LEGAL INTERVIEWING DEFINED

It is the task of gathering information. It involves gathering of relevant data specifically the following:

1. Nature of client’s problem,

2. The client’s legal position, and

3. The probable consequences of adopting litigation or some other course of action to resolve the
matter1

The purpose of interviewing skills of a lawyer is to establish a good client-attorney relationship

throughout the duration of the trial. However, to ascertain such relationship, a lawyer must have a good
interviewing skill to establish his case and to defend arguments and counter arguments point by point.

The task of interviewing the client should be all embracing and exhaustive as possible. A lot of psychology
should be applied when sitting face to face with the client, always studying his mannerisms, his propensity
to prevaricate2and twist facts.3

The adequacy of the information gathered by the lawyer will depend on the following:

1. The lawyer’s general approach;

2. The client’s initial impression of the lawyer and of the place where they work together;

3. The initial feelings the two people have for one another;

4. The manner in which the lawyer goes after information;

5. The lawyer’s perception of the facts as the client begins to provide them;

6. The client’s expectations and images concerning the law;

7. The attorney’s understanding of his client’s concerns as; and

8. Theories and models used by the lawyer to explain the client’s behavior.4

Central Goal in Interviewing and Counselling

In any interviewing and counseling situation, the interviewer must keep in mind the central goal and not
become lost in techniques and details. The central goal is to generate a flow of accurate information and
reach a mutually agreed-upon decision.

General Considerations in Interview and Counselling

1
P.5, Binder and Price, Legal interviewing and Counseling 1977 Ed. as lifted from A Handbook on Legal Counselling and
Interviewing by Muricio C. Ulep
2
Evade, beat around the bush
3
Legal Counselling with Notes On: Practicum and Practice Court—Recaredo Barte 2006 Ed.
4
P.5, Binder and Price, Legal interviewing and Counseling 1977 Ed. as lifted from A Handbook on Legal Counselling and
Interviewing by Muricio C. Ulep
 A. PREPARATION

Before starting the interview, you must be able to identify your objectives, specifically the following:

1. Establishing good rapport/relationship with the client by using polite and pleasant greetings in
professional manner.

2. Gathering sufficient information to enable you to make a preliminary diagnosis or explanation;

3. Giving the client an outline of the legal position;

4. Finding out the client’s expectations and intentions;

5. Explaining your law firm’s fee structure and discussing payment of professional fees.5

B. TIMING

The best time to conduct a legal interview is the most convenient time for your client, unless in
emergency cases.6

C. THE ENVIRONMENT

C.1 . There has to be a reception area while the client could relax while waiting. It has to be tidy
and cozy7

C.2. An interview room where the client and the lawyer could openly talk about confidential
matters and legal problems. If unavailable, the law office proper would do, provided it is neat
and conducive for interview. 8

D. HOW TO GATHER FACTS

1. Ask the interviewee to help you by encouraging him to give you all the facts. The facts may
either be ultimate facts as referred to as used in Sec. 3, Rule 3 of the Rules of Court9 or
evidentiary facts10
2. Employ honesty, empathy and a little humor during the interview.11
3. Develop and ensure trust and confidence with the client.

5
Effective Interviewing, Helena Twist, 1992 Ed. as lifted from A Handbook on Legal Counselling and Interviewing by Muricio
C. Ulep
6
A Handbook on Legal Counselling and Interviewing by Muricio C. Ulep
7
Ibid
8
Ibid
9
Essential facts constituting the palintiff’s cause of action
10
Those facts which are necessary for determination of the ultimate facts; they are the premises upon which conclusions of ultimate
facts are based. Facts which furnish evidence of existence of some other fact—Tantuico Jr. vs Republic, 204 SCRA 428.
11
A Handbook on Legal Counselling and Interviewing by Muricio C. Ulep
 4. The lawyer must be as interested in the subject as he is taking notes of the interviewee’s
story.

Interview and Counselling Stages

1. Establish items of attorney-client relationship

- To be able to enforce or invoke the rights and obligations between the client and the
attorney such relationship must first be established. The relationship may be established in
any form but a written contract of lease of services or a retainership contract is the best
proof of its existence. The client must also be made aware of his responsibilities towards
the lawyer such as:
a. Paying him his attorney’s fees;

b. He cannot dismiss his lawyer at will; and

c. The lawyer’s authority to control the trial.

2. Determine facts
- The interview should be all embracing and exhaustive as possible. While conducting the
interview, apply psychology by studying his mannerisms and his propensity to prevaricate
and twist facts. Put him in a relaxed mood from the start, letting him know you will stand
by his cause under all circumstances and that he should not be afraid to tell you the whole
truth. Allow him to tell his side of the story spontaneously.

Open-ended questions encourage the client to talk, and allow her to provide information
that the lawyer would not otherwise obtain. Begin interviews with broad, open-ended
questions that allow the client to tell her story in her own words, and “get her problem
off her chest.” Content free questions avoid skewing the data received. Keep the client
talking with prompts like, “What happened next?” and then what?”

Open ended questions are often times not adequate to elicit vital information from the
client. Thus, leading questions are used in order to obtain specific details. However, the
lawyer should use leading questions with caution, such questions may lead to the client
feeling un easy and find the lawyer unethical.

3. Be frank to the client

- If the client deliberately hides the truth and openly suggests an illegal course of action, the
lawyer must be blunt and firm. Give him stern warnings such as you will not accept half-
 truth and lie and that he can find another lawyer if he doesn’t want to trust you. The lawyer
must also let the client know of his impressions upon him.

The client may be reluctant to reveal information for several reasons—for instance, s/he
may believe the information will hurt the legal case, she may not understand its
relevance, or she may find the information too traumatic to discuss. Countervailing
factors will motivate the client to talk, however. The client’s desire to resolve the problem
favorably may overcome her reluctance to talk. Or she may respond to: appeals to help
others, recognition of her efforts, or simply the expectations expressed by the lawyer. The
lawyer can gently bring into play each of these factors.

Assure the client that everything he says will not be divulged by the interviewing lawyer.
Under the Code of Professional Responsibility, Canon 17 specifically states that the lawyer
must be “mindful of the trust and confidence reposed in him” in the sense that everything
that his client disclosed to him within the corners of the room during an interview,
whether it was an admittance of guilt, the lawyer must uphold his duty to not expose such
statements whether to his colleagues or spouse. The lawyer must not only inform his
client of such duty but he must also appear to his client that his statements are safe and
confidential with him so they could build a better client-lawyer relationship.

4. Avoid frequent interruptions

- Avoid interruptions unless it is absolutely necessary since these will distract the client
which might lead him to forget essential parts of his version of the events. Ask clarifying
questions once he’s finished his narration.

The client comes to the interview with crucial information – what brings him to the
lawyer, and usually, what result he wants. The lawyer has important information also –
knowledge about the law and what facts are relevant given the law. However, the lawyer
should let the client finish his or her story before sharing his legal opinion on the matter.
Failure to give the client such opportunity will tend to make the client feel like he or she
was not able to tell the whole story.

Avoid judgmental cross-examination in the initial interview. (Confronting the client with
the holes in his story comes much later in the case, when you are preparing the client for
trial. And even then, you may have a colleague do the practice cross-examination to avoid
ill feelings between you and your client.) Never patronize your client. Avoid arrogance.

5. Conduct your interview in the language the client speaks

- If possible, the lawyer should understand the language the client is most comfortable
speaking.
6. Reduce to writing the narrations of the client
- Make a draft of the client’s narration and allow him to read his version. Ask him if
everything is in order and if there are still missing points. Do this before reducing the
narration in its final form
7. Interview all witnesses
- This is to determine the importance and probative value of their testimonies, to know who
should be first in the witness stand, who would be the star witness, expert witnesses,
alternate witnesses, and corroborative witnesses.

In Criminal Cases, Investigative interviewing should be approached with an investigative

mindset.

Accounts obtained from the person who is being interviewed should always be tested
against what the interviewer already knows or what can be reasonably established. The
main purpose of obtaining information in an interview is to further the enquiry by
establishing facts. This point highlights the importance of effective planning in line with
the whole investigation.

Interviewers should think about what they want to achieve by interviewing the victim,
witness or suspect, and set objectives which will help to corroborate or disprove
information already known. Investigators should try to fill the gaps in the investigation by
testing and corroborating the information by other means where possible.
-
8. Prepare a trial brief
- For a more effective and systematic presentation of evidence. In a criminal case, it is better
to first present the star witness who is usually an eyewitness. In the event he disappears or
die, you will have lost a testimony so vital and irreplaceable which might be fatal to the
case itself.
9. Determine client’s need and priorities
- Know which ones need immediate results as well as those regarding his future protection
and benefit. This is to know the order of priority and importance regarding the
corresponding relief sought for.
The benchmark of a good interview is simple: the client will feel that he has consulted an
attorney who is a caring human being. These suggestions on building rapport, questioning
technique, and structuring the interview can provide a framework for approaching the
interview and help you communicate your concern. However, remember that the client
will recognize the difference between caring and technique. In other words, in interviews,
the lawyer must have an empathy to his client’s cause.
 10. Make hypothetical cases
- Make scenarios on how the counsel of the opposing party will react to your allegations or
defenses. Know the possible causes of action the opposing party may have against your
client. By being two steps ahead of your opposition, you will be able to react on his actions
and pleadings during the proceedings
11. Pursue amicable settlement if possible
- This is to avoid a prolonged and expensive litigation for the sake of all parties
12. Determine the elements of potential claims, defenses, remedies, and counterclaims
- Because since these actions will be taken against your client, it is best to be prepared for
their applications and to know the corresponding reliefs against them
13. Analyze and develop your theory
- This must be based on both substantial and procedural laws applicable to the given state of
facts. Exhaust all available resources before deciding a final course of action. As a general
rule, once a theory has been asserted in a pleading, you are no longer allowed to change it
and you are bound by it and all allegations in your pleading up until the termination of the
case.
14. Conduct the interview more than a week before trial12
15. End the interview with finesse. As the interview draws near to a close, explain what you will do as
the client's lawyer. In effect, you are explaining your role as his defender in investigating the case
and preparing, planning, and carrying out a defense to the charges. Next, you should try
to diagnose the client's legal problem to the extent possible without giving dispositional advice. Be
careful about giving dispositional advice, particularly the possibility of negotiated settlement or a
guilty plea, too early. Your client will want to know immediately how the case is going to turn out.
Don't shoot from the lip. Don't talk about "copping out." Approach the case, at this time, as though
you are going to trial.13
What Should You Not Do During the Interview?

1. Never promise the client results. Don’t guarantee that you will be able to get the case dismissed,
win a suppression motion, win at trial, or get the client probation, deferred judgment (diversion),
or a suspended sentence. Promising the client results may assure you an invitation to speak with
the disciplinary administrator, grievance board or attorney regulation board.

It is unethical to promise results. Failing your promise may expose you to civil liability. Such
promises are often seen as contractual guarantees or warrantees upon which the client will rely
should your promised results not materialize.

12
Legal Counselling, Barte, 2006 ed.
13
Taken from http://criminaldefense.homestead.com/clientinterview.html. Last accessed, August 15, 2017.
 2. Opinions about the potential for success are permissible. You need not avoid giving the client
your opinion about odds or giving your opinion as to the likelihood of certain outcomes. When my
clients ask me for odds I simply tell them that criminal litigation is a “crap shoot” and that it is
difficult to be certain of the ultimate outcome.

3. Do not confuse making promises with puffing yourself to the client. There is nothing wrong with
boasting about your abilities or successes. After all, you have got to convince the defendant to hire
you. It is OK to tell the client that you believe yourself to be a good lawyer (“damn good,” if you’re
feeling sassy). On a few occasions, I have opined that I would try the case better than the
prosecutor. I follow that up with, “But even if I out-try the prosecutor, there is no guarantee that
you will be acquitted.”

4. Never speak poorly of the prosecutor, judge, or other attorneys with whom the client is consulting.
Speaking poorly of other attorneys or the judge will come back to haunt you. At some point, you
can expect the client, or someone on his behalf, to reveal the bad things you have said to the person
who was the subject of your insults.14

Differences in Civil and Criminal Cases15

Civil Case Criminal Case

In civil cases, the liberty of the accused is not at Criminal discovery differs from civil discovery,
stake. What is involved may be money, property in part because the defendant’s freedom is in
or patrimonial rights of an individual. jeopardy and because the plaintiff is a
governmental entity.

The plaintiff has the onus of proving his He is entitled to everything relevant to include
allegations set forth in the complaint. Hence, he him in the involvement of the crime, to exclude
bears the burden of producing testimonial and him in the involvement of the crime, or to set his
documentary evidence. punishment.

14
The Criminal Defense Attorney’s Job: A survival guide, American Bar Association retrieved from
http://apps.americanbar.org/abastore/products/books/abstracts/5150303chap2_abs.pdf
15
The Criminal Defense Attorney’s Job: A survival guide, American Bar Association retrieved from
http://apps.americanbar.org/abastore/products/books/abstracts/5150303chap2_abs.pdf
The plaintiff may avail of the benefits of having The defense does not have to conduct
a pre-trial or resort to discovery procedures depositions or submit interrogatories, requests
under the Rules of Court. for production of documents, or requests for
admissions to have access to the prosecution’s
discovery

The plaintiff, as contrasted to the defendant, has The prosecutor has a legal duty to disclose all
the burden of proving his allegations in the inculpatory and exculpatory evidence.
complaint. Hence, he bears the risk if he
presented insufficient evidence to support his
claims.

Interview in relation to the Rule of St. Benedict

Chapter 53: On the Reception of Guests

Let all guests who arrive be received like Christ,

for He is going to say,
"I came as a guest, and you received Me" (Matt. 25:35).
And to all let due honor be shown,
especially to the domestics of the faith and to pilgrims.
As soon as a guest is announced, therefore,
let the Superior or the brethren meet him
with all charitable service.
And first of all let them pray together,
and then exchange the kiss of peace.
For the kiss of peace should not be offered
until after the prayers have been said,
on account of the devil's deceptions.
In the salutation of all guests, whether arriving or departing,
let all humility be shown.
Let the head be bowed
or the whole body prostrated on the ground
in adoration of Christ, who indeed is received in their persons.
After the guests have been received and taken to prayer,
let the Superior or someone appointed by him sit with them.
Let the divine law be read before the guest for his edification,
and then let all kindness be shown him.
The Superior shall break his fast for the sake of a guest,
unless it happens to be a principal fast day
 which may not be violated.
The brethren, however, shall observe the customary fasts.
Let the Abbot give the guests water for their hands;
and let both Abbot and community wash the feet of all guests.
After the washing of the feet let them say this verse:
"We have received Your mercy, O God,
in the midst of Your temple" (Ps.47[48]:10).
In the reception of the poor and of pilgrims
the greatest care and solicitude should be shown,
because it is especially in them that Christ is received;
for as far as the rich are concerned,
the very fear which they inspire
wins respect for them.

Let there be a separate kitchen for the Abbot and guests,

that the brethren may not be disturbed when guests,
who are never lacking in a monastery,
arrive at irregular hours.
Let two brethren capable of filling the office well
be appointed for a year to have charge of this kitchen.
Let them be given such help as they need,
that they may serve without murmuring.
And on the other hand,
when they have less to occupy them,
let them go out to whatever work is assigned them.
And not only in their case
but in all the offices of the monastery
let this arrangement be observed,
that when help is needed it be supplied,
and again when the workers are unoccupied
they do whatever they are bidden.
The guest house also shall be assigned to a brother
whose soul is possessed by the fear of God.
Let there be a sufficient number of beds made up in it;
and let the house of God be managed by prudent men
and in a prudent manner.
On no account shall anyone who is not so ordered
associate or converse with guests.
But if he should meet them or see them,
let him greet them humbly, as we have said,
ask their blessing and pass on,
saying that he is not allowed to converse with a guest.

In interview, it is advisable that when a lawyer receives a client, he must receive it as how St. Benedict or
a monk ought to receive a guest. The Rule of St. Benedict provides that, “as soon as a guest is
announced, therefore, let the Superior or the brethren meet him with all charitable service.” In relation
to a lawyer, he must receive his client politely and without judgment. This is in relation to Rule 2.02,
Canon 2 of the Code of Professional Responsibility which provides that “A lawyer shall not reject, except
for valid reasons, the cause of the defenseless or the oppressed.” No matter what a lawyer’s initial
impression on the client is regarding his cause, or his appearance, or social standing, he should be able
to afford him the same treatment and welcome as he would a rich or high-paying client.

In the salutation of all guests, whether arriving or departing, let all humility be shown. A lawyer should
not portray to his client that he is intellectually and professionally above his clients. Humility should be
shown as a lawyer is representing the cause of his client.

After the guests have been received and taken to prayer, let the Superior or someone appointed by him sit
with them. Let the divine law be read before the guest for his edification, and then let all kindness be shown
him. The phrase let all kindness be shown to him, should also be related to the phrase in the same chapter
that “when help is needed it be supplied”. The kindness and supplication of help is related to a lawyer’s
duty to his client of not refusing his services to the needy. Rule 14.01, Canon 14 of the Code of Professional
Responsibility provides that, “A lawyer shall not decline to represent a person solely on account of the
latter's race, sex. creed or status of life, or because of his own opinion regarding the guilt of said person.”

In interview, since the information gathered will depend on the initial feelings the two people have for one
another, the client’s initial impression of the lawyer and of the place where they work together, among
others, it is but just that the lawyer welcome his client as how he welcomes a guest in his house or how a
monk welcomes guests in the monastery.

A reception area for clients should also provide an environment which is conducive for conducting an
interview. The same is true for reception of guests.

It shall be noted that the Rule also provides how a guests’ needs should be taken care of. The lawyer must
also ascertain his clients’ needs and priorities which must always be for his benefit.

Chapter 46: On those who fail on any other matters

When anyone is engaged in any sort of work,

whether in the kitchen, in the cellar, in a shop,
in the bakery, in the garden, while working at some craft,
or in any other place,
and she commits some fault,
or breaks something, or loses something,
or transgresses in any other way whatsoever,
if she does not come immediately
before the Abbess and the community
of her own accord
to make satisfaction and confess her fault,
then when it becomes known through another,
let her be subjected to a more severe correction.
But if the sin-sickness of the soul is a hidden one,
let her reveal it only to the Abbess or to a spiritual mother,
who knows how to cure her own and others' wounds
without exposing them and making them public.

This provision can be related to a situation when a client in an interview, reveals to his lawyer that he has
transgressed a law. The abbeess or spiritual mother can be akin to a lawyer, who knows how to cure her
own and other’s wounds. When the client discloses such fact of his fault, the lawyer must assure the client
of the confidence of his relations to him, in accordance with the attorney-client relationship. In addition,
the lawyer ought not to judge the client for such and must not decline to render his service except if there
is a conflict of interest. The duty to preserve the confidence and secrets of his clients holds true even after
the attorney client relationship has terminated as provided for in the Code of Professional Responsibility.

Chapter 2: What Kind of Person the Abbess Ought to Be

An Abbess who is worthy to be over a monastery

should always remember what she is called,
and live up to the name of Superior.
For she is believed to hold the place of Christ in the monastery,
being called by a name of His,
which is taken from the words of the Apostle:
"You have received a Spirit of adoption ...,
by virtue of which we cry, 'Abba -- Father'" (Rom. 8:15)!
Therefore the Abbess ought not to teach or ordain or command
anything which is against the Lord's precepts;
on the contrary,
her commands and her teaching
should be a leaven of divine justice
kneaded into the minds of her disciples.

A lawyer’s duty can be likened to an abbess’ duty not to teach or ordain or command anything which is
against the Lord’s precepts. A lawyer, in conducting an interview with his client, and in giving his
opinion to his client’s cause, should not suggest an illegal or immoral course of conduct. He should also
not allow his client to pursue conduct violative of the canons and rules, as provided for by Rule 22.01 of
Canon 22 of the Code of Professional Responsibility. If an abbess must not command anything which is
against the lord’s precepts, the lawyer should not teach the client to do things which is against the law.

An Abbess who is worthy to be over a monastery should always remember what she is called,
and live up to the name of Superior. A lawyer should likewise live up to the ideals of the legal profession
and must always remember that his duty is always for the administration and dispensation of justice.