

as time goes by.

The examples in Client Science, Chapter 5 (which draws from a swath of psychology literature)

include the Challenger Shuttle and the World Trade Center disasters:

In 1986, the space shuttle Challenger was launched with a much‐

heralded crew of young teachers and scientists on board. It then

exploded in mid‐air, as the world watched. When psychology professor

Ulric Neisser surveyed his students about their memories of the event

the next day, and then again three years later, he found: “less than 7

percent of the subjects’ second reports matched the initial reports, 50

percent were wrong in two‐thirds of their assertions, and 25 percent

were wrong in every major detail. Although the memories seem vivid,

research indicates that their accuracy erodes over time at the same rate as

our everyday recollections.” Similar research carried out in the wake of

the September 2001 World Trade Center disaster confirmed these results.


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(See the Client Science book, Chapter 5, at 151‐152, references at notes 41

and 42).

To test this proposition, you might suggest that students think of a traumatic or thrilling episode

of a least a year or so ago shared with someone they know. The student should first record what

they remember. Suggest that students ask friends or family members what they remember of the

event, and see how well their memories match. Ask the students to email you the results and/or

follow up with a brief in‐class discussion the next morning.

Memory is Suggestible and Confused

In brief lecture/discussion format, I suggest highlighting memory’s suggestibility, by referencing

the examples of experiments in which test subjects were shown a video of a car accident. Post

video questions about what they had seen included reference to a barn (but there was no barn in

the video). Later, some significant percentage of the test subjects remembered a barn. (See the

Client Science book, Chapter 5, at 153, references at notes 46 ‐ 48and 42).

In addition to being suggestible, or maybe as part of it, we suffer from source confusion. Ask

your class how many of the married students have watched their own wedding video some time

after the big day? Are their memories from the wedding or the video? There may be parts of the

video in which you were not present, but you think you were because you have seen them. I will

readily confess that after 25 years, I suspect that my wedding memories are from the video.

Ask students how many of them have ever heard a family story, over and over, and thought they

remember the event. Then some smart cousin says, “You couldn’t possibly remember that, you

weren’t born yet.”

A psychologist researching noted that former President Nixon’s former Counsel John Dean

testified at length at the Watergate hearings about a conversation he had with Nixon. His

testimony about what he said was highly detailed and, apparently, sincere. Yet, when the Nixon

tapes were uncovered, it was clear that Dean remembered a different conversation than found on

tapes.

Ask students why that might have happened? Entertain discussion. Then you might note that, if

you read the testimony and observe the differences between the two, it’s easy to say that Dean

“remembered” some combination of what he might have wanted to say to Nixon, what he was

thinking he should have said, and what he actually did say. Our memories don’t necessarily

distinguish between our inner and outer conversations.

Have you ever listened to two entirely honest people recount a COMPLETELY different version

of the same event or conversation? Why and how might that happen? In summary, inner voices,

later conversations, dreams, wishes, anonymous sources can shape memory.

Well then, memories of past events are unreliable. What about our perceptions at the time?

Perceived Doesn’t Mean Positively True

To dramatically highlight the degree to which human perception is variable and inaccurate, I

show the Invisible Gorilla video in the class, created by two professors and available from Viscog


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Productions at www.viscog.com and no doubt on Youtube. (Viscog Productions offers a

discount for educational use.) Skipping some of the more subtle examples, I go straight to the

clip that shows people in a gym wearing black or white clothing, and explain to the students that

they will be asked to count the number of times the ball is passed between players wearing white

shirts. I do caution students that if they have seen this before, they should refrain from

responding and from laughing etc., thus spoiling the exercise.

After the video clip has played, ask students how many passes there were. And then ask, so

“how many people saw anything unusual?” Some students may not have seen anything, but will

raise their hands as their classmates do. Thus, it might be better to ask students to shut their

eyes. And then raise their hands if they believe there was a gorilla on the tape.

No matter how the question is posed, some students will indicate that they did NOT see a gorilla.

I’ll replay it to establish that, indeed, a gorilla walked across the gym floor. I’ll note that those

who missed it are in good company: 56% of those in Professors Chabris’s and Simons’s

experiments missed the gorilla too. (Client Science book, Chapter 5 at 144, references at note 23.)

Ask the students why that might happen? With any luck, they will observe both that some are

better at perceiving, AND that some who concentrate very deeply on one aspect of a scene will

miss everything else. So, perhaps they are not deficient observers but talented concentrators.

Inattentional blindness may be that, but it also may be due to singular focus. Time permitting,

you can reference a few of the other examples from Chapter 5 or ask students to describe them. (I

tend not to spend much time on the readings in class here, but do suggest that the students go

back and re‐read these sections as essential for a lawyer to know.) Do pose the question: what

does this suggest for a lawyer interviewing a client?

The students will recognize that a client might have missed important occurrences and details

relevant to the story. This is true not only for sights and sounds, but also for events in a

sequence. You might conclude this segment by noting: We are not perfect observers, even

without a pre‐directed focus (to count the passes thrown). And, when we come upon a scene, we

may focus on a single aspect. That causes “inattentional blindness” to other elements in plain

view. When the other side’s main witness testifies in deposition that the neighbor’s car was

parked in the driveway, it may be true. Your client may have missed it. The witness who denies

any seeing his co‐worker rifle through the personnel files may be not be lying; he didn’t see it,

even though it happened when he was there. The bottom line is even when your client truthfully

describes what he saw and remembers, other witnesses or evidence may contradict it. Thus, if at

all possible, the lawyer should reserve judgment on the strengths and weaknesses of the case

until more of the testimony and evidence can be known. When your client presses and asks: “In

light of what I’ve just told you, we’ll be able to get this thrown out of court at the first stage,

right?” in addition to noting that nothing is ever certain, the lawyer might say (if it’s true), “Yes,

the defense seems strong assuming that all of the evidence completely confirms everything you

have told me. But, if the other side’s testimony or documents are in conflict, then my assessment

would have to be different as well.”

Timing and logistics: Timing records suggest that it’s now 90 minutes after the last break. (If you’re

operating within a full workshop day, the lunch break would have ended at 1:00, so it’s approximately

2:30).


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In the large workshop, we move into two sections, for one last prelude on listening before completing the

full Hapless Harvest and Family Matters interview exercises. I n some years, we did the active listening

work back in plenary. However, as we grew more comfortable with the material, it seemed wise to move

this to sections. Students have been in plenary for quite a while and they generally feel more comfortable in

sections. The active listening exercises and discussion seem to play better with a smaller group.

On Listening

(Approx. 20 minutes) (2:45 – 3:05 on Workshop Day 1)

Materials Needed!

Make sure to bring a copy of two very different types of reading material, but preferably NOT legal. You

might use a news magazine and Scientific American, or a novel, or any unrelated article.

When the students reassemble after break, I often introduce the segment with the following

reading and listening exercise:

Pick two students give each one of them one of the articles and ask them to go to

opposite and far sides of the room (or you could select students in these locations.)

Explain to all that these students will each read out loud from the article or book you

give them. The rest of the class is instructed to listen.

Let the reading go for a minute. You can make an adjustment for “sound balance” at the

beginning, to insure that both are reading at sufficient volume for the room to hear, and

that one reader isn’t significantly louder than the other.

At the end of the minute, ask for a show of hands: “How many people know what the

two articles were about? What do you think?”

Then, ask if anyone can tell you the “plot line” or what information was conveyed in

both articles. Generally, no one can do that, or not very well.

Then, ask: Why this exercise? How might it relate to the task of listening to a client? Take a

response or two, followed by the punch‐line: We are not capable of really listening and hearing

the plot line or the important information from two voices at once. Put up the powerpoint with

the header: “Why is good listening hard?

Either class discussion or you should lead to recognition that most of us have that “little voice” in

our minds: “What errands do I have to do?” “How long is this going to take?” “What about that

exam tomorrow?” Or, if we are indeed focused on the interview, the voice might be saying:

“What a ridiculous idea to just quit the job. How in the world will we argue constructive

discharge?” “What law might apply here?” “I wish this client wouldn’t ramble so.” “I hope he’ll

hire me; I’d like to be a young rainmaker at this firm.” Sound familiar? It’s normal, but it’s also a

problem. Because, hearing that voice prevents us from fully, really fully listening to the client. It

diminishes our ability to pick up on subtleties—to notice patterns and emotions. That client just

used the strong word “humiliate” twice within a paragraph.

By way of summary: What does bad listening look like?


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Listener clueless as to what speaker said;

Listener is thinking of the next point to raise: “Do you listen or are you waiting to talk?”;

Listener is looking elsewhere;

Listener changes the subject;

Listener is thinking about something else entirely.

As commentary and reference for the quoted line, you may note that the DVD version of the 1994

film, Pulp Fiction, includes a few scenes cut from the final movie. In one, Mia Wallace (played by

Uma Thurman) interviews Vincent Vega (played by John Travolta). She asks him: “In

conversation, do you listen or wait to talk?” Vincent responds, “I have to admit that I wait to

talk––but I’m trying hard to listen.”

What does good listening look like, sound like? It is evidenced by practice of several skills:

SOLER: Mechanics of listening;

Listening with your eyes and body: non‐verbal communication;

Listening with emotional radar;

Listening without direction;

Active listening.

The powerpoints function as a brief lecture outline, I amplify the point that if we’re listening with

full emotional radar, we WILL notice subtleties and patterns; whether the client’s face flushes or

neck vein bulges whenever he mentions his boss, whether an emotionally charged word is used

or repeated, whether his “accountings” can be understood as response to felt loss of face.

To listen without direction is important, but what does it mean? (Ask for responses.) Make the

point that if we listen with a purpose to find what we are looking for—legal issues, expression of

anticipated reactions or responses—then we may be blind, or perhaps deaf to other things. I may

perceive or hear only what I sought and miss other important themes. Also, when listening, it’s

important not to respond favorably or approvingly ONLY to what satisfies your expectations or

agenda, for that may steer or direct what follows.

Time permitting, I might raise the concept of “mindfulness” and ask students if they know what

it means and whether it could be used in listening. Either from their responses or your own, let it

be known that to be mindful is to be acutely aware of what you perceive, but not to direct it.

Mindfulness—and mindfulness practice in meditation—increases one’s ability to filter out

distractions—that other voice—and be entirely present, or in the moment. It enables us to muster

our full powers of attention and concentration. Surely, that power would inform good listening

in an initial client interview or in any conversation.

I confess the truth: I find it difficult to maintain mindfulness, particularly to silence that voice in

my head. Anyone else? (Many students appreciate this and will join in nodding.) My thoughts

seem rather relentlessly to want to talk to me, no matter what. One suggestion is to direct that

inner thought voice toward the speaker with sincere curiosity. If you just can’t maintain a single,

mindful focus on listening, turn the second focus to consciously observe your potential client’s

body language, vocal intonation, speech patterns. Wonder what the story means to him, note his

agitation, consider the impact within his social or professional context.


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A central piece of “what good listening looks like” is referred to as active listening. Before

turning to material on active listening, ask how many students have encountered this phrase, in

what contexts, and what they understand it to mean. See if you can smoke out some skeptics by

asking: “When you learned about active listening in your HR job, or in your pre‐marriage

couples counseling, [or wherever] what did you think of it?” I readily admit that, for many years,

I was a skeptic about all things that border on the “touchy‐feely” but have come to learn the

value of active listening done well.

Acknowledge or lament that fields of counseling, negotiation, and dispute resolution might

rightly be charged with inconsistency in terminology around active listening. When some

writers or trainers use the term “active listening,” they mean that the listener repeats or

paraphrases back segments of what he hears. Some would say that “active listening” is silent but

engaged, and would describe the repetition or paraphrase as “reflective dialogue.” Some might

include simple rephrasings as part of active listening, but reflective dialogue as deeper. Too

much dancing on the head of a pin and no point in arguing about it.

For the purposes of this course, I define “active listening” as expressed in two ways: (1) fully

engaged but largely silent, maybe with encouraging sounds, but no paraphrase, and (2) “active

and verbally interactive,” the same engagement, but ALSO demonstrating cognitive and

emotional understanding of what’s been said by paraphrasing or reflecting back what you heard.

Which is better? Does it matter? What’s the downside, the upside of either? When to do what?

Ask for some student input.

The downside to “engaged but silent” active listening is that the client can’t read your mind,

doesn’t know if you’re internally disapproving or skeptical or thinking about your dinner plans.

The upside is that you don’t risk directing his narrative.

The upside to active listening that is “active and verbally interactive”—sometimes described as

“paraphrastic feedback” or “reflective dialog” in that it enables the client to know that his

lawyer‐listener really DOES understand the story and its impact. Sometimes, if a client is

repeating and re‐emphasizing, it indicates lack of confidence that the lawyer in fact understands.

If so, and you’ve been a mainly silent active listener, you might want to become verbally

responsive—paraphrase back. Imagine a potential client faced with threat of termination, telling

you the story of what happened at work. She has been emphatic about her boss’s inattention and

unfairness. Your active listening might include a paraphrase: “Based on what you’ve said, it

seems your boss just really wasn’t bothering to notice what you were doing day to day.” You

might also reflect the impact or the emotion: “It was not just frustrating, it was unfair and unjust

that your boss would slam you with a mediocre evaluation based upon what someone else

reported, without even asking about your major contribution to that successful marketing

initiative.”

The downside to active and verbally interactive, or reflective dialog/paraphrastic, is two‐fold:

you might sound wooden or insincere, and you might inadvertently direct the discussion. As to

the first, paraphrasing often begins with words that sound like chalk on a blackboard to some of

us. “So, what I hear you saying is….” If I understand what you’re saying….” I advise students

to use the time between this course and graduation to come up with a better range of


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introductory phrases. I advise them to skip the prologue about “understanding” and “hearing”

and moving to: Well, then your boss didn’t pay attention and couldn’t have known what you

were accomplishing day‐to‐day.” When seeking to reflect the emotion, it’s easier to skip stock

phrases and start with an accurate observation: “Wow, it doesn’t seem fair or right that he can get

away with evaluating you without even asking about what your contribution had been to the

project.”

What’s the best practice? There is no all‐purpose best, as long as the client perceives that the

lawyer has indeed heard and understands the content of what he says, as well as its impact and

meaning to him.

One good practice suggestion, perhaps as a default, is to stick with active but relatively silent

listening in the interview’s earlier phases. Full engagement but less interjection by the lawyer

insures that the full client narrative and range of client concerns will come out fully. It eliminates

possible lawyer‐client power struggles for topic control, and prevents the lawyer’s assumptions

or preferences from directing the client’s words. Fewer interjections (even in service of good

active listening) may be particularly important where there’s a perceived power or status

imbalance. In a study of legal aid clinic practice, lawyers controlled the conversation 94% of time.

Interactive, paraphrastic active listening tended to narrow the focus, sometimes frustrating the

clients, and causing the interview to miss client concerns and issues. (See the article “Client

Science: Advice for Lawyers on Initial Client Interviews,” published at The

ClientScienceCourse.com, at 19, reference note 16.)

Let’s assume that we’re in the latter portion of a client interview and/or it seems that

active/interactive listening would be helpful. What exactly are the activities that comprise

active/interactive listening (including reflective dialogue)? What do you do?

Step 1: Speaker speaks

Step 2: Listener reflects back what speaker said – paraphrase using some of your own

words

– Fact

– Emotion

Step 3: Listener inquires if he/she is correct

– If not, go back to step 1

– If yes, continue

A few active/interactive listening tips:

Work in small increments. (Don’t wait until the end of the story);

Focus on fact, or emotion, or even better, couple fact with emotion;

Do not engage in the conversation (don’t try to move it forward), simply reflect back.

Either at this point, or after the exercise, students will ask or I will raise the question of

interrupting. What if the client is talking and I want to do active/interactive listening, but I can’t

get a word in without interrupting? Isn’t that rude?”


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Here, I recommend demonstrating a trick I learned from an actor‐colleague; if you take a deep

breath as if you are about to speak, most people will pause to let you do so. That enables you to

interject to express your understanding of what you heard without forceful or rude interruption.

If that doesnʹt work, and the client really seems agitated, you can try interrupting with apologetic

acknowledgement of the interruption. “I’m sorry to interrupt, but I want to make sure I have this

right…. Your boss was not present during a six month period, and wasn’t working on any

projects with you, even from afar.” [active listening paraphrase, focused on the factual].” Or,

“I’m sorry to interrupt, but it seemed both irresponsible and unjust that he would put that into

your evaluation without any attempt to investigate, much less ask you. I can see that really

rankles, given your contribution to the company.”

Finally, finally, it’s time for an active listening exercise as prelude to its application in Hapless

Harvest and Family Matters. Have the students pair up with someone sitting nearby. (I generally

suggest it NOT be the same person they were paired with earlier. If possible, students should

look to the other side.) Then, instruct students to describe a dispute or difficult or unfair

circumstance in which they have been recently involved. This should NOT be the story told

earlier, as that will be old by now. But it should be something about which they felt strongly. If

faced with blank looks, you might suggest that they describe how a law professor’s grade was

unfair, or some terrible law school administrator’s decision, or something rotten perpetrated by

their father‐in‐law, the landlord, the boss, the car repair shop, etc. Generally, mentioning law

school professors or administrators is enough to get the juices flowing.

At one point in the history of this course, 10 minutes may have been allotted for each person to tell their

story as the partner actively and interactively/reflectively listened. No such luxury of late. At most, each

story gets 5 minutes, sometimes less.

To get students to overcome hesitancy or discomfort with lots of paraphrasing and reflecting

emotion, I recommend encouraging them to take it “over the top.” In other words, to get

comfortable with the skill, they should paraphrase and reflect more than they would in “real

life.” The point of the exercise is to try it.

Reserve time for a quick debriefing. Ask how it felt when the students were in the

disputant/client role. Ask what felt awkward in the lawyer‐active‐listener role? Were there any

surprises? Ask for examples of active/interactive listening that in fact, seemed to be really

effective when they were in the client/disputant role. How? Students are always happy to

volunteer to talk about things their classmates did well. Finally, ask what seemed difficult.

Summarize by noting that active listening, done well, so that it feels natural, can be tremendously

helpful when working with clients AND when in conversation with family, friends, and

colleagues. It really is a skill, and it’s worthwhile practicing. Suggest that they DO try this at

home, this evening, and thereafter.

Now, drumroll, it’s time to apply what we’ve learned about Gricean Principles of Conversations,

natural structure of narrative, loss of face and presentation of self through disclosures and

accountings, and finally, what comprises the art of listening well. Students will take on their


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roles as lawyers and clients in Hapless Harvest and Family Matters and conduct the balance of the

interview.

Emphasize that the interview is picking up AFTER the preliminary phase, just as the client is

about to tell the full story of what brought him to the lawyer. In other words, skip ice breakers,

confidentiality, fees and all of that. In my experience, it’s wise to repeat this instruction—loudly.

(Otherwise, some students will go back to the beginning.)

If possible, briefly summarize the three major tasks remaining in the interview (1) an unfettered

listening, noting points for later inquiry, (2) then the lawyer’s review of what the client said by

clarifying, probing, and exploring crucial elements, and finally (3) ending the interview in a way

that covers practical issues and next steps.

Regarding Open and Closed Question Form

Candid note: the powerpoints include reference to open and closed questions. Truth be told, I

often skip these entirely or whip through with lightning speed. The students have heard enough

lecture, and in my view, learn more from working in role. Thus, when pressed for time (always),

I favor saving time for them to go through balance of the interview. I remind them that the

powerpoints will be available on TWEN.

What About Run‐Ons?

Often in later debriefing, questions arise regarding what to do when a client runs on and on,

repeats, or is terribly difficult to follow. Do underscore this advice: Frame tasks and questions at

turning points. Summarize that story to that point, eliciting client amendment, correction or shift

in emphasis, and then transition to another topic in the client story. This is useful when working

with clients who seem stuck in a certain groove on the broken record.

Work through the Balance of the Interviews

Pair up the Hapless clients with the Hapless lawyers. You can simply allocate 30 minutes for both

interviews (15 minutes per) and let the students stay in the same pairs, since you know that

students assigned to the lawyer role in Hapless will be the client in Family Matters and vice versa.

However, if at all possible, allow 15 minutes—or less—with brief client feedback toward the end,

time permitting. But I ask them NOT to move on to the next case.

I like to sneak in just a minute or two of debrief before we transition to Family Matters: what

worked well? What was hard; what was easy?

For Family Matters, if possible, I prefer to switch lawyer and client pairs, so that they are working

with different classmates in this exercise. This makes it fresher, and marginally more realistic.

Reserve Just a Bit of Time for a Brief Debriefing


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In the course of debriefing Family Matters, I do and you are welcome to reveal, with some drama,

the fact that the scenario was based on a very real case I mediated several years ago. The type of

business and other details are different but the basic problems, issues, and family dynamics were

the same. In the real case, the client—one of the sons—did decide to file suit against his father

and his brothers. While I wasn’t witness to that lawyer‐client meeting, I don’t believe the lawyer

would have strongly encouraged litigation. I hope he alerted his client to some of the risks and

costs, including its predictable impact on the family. By this time of the mediation, suit had been

filed and a great deal of discovery had been done, with many battles over access to the business’s

financial documents. The father had stopped speaking to this son, and had written him out of his

will. The father had been diagnosed with cancer. His condition had deteriorated so that he was

on oxygen by date of the mediation. The lawyer and the client wanted to resolve the case and

repair the relationship before the father’s death. I remember meeting with this client‐son in

caucus during the mediation. On the one hand, he kept repeating that his decision to file suit was

about the money; he had no accumulated savings and wanted financial security. Now, he was

also upset over the fact that acquaintances in this small town, all of whom knew the family and

his father, would turn away from him in the grocery store. His children’s cousins would not

speak to them because of the litigation. We made progress in mediation that day, but could not

keep at it too late because of the father’s condition. Over the next few weeks, I worked (through

the lawyers) toward final agreement terms. But the father passed away before agreement was

reached.

At the end of the segment, I show a brief video of a lawyer‐client interview in Hapless Harvest and

invite both appreciative and hyper‐critical student comment. (This video will eventually be

made available on this website.)

End of first workshop day: If possible, pose the question, “What might be hard about a collaborative

approach for a new lawyer?”By this time, students may be lacking energy and we are inevitably lacking

time for good discussion. So, most often, that question is posed for students to think about before the next

session. I also try to end the day with a challenge to observe patterns in discourse and narrative and to try

active listening with friends, family, or on the job.

Whenever there’s discussion about a new lawyer’s possible concerns regarding a collaborative

approach, I suggest eliciting and recording student responses. The following are my thoughts on

the topic, but these are neither definitive nor comprehensive.

Desire to demonstrate credibility and expertise ‐ temptation to gain respect and

credibility by “commanding authority” – being authoritative;

Concern about “foolish” client decisions (for which you may be blamed);

Concern that you will not be ABLE to “save” client from “foolish” decisions;

Anxiety about letting the client “watch”;

Discomfort at a higher likelihood of questions you may not be able to answer.

Note that the interviewing segment of this course is limited to the initial interview and,

admittedly, makes short shrift of the fact gathering function. It pays no attention to how an

initial, likely pre‐retention client interview might differ from subsequent client or witness


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interviews. 12 One could easily expand and enhance this material enough to make it a three credit

course. Or, a professor less comfortable with the decision analysis material could expand the

interview segment to include witnesses, or add a segment on client letters and email

correspondence.

Client Counseling and Decision‐Making

The course now shifts to client counseling and decision‐making. It’s fair to say that I see these as

the course’s core focus. It’s also true that the collaborative law stance and work on building

rapport, understanding narrative discourse, and listening actively are foundations for effective

client counseling and decision‐making.

For those teaching the four‐day workshop, client counseling and decision‐making begin on the

morning of day two. In once weekly, ten‐week (or longer) format, it would fall after session three

or four, depending upon the length of each class session. Whatever the course format,

approximately 6.5 class room hours will have been spent.

The morning generally opens with a reprise of issues raised, overnight challenges from the first

day. Regarding why a “collaborative stance” might seem difficult for a less experienced lawyer. I

might observe that the first day’s skit poked fun at other models, perhaps unfairly, while

collaborative lawyering “was presented as the paradigm. Ask students if they see any

downsides, or circumstances in which a lawyer should adopt a different stance – either more to

the client‐centered or the authoritarian ends of the spectrum, particularly as we move from

interviewing to client counseling.

In response, students often express concern about being perceived as indecisive, lacking

confidence: don’t we go to lawyers to get clear advice on what to do? If a lawyer is too

collaborative, will the client perceive him as withholding wisdom? Imagine when the doctor tells

a patient: to have the surgery or not is your decision. Of course it is, but we might prefer that the

doctor tell us what he would do, indeed quite strongly. The patient (or the patient’s responsible

family members) might want the doctor to make the decision for them. That will relieve them of

the burden of regret or guilt if it does not go well. Isn’t the same true for clients and lawyers? On

the other side of the spectrum, the collaborative model may be viewed as too directive. After all,

if the client will be paying, shouldn’t we let them decide without interfering?

Often, students comment that the collaborative approach seems to take more time: isn’t that a

problem for a lawyer in a free initial interview or consultation? And for the client when he is

paying? In general, the instructor’s role here is to listen and facilitate discussion. As one who

12 This is a reflection of where I see my own claim to experience and expertise, as I initially came to client

counseling material through experience teaching mediation and negotiation and in mediation practice. My

entry point was years of observing lawyers struggling (or not bothering) to counsel their clients regarding

settlement. I was familiar with the challenge of advice‐giving and barriers to reaching agreement. While

my practice as a young litigation associate and later as an Assistant D. A. involved interviewing, I was then

woefully uninformed and unreflective about this aspect of practice. Moreover, I don’t recall meeting a

prospective client prior to retention. As a mediator, I sometimes listen to the narrative and ask questions of

a party in a preliminary meeting, where building trust and rapport are indeed important. However, this

context is markedly different than that of a lawyer meeting a potential client for the first time.


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generally favors offering experience and perspective, I will observe that the time required is

probably not significantly greater for a collaborative approach, in general. Even where it is, early

investment of time may lead to greater efficiently later, as the lawyer will have a better idea of the

client’s preferences and will have built a strong relationship. Moreover, sometimes the

distinction between the varying lawyering models are more a matter of approach and phrasing,

as opposed to raw time.

Finally, I like to suggest the option of discussing with your client his preferences as to how you

will work together particularly as you move into counseling. You might ask whether the client

would prefer that you: (1) just provide your conclusions and advice – what you would do – or

(2) just set out the options without weighing in, or (3) work with the client to discuss your

analysis and the options you see and how they might match his preferences.

Time permitting, I will return to the previous day’s exhortation to “try this at home” by

practicing active listening and paying attention to discourse and narrative patterns. On a good

day, a student will report hearing a story from a friend or family member and noticing

“disclosures and accountings.” Or a student will report his frustration while telling a story to a

friend or spouse, who constantly interrupted with well‐meaning questions. Perhaps the student

cited the course lesson, and requested: “Please, just let me tell it my way.”

With respect to active listening, anticipate reports at both extremes: “I tried it and it didn’t work

at all. My friend was still ranting at me.” Or, “I tried to listen actively and say how I understood,

but my spouse noticed and thought it was strange.” Sometimes, a student will proudly report a

dialogue with his or her mother‐in‐law that was “entirely different when I tried active listening.”

Of course, the professor’s role is to applaud the effort. Note that it’s difficult to listen actively,

with reflective paraphrasing of fact or emotion, and have it seem entirely natural. It’s not rocket

science but it is an acquired skill. You can remind the students that active listening was not

invented for this course (or by a bunch of law professors). Rather, it’s a technique taught for and

used by a range of professionals for whom it’s important to build trust rapport and gain deep

understanding of clients and patients. Students are encouraged to keep practicing so that it will

become easier and sound more natural.

I also use this time to field questions regarding any and all other open questions , concerns and

comments relating to the previous course discussions and exercises.

After approximately 15 minutes or so of this prologue discussion, turn to the day’s agenda, the

goal of client counseling (reprise from the early course overview): What is the lawyer’s goal? A

wise decision; A decision that best meets the client’s interests.

In a brief lecture, explain that to accomplish this goal, we tackle “The Five Client Counseling

Challenges.” These are derived from thinking about makes client counseling difficult or

“challenging,” and thus what an effective lawyer‐as‐counselor must be equipped to handle:

1. Clear and complete communication

2. Shared understanding of client’s interests

3. Effectiveness WITH emotion

4. Lawyer and client wisdom IN THE FACE OF uncertainty

5. Psychology and its impact (on lawyer and client)


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Explain that the balance of the course takes aim at these challenges, with a focus toward the end

on “polish in delivery” – work on voice and gesture to enhance communication – for greater

clarity where concepts are complex, for building rapport, and gaining client confidence. Also, in

the latter portions of the course, we’ll focus a bit on the particular problem of communicating

‘bad news” because that is most difficult, drawing upon the counselor’s greatest knowledge and

skill.

If you’re in a workshop, ambitions are high for this second day. We’re aiming at clear

communication through practice in translating legalese, then moving quickly to working with

client emotion, and then eliciting client interests, and finally to dealing with uncertainty through

an introduction to decision analysis.13 (They will be VERY tired by day’s end! We’re covering a

tremendous amount of ground. Acknowledge that we are not doing justice to any of these topics:

each could be enormous. We are taking quick dips, perhaps better thought of as important but

all‐too brief immersions.

To gain insight into the named client counseling challenges, it seems wise to start by thinking

about typical clients’ starting points when they come into a lawyers’ office. 14 Segue to the

question posed in the syllabus:

Your client has come to you because he or she was terminated, physically injured, or sued. The

client has never been involved in litigation before.

What underlying beliefs in the U.S. legal system is the client likely to have?

What were your beliefs about the U.S. legal system before law school? How have they

changed?

How might a client’s beliefs about the legal system impact the lawyer’s role as client

counselor?

With any luck at all, students will volunteer responses, especially if you remind them that this is

in the reading! I suggest listening for student responses that add to the “Top 10” list. You might

record only those, to save time. Then turn to the Top 10 list with a “voila,” crediting them for

anticipating and adding to it.

Profs’ Top 10 List of Inferred Beliefs

13 When I first mention decision analysis as the end of the day, I’ll often mention the fact that “there will be

cookies” and there will. This is my strong advice: whatever budget you can find, even if it’s your own

Costco card, do manage to provide AT LEAST cookies during the afternoon break that comes before the unit

on decision analysis. In fact, UC Law has graciously sponsored coffee and cookies from the vendor across

the street. The students WILL be tired by mid afternoon: this is an enormous workshop day. And while I

would argue that decision analysis isn’t really dry and boring, it surely has that reputation and it does

involve numbers. While this would argue for beginning when people are fresh, in the morning, it’s

important to introduce the topic today so that students can do the practice problems overnight and bring

them in the next morning. We recognized the need for sugar and caffeine in the first year of teaching the

workshop and it was the right call. 14 The students are too young to remember comedienne Joan Rivers’ monologues, which began with “can

we talk” in her inimitable NY accent, but that’s my reference here.


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1. The legal system is always fair. Results are just.

2. A trial gets out the REAL truth.

3. Most cases go to trial. People get their day in court.

4. In this country, people can tell their stories to a jury. The jury will believe the honorable

party and do what is fair right.

5. Because I have been sued, my name and honor have been damaged. When I win, my

name and honor will be restored.

6. If I sue and win at trial, the other side’s name & reputation will be ruined. I have power

to injure!

7. The winner does not have to pay attorneys fees. That wouldn’t be fair!

8. I will win millions in punitive damages because the other side deserves to be punished.

9. The litigation process is pretty much like what I’ve seen on television.

10. It won’t take too long (just like on TV).

It’s good to ask whether students have heard any of these beliefs expressed. Did they hear a

summer law firm client talking about their honor and the record? Was a family member shocked

to learn that he would still have to pay fees even if successful at trial?

The next question is: “What implications does this set of false assumptions, or lack of knowledge,

have for client counseling. What are clients unaware of when they walk in the door? These ideas

are articulated rather thoroughly in Client Science, many clients will be unaware of: how long the

whole process will take, time intervals between stages, legal impediments to trial, uncertainty

and impact of procedural steps, and the power of discovery to intrude upon business,

professional, and personal lives, at high cost. And of course, many clients will not be prepared for

the idea that the end results are not at all certain.

Yet, in order to make a wise decision, the client must understand possible outcomes, costs, risks,

timing, and realistically accomplishable goals. That client must be fully aware of his business,

professional and personal interests and linked interests of others AND be able to see which

interests well served (or not) by a decision.

Challenge #1: Clear and Complete Communication

With the client in mind, we turn to Challenge #1: Clear and Complete Communication. Explain

that the classroom exercise aimed at this challenge will be to explain a legal process concept to a

classmate client, as noted in the syllabus. This is not the only arena in which clear

communication is important. Still, explaining to a client how law and legal process work can be

particularly difficult. After all, we all went to law school, and that first year was tough. General

advice for success is summarized as follows:

Use precise language – no untranslated legalese

Don’t assume knowledge. Describe each intermediate step. Make the abstract concrete.

Check understanding. Encourage questions. Listen and respond.

Allow for differences in processing.

Visuals: Draw time lines, list steps, make maps (more on this later)


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The next move is an exercise in translation of legal process concepts for clear client

communication. Pair students up. For this exercise, I let them work with someone sitting nearby.

In a larger, two section workshop, this can take place in plenary. The students are asked to

remember the assignment in the syllabus to think of explaining a litigation situation involving

summary judgment, or a judgment notwithstanding a verdict, or preliminary injunction. They

should be prepared to explain it either in the context of an imaginary case, or in one of the cases

from the first day. While I downplay the context question for this exercise, students find that

referencing a context does help the communication task.

Implicitly or explicitly naming “Student A” of each pair to be the first one acting as laywer, give

Student As approximately four or five (or three or four) minutes to explain the concept to

“Student B,” in the client role. Do remind the Student B’s to recall their pre‐law school state of

knowledge. What would their non‐lawyer mom or dad or roommate understand of what they

heard? After the explanation, Student B’s should provide 2 or 3 minutes of feedback. I remind

them that negative feedback is “gold.” In real life, a client may understand very little, but be

embarrassed or blissfully unaware of what he missed or misunderstood. Student client feedback

should identify which communication was clear and unclear, and also the way the explanations

made them feel. Acknowledge that this is a class, and it’s difficult to pretend you are really the

lawyers and the clients. But they should make every effort. And, as suggested yesterday, if the

student‐client has even a passing inkling of a feeling in reaction to the lawyer’s phrasing, he

should convey it. In real life, that reaction would undoubtedly be stronger.

I suggest playing with micro‐instructions here. When setting up Student A, you could suggest

that the student simply listen – not ask any questions as the lawyer goes. But ask that s/he make

mental note of what a client might not understand or how the client might react. In the second

round, you might give the opposite instruction: suggest that student‐clients ask questions when

they think an explanation would be unclear to a client. Or, you could simply suggest to students

that they should decide whether they want to be active questioners or more passive listeners.

In the second round, Student B to Student A, a DIFFERENT legal concept should be explained.

This should not be too onerous, as the syllabus asked them to prepare an explanation of two out

of three legal concepts.15 So, if even if Student A chose to explain one of Student B’s chosen

concepts, Student B should have another at the ready.

If you are pressed for time, I suggest calling the time limit for the first round (A to B) and

announce two minutes for feedback. Then skip class discussion between rounds and move

immediately to Student B as lawyer and Student A as client, with feedback. As stated above,

Student B should choose a DIFFERENT legal concept to explain. (This requires a reminder.) If

you do it that way, do give the first round clients a moment or two to make some notes about

lawyer phrasings that were unclear or tactless, or particularly well done. That will enable them

to recall examples more quickly in the eventual debriefing.

If possible, I prefer to debrief VERY briefly in between rounds. That way, some of the less

successful types of explanations can be collectively recognized and improvements seen in the

15 I have no regrets over asking the students to prepare two explanations, when they will only present one.

They retain some autonomy with the two out of three choice. If they did prepare one that their student

lawyer chooses, they should be keen critics or duly impressed.


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second round. Another option, reflected on a powerpoint mini‐agenda, is the one I choose more

often, because I am always pressed for time. That is: let the student pairs do their explanations

back to back, Student A to B, then feedback, then students make quick notes for reference in the

later debriefing, then Student B to Student A, then feedback. When it’s all done, give the student

pairs a few minutes to nominate, or craft together, good phrasings for key aspects of the legal

concepts described. Let them know that they will be asked to contribute these to class

discussion.

Either way, for debriefing, I generally: Ask the lawyers to self‐report unsuccessful explanations –

phrasings they now realize would be unclear or poorly received by a client. I explain that I’m

looking for something that: “As soon as you said it you thought, ‘oops, that is NOT going to

work.’” While the clients are not likely to “tell” on their classmates, the student lawyers are

usually pretty good natured about volunteering, especially if they can say they recognized it

when it left their lips. Applaud the wonderfully terrible. If it’s true, confirm that you’ve heard

real lawyers do worse. Ask the pair (and perhaps the class) if they can parse what makes the

explanation ineffective. Often students will recognize that a client is unlikely to know what a

“material fact” is… for example. The observations generally fall into at least two categories:

explanations that contained legal jargon, and explanations that rely upon legal process

knowledge.

Ask the student‐clients to report some of their lawyers’ explanations that were well done. Give

credit where it is due. Often, the students are appropriately proud of having made certain small

things concrete: a summary judgment is a motion – a request to the court – and we file it as

document in which we argue.”

Be sure to repeat any explanation you get (whether proffered as effective or the opposite) and ask

if the class hears any ambiguities or assumed knowledge. Entertain the discussion, which is

usually quite rich.

Very often, I find that what the student‐clients tout as a clear explanation from their student‐

lawyers would in fact be incomprehensible to many real clients. Some common examples are:

“They’ll argue the motion to the court.”

Point out or elicit that clients don’t know:

The court means the judge and there will be no jury present.

The motion would generally be argued long before any scheduled trial.

What exactly a motion is and what form it takes.

That the other side can oppose the motion.

Why both sides might not initiate a summary judgment motion.

“If the case doesn’t have to go to a jury, then the judge will decide it.”

Or, a variation: “If it’s so one sided that no reasonable jury could decide one way, then

the judge decide it.”


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Point out or elicit:

Clients don’t know that, in our system, the juries are the triers of fact. So when

you say: “If the case doesn’t have to go to a jury,” that means very little. They

have no idea why that would be.

Adding insult to lack of clarity, “if the judge thinks the case should be thrown out

because no jury needs to hear it.” Or, “If the judge thinks the case has no merit…”

Point out or elicit:

The client will react negatively to the idea that his case should be “thrown out”

or might be found to have “no merit.” At some level, they make no sense and

they are insulting.

In short, listen with a keen ear for the underlying knowledge the explanation relies upon, and

any insider’s terminology. To say “the court” or a “motion” is often not recognized as legalese –

they’re not in Latin and they weren’t on the Civil Procedure exam. But they are nonetheless

examples of insiders’ language choices that might not be clear to one unfamiliar with legal

territory.

After a few examples of phrasing that rely upon assumed knowledge, turn to the idea of meaning

as impact: what that would mean for his case? Turn to a student explanation of summary

judgment16 (which may have been reasonably good – based on the legalese test) or supply one,

such as: “the judge could rule on the motion, on the legal arguments made, before the case gets to

a jury.” Once again, ask what’s missing, and what’s misleading. Assume your client is a plaintiff

– as in the Hapless Harvest case, and the defense has made the summary judgment motion. Does

the client know what will happen if the judge rules for the other side? Not necessarily. The client

doesn’t know that the case could end there, and he would recover nothing. Recover nothing –

means get no compensation, no money for his very real injuries. Indeed, note that the

explanation was a little bit misleading, because it said: Rule on the motion… before the case gets

to a jury.” This suggests that the case WILL eventually get to a jury after that. Better word choice

would have been, “the judge could rule on the legal arguments made and if he rules for the

defendant, then the case would never go to a jury. It would be over and you wouldn’t receive

anything for your injuries. “ These words aren’t happy, but at least they clearly state reality.

The goal is to illustrate that the lawyer’s phrasing matters a great deal. There are many accurate

descriptions of legal concepts but some will be incomprehensible to a client lacking background

knowledge. These come out beautifully in debriefing.

On the somewhat less dramatic, interim procedural matters, time and cost are important aspects

of impact. For example, the defense lawyer might say: “After the discovery process, we’ll hope to

file a motion that will get the case thrown out, so that we’ll never have to get to a jury.” “Great,”

thinks the client. But what about discovery? Does he know that this process could take six

months or a year, that he and his key employees may be deposed, that he’ll likely be sifting

16 In the earlier years of teaching this course, I avoided letting the students explain summary judgment in

this exercise because a clear‐to‐the‐client summary judgment explanation is an important part of the final

counseling skills exercise. I though that practice in class would make it “too easy” later. Wrong! Explaining

summary judgment is quite difficult even though students are familiar with it from 1L civil procedure.


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through reams of documents during his busy season, that the litigation will be an blot on his

financial statements while he’s entertaining purchase offers? The answer is no, not unless he’s

been through this before. When explaining the discovery process, the timing and the cost will

matter greatly to his client.

The insights sought from the debriefing are summarized with the observation that “meaning”

goes beyond a dictionary definition. Once the conceptual meaning of the legal phrase is made

clear, the client may still not understand what it will mean for him… what impact it will have.

Time for a break! It should now be approximately 90 minutes after the session began, or 10:30 a.m. on a

workshop day. Take a break, but be sure to pick up with 90 minutes at least, preferably 105 minutes before

the next break (presumably, lunch). That is the time necessary to introduce the “Counseling Challenge #2

– Shared Understanding of Client Interests” and to set up and complete the Dale Doran exercise, designed

to demonstrate that challenge.

Challenge #2:—Shared Understanding of Client Interests

The module on “Challenge #2: Shared Understanding of Client Interests” can be introduced with

questions such as: “Why is this a challenge?” “Why does it matter?” “Assume your client comes

to you will a reasonably well‐defined legal problem, isn’t it your job to help resolve it in the best

way possible? Why might it sometimes be a challenge to consider those interests?”

To elicit thoughtful student responses, it’s helpful to reference the scenario in the skit from the

first day, or the Family Matters or Hapless Harvest clients. Don’t extend the discussion, because in

many ways it’s the direction of the exercise. Barring terrific student input, you can quickly

summarize:

Clients’ business, profession, life, others’ business, professions, lives are linked

and overlapping, messy. Decisions are not made in a vacuum. You cannot

control the impact and interaction or counteraction.

Client may (or may not) present a narrowly defined legal problem: “They

haven’t paid under the contract. Make them.” Broader interests may or may not

be best served by litigating and “winning,” by a specific transactional term, or

even by an attorney’s direct involvement.

[More reasons shared understanding is not so easy….]

People VERY often have not THOUGHT about their broader interests, which are

more important, which could be traded.

Lawyer may incorrectly assume client interests, priorities.

People often have not thought through how the potential legal process will affect

other interests, contexts, as it unfolds.

NO ONE KNOWS how the litigation or negotiation process will unfold! No one

knows the future of a business transaction. UNCERTAINTY is the rule, rather

than the exception.


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The way to an understanding of the client’s interests is simple: broad curiosity and questions

about:

Client context; business, family professional, personal, professional goals, linked

circumstances and people: family in the business; community/social relationship;

customers’ responses.

The weight of various interests: Would the client value settlement more than

public vindication?

Whether he or she has the necessary financial support in the interim while

litigation is pending?

How the business be impacted by a discovery and deposition schedule?

And you, may then draw/link client interests to possible decisions and

consequences.

The Dale Doran Exercise

Insider Information and a (Gleeful) Confession

Client Dale Doran and the lawyer have the same background information regarding the initial

client interview. In the meanwhile, the lawyer has investigated and analyzed the client’s options.

All lawyers have the same information and should have prepared to present the same options

and analysis to the clients. But, there are three different Dale Dorans. Their feelings, interests,

preferences, and capabilities vary, as dotheir versions of events at Design Display since they last

met with the lawyer. Their family circumstances and employment opportunities differ, as do

their predictions and confidence about their abilities to sell within the industry. Their differences

are summarized in a chart, which appears a few pages hence in this guide, as well as in

Instructor’s Notes for To Ditch or Not To Ditch Exercise, available on TheClientScience Course website.

Thus, while their cases are the same, the optimal decisions for Dale Doran 1, 2, and 3 are

different.

I hereby confess that the process I have designed for the Dale Doran exercise is complicated! I

find that I have to announce it to students before we start, put up the powerpoint with the

instructions and the timing and leave it up as they participate in the exercise. I also make sure to

call the timing and the steps clearly as we go along. It is designed this way to insure that all

students have some time in the lawyer’s and the client’s role for the exercise, and to provide some

time for separate focus on the option to create a “consequences chart” with the client. I firmly

believe that the charting portion of the exercise has value, even if I suspect that most lawyers

don’t use the device in practice. The more I work with it, and with clients in mediation, the more

I can see that a formal way of mapping consequences may rightly be called a best practice in

some circumstances, for some clients. It also links nicely to the Decision Analysis unit that will

begin at the end of the day and continue the next morning.

Note: if you are teaching a two or more section workshop, I suggest moving into section and running the

entire set up within section.


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Here’s how the Dale Doran Exercise works, described in annotations to the mini‐agenda, below:

3 minutes Attorneys and Clients Pair Up

This exercise is paired based upon the pre‐assigned attorney and client roles. I generally

ask all students assigned to lawyer roles to stand up, and then ask students to pick a

lawyer, with the caveat that they should not work with roommate, fiancés, best friends,

or a student they’ve been paired with previously in the course. Have student lawyers

and clients pair up and sit together.

Do explain that this exercise is complicated and it’s important that they pay attention to

your explanation of the process.

20‐25 minutes Counseling Session – First Phase

Assessing: Attorneys take stock of the client’s circumstances; explain legal options; Ask

and learn about the client’s interests, goals, priorities, and concerns, etc.

This is stated on the class agenda as 20 minutes, but I will extend the time if students

aren’t finished. The conversation should feel close to “real time.” Explain that the goal is

for the client to choose and authorize a planned course of action. The attorneys are

advised to take stock of the client’s circumstances. They should understand the client’s

interests and goals. And the attorneys should explain the legal options.

Emphasize that the lawyer and client pairs should NOT be reaching any decisions during

this time. If it is done in real time, it takes quite a while for the lawyers to explain all of

the options, learn about the client’s interests, answer questions, etc.

3‐5 minutes Students are allocated time for feedback as indicated.

Suggest that the clients address the questions: Was the lawyer clear? Does the client have

confidence in the lawyer? How was unwelcome news delivered?

In recent years, I have given clients the option to call “time out” during the initial 20

minutes or so, to give constructive feedback at a time the student lawyer could

incorporate it into the exercise. So, if a student client feels that the lawyers has been

unclear, or that the lawyer’s assumption regarding his preferences might be perceived as

offensive, s/he can stop action let him know. Then students should go immediately back

into role, continuing the exercise. I have found this to be productive with a good class

that seems to be taking the feedback task seriously.

10‐15 minutes Lawyer and client decide on criteria for evaluating options.

Narrow to 3 options and select 1 option. (If you took extra time in the first phase of the

counseling session, you can easily cut this back to 10 minutes.) Do allow 2 minutes or so

within this time for additional client feedback.

Acknowledge that this will feel a bit artificial but do ask the lawyers and clients to

explicitly decide on criteria for evaluating among the available options. In other words,

what’s most important in judging what would be the best decision? Name and discuss


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the criteria! Then they should narrow their options down to three, and choose one.

STUDENTS SHOULD WRITE DOWN WHICH WHERE THE THREE OPTIONS they

decided to consider (before picking one).

5 minutes Lawyers and clients switch roles within the exercise.

This step is tricky! The student clients and lawyers are asked to physically give each

other the printed copy of confidential role information they would have read in

preparation for the class. (The syllabus instructs them to print this out and bring it to

class. Still, the professor is wise to have to extras on hand.) By now they should each

know the other’s information pretty well. The lawyer should know the client’s

circumstances and the client should understand the options. Still, give them a few

minutes to read the sheets.

If you thrive on chaos, one way to handle the next stage is to switch the lawyer and client

pairs too! In other words, have the lawyers stand up again, and have clients select a

different lawyer, preferably someone located nearby. (Time issues generally determine

whether I switch the pairings at this point, as the extra chaos also takes extra time.)

Once the groups are set, or as they are forming, hand out copies of the Consequences

Chart. Each pair needs three copies of the sheet (or two double‐sided copies).

25‐30 minutes Lawyer and client discuss 3 options selected previously and

work through the consequences chart.

The client should decide on the option s/he will choose. This may but absolutely need

not be the same option as that chosen in the first round.

You will get many questions about the consequences chart, and some resistance. Explain

that it is surely not perfect, but it’s intended to help the client assess and visually

organize the impact of various options along several dimensions. Some students assume

that because it’s a chart, they have to use numbers and then do calculations (maybe

because the know decision trees are coming later). Explain that they are free to use the

chart in the way it feels most helpful. There is no single meaning to the words in the

boxes. “Financial circumstances” or “family and friends mean what they mean to the

client in this case. They are prompts for thought and discussion, for considering long

and short term impacts, concerns, predictions, and priorities.

The lawyer and the client should look to what were the three last options the CURRENT

CLIENT considered earlier (in the pair in which he was the lawyer – yes this is

confusing). Now, this lawyer and this client have to work through and discuss the boxes

in the consequences chart for each of the three options. (Each option gets a separate

chart). And based upon their discussion, the client should pick the option this client

thinks best.

20 minutes Debrief/Discussion

First, about those Dales


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The early debriefing aims for an “aha” moment when students recognize how easy it is

for an attorney to unintentionally steer a client toward his (the attorney’s) pre‐existing

preferences and priorities – even if these don’t match the client’s. First, I direct the

following question to students in the lawyer’s role in the first stage of the exercise: “How

many of you, preparing for the attorney’s role, reading your part last night, identified the

option you would choose if you were the client?” Some hands will raise, somewhat

tentatively. (They know you’re up to something). I will encourage them to acknowledge

this (if it’s true), by noting that would be normal behavior. More hands will raise, higher

and straighter. Then ask: “or how many of the lawyers with raised hands, did your client

also end up choosing the option you had initially, when you were preparing the night

before?” Typically, at least half of the hands remain up, often a majority. “Hmm….

That’s interesting, unless somehow so many of you were miraculously paired with the

Dale Doran whose preferences matched yours.”

It’s time to pull back the curtain on the three Dale Dorans. Turn to the Dale Doran 1’s,

ask how they felt about their boss, about the other employees, what their financial

circumstances were, how much they like travel, how they think they would fare if they

had to get all new customers, and what their career prospects are. The Dale Doran 2s

and 3s will hear that the Dale Doran 1 responses are different than theirs. Of course, next

get the Dale Doran 2s and 3s circumstances out. These are reflected in the chart on the

next page. The lawyer’s legal analysis is the same for all three Dales, but would it make

sense to follow the same plan of action for all three? Turning back to those lawyers

whose initial choice was also, coincidentally, chosen by the client: why does this happen?

When the lawyers were preparing to meet with their clients, were they aware of the

client’s feelings, predictions, financial circumstances, willingness to travel, ability to

tolerate risk, etc.? Don’t these determine the best decision for Dale?


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Three Dale Dorans – Interests, Predictions, Constraints, Risk Tolerance

Dale Doran 1 Dale Doran 2 Dale Doran 3 Current

circumstances at

work

Deteriorating, bad

decisions create long term

risk, day‐to‐day

unpleasant

Deteriorated, revenues flat

despite economic uptick,

commission reduced 25%, $

put into marketing, Boss

intends to pay back. Dale

bears more of his expenses.

Deteriorated dramatically Revenues

up modestly overall, but Dale now

bears more of his expenses. Three

customer accounts recently “stolen”

and given to boss’ daughter.

Views re boss,

recent actions

Sees boss as paranoid,

bitter, increasingly

abusive, threatening acts

to reduce income

Boss’ increased anxiety

makes him irritable &

insulting to all staff; has

targeted somewhat toward

Dale.

Boss more difficult, and directly

insulting and abusive to Dale. May be

due to daughter’s jealousy and Dale’s

ownership share.

Views toward co‐

workers

No love lost, all are

jealous

Other sales people are

friends, concerned about

them if the company goes

under.

Others have been cold and

unfriendly, may be viewing him as a

“traitor in our midst.”

Prediction,

confidence re

building new

customer base,

Confident of new

customers, $50K

commis.1st yr,; est. 3 yrs to

current $, est. min $100K

commissions, in 2d

Upscale year, higher if

keep some customers.

Uncertain re getting new

customers & reasonable

commissions, est. 3‐4+

years. Much travel

required, many potential

new customers far away.

Would not feel right going to Upscale

Design, abandoning old customers.

Doubts Upscale maintain job offer

without customer base.

Willingness to

travel

Not mentioned,

presumably ok.

Hates travel; it interferes

with coaching soccer/

homework; spouse travels

a lot.

Spouse’s job requires travel.

Family finances:

ability to pay legal

fees without client

income

Could pay attorneys’ fees Could only pay attorneys’

fees if NEITHER his nor

spouse’s income decline

significantly.

Spouse’s salary doubled. Can afford

attorney’s fees for litigation.

Non industry

options?

None mentioned, but

does feel some customer

loyalty

NO idea re other options,

other industries; concerned

about long days, travel.

Wouldn’t mind leaving industry, at

least for a while; enticing job offer

with college friend’s new business.

Other Believes judge/jury on his

side.

Boss won’t release, fears

competition. Leverage

required.

Worthwhile to fight non‐compete, to

go to Upscale with customers; values

showing boss and daughter they

can’t treat people this way.


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For this initial portion of debriefing, the punch‐line is clear: neither analysis of the legal case nor

an attorney’s inclination determines the client’s best option. The three Dale Dorans differ greatly

on the following dimensions: feelings about the boss and co‐workers, financial constraints and

time horizons (relating to family, other job offer or not, Upscale’s willingness to employ, wife’s

job, etc.) predictions about the future (how fast can I build up my business without the current

clients), confidence levels (about future business and clients), and ability to tolerate risk.

Without understanding these, a lawyer and client can’t collaboratively discuss what may be most

important. They cannot assess the impact of a decision on the client and his context – family,

professional, business relationships, now or in the foreseeable future.

Now for the consequences (chart)

It’s helpful to announce the deliberate shift to focusing on the consequences chart.

I often prefer to get the complaints on the table first and so often start with the question: “How

many people found it awkward to use the consequences chart? Why? Did it seem artificial?”

Some significant number of students will have found it awkward and artificial. They observe that

it was not tailored to the case, and the meaning of the categories was unclear. Just acknowledge

it; observe that in a real case with a real client you would tailor the categories to the client and the

case, then steer the discussion to the value of the exercise.

As segue to the impact (consequences) of using the consequences chart, I ask: “How many

students ended up with the same option – the same decision, when you used the consequences

chart as the first time, without it?” There won’t be many, but there are likely to be a few. Follow

up with those student groups: ask what about the exercise led them to a different conclusion.

They may raise the “consequences to others” piece or the fact that attorneys’ fees were written

down.

Of the majority who will have reached the same decision, ask what difference the chart made.

Did it affect the interaction? Did it affect how they felt about the decision? Some students will

say they felt better knowing they had been thorough and had thought about ramifications of their

decision. Students will report that it took more time to work through the chart for each option.

While comments and responses to the chart are quite variable year to year, you can generally

count on several student pairs’ acknowledging that using the chart meant that they discussed

important issues and concerns that were glossed over or not raised without the chart.

Sometimes, student will observe that the chart leads to a greater power balance between lawyer

and client: the conversation is more clearly and naturally collaborative. The lawyer recognizes

that s/he can’t evaluate an option through the chart’s categories for the client. And the client

recognizes that s/he needs the lawyer’s input regarding law, legal process, and negotiation and

the way they typically unfold. Their collaboration is real. That really is the point.

While I’ve never kept the statistics, informal polling results as to perceived value of the

consequences chart, have varied greatly from class to class. Sometimes, there’s strong consensus

that the chart has great value, other classes not so much. I emphasize the importance of

intangibles and raise the importance of the lawyer’s helping the client to imagine the realities

before they unfold. What will their Thanksgiving conversations be like during litigation? How

will their business function during the discovery phase – through documents and depositions?


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How well will they tolerate some financial uncertainty? Slowing down the conversation to think

through the reality of what will or might occur has value, either for decision making or just to

prepare for what will be. Psychology research confirms at “measurability bias”: people tend to

overweight the value of what can be measured (often $) and underweight or undervalue that

which is difficult to measure – even if the latter is terribly important.17

Some students will have used the chart to create a numerical scoring and/or ranking system.

They will observe that it helped them to compare “apples to oranges” by translating to numbers.

Note that this links to the decision analysis module (coming up soon in the course), which uses a

formal method to depict a visual and numerical map of the case. That too slows down the

conversation between lawyer and clients, forcing the lawyer to articulate the case’s twists, turns

and uncertainties in a way that makes them less abstract. It also highlights the time line and

uncertainties over time and for distinct issues. Within decision analysis, it’s also useful to find a

way to “count” and enter intangibles into a decision tree. The students’ efforts to weight and

rank less tangible consequences could theoretically be used in a decision analysis (at least in an

advanced version).

The punchlines are:

Intangible, non‐monetary interests are IMPORTANT;

That which cannot be measured and counted is too often ignored;

Charting less tangible consequences makes them appropriately important;

Charting the more tangible but distant consequences makes them more real.

It’s been a long workshop morning, or a long class session: time for lunch or a break until next

meeting.

Challenge # 3: Emotions and the Core Concerns Model


As is true for each “counseling challenge,” I begin by announcing the shift to the Challenge:

Working with Emotions. My introductory comments generally began with an admission: “I

hereby admit, when I started to practice law as an associate at a firm, the partners would advise

the clients (and the more junior lawyers), to ‘set emotions aside,’ ‘leave emotions at the door,’ or

‘separate emotions from decision‐making.’ That sounded fine to me. No one talked about

emotions refusing to leave, but they were surely remained present.

Many students may have read or heard about Getting to Yes,18 the negotiation book that

introduced the idea of “win‐win” negotiation. In that book, the authors Roger Fisher and Bill

Ury famously advised negotiators to “separate the people from the problem.” While much in

17 Brian J. Hall and P. Trent Staats, “Do the Numbers Get in Your Way?” Negotiation, Vol. 7, No. 11(Nov.

2004). 18 The first edition was: Roger Fisher and Bill Ury, Getting to Yes: Negotiating Agreement Without Giving In

(Houghton Mifflin, 1981). Published by Penguin Books in 1983, the second and third revised editions (most

recent in 2011) include Bruce Patton, editor.


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Getting to Yes has stood the test of time, that particular advice has been roundly criticized for

naïvte or impossibility. After all, too often the people ARE the problem and they are difficult. In

this course, it’s fair to say that people’s emotions may be the root of the problem.

Why spend class time on emotion? GREAT lawyers understand the sources of emotion and their

impact; great lawyers work effectively with emotional clients and their emotions (not to mention

lawyers’ emotions); great lawyers help a client make a decision that meets their interests,

including their emotional interests.

An alternative opener is to ask how many students consider themselves pretty rational, logical

decision makers? Most will raise their hands. Ask whether these students don’t, in fact, take

pride in their ability to use cool reason and judgment, to rationally analyze facts, law, and

circumstances. The response will be raised hands and/or widespread affirmative nodding. Then

you might ask if the students “know any one – a family member, friend, colleague or co‐worker

in any job, or client from any summer placement, who just didn’t or doesn’t make decisions that

way?” “Yes!” “Do you know anyone who just acts on emotion – admittedly and

unapologetically?” “Have you ever dealt with someone who says their being rational, but in fact,

you can see they’re being driving by emotion?” Ask what their responses are to this – to

decision‐making driven by emotion? Students will respond to the effect that reason and

rationality are important, shouldn’t be ignored. I’ll push this a bit, depending upon student

comments or examples given. Eventually, it will be clear that a sizeable portion of the class

believes in reason, and reacts negatively (disdainfully) to people who just act on emotion.

Assuming the discussion has evoked strong and numerous student comments to that effect, it’s

worth noting, in essence: “well then, perhaps we are passionate about REASON!!! Or, if you

think about it, we are emotional about reason. We feel strongly about its importance. So, maybe

we lawyers are emotional too.” Linger over this; pause. You’ll see some self‐recognition and

smiles at the twist. (There’s a delightful irony in word choice here, worth playing with, as you

juxtapose verbs, nouns, and adjectives associated with thinking vs. feeling. I’m not sure if

students catch this, but I sometimes linger on the words.

The assigned reading, Chapter 4 in the Client Science book, sets forth basic information about

physiology of emotion, describes the role of identity and meta‐emotion, and discusses the “core

concerns model” in Fisher and Shapiro’s Beyond Reason: Using Emotions as You Negotiate (Viking

2005) applied to client counseling. Thus, as usual, the question is whether to review this material

in lecture format at all, or to what degree. I continue to struggle with this balance, particularly

having taught it for seven years before the Client Science book existed. In those days, I would

review the core concerns model (excerpted in their reading), but spend more class presentation

time on the physiology (amygdala), and the idea of meta‐emotion and identity, as these were not

in the readings. Because these are discussed in Chapter 4, my preference is to ask if there are any

questions, or ask student to name the core concerns and how meta‐emotion and identity impact

these. Little if any lecture should be necessary.

An over‐riding goal of this class time is to convey the utter reality and deep importance of this

material for lawyers and clients. Students should come to understand that their ability to

navigate through and with client emotions matters tremendously for their clients and their future

legal practice. Otherwise, many students will relate to the material as “just touchy feely stuff” or

“obvious for anyone who has been dealing successfully with people my whole life.” Others may

view it as too abstract and academic to be worth bothering with.


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Thus, the pedagogical challenge is to persuade students that emotion’s impact is real, and that

learning the material contained in this unit is worthwhile. To that end, I often start by asking

students to think about a recent situation in which their emotions ran very high – and at least

partly negative. If possible, they should choose a conflict or time when a decision had to be

made or agreed upon. The situation does not have to be professional. It’s helpful to suggests

likely contexts as prompts: a conflict with your sister relating to her wedding, or your wedding, a

disagreement with your professor over a grade or an assignment, a conflict with the law school’s

registrar or placement office, unfriendly discussions with a landlord, a neighbor, a store manager.

For older students with kids: a bad circumstance with a pre‐school teacher, a school principal.

Or, perhaps at work, an unfair assignment or accusation by a boss, an incident with a co‐worker.

Let students take a minute or so to think of their “highly emotional incident” – perhaps jot down

a note. You can reassure them that they will NOT have to describe the situation to the class or to

a classmate. Then, ask the students to write down all of the emotions the situation generated in

them. Creating this highly emotional personal reference point is intended to yield greater

student engagement with discussion and exercises that follow.

On the topic of emotion, you might ask students a series of questions:

What is emotion, can you define it (and maybe what it isn’t)?

What is the upside of emotion in client counseling and decision making? Can you

imagine how emotions – negative or positive emotion – might be constructive in a client

meeting? Examples?

What is the downside to emotion in client counseling and decision‐making? Can you

imagine how emotions – negative or positive emotion – might be destructive – unhelpful

– in a client meeting? How?

Another way to prompt discussion is through separate questions on types of emotion and their

likely client impact. First, ask students to generate a list of positive emotions; record them on a

projected powerpoint. Then ask them to generate a list of negative emotions and project these.

(Or, you can project the preset list on powerpoint, after students have offered most of them.)

Then ask: “Imagine a client who strongly feels one or more of these positive or negative emotion

or emotion clusters, how could these impact the meeting and their decision‐making?” Let the

discussion ensue.

By way of summary, or to raise any points missed, you might quickly project the relevant

powerpoints.

In the spirit of asking students to recall and discuss the readings, you might ask if they learned

anything – or learned anything surprising about the physiology of emotion from the Client

Science chapter. See what the discussion yields on these topics. Ask if any student recalls which

organ is the most important for understanding the physiology of emotional responses. The

answer, of course, is the amydgala. You might ask if any student has a medical, nursing, or

biology background who can describe what the amygdala does and how it works. (See the

powerpoints for this segment, summarizing information about the amygdala: Amygdala are

almond shaped organs above the brainstem near the internal ear structure. Sever amygdala from the brain,

and we lose most or all recognition of feelings. Amygdala triggers hormones mobilizing heartbeat, muscles,

blood pressure, breathing, concentration.)


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It’s advisable focus for a while on the fact that the amygdala acts FAST, before rational thinking,

and then prevents us from processing subtlety or complexity. Observe that when a lawyer is

counseling a client, the legal issues and options discussed may be complex and involve

understanding subtle distinctions and concerns.

At this point, I often relate an anecdote in an intentionally comical way, about a “difficult

moment” with my spouse. I “confess” to having done something that I realized was NOT going

to make him happy [I honestly don’t remember what it was.] I knew that without really

understanding the reasons at the time, the mitigating circumstances, and that what I did wasnʹt

the worst choice… etc. he would be really mad. So, of course, I launched into a careful

explanation of the full story, the circumstances, what I really didn’t do, what exactly …..lots of

detail. And of course, as soon as my husband got wind of what had happened, he GOT MAD,

and he let me know it, voice raised, ANGRY! Then I responded with the classic: “You didn’t

listen to me!” And I went back to explaining (protesting) how it wasn’t really quite exactly that,

and this was why…. and so on. Unpleasant. Within a few days after that, I happened to be

doing research on the amygdala and realized that, of course, my husband’s amygdala had kicked

in… at that moment, he wasn’t capable of processing the subtleties, my rather complicated

explanations.

I’ve included this story because I have told it every time I’ve taught this course or an executive

workshops on the topic). It always generates a good laugh when told in an exaggerated,

dramatically comic way. While you’re welcome to use it, I assume most instructor‐readers will

be more comfortable recounting their own. In lieu of the story, you might ask students to think

back to “a time in which you were in a heated argument, you might have been angry, or not , but

your counterpart was really angry. He or she physically heard it but just didn’t get it right?

Maybe the amygdala was to blame.

I generally move to a warning to WATCH OUT FOR EMOTIONAL FLOODING!! As suggested

in the book, emotional flooding is when all systems shut down. It’s the extreme, and not at all

common. Some people may never experience it, others very seldom. If you believe your client is

experiencing emotional flooding, you simply need to give him or her time. It will do no good to

talk at all. Get them a class of water, suggest a break. You can reassure the client that it’s normal,

but really don’t say much. He or she won’t hear what you’re saying, in any event. The focus is

inward, without much awareness of externalities.

The point here is that our emotional states are complicated. Again, to reward the student‐

readers, you might ask: “How are emotions complicated?” The answer should be that emotions

usually come in bundles (anger and resentment, upset and fear, shame and guilt). Moreover, we

often have meta emotions. What is a meta emotion? An emotion about or in response to an

emotion. (Meta‐Emotion: I feel guilty (silly, etc.) about feeling angry and resentful.)

Time permitting, ask students to think back to the situation you asked them to recall and record

earlier (the conflict or difficult situation that generated strong negative emotions). Were they

single emotions, or clusters? Can they identify meta‐emotions operating?

The last point to make is that when a circumstance threatens identity, emotions tend to be

stronger. So, if your are angry and upset with your boss when he takes credit for your work, you

might ALSO be angry with yourself for having trusted him to deal fairly (given that you worked

all weekend on it). Your identity may include confidence in your ability to judge character. Or, if


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I am angry with my son for his terrible Latin grade, my meta‐emotion might be guilt over my

failure to help him study or my failure to have inculcated strong study habits. If my identity

includes being a parent, my feelings of anger and my guilt will be heightened.

Again, bring the students back to their own stories: can they find an identity issue that may have

fueled their or the other person’s emotions? You can encourage comment and discussion, but

note that will keep your promise not to ask for particulars about the personal circumstances.

A segue to Fisher and Shapiro’s Five Core Concerns model is to observe: emotions are

complicated, clustered, layered, ever‐present, often impossible to ignore or set aside, and they

impact client counseling greatly. They impact both the client’s ability to hear and process

information and his or her ability to make good decisions. So, what’s a lawyer to do?

Let’s acknowledge, we are NOT psychiatrists or psychologists. For most of us, there’s a reason

we didn’t go to medical school and never played with lab rats. We’re just working on being

lawyers. It’s simply not possible to know and keep track of your client’s emotional state;

emotions are fluid and complex. And you don’t want to know your client’s relationship to his

mother, father or any of that unless it relates to the legal problem.

That’s why, as stated in Client Science, Fisher and Shapiro’s Five Core Concerns model for

working with emotion is useful for lawyers working with clients. Their model was envisioned

and their book was written for negotiators across the proverbial negotiating table. However, just

prior to its publication, Dr. Daniel Shapiro worked with a law professor (me) to develop a

program applying their core concerns model in the lawyer‐client counseling context. As stated in

Client Science, our insight was that lawyers working with clients should be alert to the core

concerns at two levels: in the underlying circumstance giving rise to the client’s legal problem,

and in the lawyer‐client interaction “across the table.”

The good news is that there are just five core concerns to remember. They help us identify the

source of the client’s strong emotional response to underlying matter and then to create a positive

lawyer‐client interaction. This matters: the client’s positive emotion enhance energy, creativity,

and cognitive abilities needed for thinking through legal issues and tricky decisions.

Because the assigned reading describes and discusses each of the core concerns, I first ask

students to name them. Then put the list of five up on a powerpoint, and ask if there are

questions – what each one might look like. Perhaps ask if students can think of a circumstance –

say in a legal case – where one of the concerns would have been violated or “unmet.”

Questions often arise as to the distinction between the concerns referred to as “status” and “role.”

Noting that proper labels are less important in practice, “status” seems more generalized – social

or professional – while “role” relates to one’s function in a particular activity. (“I was sitting

there like a bump on a log… they didn’t want me to do anything.”) People like to be meaningful

participants or contributors in an interaction.

Next, I’ll ask students to think back this last time to their remembered situation, this time using a

“core concerns” lens. Can they see ways in which their appreciation, autonomy, affiliation, status

or role concerns were “unmet” or smashed? Take 30 seconds or a minute. Ask them to scribble

down which core concerns they think were salient. Take five minutes or so to discuss the results.


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Ask students if they found “core concerns” at play. Which ones? Does that give them insight to

why this particular incident was so troubling – or emotionally charged?

Then ask them whether any of the core concerns might have linked to identity. An example I’ve

used is: if I am playing the understudy, or the underling, and I’m comfortable in that role for

now, my boss’s failure to give me autonomy might not thrill me, but it won’t bother me too

much. For now, being the one who calls the shots is not part of my identity. But, as in the Family

Matters case, if being the dutiful favorite son or daughter IS part of my identity, and my

affiliation concern is blighted when my father locks me out of the business – you can bet my

emotions will be heightened many times over. Affiliation with my father IS a key part of my

identity.

You and your students will find that, with a little creative effort, one can often find all or most of

the core concerns in play in any given problem. And it’s also true that what I might label

“affiliation” you might label “appreciation.” There will always be interpretation, and

reasonable people will hear the expressed concerns differently.

Still, it’s worth some thought before you affix a label – some consideration of the label’s intended

characteristics. That is the label you choose – the core concern you perceive as most salient ‐ will

affect your strategy in the conversation.

At this point, articulate the deliberate shift from learning about emotion and the core concerns

model (with meta emotion and identity added), to learning what to do with this information when

counseling clients.

First, when the client’s core concern and identity are problematic is to consider reframing around

a different identity. Move from abstraction to an example: Suppose your ciient is a VP for a large

corporation. He is resisting a contract term demanded by the other party – a much smaller

business owner whose land offers valuable benefits for your client’s corporation. Perhaps your

client feels his status hasn’t been appropriately recognized, or perhaps he feels a challenge to

autonomy. And status and autonomy are large parts of your client’s identity. You might (subtly)

reference the concern and reframe, saying:

You’d think that the other side would recognize that they’re dealing with a large

company and with someone who has done much bigger deals than this. Somehow, it

seems like they’re trying to force you. On the other hand, this might be heard as an

expression of the importance of this transaction for them. Their insistence is clumsy.

As the bigger player here, you have a great deal of flexibility and the power to make it

happen. I wonder if it’s worth your time to sweat the small stuff.

Easier examples might be a client resisting a document discovery request or a far‐reaching

“reasonable accommodation request” by a disabled employ in the workplace. The client protests:

“They can’t tell me how to run my business!” I hear this as an autonomy concern with identity

undertones. The lawyer might say:

Yes, it must seem like they’re asking you to jump through hoops, when you have a

workplace to run. On the other hand, I know from our dealings, and from the way you

run your business, that ‘you are someone who plays by the rules’….. or ‘someone who

does everything in his power for loyal, longtime workers…


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Surrendering some autonomy is consistent with these identities. The lawyer’s reframing raises

the client’s additional identities and values.

Either by pronouncement or by question, now is the time to introduce the way the core concerns

can be used for “strategic active listening” in a client counseling session. This idea is articulated

in the Client Science book, Chapter 4. And, if you introduced either of the examples just above (or

a similar one), you’ve already demonstrated it.

You might articulate or elicit (and applaud) the prescription that lawyers should be alert to their

clients’ core concerns, and use them for “targeted active listening.”

By way of example: the corporate VP, the wealthy socialite, or the university professor may want

recognition of status, or autonomy. The twenty‐something may also have autonomy concerns.

The uneducated may have different status feelings: not a need for higher status, but discomfort at

status presumed to be lower. Attending to those concerns in the interaction is important. So, the

lawyer should reference the high level of his client’s position with appropriate respect. Our need

for “affiliation” reinforces the idea that it’s helpful to find connections or common interests.

When a client meeting begins to feel awkward or uncomfortable, the client seems vaguely

discontent, do run through a mental inventory of the core concerns. Address them to improve the

interaction.

The lawyer is also wise to listen for core concerns in the client’s underlying story of the legal

problem. To some extent, routine intake information can help. The client who has lost his job is

likely to feel lower status. From the beginning of your meeting, make sure you address the client

as “Mr.” or “Ms.” If helpful, ask about his or her successful work experiences or education.

As the client tells his story, hearing his anger at having been forced to go with the purchasing

company, you might reflect: “Given that you were the vice president of the division, it’s hard to

understand why they wouldn’t have included you in the meetings, and have given you some say

in this.” Even if the client recognizes his decision to proceed without a signed contract was not

wise, he may seek the lawyer’s appreciation – acknowledgement of pressured circumstances and

desire to accommodate the customer.

In the course segment on active listening – active, reflective listening ‐ we spoke of paraphrasing

to reflect back factual or emotional content. The suggestion here for “strategic active listening

targeted to the core concerns” is located squarely within the act of reflecting back emotional

content. Then, when listening to a strongly emotional portion of the client’s story, do listen with

an ear for the core concerns. Intentionally choose words for reflective paraphrasing that relate to

the client’s most salient concern.

Imagine your client has said:

I couldn’t believe they would let me go after twenty years of working side by side, from the time

we were all young. I went to their weddings and their kids christening, and they to mine.

Affiliation (lack thereof) sounds like the core concern. You might respond:

That’s hard. You thought you were lifelong friends, like family. It’s awful to feel that

they weren’t loyal to you with the new management.


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If, instead, the client had said:

I couldn’t believe they would let me go after I literally helped the found the company at my kitchen

table and gave them so many ideas on how to manage through many tough times before they got

their big break.

The core concern breached sounds like appreciation. You might say:

So, when they didn’t block the new management from letting you go, they seemed to

ignore your enormous contributions to their entire venture.

You are using the core concern to shape words you choose for the reflective statement.

Finally, finally, you’ve arrived at the time to work with vignettes, the document entitled “Ever‐

Present Ever‐Real Emotions,” available on the Client Science Course website. You can teach with

these in a number of ways, depending upon time constraints. Each time I teach the course, I

aspire to leave more time for the vignettes and less for up front discussion. Indeed, assuming

students have done the reading, one could start with the vignettes and use them to tease out the

core concerns.

Phase One – Read, Identify, and Discuss

If possible, I prefer to put students in groups of three, and ask them first to discuss vignette #1,

seeking to identify the core concerns likely to be most salient. This will take nearly 10 minutes, 5

to read and five to discuss. I have not assigned these as reading before class in the workshop

setting. (I’m more interested in their reading the Dale Doran information for the morning and the

decision analysis material for later in the afternoon. That’s enough. However, the vignettes

could be assigned for review in advance if teaching in a weekly format. (You would still no

doubt want to allow a minute to skim them over during class, to refresh recollections.) I then

facilitate a short class discussion about which core concerns seem to be triggered in the vignette,

and why. There is always variation. You can make the point that people will see things

differently, and that while all concerns can no doubt be found, some are likely to be more central.

Phase Two – Small Group, Targeted Active Listening

Ask the students to stay in their groups of three. One student should take on the client role—

imagine he or she is telling the story—with great emotional and dramatic flair. Another student

is primed to listen—but to listen actively, with active reflective dialogue—targeting the core

concerns. The third student is the observer. The observer can comment, suggest a different

approach. Let this go for approximately three to five minutes. Then, do a quick debrief

regarding what was difficult, how it worked, what the student‐client response was.

I do stage a demonstration of how this can be done well, so that all can see it. Small group work

is nice, but it doesn’t assure a common experience. So, I will ask student‐clients or observers (in

words or in substance) to nominate a master of the skill:

Who had a student‐lawyer who did this superbly? And, it worked?! The student lawyer

managed to key into the core concern; it informed the reflective dialogue. Most


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importantly, the student‐client reported it feeling right, that the lawyer REALLY

understood why he felt so strongly about the situation. Who did a great job?

Then, I’ll ask the nominated student master to demonstrate for the rest of the class. Usually,

students are comfortable if they’re being recognized for a job well done.

Another way to inspire a demonstration is to ask for a volunteer to show us what they did, but

note that the prof will coach and there will be a “life line”: other members of the class can suggest

different phrasing.

Finally, it’s helpful to allay concerns that targeting your phrasing to a core concern is going out

on a limb: What if I guess the core concern wrong? Will the client become more angry? Though

without real data, I believe not. More likely, the client will appreciate your effort to understand

and will provide a correction. I’ll ask students to recall the example of an employee terminated

in a reduction‐in‐force just a year or so after new management acquired the company she had

helped launch at her kitchen table two decades ago. Assume that you heard “appreciation” as

lacking, and you did some active, reflective listening to say: “It’s painful to think that they didn’t

recognize how much you contributed to their success.” In fact, while that matters, it’s not the

worst of it for her, emotionally. She might say, “Well yes, it would be nice if they could see they

couldn’t have started this business without me. But they’re the scientists, the inventors. They’ll

never get that. What kills me is that we grew up together through all of this, from babes in our

twenties to now middle‐age. We were friends, we were more family than my family . . . .” And

now of course, the lawyer would hear that lost affiliation looms larger. You can adjust: “Yes, I

understand. How could they let this happen to you . . . given your relationship over those years?

You wouldn’t have done it to them . . . .”

If possible, try to get through at least three vignettes so that each student has a chance to be client,

observer and lawyer. Sometimes, this means skipping full class discussion of what core concerns

each small student group found (phase one), or dispensing with full class demo for each vignette.

The more I teach this material, the more strongly I believe it is valuable to spend less time on

lecture and more with the vignettes. I have used a version of these vignettes with various CLE

and other professional audiences. The content and the exercise are invariably well‐received.

These audiences fully appreciate the value of “strategically targeted active listening” and the

importance of practice.

INTRODUCTION TO FORMAL DECISION ANALYSIS:

Focus on simple risk analysis and communication, all to meet Client Counseling Challenge #4, Wisdom in

the Face of Inevitable Uncertainty.

Place in course/time allocations:

First segment, 90 minutes, “The Very Basics” end of afternoon, workshop Day Two 3:00 – 4:30;

Second segment, 180 minutes, “Working out the ‘how‐tos’ through problem sets, practice applications and

communication, 9:00 am – 12:00 pm, morning of workshop Day Three.

You may choose to hand out the packet with the front page entitled “Anatomy of a Decision Tree” at the

beginning of this segment. If so, do ask the students NOT to look through it before instructed to do so. Or,

you can wait a few minutes to hand it out at the moment you will begin to use it.


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Challenge # 4: Wisdom in the Face of Inevitable Uncertainty

A formal method often referred to as “Decision Analysis” can be a helpful tool for a lawyer and a

client dealing with and communicating about uncertainty. Because I’m a bit of a sticker

regarding terminology, I generally begin by explaining that many people use the terms “Decision

Analysis,” “Decision Tree Analysis,” “Litigation Risk Analysis,” and “Risk Analysis”

interchangeably. There are some distinctions: Decision analysis is technically broader,

encompassing a variety of ways to deconstruct and analyze the benefits and costs of making a

decision. The word “tree” refers to the use of a visual tree structure (with branches and sub

branches running laterally across the page). Risk analysis, referred to as litigation risk analysis

when limited to the litigation context, focuses more narrowly on assessing the probabilities, costs

and consequences of possible twists and turns in the litigation path that will affect range of

possible litigation outcomes, such as jury awards, judicial decisions and awards, or appellate

court decisions and awards.

In the context of lawyer‐client counseling, Decision Tree Risk Analysis is ONE method for clearly,

rigorously, and “collaboratively” thinking through uncertainty—particularly risk—

consequences, and their impact. I do use and teach the method using a graphical tree structure

(and not just a spreadsheet or influence diagram)19 In my view, the visual of the tree is

important for client counseling. The value of using this method is twofold:

It forces more careful, thorough, deliberate thinking and discussion of what might

happen – the possibilities, the likelihood ‐ probabilities, and the consequences – outcomes

and costs. For example, WITHOUT using this method, when an attorney orally tells a

client he or she has a “pretty good case,” what in the world does that mean – to the

lawyer or to the client?

It facilitates clear and thorough communication and may reduce negative emotional

impact, on the client or, at least, on the lawyer‐client relationship. When the attorney

walks the client through a decision analysis in his case, it provides a constructive and

shared logic and a framework for client decision‐making.

I suggest clearing any tension in the room upfront by asking how many students HATED math;

how many loved it; and how many, in fact, have some sort of math‐intensive technical

background or talent. I reassure the math phobic that EVERYONE will be able to learn this—it’s

19 Note: Many people prefer to structure a problem as a decision tree first. Others find that building an

influence diagram helps them to think through the problem. In my Advanced Decision Analysis course I

often have students construct an influence diagram before creating a decision tree to help students think

through the way decisions are affected by different forces.

One of the benefits of TreeAge Pro is that the user retains the flexibility to decide whether a particular

problem is better modeled as a tree or an influence diagram. If you start with an influence diagram, TreeAge

Pro can automatically convert it into the equivalent, asymmetrical decision tree. Having both forms of

graphical output available can facilitate the often critically important task of communicating both your view

of the problem and its proposed solution.


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arithmetic, not calculus. Still, for them, “the mathy part” may seem like an intimidating foreign

language. I ask them not to be intimidated and reassure them that NO question is silly, and if

anyone is still unsure how to use this method in a simple case by the time this unit is done, I’ll be

happy to review it. I’ll also acknowledge to the more math‐inclined that part of the presentation

may seem too simple or obvious. Ask them to bear with, perhaps help the rest of us. But note

that we also will work on the skill and strategy involved in communicating with the client using

decision analysis.

To my great surprise, I found that the vast majority of students saw the value of this method and

its usefulness. (Lawyers’ groups are more likely to push back on it.) Law students experience it

as a welcome change from the “touchy feely” aspects of the course; they are comfortable with

using its logic and reason. In fact, student requests for more on this topic led to my developing

and teaching an “Advanced Decision Analysis” course, taught separately.

I often note up front that if you ask attorneys whether they use “decision analysis,” some will say

“sure, all the time.” But if you press them, you’ll find they understand it to mean just thinking in

rough terms about whether the case is risky and roughly what they think might happen, before

pulling a settlement recommendation out of their hats. But MOST of these lawyers do not use

Decision Analysis in a correctly structured, methodical, and thorough way. And, I would argue

that, used too roughly—not properly—can lead to significant distortion of results and

unfortunate decisions. That’s another reason I am committed to teaching this unit: I want my

students to do it RIGHT!

You’ll see that the powerpoints for introducing the method are light‐hearted and consistent with

what’s written here. I start with the comic strip about the lottery ticket, and ask if it’s true that

the odds of winning the lottery are indeed 50/50. The answer, of course, is no. But does it

matter? Not really, only a dollar is at stake. Plus, one could argue that the pleasure derived from

anticipating a possible win—those lovely daydreams of what we would do with millions of

dollar—have a utility value worth more than the dollar’s investment. The uncertainty is the fun.

Being a party to litigation is akin to having a lottery ticket. However, I have yet to hear of a client

who derived only pleasure from the process and the wait. Of course, the defense’s lottery is

generally negative; the question is whether his ticket will yield losses and how much.

I developed a somewhat longer version of the poem on the powerpoints for a presentation years

ago and people seem to enjoy it. In class, I use it as a segue to ease the worries of the mathphobic,

as indicated above.

The powerpoints for this segment are intended to be reasonably self‐explanatory, enabling an

instructor to more or less walk through, encouraging questions and comments, of course. After

introducing the very basics, I do use a class handout (included on the website). I prompt the

students to do the exercises/problems contained in the powerpoints on scratch paper, and then

follow the “answer” on each page of the handout.

4 Basic Steps to Structuring a Decision Tree

First, I emphasize that there are four basic steps to structuring a decision three. These involve

very simple, common, and intuitive logic. They are:

1. Define the decision: What’s the problem? What are the choices?


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2. Identify the possibilities: What might happen if I decide on one course of action or

another?

3. Judge the likelihood: What are the chances the possibilities will come to pass?

4. Figure the net gains or costs: What will the net effect be if it works out this way or that

way?

To illustrate the four basic steps, and how common they are to all sorts of decisions we make, I

show the four steps in parallel for three types of decision contexts:

1. Define the Decision

First, in a home mortgage decision, should the buyer attain a variable or fixed rate

mortgage?

Second, in a vacation decision, should the vacationer go to Cape Cod or the

Berkshires?

Finally, in a legal case, should the client continue to litigate or settle for the money

currently on the table?

2. Identify the Possibilities

Home mortgage decision: If we choose a variable mortgage rate, our payments

could go up, down, or remain the same. Additionally, we need to consider the

amount they could go up or down.

Vacation Decision: It might rain. It might be cool. It might be sunny and warm.

Client decision: I might win or lose on summary judgment. There might be a

finding of significant negligence, contributory negligence, or no negligence.

Additionally, the defendant could pay the judgment awarded or could file for

Chapter 11 Bankruptcy.

3. Judge the Likelihood

Home mortgage decision: With the economy the way it has been, I think it is

unlikely the rates will go down by more than a point or two, but they could go up by

a great deal.

Vacation decision: I have never picked a week of good weather. I am convinced it is

likely to be cool and/or rainy some or much of the time.

Client decision: Summary judgment is unlikely due to a factual issue. Liability is

very likely, but significant contributory negligence is not. There’s an even chance of

bankrupting them by then.

4. Figure Net Gains and Costs

Home mortgage decision: If the rate goes up by 2 points, the net additional cost over

30 years will be $30,000 (can discount to present value).

Vacation decision: Dollar costs of the two vacations are the same. But if it rains on

Cape Cod, there is nothing to do but eat and go to outlet stores. I will be miserable.

If it rains and I am in the Berkshires, I can go to concerts, plays, and museums. I will

be happy.


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Client Decision: If I win on summary judgment, I will collect $250,000 in damages

but I will pay $20,000 in attorneys’ fees between now and then. If I lose on summary

judgment but prevail on liability, I will pay $40,000 in attorneys’ fees through trial

but will collect $250,000. If there is contributory negligence I will receive only

$200,000 with 20% contributory negligence. However, if the defendant is bankrupt it

will be a long time before I see a dime.

Handout the packet with the front page titled “Anatomy of a Decision Tree” if you have not already done

so.

Anatomy of a Decision Tree

Walk the students though the pictures of components of a decision tree and their conventional

labels. (The powerpoints are helpful here.) Make sure the students understand that each “chance

node” or branch cluster must have a sum of 100% or the Expected Value will be skewed and

misleading. In real terms, if a cluster did not equal 100%, it would mean that we failed to

consider a possible outcome, or we gave too much weight to a possible outcome.

Rollback is the operation that involves multiplying each outcome by the likelihood that it will

happen, and then adding those numbers together, and multiplying the sum by its likelihood.

It’s easier to see graphically, but if I have a case with a 50% chance of liability, and IF there is

liability a 25% chance of a verdict of $100,000, a 50% chance of a verdict of $200,000, and a 25%

chance of a verdict of $500,000 (never mind fees for the moment), to roll it back I would:

Multiply .25 by $100,000 = $25,000

Multiply .50 by $200,000 = $100,000

Multiply .25 by $500,000 = $125,000

Total is: $250,000

Now, I have to multiply $250,000 by .5 (likelihood of a verdict at all) = $125,000

$125,000 = the Estimated Monetary Value (EMV). Rollback is the operation that gave us the

EMV.

It is important that the class understand the meaning of the EMV. The EMV is the WEIGHTED

average of the results if the case were tried one hundred times. It is NOT what the plaintiff will

receive in any single trial.

Before asking students to work through the Fair Decision Game Problems, I sometimes ask if

students had any trouble with word problems in elementary school math. Lots of nodding will

be observed. Assume that you actually understood the math operations that were involved.

Sometimes, you would read the word problem, and there would be a moment—or a few very

long moments—of hesitation and “oh gosh, how am I going to do that?!” before your brain could

“see” how the words would become numbers and symbols. You’ll get more nods from the class.

I will acknowledge that, sometimes, faced with the challenge of constructing a decision tree for a

case I could easily describe in words it would coincidentally feel like a great time to clean my


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office. This one generally gets a laugh. I’ll qualify it by saying this was true before becoming

more adept and feeling confident of the method, but it doesn’t happen much now.

The point is that there is a natural felt barrier or hesitation when we have to translate from verbal

to symbol—math and graphics. That is normal and it only dissipates with practice. We have to

get into the habit of moving from words to drawing trees. That’s why I’ll ask the student to do

the “Fair Decision Game” in several steps—moving from very easy to somewhat more

complicated—and practicing the shift from words, to scratch pad, to structuring trees.

The Fair Decision Game is set up on the powerpoints.

For each Fair Decision Game problem, give the students a chance to think about the hypothetical,

and then make sure they think about it terms of the four steps above (Define the decision,

Identify the possibilities, Judge the likelihood, Figure the net gains or costs). The students should

not struggle at defining the decision and possibilities, and they should understand the

probabilities and pay‐offs.

I suggest instructing them first to do a “scratch pad” version of the calculation, I generally put up

the “scratch pad” powerpoint first, and then ask them to draw it using the tree structure. After

everyone is done, I put up the “answer” on powerpoint and encourage the students to turn to it

in their handout.

The process is repeated for Games 2 and 3.

Note that in Game 3, the tree could be constructed with four different outcome branches—each

assigned a probability value of 25%. Or, it could be constructed with one branch (combining red,

blue and green branches) assigned a probability value of 75% and another branch assigned a

value of 25%. First, emphasize that neither is wrong; both are right and will yield identical

EMVs. However, in practice, it’s probably wise to “shmush” (collapse) the red, blue and green

branches for the combined 75% value. Why? The tree is more cluttered and there’s no different

outcome at the end of each branch.

When is it okay (indeed better practice) to collapse branches for a combined probability? The

answer is when everything (costs, payouts and probabilities) AFTER that point would have been

the same along each branch.

Additionally in Game 3, it’s important to highlight that the dollar amounts are increased.

Students must also think about “can I afford to play?”. Hence, ask the powerpoint questions:

“Would you play if you were given one try?”; “Would you play if you were given 100 tries?”;

and “Would you choose to sell your ticket if the gamesman offered you $10,000 not to play?”.

Do spend some time discussing these and the implications. You can ask for a show of hands as to

who would settle for $x under these circumstances, what about $y? Everyone’s tolerance for risk

is different.

An interesting twist on relative resources and power can be raised here. You might pose the

question: “What if losing $100,000 would cause you to go bankrupt; you would be unable to pay

the debt?” Somewhat perversely, would there be more of an incentive to play, knowing that they

didn’t have $100,000 to lose? While having financial resources generally is an advantage, that’s

not always true. Sometimes, being close to bankruptcy (having no resources) can be a source of

power.


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Litigate or Settle Game

Next, I have the students apply the basics in the litigate or settle powerpoint. I ask them to draw

the structure of the decision tree first for the plaintiff’s side. They should just put in words

instead of probability numbers, and should put the numerical estimates in the proper places. I

put up the “answer tree” which is also in their handout packages, ask if there are any questions,

and then ask them to do the same thing for the defense tree.

This is the first time we’ve built a tree explicitly within a litigation context. The students should

see that the STRUCTURE of the tree is the same for both sides (as is often true). But, the plaintiff

and the defense may each see the probabilities and the outcomes differently. And students

should see that attorney’s fees would be deducted from the defense side, win or lose.

I encourage the students to see that the tree easily could be constructed based upon the responses

to a series of simple questions:

What will happen next?

What will happen after that?

Is that the only possibility?

If you go to trial and liability is found, what are the likely damages?

What will happen with a stingy jury, a reasonable jury, and a generous jury?

Could they roll back these trees to get an EMV? No! Why not? There are no percentages; we

can’t do the arithmetic calculations with “very likely,” “long shot,” or “entirely possible.”

I know there will be skepticism about assigning numerical probabilities. “Garbage in, garbage

out” is the usual objection. “It’s not possible to put a number on it!” “We can’t really know the

number.”

To address these doubters, put up the powerpoint marked: Qualitative Resistors Surrender: What’s the

settlement value?

Qualitative Resistors Surrender: What’s the settlement value?

Refer to the powerpoint titled: “Qualitative Resistors Surrender.” Explain that you’re going to

read each of the case assessments, out loud. Everyone will hear your vocal inflection, etc. For

each case assessment, immediately after you read it, each student should quickly write down

what he thinks a fair settlement value would be—a settlement value he would recommend.

Work your way through the three case assessments. When you’re done, ask for a show of hands

as to how many wrote down their highest number for the first, a middle number for the second,

and a lower number for the third. Virtually, all of the hands in the room will go up. What does

this mean? It means that ALL of us ARE ALREADY using numerical probabilities as discount

factors to arrive at a settlement value. We just don’t necessarily acknowledge it.

Prose vs. Percentages

I ALWAYS end this day (or evening) with this segment because it is important, makes a powerful

impression, and it’s great, great fun. (I do mean always. If my time management skills were


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subpar, and it appears that not all of the introductory materials on decision analysis can be

squeezed in, I’ll skip something else and come back to it the next day, rather than end without

doing this segment.)

First, ask the students to take out a piece of paper on which to write a series of 8 probabilities (so,

not a tiny piece of paper). Explain that you will read, out loud, the statements on the

powerpoints with particular inflection (and you’ll repeat each one twice with an effort at the

same inflection). The students should record the probability percentage they would mean if they

had said the statement exactly the way you did. In other words, what percentage would they be

thinking if they had said it to a client that way? Do this for each statement on the two

powerpoints.

When it’s done, announce that you’re going back to the first one, and ask for a volunteer to shout

out a probability he or she recorded. Then ask for shout outs for any higher percentages. Any

lower? This very quickly starts to sound like an auction with “Who has lower than 60? I heard

45. Anyone lower than 45?” For each of the 8, record the range of percentages in the class. It is

very, very rare to have a range that is smaller than 15 percentage points (maybe a 10% range

three or four times in the last 17 years). Even 15% is low. The VAST majority of the ranges are

20% and often 30% or 40%. For some of the prompts, it’s not unusual for student probabilities to

straddle the 50% mark; some thinking that the prose statement (and my inflection) meant the

client would have a 30% chance of winning, and others thinking that same statement meant the

client had a 60% chance of winning.

All you have to do is ask: Why does this exercise matter? Students immediately understand that

a lawyer may use prose and mean 50% ‐ 60%, and his client may interpret that prose as 80% or

90%. (Indeed, I have seen that moment as a mediator, when I asked the lawyer what probability

he would assign to his client’s construction case claim. The lawyer said: ‘I think we have a really

strong case—maybe 60%.” The client was not happy: “When you said that, I thought you meant

something like 90%.” I never would have invested all of this time and money for a 60% case.”)

And of course, another benefit is that you CAN do the mathematical calculations with numerical

probabilities in place.

It is important to acknowledge the danger of false precision. Students often raise this point (and

if they don’t, then I raise it the next day). Yes, that can be a problem. And NO one can or should

be sure that a case is 55% vs. 60% likely to win or lose. You will never be able to test the

proposition, because you are not going to try the case 100 times. However, we do have a gut

sense that a case is in the 75‐80% range, and not the 50‐55% range. The probability you name

might be thought of as the center of the “gut” range. And, as we’ll see, the method lets you test

the impact of differing probabilities, as a way of acknowledging the imprecision of any single

probability assessment.

End of the Segment/Day

The Client Science Course website student course materials include decision tree problem sets

titled “Simple Hypos” and “Balanced Trees on Balance Beams.” Students are required to make a

good faith effort to draw these trees, assign values as stated in the materials, and perform a roll

back to reach an EMV for each one. I encourage them to “wrestle with” their decision trees by


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themselves and bring the results to class as proof of their good faith efforts. These will not be

graded. I do explain that for a substantial period of time in the next day’s class they will work in

groups to check, correct, redo and talk through their answers.

I emphasize that the goal is for them to become comfortable with the method, as it will enable

them to build a real map of any case. On a real map, the United States is not the east coast, west

coast, and a blur of some land in between. We want to know what those Midwestern, Southern,

Plains, and Rocky Mountain states contain. Similarly, decision tree analysis encourages

methodical, rigorous thinking when done well. It prompts important questions about what

might happen, and provides a logical way to consider (and calculate) the implications for client

settlement decisions.

Note: If you will want to use a student for a decision‐tree client dialogue demo in the next class segment

(see page 99), it’s best to identify a possible volunteer by the end of class. Ideally, it would be a student who

seems entirely comfortable with the method (perhaps has some background), or who is a ham and indicates

some practice experience (particularly on the defense side). If you ask a student to play a part, and he or

she agrees, you would give him or her the sexual harassment case description and completed decision tree.

And you would agree upon which of you is going to take the defense client role and which the expert‐in‐

decision‐trees lawyer role in the next class session.

Next Decision Tree Analysis Segment

(Morning of Workshop Day 3, or next course meeting)

This segment begins as a 30 minute “charette” in which students work on their decision trees

from the “Simple Hypos” and “Balanced Trees on Balance Beams” together. Before the 30 minute

segment, suggest that students form into groups of three. I may request a show of hands as to

who found the homework exercises to be easy (maybe due to some background in the method).

Then, ask those students to scatter themselves around the room to work within students who

were less confident in their Simple Hypo and Balance Beam trees and calculations. Instruct the

students to compare trees and computations within the group to see if they match, and discuss

where they differ. Try to discuss and reason through the differences, and come up with the right

answers together. Explain that you will roam around, but any group with a question should

raise their hands to summon you for help, or come and tap you on the shoulder. The room will be

a buzz of activity and discussion. This half hour is energizing and interesting. Your active

engagement with the student groups gives you a clear idea of what they are struggling with, and

gives you the chance to explain it in close range.

At the end of the half hour, I go back to the front of the room, and one by one, project the “answers” to the

Simple Hypos and the Balanced Trees on Balanced Beams trees. It’s important to spend time with each

one. I might first ask, did your trees end up looking like this one? Can someone walk us through how the

EMV calculation was done? How did you arrive at the “payouts” at the end?

The Simple Hypos are deliberately formulated to teach certain key points, and the students

should be clear on these by the time the unit is done:


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1) All fees and costs to be expended or received from that moment forward should be

added to or subtracted from any anticipated award to arrive at the payout figure used for

calculation. So, in the simple hypo, if the plaintiff will have to pay the expert’s fee and

the attorney’s fee (1/3) from the award, they should both be subtracted. In the Simple

Hypo, client’s perspective, I have stated that the lawyer will not seek to collect the

expert’s fee (which was advanced) if there is a defense verdict. So, it would only be

deducted in the event of a plaintiff’s verdict.

2) Assume a client who says, “I’ll settle if I can get, in my pocket, whatever amount is the

EMV of litigating, as shown in the decision tree analysis.” Note that for the plaintiff, if

the EMV were $10,000, the Settlement Amount would have to be $15,000, because 1/3 of

the settlement ‐ $5,000 would be paid to the attorney and 2/3 to the plaintiff. Each Simple

Hypo has a question about how much the settlement would be to equal the EMV.

3) The Simple Hypo, Attorney’s Perspective, highlights the conflict between attorney and

client set up by a contingency fee arrangement (particularly when it is not a million

dollar case – but even in a quite substantial case). The value of the attorney’s time to be

expended are put forward as an estimate of his opportunity costs; they are not what his

full billable rates would be. Still, it has to be acknowledged that the attorney’s time has a

value. The attorney’s “payout” is 1/3 of the award MINUS the value of time expended

(beginning at the time the tree is constructed).

Because the value of the attorney’s time is deducted from the payout, the attorney’s EMV

from the litigation is MUCH, MUCH lower than his clients. And, the settlement amount

needed to yield that much for the attorney is MUCH lower too.

Sometimes here, and sometimes at the end of the entire Simple Hype/Balance Tree

exposition, I tell a story of a mediation in which it seemed to me (as mediator) that the

plaintiff’s lawyer turned on his client, exerting great pressure to settle at a low number. I

couldn’t quite understand it. As the neutral, it seemed to me that the plaintiff had a

pretty strong case. At first the defense had offered nothing or almost nothing, and

plaintiff’s counsel was adamant about the strengths of his client’s case. Somewhat later

in the day, when the defense offer had come up, but still seemed inadequate to me, the

plaintiff’s attorney (in caucus with his client) started emphasizing all of the defense

arguments, and ignoring their own. It was uncomfortable, as he was exerting what I

thought was inappropriate pressure for the client to settle awfully low.

At that time, I was working part time at Harvard Business School, on a team assembling

materials for their negotiation curriculum. I was working on an ADR unit, and was in

the process of doing a teaching note on litigation risk analysis, using a plaintiff’s personal

injury case. It broke out the value of the plaintiff’s attorney’s time and I had been asked

to do a separate analysis from the plaintiff’s and the plaintiff’s attorney’s perspectives (as

in these Simple Hypos). I kept getting such gaps between the two – and differences in

the settlement values needed to equal their EMV. At first, I thought I had made a

mistake. But I hadn’t. The analysis and the math were correct. And those uncomfortable

moments in the mediation was the on‐the‐ground proof. In a contingency fee case,

depending upon the timing (how much legal work still needs to be done) and the

payouts, the attorney may be motivated to settle at a much lower figure than his client.


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This is just a fact. I do NOT oppose contingency fees. In fact, without a contingency fee,

most of us would be unable to afford legal representation. And most attorneys who

work on contingency maintain the highest ethical standards. They would NOT exert

undue pressure on their clients.

The punch line and prescription is for students to be aware of this force, and NOT to bow

to it. And, I strongly suggest NEVER AGAIN doing a separate tree for the client and the

attorney. After all, the question is NOT what’s the best decision for the lawyer. The

ONLY question is what’s the best decision for the client.

4) For the attorney, his past expenditure to advance the expert’s fees can be counted

positively in the payout in the event of a plaintiff’s verdict, because the attorney will get

it back from the award (in addition to his contingency fee). But it cannot be counted as a

loss if it has already been expended. (See discussion of sunk costs below.)

5) Sunk costs – past expenditures should NOT be included in the end payouts (even as

negative numbers or losses). The decision tree looks FORWARD in time, and asks what

would be a good decision now, based on what will/might happen and its potential costs

and benefits. Often, this is particularly important when working with the defense side (or

any client who has already paid attorney’s and expert’s fees).

Psychologically/emotionally, they want to “count” these – and they don’t want to

consider settling for any amount that doesn’t seem to justify these expenditures. Many

students who have worked part time or in the summer will understand this and bring it

to the discussion. I will explain that this psychological/emotional component is strong,

real, and normal. But it doesn’t change the logic (and good sense) that sunk costs should

have no part in current decisions. In fact, explaining to a business client that this method

“won’t allow” past expenditures can be helpful. You are just following the rules of the

method. And you can always write down the past expenditures somewhere on the page

– just don’t enter them onto the tree.

6) The Balanced Tree on Balanced Beams problem is a bit more complex, and a good one to

work through the calculations – how you do the rollback math. It also illustrates that,

once there’s any complexity at all (and most of life and law has some), structuring the

decision tree involves judgment. How much should you “reduce” or make things

simpler? Why? My sample answer tree boils down the liability question to whether (and

the probability that) the defendant will avoid liability entirely. Because the other

defendant is bankrupt, if this defendant is in for 1%, he’s on the hook for all of it. This

tree illustrates that there are judgments to be made in constructing part of the tree

relating to jury findings and the damages questions. My general advice is to create

branches where a different factual finding will lead to very different damages

calculations. So, if the plaintiff is found “just” to have carpal tunnel syndrome and not a

back injury, some of the damages components would be very different (surgery vs. no

surgery), and some the same. If the student were working with a partner in a law firm

on constructing this tree, there could be robust discussion regarding all of these

questions. My tree is just one cut at the problem. If it were a real case, the attorneys’

analysis would direct the structure of the tree and the damages numbers. And that

would of course be discussed with the client.


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Review of the answers to the problem sets, including exegesis as to attorneys’ fees and the role of

judgment and reality in constructing a tree can take quite a bit of time: 30 minutes to an hour.

The absolutely prime goal here is to make sure that EVERYONE in the class understands the

method and could do it themselves in a reasonably straightforward case. I state that clearly and

strongly encourage any and all questions, with a reminder that they will eventually have to turn

in a decision tree on the Final Counseling Skills Exercise case. I advise sticking with this segment

until at least that goal has been accomplished.

Time permitting, after review of the Simple Hypo and Balance Beam Trees, I go back to the

question of what EMV means –mathematically and to clients cases such as these. I will devote

considerable class time to discussing this, both the technical meaning and whether it “should”

mean anything to a client. The technical answer is that the EMV is the average of all possible

results, weighted by their probabilities. Why should that matter so someone whose case will be

tried only once? The point is that there is no “should” here. EMV is not a moral imperative. The

EMV is a data point, arrived at through a certain methodical logic and operation. For some

clients, its method and its logic are compelling; they feel that they are “being logical” by settling

at or near the EMV. Or, because of its logic, they are comfortable allowing it to influence their

settlement decisions. Other clients will not respond to it. (Note: because I think this discussion is

important, if going through the answer sets was length and the group is getting tired, I’ll end the

segment with the pep talk outlined below, and go back to the question of meaning just after the

break.)

A pep talk on value for their legal practice seems appropriate here. I take one (or both) of two

tacks:

1) Even if you NEVER use a decision tree with a client (and we will soon practice doing

just that), formulating a decision tree for a case – just drawing the structure, in your

office – is a way to insure your analysis is suitably thorough and rigorous.

If you are an associate, researching a small question within a large case – drawing

out the whole case tree will enable to see where your research question fits. That will

enable you to ask good questions and to see what research path makes the most

sense.

If nothing else, forcing yourself to draw the tree, forces you to consider all of the

possibilities at each turn – to raise questions you might not have considered. Better

now than later. That is just plain good legal practice. Of course, it is also important

to update the tree as the case develops.

To illustrate, I describe a not‐so‐hypothetical mediation. Imagine that the mediator

turns to defense counsel and asks where this case is going next. Defense counsel

answers with the procedural posture: they intend to file summary judgment motion.

The mediator responds: “I understand you are filing a summary judgment motion. Is

this an all or nothing motion?” to which defense counsel responds: “Hmm… I had

not really thought about that”. Plaintiff’s counsel chimes in that there is a possibility

of partial summary judgment that would leave some of the higher damages claims,

even if not certain. The mediator turns to both lawyers and asks: “Okay, so if the

Court grants partial summary judgment on issue A, B, and C, where does that leave

your case with X, Y, and Z”. When she says this, another blank looks comes across

the attorneys faces; they hadn’t considered that. Or, perhaps defense counsel chimes


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in with “Actually, if that happened the Plaintiff would only be able to get damages

on X, Y, and Z”. Or, one lawyer says, “and at that point I would file a motion in

limine to exclude certain evidence, which frankly I am confident we would win

that”. Once again, the mediator turns to the other lawyer and asks “Have you

considered what would happen if they filed that motion in limine”? Ah that deer‐in‐

the‐headlights look at the mediation table.

As a mediator, I expect and respect that attorneys will disagree about the likely

outcomes. But, I don’t have high regard for attorneys who appear not to have

thought about these questions. (And I know it means they haven’t discussed the

uncertainties with their clients.)

2) Your adeptness at mapping the case through a decision tree will impress your

supervising attorney! While not really new, I acknowledge that this method is NOT

often used in a complete and rigorous way even by experienced attorneys. The tree

may yield important insights: missing information that would be significant (or not)

for settlement value or trial outcome; motions that would affect value or not; or ways

to prioritize spending the client’s limited litigation dollars. If so, and you show this

to the partner, that’s a feather in your cap as you serve the client well. Even if you

never show it to the more senior partner, mapping will help you ask or suggest the

right questions of the client and for trial or motion preparation.

It’s definitely time for a break.

After the Break

A note on timing: if you’re lucky, you’ve accomplished all of this in 60 – 75 minutes: 30 minutes

in “charettes”; 30 minutes to review and discuss the answers; 15 minutes on more extended

discussion of meaning. Sometimes (but not usually) the review is quicker). IF you add a 15

minute break, you’re at 75‐90 minutes. This leaves you only 90 – 105 minutes (realistically 90)

until the end of the segment.

Note that if you will do the “demo” described as the second option below, you may wish to hand

it out during the break.

With luck, you may accomplish three more things in this next segment: discuss examples of how

this method was useful in real cases; demonstrate how a lawyer might work with a client to

introduce the idea of decision tree analysis and walk him or her through a tree; have the students

practice. However, as they say, “two out of three isn’t bad.”

1) Walk through real life examples

Regarding examples: for this, I leave you to your own experience or gathered war stories, or the

powerpoints, which outline how the method can be useful for dialog with you client and with

opposing counsel. One important point to make is that many clients don’t care much about EMV.

After all, they will only have one trial. They are intensely interested in the payout numbers on

the right side, and what is the cumulative probability of each outcome. Learning that, 50% of the

time, the outcome would be more or less than $X; only 20% chance that it would be as much as $y

is highly relevant to their decision‐making. It’s also true that in some highly emotional cases, if a


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client can see that his very high number (the value of the loss) is “on there”, but discounted for

multiple risks, he somehow feels better. He can see that value was counted.

2) Demonstrate how one might use the tree in discussion with a client

I generally use a sexual harassment/gender discrimination case for this. A summary of the

case as well as a complete decision tree can be found in the instructor’s area of the website

and labeled sexual harassment case. I have done this with a professional colleague in town

who typically represents defense clients (and who uses and respects decision analysis), and I

have also done it with a student from the class (with warning). Depending on who you’re

working with, you can have them act as the decision tree expert lawyer and you as the

defense client or vice versa.

I have found it best to distribute a hard copy of the completed tree to all students so that they

can follow along with the demo. That is much less cumbersome than trying to project it as

you speak. And, even well‐projected, the tree is detailed and thus hard to read from a

distance. While you certainly may distribute the case write‐up, I don’t believe it’s necessary.

It’s not dissimilar to the facts in the case assessment exercise, but from a definite defense

perspective. And it seems more interesting to have the facts emerge as the lawyer and client

“on stage” discuss settlement, the tree, and the twists and turns the litigation may take. The

defense client should be played as initially resistant, sure this case can just “go away” on

summary judgment like so many others, and that it couldn’t possibly be worth more than

nuisance value, and so on.

If I’ve done the demo with an attorney from the local community who does have experience

using decision trees in practice, I will ask him or her to talk about it. Every attorney has a

different story; the students appreciate and benefit from hearing an outside voice.

3) Student practice with clients

With some luck, you still have an hour or at least 30‐40 minute left before the lunch break or

end of the class session. I suggest having students go back to the Balanced Trees on Balance

Beams tree, also known as the Lancer Defense Tree. They should take on lawyer and client

roles, with lawyers explaining the method to their clients. If you’re pressed for time, you

could have the first round focus more on explaining the method and approach, let the client

ask questions, respond etc. Then debrief: What phrasings worked well and which were

unclear or problematic. Then have them switch roles and continue discussing the branches

of the tree, what they mean, etc., followed by a classic debrief. Students generally see quite

clearly how the approach could be useful in practice.

Closing Points

Building and working with trees requires judgment and skill, and some focus on both legal

realities communication values. You DO want your client to be fully informed. A tree that is too


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simple may distort reality and validate sloppy thinking. Conversely, a tree that reflects every

single twist and turn may be hopelessly complicated and impossible for the client to understand.

Further, it is doubtful that a jury will carefully break down and follow every twist and turn in a

trial as well.

Our psychological biases when assigning probabilities or estimated payoffs may

(unintentionally) skew the numbers and thus the EMV and the outcomes. Or, your client’s

incomplete narrative may cause you to assign higher probabilities of success or a damages

amount than a full account of the facts would justify. This point often comes up earlier, as

students ask how one decides on the numbers to use, or argue against the method because of the

problem of assigning numbers, but it’s worth repeating here. The tree’s analysis is only as good

as the judgment of its builder. And it is only as valuable to the client as he believes it to be.

I re‐emphasize my willingness to work with any student who is struggling with this method,

even in constructing the tree for the Final Counseling exercise. I offer to schedule a review or

Q&A session if enough students send me an email, and anyone is welcome to stop by with

questions.

Time for lunch or break until the next class session.


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Challenge # 5: Working with Psychology


After announcing the next challenge: “Working with Psychology,” I emphasize that lawyers and

clients almost inevitably fall prey to psychological traps and tendencies. One goal is to prevent

our own cognitive psychological hardwiring from diminishing our legal analysis and judgment.

The other goal is to work with our clients’ psychological tendencies that might lead to regrettable

decisions. Once again, the teaching question centers on allocating time for presentation vs.

discussion and reliance on students’ absorption of the assigned reading. The Client Science Course

website includes a full set of powerpoints, usable for a complete and lengthy presentation.

There’s no reason to go through most of them, if students are prepared. (All of this section’s

reference to concepts in psychology and supporting research are also in the Client Science book,

Chapter 5, “Predictable and Potent Psychology.” I have elected to omit citations for each.)

I start by asking what students remember from the reading (or undergraduate Psych 101) about

psychology and decision‐making that would impact client counseling. After discussion, I put up

a list:

1. Ego‐Centric US: Inflated self‐assessment, self‐confidence, optimism, judgmental over

confidence;

2. Selective Perception – Biased Assimilation of Information – Partisan Perception Bias,

Bias Blind Spot;

3. Naïve Realism and FEELING right;

4. Endowment Effects;

5. Commitment;

6. Anchors Away!! [Anchoring];

7. Fundamental Attribution Error;

8. Equity (and self‐serving equity);

9. Risk aversion and loss avoidance;

10. Prospect Theory (Positive and Negative Framing).

Another approach is to put up the list (on a powerpoint), and ask students to walk you through it

based upon the reading. Seek to elicit discussion of each item, with students explaining what it is

and how it works. Encourage examples and discussion of how it might impact lawyers and

clients.

Of course, this guide can’t anticipate which topics you’ll choose to cover by eliciting student

discussion and which by presentation/lecture accompanying a powerpoint. Thus, I’ve included

at least a précis of my talking points for each topic. These are reasonably evident in the

powerpoint texts. I consider it a victory when a topic is covered largely through student

discussion, rather than presentation.

As was true in for the material on emotions, one additional and important goal is for students to

see that these phenomena are not mere academic abstractions, and their effects may be quite

strong. So, I prefer “evidence” that arises from or close to the students’ experience.


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Talking Points

1) Ego Centric US

A number of psychological tendencies fall under the header of “ego‐centric biases.” We see

ourselves as smarter, better drivers, better employees than average. As in the Prairie Home

Companion Radio Show, and its location, Lake Wobegone where “all the women are strong, all the

men are good looking, and all the children are above‐average.” Not surprisingly, this impacts

our predictions of how well we or our clients will fare in argument, as witnesses, as negotiators,

and our assessment of our performance in circumstances leading up to a dispute.

2) Selective Perception, Partisan Perception Bias, Judgmental Over‐Confidence, and Bias Blind Spot.

I do dwell for a time on the psychological tendencies for partisan perception bias, selective

perception and judgmental over‐confidence because these so impact legal practice.

Selective and Partisan Perception Bias

The powerpoint titled “selective perception” contrasts (in two columns) what a supervisor might

have said in a performance evaluation with what a hypothetical might have heard and

remembered. It derives from a real case example. And it makes the point that a client is

undoubtedly sincere when he recounts his version of what was said and what happened, but

selective perception may make his version quite different from the supervisor’s. Ask students if

they have ever been in a situation where memories differed and one side seemed to hear rather

selectively. What can they imagine as the impact on client counseling?

One powerpoint under the header “Judgmental Overconfidence” draws from results I’ve

generated from a settlement negotiation exercise, Bio‐Con v. Microtex, in my negotiation course.

Law students are paired with business school students as clients in this complex business‐fraud

case. The facts relevant to liability are almost the same in the plaintiff and the defense

confidential information, with slightly different “shading” in some phrasing. Note that both

sides receive the same spreadsheet with numbers relevant to potential damages. Each year,

before they negotiate, I ask students to estimate the % likelihood of a plaintiff’s finding on

liability and damages award if the plaintiff does win. (In fact, the students are asked to estimate

the range of possible damages and then to estimate the most likely damages award. This is to

avoid students reporting only their more extreme guesses.) These stats on the powerpoint are

my most extreme results, but each year demonstrates strong partisan perception bias. Okay, the

facts as to liability are shaded differently. But the differences in damages estimates are even

more dramatic, and they come from the same spreadsheet! By the way, this is entirely consistent

with the findings in Randall Kiser’s book, Beyond Right and Wrong (see full discussion in the Client

Science book), indicating that defense side might be modestly more accurate predictors on

liability. However, when they lose, they tend to have greatly under‐estimated damages. Using

stats from my law school class makes the phenomenon more real. You’re welcome to use my


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findings, but it might be worth gathering results from a pre‐negotiation questionnaire in your

law school.

Judgmental Overconfidence AND Lawyers’ Predictions

A tremendous quantity of research establishes that lawyers’ predictions are NOT well‐calibrated

to what actually occurs. Indeed, some studies suggest lawyers’ predictions, in the aggregate and

on the average, are no better than chance. We shouldn’t blame this on arbitrary and

unpredictable juries (as some lawyers tend to do. That is because judges (who, after all, were

originally lawyers are better at predicting jury outcomes and generally agree with the jury.

When the judges’ predictions are wrong, the divergence is in either direction. So lawyers’

unreliable predictions come from their partisan positions. A plug for mediation courses and

training is appropriate: lawyers with at least 30 hours of mediation training were somewhat

better at predicting – less susceptible to partisan perception bias.

It’s interesting to note that long years of legal practice experience may not be helpful. Two

studies found that we may not improve calibration with experience. R. Kiser’s study indicates

that ability to predict goes up at between 5 and 10 years’ experience, levels off, and then gets

WORSE at 30+ years.)

This may be explained by the fact that over confidence tends to rise where we believe we have

significant control. (Senior partner: my superior lawyering will win!”) Moreover, judgmental

over‐confidence is generally more pronounced for difficult or complex tasks (where confidence is

not warranted). If more senior lawyers do get more difficult cases, that might explain their more

pronounced over‐confidence.

We know that people generally become better at predicting – more accurate – and thus their

confidence levels calibrate with reality when they receive continuous performance feedback.

However, given that so many litigated cases settle, lawyers don’t often find out whether their

predictions were right or wrong. Moreover, follow up studies (summarized in Kaiser’s book and

article indicate that when lawyers are confronted with an outcome they had not predicted, they

tend to attribute the error to specific circumstances. One fascinating study asked lawyers early

on in a case how they would define success – what their goals were. Later, when lawyers were

asked to indicate how successful they had been in the case, their self‐assessment was MUCH

better than their actual success (measured against to recorded goals at the outset).

Bias Blind Spot

We like to think that awareness of biases constitutes an antidote. I suspect that most lawyers

have heard the term “partisan perception bias” and would acknowledge that, sometimes and for

some lawyers, it creeps into what should be objective analysis. In fact, research suggests that

people generally accept that biases sometimes do influence perception and judgment. But, we

generally reject the suggestion that our own bias may have influenced our judgment in a

particular instance. Yet, of course, we readily ascribe the other’s different conclusion as due to

his or her bias.


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Why? One theory is that we can (and do) engage in introspection with regard to our own

decision making process. We can remember and ruminate over how we reached conclusions,

believe that we were aware of and “bent over backwards” to avoid bias. So, we absolve

ourselves. Because we can’t engage in introspective for the other side, we cannot absolve them.

So we conclude they were biased!

3) Naïve Realism and FEELING Right

I like to segue from judgmental over‐confidence to naïve realism by using the now famous “f”

exercise – an exercise I first learned at the Program on Negotiation at Harvard Law School. I put

up a powerpoint with the sentence below on it, and ask students to count the number of f’s they

see. Caution them not to shout out their number, just to remember or scribble it down.

How Many “Fs” Do You See?*

These functional fuses have been developed after years of scientific investigation of

electric phenomena, combined with the fruit of long experience on the part of the two

investigators who have come forward with them for our meetings today.

* Do not count the “F” in the title or in this note!

After a reasonable amount of time, ask how many students are confident they counted the right

number. Often, there’s some hesitation, as the students correctly anticipate a “gotcha.” I’ll

lightly say, “well you must be awfully suspicious,” and note that most people who count what’s

in front of them feel that they can be confident.

Naïve Realism is the belief that truth in the world is exactly (and exclusively) the way we

experience it. We know it and we FEEL RIGHT! (we don’t socially and thus differently construct

our realities, we record what is TRUE and REAL!) The phrase arose out of experiments with

children, in which researchers found that young children think that we all see that world as they

know it. So, if a young child sees someone put a box of crackers in a cabinet, and another person

then enters the room, the child believes the other person also knows the crackers are there. What

we see is shared and known to all. The shift toward understanding that we have different

perspectives and knowledge starts at about age four, at least under these experimental

conditions.

An aspect of naïve realism is that, even as adults, we tend to assume others know about or have

focused on “our worlds” to a much greater degree than is true. “Of course the division director

had to know I had been flat out on this project”… “the VP was aware that I ran a successful

marketing campaign five years ago – so there’s no excuse for the decision they made.” But of

course, the VP or the division director had no idea, or didn’t remember or hadn’t focused on the

client’s circumstance, just as your client has no knowledge of corporate priorities set by a

directors’ committee in London. Yet, the division head was frustrated by your client’s

inflexibility… and so on.

It’s normal, and that means it’s wise to ask what assumptions have been made, what questions

should be asked, what information should be provided on all sides.


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4) Endowment Effects

The relevant powerpoint reads:

Endowment Effect

Empirical finding that people tend to value goods more when they own them than when they do

not

Buy a mug?

Subjects given a mug valued it at much higher price ($7.12) than those given money and

permitted to buy the mug ($2.87), or than those permitted to choose between a mug or money

($3.12).

What’s mine is better

This refers to the first well‐known experiment demonstrating the endowment effect, conducted at

Cornell University. One group of students were given a mug and asked to record what they

would sell it for. A second group were given money, shown the mugs and asked how much they

would pay for one. A third group was asked to choose between receiving money and a mug.

The results were different for each group, as stated above. Yet the mugs were all the same.

The endowment effect is easy to see, as we value our assets, our homes, our businesses, our ideas,

our proposals more highly simply because we own them. Even if there might be some intrinsic,

legitimate value difference, our feeling of ownership exaggerates it. When I discussed this with

a group of venture capitalists, they confirmed that when buying a business from its original

owner, it would simply take longer and they would have to provide much, much more market

data to establish a value range that might otherwise be clear. So be patient with your client when

he seems to be insisting on a certain valuation, or a certain term in exchange what he has offered.

And do be prepared to provide information, experience, and data available that might suggest a

reasonable value or position – one the other side may accept.

5) Commitment

Confidence and Commitment

Once people have committed, they tend to be more confident in their choices!

But the horses don’t get any faster!

The outcome doesn’t become more certain!

In a classic 1968 experiment at a Vancouver race track, experimenters asked prospective betters

before a race track window how confident that their horse would win . When asked the same

question on the other side of the window, after placing their bets, their confidence level went up.

Yet, their horses had not gotten any faster.

Your client (or you) may make a decision with some trepidation, recognizing that it’s a close call.

After it’s made, they become more committed and more certain. It’s a problem, if that leads you

or your client to ignore newly discovered evidence or other business, professional, or personal

considerations that would point in another direction.

6) Anchors Away – On the Phenomenon of Anchoring


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Definition: The influence that an initial starting value or position has in determining subsequent

values or positions.

In fact, even exposure to values that should be recognized as unrelated or irrelevant often

impacts our guestimates, judgments, aspirations, and decisions. Anchoring is also one of the

most robust and consistent findings in psychology and decision‐making.

I often introduce the concept of anchoring with a favorite “spiel” when teaching an exec ed or

CLE class. It’s great fun to tell the story of the roulette wheel experiment in which the pre‐set

number on the wheel greatly impacted the responders guestimates of the number of UN

countries on the continent of Africa. But that’s in the book and perhaps not worth repeating in

this class.

I jump to the importance of anchoring, and the fact that people – even lawyers – and certainly

clients – tend to anchor on numbers recently heard, even if unrelated. To illustrate this, remind

the students of that case assessment exercise they were asked to complete before the workshop. I

admit to some delight when explaining that, while it seemed there were four different cases to be

assessed, they were really the same cases, under different names. That sexual harassment/gender

discrimination case description contained a good many numbers from which student assessors

might use to think about value.

The real difference between the sheets was in the short reference to the OTHER case ‐ the

personal injury case tried in the state court in Kentucky. Clearly that Kentucky case has

NOTHING to do with the fate of an employment case in the Federal District Court in Ohio. In

one version (Calculations in Confidence), the Kentucky case won $300,000, in another (Predicting

What’s Probable) it won $6 million, in another (Finally A Great Case) the firm lost the case, after the

client turned down $300,000, and in another loss (Betting On This One) the client had turned

down $6 million. (For the losses, there’s a notation that the lawyer had recommended taking the

offer, so student won’t be less confident of earlier judgments.)

And yet…. With a bit of a drumroll flourish, put up your class results.

In almost all years, the class results have strongly supported the anchoring phenomenon. In

other words, the average student estimates of likely damages and recommended settlement value

are higher when the Kentucky state court verdict or offer left on the table is at $6million, and

lower when the Kentucky number was at $300,000. There is generally some adjustment down

from the case description referencing the Kentucky state court $6 million award, to that

referencing a Kentucky state court loss after rejection of a $6 million offer.

The students will be most interested in their own results, though I’ve also provided power points

that include data from a few recent years. (In a few instances, with smaller classes, anchoring

effects were less clear across all categories. Outliers have a more dramatic impact when you are

dealing with small numbers.) My recommendation is to project the results and let them sink in.

At first it’s funny; students enjoy seeing the numbers, and a sense of a punch‐line to their pre‐

workshop exercise. Then the response shifts from laughter to sober realization, especially when

asked about its implications for client counseling. Isn’t a bit frightening to think that one lawyer


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would recommend a $2.5 million dollar settlement and another a $1.5 million dollar settlement

based upon what s/he recently learned about another unrelated case?

The Impact of Anchoring on Willingness to Accept Offers

Sometimes, I describe the experiment by Guthrie and Korobkin {put in cite] in which subjects

were given the description of a case, with information that an earlier offer had been $2,000, but

the current offer is $12,000. A different group of subjects were given a description of the same

case, with information that the earlier offer was $10,000. Current offer is $10,000. All subjects

were asked to state whether they would definitely or probably accept the offer (or the opposite –

definitely or probably not. Here are the results:

Low anchor – mean YES – 63% (definitely or probably accept)

High anchor – mean YES – 34% (definitely or probably accept)

(Mediator‐prof says still avoid REALLY insulting first offers

One note of marginal comfort: even if still operative, anchoring may be less powerful when the

subject has some expertise. We are more susceptible to anchoring when we are absolutely

clueless. Most students will acknowledge that they didn’t know how to go about estimating

damages and settlement in the class exercise. Perhaps lawyers more experienced, more familiar

with likely verdict ranges, given the same exercise, would not have been anchored so

dramatically. Perhaps. We like to think so, or hope so.

However, a research study involving real estate agents and property values demonstrated that

even those with expertise, were anchored by different asking prices affixed to the same property

descriptions. Research demonstrates anchoring effects of lawyers damages claims or dollar

verdict requests on judges and juries too. Anchoring has impact!

7) Fundamental Attribution Error

Most people ATTRIBUTE ‐ seek explanations that are not random or ambiguous. Every day, on

the radio, we hear stock market and currency value reports and some commentator confidently

attributes change or lack of change to well‐defined factors. Really? Somehow, I suspect the

causes are more complicated. There is a Fundamental Attribution Error:

In the human realm, the Fundamental Attribution Error refers to the fact that people tend to

attribute others’ behavior to their character or disposition – without examining their

circumstances or situation. If he is late, it is because he is an irresponsible jerk! Or it’s because he

doesn’t respect my time, or he pulled a power play and intentionally made me wait!

The corollary to FAE is that most people attribute in the opposite direction for themselves. If I

am late, it’s not because I’m an irresponsible time manager, it was the traffic, or the crushing

workload.

In the lawyer‐client interviewing and counseling context, it’s important to recognize the FAE

tendency. And sometimes, it’s a lawyer’s job to suggest what I’ll call “an alternative hypothesis.”

It could be that your business partner intentionally created this mess to reduce the value of your


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shares in preparation for buying you out now (two years later), but let’s step back. What else was

going on? What else might have impacted his decisions at the time? Do we know? Could we

find out?

Note that, when you combine FAE with selective perception and biased assimilation of

information, the brew may become toxic. Or, shifting to a character description, the other party is

soon viewed as Darth Vader, and all actions are interpreted using assumptions about Darth

Vader’s motivation.

Sometimes, I ask if anyone ever dated someone their parents their roommates just HATED. And,

really, he or she wasn’t so bad. But in the parents’ or the roommates’ eyes, nothing he or she did

was ever good. This will resonate for many in the class!

What does this matter for lawyers and clients? In the client interview, you might be skeptical of

Darth Vader characterizations of the other party. Expect to be surprised by what you learn if the

case progresses. The jury might well find him rather charming.

While not all cases are better settled (even a mediator admits), most clients are less likely

to feel comfortable settling with, compromising with Darth Vader, than with an opposing

party who’s “not that bad a fellow, didn’t have evil intent, just made some bad

judgments.” Unfortunately, FAE may prevent your client from exploring an

opportunity for favorable settlement.

8) Equity Seeking (and Self‐Serving Equity) vs. Rationality

It should come as no surprise that RESPECT, FEELINGS, and FAIRNESS REALLY DO

MATTER!!!! Their value is real and, for many, more important than economics.

In yet another set of experiments done by Guthrie and Korobkin, students asked to assume the

rule of plaintiff were far less likely to accept a settlement offer from someone who had treated

them unlawfully and unfairly, without any apology or reason. One of the cases used involved a

landlord‐tenant dispute in which the heater broke in the tenant’s apartment. The tenant reported

it to the landlord who promised to fix it but did not, causing the tenants to suffer a very cold

apartment for four months before they moved out. Some groups were given no explanation by

the landlord. Other groups were informed that the landlord had left the country unexpectedly

due to a family emergency and was gone for several months. In a third group, the landlord

tendered a (weak) apology. All groups were advised by their lawyer that they had a “good

chance of recovering” and were given the same rather low settlement offer.

Not surprisingly, the differing conditions, no explanation, explanation, [even weak] apology

affected the results – the mean likelihood that the subjects would accept the offer. [Just in case

you want the numbers: In the Broken Promise group, [2.6 mean] 35% definitely or probably

accept settlement, and 30% DEFINITELY reject. In the Family Emergency group: 59% definitely

or probably accept settlement, only 9% definitely reject. [Weak] Apology [2.93 mean], but only

12% DEFINITELY reject. (Note: in my view, the apology really was very weak.)

Note: One year I tried giving the students the different case descriptions used by Guthrie and Korobkin but

didn’t get similar results. It seems that the law students were highly unimpressed by the dollar offer, given


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the strength of the case. The subjects in the original experiment were not law students. I do like the idea of

conducting an experiment in the class, but would do so with a different fact pattern, pre‐tested with law

students.

Rather than cite this research, which is after all, in the Client Science book, it may be preferable to

ask whether students can think of circumstances where they felt they had been disregarded,

dismissed, their needs ignored or trampled upon: how did or would they feel about

compromising?

Would it matter if someone provided an explanation, sincere lack of intention to harm, even if it

wasn’t a legal defense? Wouldn’t it matter?

On a Grander Scale, Attributions, Equity and Narrative ALL Affect Client Counseling

Parties in conflict develop understandings, or ʺnarratives,” based on attributions. Lawyers

sometimes further shape the client narrative by “motive mongering”.

Ultimately, the client’s narrative and its inclusion of ill motive and inequity (or not) will influence

client emotion about resolving their dispute. Students should see that this is tricky territory for a

lawyer!

At this point, whether we’ve arrived through discussion or powerpoint or, as is likely, some

combination, I announce a shift to feelings about numbers, or how to understand and shape

people’s responses to risk, gain, and loss. I do give them a heads up to the effect that the Final

Counseling Skills Exercise will call upon them to understand and be able to apply these lessons.

(It’s true, and it gets their attention.) I also tell them that lawyers who have attended CLEs on the

topic universally recognize that this material – as it relates to presentation of settlement offers

and demands to your client, and to negotiation of terms – is tremendously important.

9) Risk Aversion and Gain, Risk Seeking and Loss Avoidance

Simply stated, people tend to be risk averse as to gain and risk seeking as to loss. The Client

Science book and the relevant power point include an oft‐cited example. When you ask people to

choose between a sure gain of $240 and a 25% chance of winning $1000, most will chose the sure

gain of $240, even though it’s slightly lower than the discounted value. But, if you ask people to

choose between a sure loss of $750 and a 75% chance of losing $1000, most will take the chance.

In fact, most people would probably take the chance even if the sure loss was only $700 – don’t

you think? We just hate to take a loss now. And, if the loss occurs as a result of some roll of the

dice, then we don’t have to take the blame.

Already a mediator when I began to explore this literature, it immediately rang true. And it

served to explain why, sometimes, I would be meeting with defense lawyers and clients,

perhaps the insurer, and all would agree that they had at least a 50% chance (maybe more) of

losing at trial and that the verdict would be at least $300,000. Yet, they wouldn’t agree to offer


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$150,000 in settlement! At least I understood why. They weren’t trying to torture the mediator,

they were risk seeking as to loss.

At some point , even the dispositionally risk‐seeking will not be completely foolish. But it’s at a

far, far lower number than a cool‐headed computer would suggest.

Whether this explanation of risk aversion and gain, risk seeking and loss avoidance has come

from your presentation or the students, it’s worth taking a minute to ask how they might use

this insight in client counseling and settlement contexts. This will theoretically prime them for

the vignette exercises that will follow.

10) Prospect Theory (Positive and Negative Framing), Formulated by (Kahneman & Twersky, with Bazerman’s Assistance)

People use the idea of framing, or reframing a great deal. It refers to the accurate observation

that our judgments and decisions about information, events, motives, etc., can depend upon the

manner in which it is presented to us.

Prospect Theory builds upon insights into people’s attitudes toward risk, gain, and loss (describe

above). It suggests that people evaluate decisions from a reference point.

The way you frame the problem – present the reference point – will affect their decision

Frame POSITIVELY as faced with a certain gain from a reference point – they will choose the

certain gain over the risk. (We hate to walk away from gains that are “on the table.”) Frame

NEGATIVELY as faced with a certain loss from a reference point – they will choose the risk over

taking the loss. (We hate to pay now even to avoid uncertain but possibly larger future losses).

Additional components of Prospect Theory are that:

People tend to be loss averse: they will give greater weight to prospective losses than to

prospective gains of equal magnitude.

Our responses to losses are more extreme than our responses to gain. Or, the pain

associated with losing $ X is generally greater than the pleasure associated with winning

$ X.

We tend to overweight the probability of low probability events and underweight the

probability of high probability events.

Prospect Theory in (experimental) practice was also demonstrated by Korobin and Guthrie in an

experiment with Stanford undergraduate subjects. Different students were given different case

fact patterns, involving an automobile accident. They found that whether the offer would cover

loss or gain from their original status quo (the value of the car), had everything to do with

whether a settlement offer would be accepted – even though they were all give the same

“valuation” of the case by their lawyer (in the fact pattern).

When the accident involved a Toyota, with $14,000 as the loss of the car, and $14,000

medical expenses (NOT out of pocket, insured), the value of win was stated to be $28,000.

Winning was described as uncertain.


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When the accident involved a BMW, with $24,000 as the loss of the car, $4,000 medical

expenses (again, NOT out of pocket, insured), value of win was stated to be 28,000.

Winning was described as uncertain.

For both cases, the offer was $21,000. For the first group, that offer covered the loss on

the car, for the second group it did not.

90% of the subjects with the Toyota but 64% of the subjects with the BMW “probably” or

“definitely” would say YES; only 2% with a Toyota but 20% with a BMW probably or definitely

say NO to the offer.

While reframing can influence a client’s (or opposing party’s) decision, Korobkin and Guthrie’s

experiments and my own practice experience suggest “asymmetries” and resistance points.

When the settlement was reframed to Toyota owners as a LOSS, they were indeed less likely to

accept it. Here’s the language used for the Negative/Loss Reframe to the Toyota subjects:

Keep in mind that if you accept this offer you will be substantially worse off than you

were before the accident. The other driver did cause you $28000 worth of total damages,

and accepting the offer would make it impossible for you to ever recover the full amount

of the damages. Rejecting the offer, though somewhat risky, would allow the possibility

of recouping the full amount you believe National Mutual should pay you.

Result of reframing gain to LOSS: Toyota folks far less likely to accept the settlement (mean 3.59

vs. 4.43 (“Definitely” or “probably would accept” shifts from 90% to 64%).

However, real losses are more resistant: we hate to lose, even by a more positive name.

When the BMW subjects were given a Positive/Gain Reframe, they were only slightly more

likelyt to accept the settlement. (Here is the language used:

Keep in mind that this settlement would leave you substantially better off than you are

now, and you would avoid the riskiness of a trial. Although the offer is $7,000 less

than you hoped to recover, accepting the offer would make you $21,000 better off than

you are right now (remember, you currently have no car.)

Korobkiin and Guthrie note that in real circumstances, and face‐to ‐face, the results might be

different. I would also note that the language used is not the most powerful positive reframe I

could imagine.

[Korobin and Guthrie also conducted this experiment in two other cases with similar structure,

one involving a wine cellar and the other a divorce case involving number of child visitation

days.]

Practical experience does confirm their observation that the barrier of negative frames “might

prove quite stubborn to mitigate.” When your client feels that he is still in loss territory – the

offer won’t cover bare expenses – it’s difficult to find a positive frame that’s convincing – even

when the offer on the table is far, far better than losing at trial. So, when working with a client,

sometimes the question becomes what he or she feels as a loss – what counts. Are medical

expenses losses? Well technically, they count as damages, but were they paid by your client? If


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not, he may not count them as his loss… and may start to find a settlement offer harder to reject

after it rises to the level of his lost wages.

Finally, Finally, We Turn to the Vignettes: Working with Client Psychology

I usually ask the students to pair up, and take on lawyer and client roles for these vignettes,

which describe a client, lawyer and the circumstances in a case. The student‐client should, in his

or her own words, express the client’s stated position in the vignette, with appropriate levels of

protest, angst, frustration, etc. Assume the lawyer knows that client position may not be wise, or

that another option or decision would be worth of real consideration. The lawyer’s task is to use

what was learned in the psychology reading and presentation – particularly positive and

negative framing, risk and loss aversion – to inspire the client to shift position, or at least to

reconsider.

A relatively standard debriefing follows each one. I suggest asking students to name the problem

with the client’s initial position. Ask them to identify the psychological tendency, trap, or barrier

that might be involved. Ask how the lawyer decided to handle it. You might ask if one of the

student lawyers will help his or her classmates avoid future disaster by telling us what definitely

did NOT work – what crashed and burned. (Students generally enjoy this, if they have the choice

to volunteer it themselves.) Entertain a discussion of why it wasn’t effective. Of course, most

important is to ask: “What did work well?” That question is probably best directed at the clients:

“Who can nominate their lawyer’s effective phrasing? Who< as client, did feel a bit of a shift

because of what your lawyer said? What was it?”

Have students move onto the next vignette, switching roles, and so on.

Each vignette easily requires a bare minimum of 10 minutes and realistically 15: some time to

read, play out the dialogue, and some discuss. I generally choose not to assign these in advance

to avoid overloading workshop students. It would not be unreasonable to assign in advance for

a weekly class.

My aspiration is to cover many of these; hence the oft‐repeated effort to reduce the presentation

portion. I want students to practice and discuss how one might reframe and rephrase

effectively. In part, this is because the Final Counseling Skills exercise is designed so that

students must reframe the negative to the positive, and be canny about phrasing around risk,

gain and loss. Arguably, that’s teaching to the test. I prefer to think of it as teaching to real

future moments.

At the end of this segment, I encourage the students go beyond this quick dip into social and

cognitive psychology and psychology of decision‐making. The material is endlessly interesting

and always relevant to legal practice, not to mention any and all dealings with people and with

ourselves. In an airport bookstore, doctor’s office, tennis club waiting for your kid to get off the

court, pick up Psychology Today magazine or any recent psychology related book with a good title.

Time for a break, on to Drama Does It for the end of the afternoon and the home stretch

tomorrow.


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Drama Does It! Actors’ Advice for Choices in Gesture & Voice

(2:45 – 4:30 in the afternoon of Workshop Day 3, or approx.. 7th in a weekly course)

The “Drama Does It” module is great fun, and much anticipated by the students. As issues

relating to voice and gesture come up in earlier demonstration or discussion, or even when

observing students in small groups, I’ll credit that awareness as having come from our actors and

mention that we’ll delve in further, or practice in the drama piece with them. I promise that it

will be fun, and it is.

I must acknowledge that we have been privileged to work with very accomplished actors who

make a presentation and later help observe and coach students within this module. Generally, I

invite (and pay) two actors – a male and female who work well together and helped me to

develop the materials. It works very well to invite two of the same actors who will later be

playing the Jan Hapless client in the Final Counseling Skills exercise. This gives them credibility

as Jan later (and familiarity reduces fear.

While the next few paragraphs refer to the actors’ presentation, note it has been done with one

actor only, and I have done the presentation myself. My solo performance came after having

observed and helped structure the actors’ presentation for many years. I just channeled them,

called up my inner ham (not hard) and rather enjoyed it. That was in an off site day‐long

executive seminar, not a four day law school workshop with students who might be tired, and

tired of hearing my voice.

If I am working with actors who have played and will soon again play the client role in the Final

Skills Counseling exercise, I ask them to speak for several minutes about their experience as

clients, and to explain what want in their lawyers. The students are attentive, and the actors

speaking as clients are genuine and compelling. I don’t see how this could be accomplished in

your first time through, when your actors won’t yet have been through the Final Counseling

Skills exercise, but I highly recommend it the next time.

When they speak, the actor‐clients strongly affirm that:

When we are clients, we want:

Our lawyers to have some authority/gravitas – for their to be some weight to what the

lawyer says, so that we can feel confident about it.

To feel connected to our lawyer. We want to believe our lawyer cares about our

concerns, that they matter to the lawyer too.

To feel our lawyer “really gets” it ‐‐ why all of this is VERY important (unfair, terrible…

)

NOT to feel incompetent, stupid, or small when talking with our lawyer. We want to

feel respected. We want our lawyer to explain things so we can understand WITHOUT

feeling stupid.

To have time to process complex ideas and time and permission to react. Our lawyer to understand (anticipate) how it impacts us when our lawyer gives us

advice

To feel autonomous in making decisions, not abandoned, but not forced or manipulated.


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They are clients, AND they are actors. Thus, at the conclusion, the actors or I will connect to to

the program content by stating that because they are actors, they have some ideas regarding

how their lawyers can accomplish this.

The “Drama Does It” segment is then aimed at the following topics and skills, with student

practice, feedback, and reflection on their own tendencies and strengths.

Actors’ techniques in body position and gesture (authority, clarity, connection)

Actors’ techniques for voice (authority, clarity, connection)

Exercises for acting lawyers

Practicing emotional range

Using voice for emotional synchrony

Getting to gravitas

Taking on consequences and risk

Actors’ techniques in body position and gesture (authority, clarity, connection)

We allocate 20 minutes, including the three segments below on authority, clarity and connection. As

you’ll see, that timing is tight!

On Authority, the Appearance of Competence and Confidence

This segment generally begins with a discussion of the importance of posture and body language,

the fact the much of communication is non‐verbal. The presenter demonstrates aspects of

standing posture, and what is considered a neutral standing position, that is rock solid and

powerful. It is quite amazing to see that when he (or she) stops pacing, assumes that neutral

posture, and just stands, silently, looking at the class – everyone stops, and everyone listens.

(One of our actors asserts that this works with a room of rowdy third graders.) The idea of

neutral and powerful standing posture is likely familiar to students who have done moot court or

trial practice. After or during the presentation, students are asked to stand up where they are,

breathe deeply, stretch the vertebrae, put feet just slightly apart, “shoulders back, chest out,”

head and neck relaxed, and arms falling naturally from the shoulder.

Because our focus is on client counseling, most of which occurs while seated, we translate neutral

standing posture to the neutral seated posture. We ask students to adjust the way they are sitting

– back straight, pelvis straight or tilted just slightly forward, arms natural or on the table. Of

course, this is sometimes impossible to fully accomplish in the fixed seating at law school tables.

(I call it yoga posture, each vertebrae stacked on the other to get maximum height.)

Unfortunately, even if students do adjust posture, they can’t see its rather dramatic impact. Thus,

I am committed to a demonstration here. Sometimes an actor or I will take a seat at a table placed

in the front of the room and, in rather exaggerated fashion, try slouching, try leaning way back,

try the recommended posture, with pauses to discuss what each posture communicates. Note: it

IS important to be light‐hearted and have fun with this!

We will also discuss matters of the way size affects perceptions of power and competence, and

the ability to establish rapport and avoid intimidation or intrusion. (See the Client Science book,

Chapter 7).


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It’s worth calling on students of different body types, a petite female – smaller shoulders, even a

male of slight build, and someone on the opposite end of the scale – very tall and physically

imposing. Obviously, the goal is not to embarrass students who are over‐weight or mal‐

proportioned. You might have the larger student sit (as lawyer) opposite another smaller

student, as client. Have the larger lawyer lean forward, perhaps plant elbows on the table… a bit

too close to the client’s physical space. Isn’t his or her instinctive reaction to pull back?

The most important piece of this demonstration, involves a small, slight person, first sitting

“normally” – not particularly straight, with hands on lap and elbows down (not on the table).

Next ask that person to sit up as tall as possible – not leaning against the back of the chair ‐ and

place her elbows at that the table to take up more physical space. It’s quite dramatic to see the

difference. (No reason you couldn’t do this with a slightly built male student.)

I admit that, when it’s a female dressed casually, I’ve been known to stage a “take two” and lend

her a blazer. Note that casual Fridays are nice, but casual blazers are better.

I often state that this portion of the course is intended to “add ten years.” This is true for the

coming segments on voice and gravitas as well. The idea of becoming ten years older definitely

gets the students’ attention! What does it mean? When you are the newest and the youngest, it

can be a challenge to have colleagues and clients see you as confident and competent. So,

perhaps it’s not about looking older, but seeming more experienced, it’s that you seem more

experienced. When the senior partner comes down with the flu and has to decide which associate

to send to argue the motion or cover the deposition, I want him or her to think: “Hmm…. I know

that Chris looks young, but Chris does seem to have a bit of experience – maybe s/he’s older than

s/he looks. Chris certainly has confidence and did a great job in that meeting last week. I bet

Chris can handle this! “ That’s the goal.

On Clarity and Connection

Physical anchors can create cognitive anchors for clarifying and strengthening memory of

complicated information. This is rather clearly set forth in the Client Science book, Chapter 8

(which also makes the presentation less dependent on great actor performance.)

While our actor does this, the prof or a student could just as easily tell a short story, or an

explanation of how something mechanical works, or a complicated idea. Try doing it WITHOUT

gesture. Then add gestures. And you can play with retelling the story with inconsistent gestures

– first he went to the store (gesture left), then he went down main street (gesture forward),

realized he forgot something and went back to the store. This time, gesture to the store in an

entirely different place.

If you’re going to use a student, I suggest asking for volunteers or selecting a student before the

break, to allow time for them to think of a story.

Within the unit on gesture, it’s important to demonstrate how gesture can make an idea or a

eventuality seem real, concrete, and important, or vague, unlikely or unthreatening. You can

describe the idea that we could win a million dollars, or we might get nothing or next to nothing.

Do it two ways (or have a student volunteer do it), first say “we could win a million dollars” as

you put put your hand slowly firmly on the table, and leave it there for a second, “or we could


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get nothing” but wave off into the high air as you say that. Now reverse it: “We could win a

million dollars – waving off and into the air, “or we could get nothing, placing that nothing

slowly and firmly on the table.” Part of the difference will be in your tone of voice. (It’s

inevitable, even if you try to not vary vocal tone too much.) Explain that we’ll get to voicing in a

minute. But much of the difference – which is dramatic – is in the gesture.

You can also move objects, from peripheral to central. “I know we haven’t focused too much on

the technical evidentiary issues – my department.” Gesture off to the side. But I do want to stress

the importance of one of them – whether your scientist will be able to testify. Take that issue out

of the air, put it on the table, and move it to be in front of your client.

You can hearken back to the attorney client privilege and explain the exception two ways. “So, if

a client walked into my office and said he planned to shoot someone …” gesture off to the side,

and wave it away.”…. Then say it facing the client, slowly and firmly putting it on the table. I

hereby admit that I often sneak this one into the first day, when we are working on descriptions

of the attorney client privilege.

Body Language and Gesture for Connection

Given the Client Science book, Chapter 9, “Channel Navigation Notes,” you should be able to

reference the idea of a physical “air space” channel between lawyer and client seated at a desk or

table. This is a good candidate for demo in front of the class. The actor might sit opposite the

student, or you (the instructor) or you might choose to work with two students. Try making one

of the statements about exceptions to the attorney‐client privilege, but look or gesture not quite in

the channel. Then direct the same comments straight to the client, inside the channel. Eye

contact occurs within the channel, of course. Try saying to the student‐client, “So, if you are about

to commit a fraud, that would create a disclosure issue.” Make it direct, maintaining full eye

contact within the channel. When discussing something that is jarring to your relationship with

the client, it feels awkward to place it in the channel.

One piece of advice from our actor is to make a gesture to space behind you when referencing the

opposing party or counsel. That makes you the client’s protector against the other side.

Finally, on the topic of gesture and connection, moving your hand forward within the channel –

somewhat within what would be culturally accepted distance, can serve as a surrogate touch.

This demo can be fun. The student or actor should say something highly emotional, “I’m so

upset about my cat, I just don’t know how I can live without her!” The other (you, an actor or

other student), will lean forward a bit, slide your hand toward the client within the channel – but

still don’t come close to a touch. It’s pretty easy to see that this is an expression of comfort,

almost a hug, but professionally appropriate.

On Vocal Choices for Connection, Authority and Clarity (15 minutes)

Our actors begin with a brief (and funny) presentation on the components of voice and speech:

pitch, timbre, diction, articulation, and speed. Absent the actor, you take on the role, or call on

the class to do it. Fortunately, we are able to vary all of these – they are within our control at least

to come degree– except for timbre. Timbre has to do with the resonance in our voices, we either

have nice round resonance, or thinner flatter voices. And, while I will never be a basso profundo,


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nor will James Earle Jones take on my speaking voice, we can all vary pitch within a certain

range.

Diction has to do with the words we choose, and articulation has to do with how we pronoun

those words. Do we clearly enunciate the end consonants or, not so much.

We like to think that we control speed, but some of us are naturally fast talkers and others’

normal rate is slower. Some form words relatively quickly but utilize the pause, others not – or at

least not as before this course. (This is indeed a hint. A key piece of advice for fast talkers,

discussed at some length in the Client Science book, Chapter 6, “Choices in Voice,” is to punctuate

with frequent pauses.)

In addition to body language and gesture, the way we communicate – beyond the words has

everything to do with way we voice the words, not to mention sentences and paragraph. Your

voice expresses emotion (or not); it communicates confidence and authority; it can speak in ways

likely to create clarity or confusion.

Mirroring was a topic in the interview phase of the course, but that largely referenced mirroring

as to gesture. We also mirror vocally – and most of us do it naturally. So, if you’re with a fast

talking sister, you will unconsciously start to speak more quickly than you might with your slow

talking southern roommate.

Recognizing that periods of client contact are often short – especially after that first meeting.

Establishing rapport must happen within limited time. One strategy is to be conscious of your

client’s vocal patterns and adjust your own. So, imagine that your client is hysterical and her

voice is all over the place – she’s flighty, she talks ridiculously, out of control fast. Do you really

want to mimic that? NO, no, a thousand times no. In fact, this client might appreciate your

steadiness. But still, if you tend toward monotone and very slow, you might want to shift just a

bit. Frankly, I suspect it’s more important in the opposite direction. The methodical, clipped,

slower speaking client, might feel more comfortable and confident if the faster talking, widely

melodic and variable vocal patterns of the lawyer were brought in a bit.

Perhaps most important to include here is that fact that people’s natural tendency to mirror with

their voices can be an important way to lead your client to a shift in mood. So, your client may

lack energy, be very low (like the character Eyore, for those who remember Winnie the Pooh and

Christopher Robin days). You can use your voice to inject energy, and some matter‐of‐fact, “we

can handle this” affect. Your client is likely to follow, both in voice and in mood.

With time and a volunteer or two, you can demonstrate this. Have the student take on an Eyore

voice: “Oh, I don’t know, this is such a mess, this discovery is awful, it’s endless…” Let the other

student (or you or the actor) respond with more energy regarding how they might expedite

discovery.

After the demo, ask for comments and observations. It might have been fine, no critical

observations. But the student audience, or your Eyore volunteer, might note that it seemed

brusque, dismissive, or disconnected. Why? Because Eyore was “down here” and the other

seemed “all perky, up there”. That seemed not to take Eyore’s sad state seriously.


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This will facilitate a transition to the next and, in my view, most important point: sometimes to

lead, you have to “almost match” and then bring voice to a different place. It is described in the

book, but cries out for a demo.

Note: This next piece, on reaching up to bring down, can be done here or it can be delayed until just prior

to the exercises on Emotional Synchrony at page 123 below (or about half an hour later). It’s a good option

if the presentations seemed long, and it’s just time for the students to be more active.

With two actors in front of the class, have one do a really, really over the top angry shouting

scene – best to use something ridiculous. I CAN’T BELIEVE THAT MY HUSBAND ATE ALL OF

THE CHOCOLATE ICE CREAM! THAT NO GOOD SELFISH YOU KNOW WHAT IS ALWAYS

TAKING MY FAVORITE THINGS!! HE DOES IT FOR SPITE!! (The angry client can even pick up

a chair or other prop.)

First, have the lawyer‐responder (actor, you or a student) say in a very calm even tone – not

much energy: your husband does a lot of things that upset you, that’s why you’re here to get a

divorce. [This should get a laugh… and it might evoke an even madder response: YOU BET,

THAT SOB SHOULD DROWN IN ICE CREAM!!!!]

Ask students what the problem is, and you should get observations of a disconnect. Next, replay

the scene – again with the wife REALLY churned up. This time, the responder should greatly

increase the energy in their voice. Don’t out‐of‐control yell with the same degree of hatred laced

in, but do start quite loud – almost matching volume and energy – and then bring it down over

the course of the sentence.

It’s quite amazing to watch, as it really is an effective way to move high emotionality to a calmer

place. I call it “reaching up to bring down.” Of course, it could work the other way, reaching

down to bring up. So, back to Eyore, he would not feel diminished or disconnected if you first

matched slow and low, and gradually brought your voice up to more crisp and positive sound.

The is the importance of voice in active listening, It’s worthy of practice, in class exercises and

later simulations, in life, and with clients.

And now, with a bit of drum‐roll, the vocalizing and performance will be theirs, with each other.

Warm Up with One‐Liners

Hand out, or have at their desks a packet of vocal exercise, with a first page of “one liners.”

Have the students form into groups of three – with those sitting nearby is generally fine.

Just for two minutes, ask them to take the first page of one‐liners, and practice vocalizing them

indifferent ways, expressing one of the emotions listed on the page. So, if a line on the page

were: “I’m afraid the train will be late” – each one would say the same line, but each expressing a

different emotion or back‐story. So, “I’m afraid the train will be late” could be said with clenched

teeth, very tense, suggesting frustration and fear of missing a connection or event on the other

end. Or, it could be said gleefully – happily ‐ as if the consequences will be good. At each round,

the others can try to guess the emotion. The whole process shouldn’t take longer than two or

three minutes. Go quickly; there’s no need to get through them all.


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One minute debrief: it’s amazing how the same words have different meanings depending on

how you voice them! And, did you always guess the emotion your classmate had chosen? Often

not. True, we’re not actors, so it’s hard when we’re acting. It’s arguably easier when we’re being

genuine. But could you imagine a client misinterpreting what you say, based in part on the way

he interprets your voice?

This means we need more practice – in a legal context.

Direct students to turn to the next page in the packet of vocal exercises.

ABC Exercises in Emotional Range (20‐25minutes,includingdebrief)

Students remain in groups of three, but take on the identity of “A”, “B” or “C”. Student A should

speak to Student B and vocalize each line (which reflecting vague but unknown legal context) at

least two different ways – intentionally expressing different meaning and emotion. Student C is

the observer and facilitator of the exercise. There’s space on the sheet to write down the

emotion/meaning intended and that perceived so they can be compared. In truth, I often ignore

that, and certainly don’t enforce it. Student C’s feedback and observations can help coach

Student A as to why the intended meaning was not understood.

Then, the students should switch, so that Student B is the speaker, C is the listener/responder and

A is the observer/facilitator. And of course, last but not least, they’ll switch to C as speaker, A as

listener/responder and B as observer/facilitator. (It takes a minute or so to give the instructions,

and then five minutes per set, with a five (or so) minute debrief at the end. Without question,

these times are unconscionably tight. If you have more class time, you’ll want to extend the

timing.

While this activity is going on, the actors and I roam around the class, watch, offer comments,

and make sure students are in fact engaged in the exercise. Even in an engaged class, some will

be uncomfortable with the idea of acting or putting on emotion and thus disengage. They may

feel silly when seated in a threesome of buddies.

One legitimate complaint is that it’s hard to vocalize these without knowing the context: the

nature of the case or the client, the circumstances, etc. Fair complaint, theres’s no practical

solution. So, just acknowledge it. Encourage the students to use their imaginations, suspend

disbelief, and have fun with it.

I suggest the quickest of debriefing: What made this hard? Was anything surprising? Why do

you think signals were sometimes crossed? (While it’s always an option to do a fishbowl

demonstration after any one of these exercises, I generally find it not worth the time here, and opt

to save it for later.

ABC Exercises in Synchrony (10‐15minutes)

The rationale for this exercise is that synchrony helps establish connection and rapport. It

becomes part of active listening. It helps clients feel that you “get it” – you really do understand

their perspective, what they are feeling. [Note: if you chose not to do the demonstration of

“moving up to bring down” described earlier, now is also a natural time.]


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The set up for ABC Exercises in Synchrony (meant to refer to emotional synchrony) is the same

for the previous exercises. The students can remain in their groups of three with their ABC

identities. But this time, the speaker is acting as client. He or she vocalizes the line with an

intended emotion and meaning. The responder has to respond with words – his own words.

What’s important is that the responder’s voice match the speaker’s emotion. This is more

difficult for the responder, who must think of a response ‘in the moment” and be attuned to vocal

choices. The observer/facilitator’s role is thus more important. He or she becomes a sort of

arbiter or referee: [to the speaker] What were you expressing? Did you feel matched? Did it feel

like [the responder‐lawyer] got it?” “Hmmm… that’s what I heard too. I don’t’ think that really

matched. I didn’t hear it that way.”

This debriefing can be relatively short as well: What was difficult? Was it effective? Could they

imagine using the skill? What troubles them?

It can be worth asking students to demonstrate one with which they struggled, and/or one which

a student pair did particularly well. During the exercise, I will have roamed and stopped, asking

a group how they’re doing and watching for a while. If I have seen some great work, or coached

a group a bit, I often ask if they’d be willing to demonstrate.

ABC Exercises in Gravitas (15minutes)

This set is intended to explore and provide for practice with “gravitas.” I sometimes introduce it

by explaining that there used to be a television commercial for E. F. Hutton, a stock brokerage,

with the line: “When E. F. Hutton talks, people listen.” (This is now so old that few students will

have heard it.) As much as we talk about collaborative lawyering, connection, rapport, emotion,

and client meaning, clients have to feel confident in their lawyer’s competence. And new lawyers

want their superiors and their colleagues to listen – to notice their competence). Perception is

important. It’s helpful to be seen as self‐assured, perhaps with an aura of competence beyond

your numerical age. So, ten years older? Well, perhaps ten years “ahead of your age.”

Gravitas – the weightiness with which you speak. What are its elements? As suggested in the

Client Science book, Chapter 6, gravitas tends to be undercut by a lot of head nodding, speaking to

fast, without pause, and too much variation in tone. Gravitas involves apparent control, self‐

possession, presence.

The set up for the exercises is the same as for the others. Do emphasize the importance of

feedback, of re‐voicing a line a few times to have the intended effect. Encourage them to take

their time with these.

I suggest actively roaming, observing, and coaching for this set. Look for a student who started

fast and squeaky, or whose voice was rather emphatically pleading for the other to listen. You

might observe someone who is matter‐of‐fact, but doesn’t indicate importance or much

conviction. If the people you identified were able to adjust significantly, you might request that

they demonstrate it in the debrief.

The debrief begins predictably: What did you observe? What seemed to work – did you see

someone about whom you’d say: “I’d tell my brother‐in‐law to hire him as a lawyer!” Why?


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What caused some struggle? Did you observe or try to speak with) gravitas, but end up with

something different? Advice?

If you ask for volunteers from the class during the debrief, do ask a group to nominate someone

who did a great job – very much established what they read as gravitas.

If at all possible, I favor a fishbowl demonstration here. The goal is to show students who did

show a fair bit of gravitas – they were convincing. There’s NO intent to embarrass someone.

Time permitting: ask for volunteers – perhaps nominated by their group because they did such a

good job. Let them pick the vignette line they used, this time sitting at a table in front of the class.

With or without volunteers, I also like to end with a demo of a student I have observed, and one

who is willing to do it with “zero” or “not much” gravitas first. The particular paragraph I like to

reprise from the exercise sheet is one that begins: “I have reviewed all of the expert reports…”

Often, even students who do a pretty good, credible delivery, will end up speaking emphatically

(with forceful emphasis as their effort at gravitas). Written on their foreheads (with eyebrows

arched up in the middle) is the message “please listen to me, this is really important, I’m pleading

with you to pay attention.” You can play with the body language, gesture, facial expression and

tone in the fishbowl demonstration. The key is generally slowing down, particularly over the

words.. “I have reviewed” – spoken slowly because the review took time and was done carefully.

The speaker should not be begging or pleading, just firmly putting it out there for the listener.

When the demo works, it’s compelling – a great moment for all.

It’s time for wrap up, as seems right. The take away is that we have much to learn from actors.

We do act all the time, but we act our real parts. And in those roles, we are wise to be attentive to

effective use of body, gesture and voice.

By way of addendum, the Actors’ Exercises document available on the website includes a final

set of exercises, titled ABC Exercises in Consequences and Risk. We have NEVER reached them and

I no longer try. However, it might be possible with a longer class time allocation.

In the workshop, it’s now the end of Day Three. If you elect to start Day Four with a fishbowl

interview, as described below, you’ll want to recruit students before they leave for the evening.

(See suggestions for selecting students in the next section.)

Soup to Nuts – Interviewing and Counseling with Bad News Gloss

(Final workshop day – last two to three sessions in semester course)

This course segment is designed as an extended “soup to nuts” interviewing and counseling

experience, with critical examination and reflection drawing from all that has been learned. The

new gloss or extra ingredient consists of specific advice for giving a client bad news.

The Upscale Accusations case calls upon all of the course skills and strategies as students interview

a defense client being sued for age, gender and disability discrimination by a long time

employee.20 The case facts are somewhat complicated, as are the client’s relationship to and

20 It’s deliberately placed on the defense side because the Final Counseling Skills exercise situates the

students as lawyers on the plaintiff’s side.


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feelings about the plaintiff and the company’s decision to terminate her. The legal issues are also

complex. The defense lawyer is tasked with explaining “bad news” to the client: that they are

unlikely to succeed on a summary judgment motion (as they had anticipated), and that a jury

might well decide in favor of the plaintiff. Just as complicated (perhaps moreso) is the task of

explaining the elements and possible ranges of damages.

To encourage engagement (lest students have become course‐weary), I tell them this is a chance

to practice for the Final Counseling Skills Exercise. I see this case as more difficult.

I use a fishbowl format for the interview portion of the exercise. Before the end of the previous

day, I select a minimum of three students to play the client role and three to play the lawyer’s

role for the next day’s fishbowl. I explain to the students exactly what will occur:

They will be doing the interview in “fishbowl format” in front of the class

I’ll rotate them in and out at various times.

There will be “stop‐start” interruptions, feedback and discussion as we go.

It’s possible that I won’t reach everyone.

They should prepare by reviewing notes and materials from the first workshop

day (or the beginning of the course) on opening moments, icebreakers, body

language, attorney client privilege, confidentiality and fee discussions, as well

as active listening, questioning and eliciting the client’s narrative.

Reading Assignments

Students selected for the fishbowl must read and prepare from the Upscale Accusations interview

information, available on the course website.

Do emphasize that this is separate from and in addition to the Upscale Accusations Counseling

information, also on the website.

In the past, I have NOT insisted that the rest of the class read the Upscale Accusations Interview

role information. (The syllabus DOES assign it, as well as the client counseling role information).

On the one hand, in real life, the lawyer who reaches the counseling phase will have first learned

the initial interview information. So, there are no secrets to be withheld. On the other hand, it

seems to build some intensity for the fishbowl when the student audience does not exactly know

what’s coming next. One could also try assigning the lawyer’s interview role only – putting the

audience in the shoes of their classmates who are demonstrating the lawyer’s role. Or, one could

assign the client’s role only, putting the class audience into the shoes of the client. I’ve finally

determined to be agnostic on this point.

Selecting the students, invitation with an opt out

I generally select students who have been particularly engaged in the course AND who seem

confident and articulate, not shy or uncomfortable in front of a group.

While I try to select with a mixture of gender and age, I am particularly interested in setting up

contrasts in style – primarily vocal and personality types, as well as size. In other words, I am


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looking for slow steady talkers as well as those who are more animated. For the client’s role,

contrasts are also important, but you fundamentally want someone who will really act the client.

As indicated above, I select at least three students in each role, and will sometimes invite as many

as four or five. This protects the exercise against student‐lawyers who prove to be ineffective as

well as student‐clients who can’t act. Your goals is NOT to embarrass anyone, so if a student is

not performing well (or is a bit boring), you can say that you want to give the next student a turn,

thank them for a job well done and give them a round of applause.

Again, on the topic of selection, I begin with an idea of which student‐client will work well with

which student‐lawyer. For that judgment, I am primarily seeking contrasts in style. After the

fishbowl begins, you may find that you want to stay with one student‐client and rotate a differing

student lawyer in, or vice versa.

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