in South Africa aie tee) (@ LexisNexis:Consultation skills By Franciscus Haupt 4.1 Introduction ‘One of the most basic skills required by any legal practitioner is how to conduct a proper consultation. Consulting with a ‘real’ client for the first time is likely to be an intimidating experience, particularly if you have had no training in interviewing techniques. This chapter will assist you in effectively preparing and conducting consultations with clients in a legal practice. It deals with the various stages of a typical consultation, from the ‘meet and greet’ stage to the stage where you take instructions from the client. The chapter also provides useful checklists when consulting with clients on specific areas of law and concludes with a checklist to use in assessing your own consultation skills. 4.2 Aims of consultation Broadly speaking, the primary objectives of the consultation’ are to establish a relationship; obtain the necessary facts; advise the client: and obtain instructions. More specifically, the consultation aims OC explore with the client the reasons for seeking legal advice and assistance; & identify the legal problems that present themselves; O provide an analysis of options and to counsel the client in the decision-making process; 0 allow the client to make an informed decision at the appropriate stage: O ensure that the legal practitioner and the client are both aware of the conss- quences of any decision made, for example in terms of costs, the plan of action, time scale and further decisions; and 1 The terms ‘consultation’ and ‘taking of instructions’ are commonly used in South Aftica, whilst ‘interviewing’ and ‘counselling’ are most offen used in clinicsl legal literature in the United States. 61Clinical Law in Seuth Africa 1 achieve all of the above in a manner which allows the client maximum power to make decisions and to ensure that the practitioner behaves in a professional and ethical manner. * 4.3 Preparing for the consultation Itis of the utmost importance that you prepare thoroughly for the Always bear in mind that proper first and every subsequent con- ts performance. sulfation with the client. Always Preparation prevents Peer bear in mind that proper preparation prevents poor performance. When a client contacts you to make an appointment for an initial interview, you should try to ascertain the identity of the client, for example his/her name, title, occupation, age or any other relevant information, as well as the general nature of the client's problem. With this information at hand, you could brush up on the relevant law before the initial consultation. Clients should also be asked to bring all relevant documentation, for example ante-nuptial contracts and marriage certificates, to the initial consultation. Better still would be if the client is in a position to have copies of relevant documents delivered or faxed to your offices prior to the consultation. By obtaining as much information as possible prior to the consultation, you can prepare properly. Ensure that relevant forms or documents, such as CCMA forms in labour matters, statistical forms and forms required by the office of the family advocate in divorce cases where the parties have minor children are available. When planning the initial consultation, also consider seating arrangements (if you know beforehand how many people will accompany the client, you can arrange sufficient chairs); tidying your office (especially the desk!); the need for somebody to act as ‘interpreter’ (often the case when practicing in a multi-cultural and multi-lingual society such as ours), preventing disruptions such as telephone calls (avoid taking calls during the consultation and, in the odd case where this is unavoidable. explain to the client and take the call elsewhere so as not to jeop- ardise attorney-client confidentiality); the provision of refreshments, and your personal attire (make sure you know the clinic’s dress code and adhere io it); as well as the time available for the interview. The advantages of proper preparation ‘are numeraus. It promotes a confident practitioner, resulting in a confident client. It leads to a purposeful and complete interview. It ensures that the practitioner is acquainted with the relevant legal principles, enabling hinvher to give good ad- vice, which in turn enables the client give proper and complete instructions. Prepa- ration also creates the impression of efficiency and sound organisation.* In a typical law clinic environment, applicants for legal aid often arrive without a prior appointment, making pre-consultation preparation impossible. Depending on how busy the clinic is, the time available for each consultation may also be 2 Brayns snd Grimas (1894) Professions! Skills for Lawyers, a Student's Guide st 92. 3 Camphar (2002) “Taking of Instructions’ in in Van dan Heever (ed) Practical Legal Training ‘Notes (Law Sociaty of South Africs) at 4. 62Consultation skills limited. Under such circumstances, the task of the practitioner is much more difficult. It remains important, however, to give proper attention to each client. Rather schedule a follow-up appointment after having made an initial assessment of the client's problem in order to prepare properly and to give the client your full atten- tion. 4.4 Stages in the consultation A proper consultation should follow a definite but adaptable structure, enabling the practitioner to control and direct the interview in an efficient manner so as to best serve the client. The model suggested in this chapter entails a five-stage process but should not be seen as an ideal or set model.* Consultations should be adapted according to your individual style, the style of your client and the relevant circumstances. The five stages of tne consultation process are: the ‘meet and greet’ and introduction or housekeeping stage: the listening stage; the ques- tioning stage; the advising stage; and the taking of instructions stage. Each of these stages is now discussed in mare depth. 4.4.1 The introductory or ‘meet and greet’ stage Bear in mind that most people who seek legal advice or assistance do not really want to be in the position that they are in. They could experience (and express!) emotions such as frustration, anger, anxiety or a combination of these. In a law clinic, clients aré mostly poor, unemployed and uneducated. These marginalised members of society may not be accustomed to consulting with a legal practitioner and may, as a result, feel intimidated and insecure. The first objective should be to put the client at ease by creating an atmosphere of mutual respect and to build rapport between the client and yourself. From the very first contact, a relationship forms. This relationship will continue to grow throughout the course of legal representation. If the initial contact is poor, it Will be difficult to build the complex professional relationship needed in many legal cases. Therefore, it is in the initial contact that you should begin to establish a good rapport with the client. The relationship that you should strive to achieve is one of personal regard, genuineness and respect You should show care and respect to the client @s.@ person. This enables the client to respect you as a competent professional? You should always be punctual. Avoid making clients wait. Everyone has expe- rienced the frustration of waiting for a consultation with a medical practitioner after arriving early or on time. If you are running late, as is sometimes unavoidable, you should approach the client, apologise and explain the reason for the delay. 4 See eg Hyams. Campbell and Evans (1688) Practical Legal Skills at 23, where a thres- stage process is suggested: see Breyne snd Grimes (1904) Professional Skills for Legal prsctitioners, 3 Student's Guide at 131-145 where an slsven-stsge procass is described. 5 Mshem Professional Skillz Courses: Interviewing Counselling, Negotiation htip:Jimww.pili.org! 2005ricontent'view! 162/26.Clinical Law in South Africa ‘You should meet clients in the waiting room or reception area and accompany them to your office or the consulting room. This serves a dual purpose: first, it shows the clients respect in that they are not being ushered in to meet the practi- tioner while the latter awaits them like royalty. The second purpose is more prac- tical: it enables you to ‘break the ice’ with clients by chatting about trivial matters. It also enables introductions to take place in a less formal environment.* ‘When introducing yourself, you should give clients your full name rather than introducing yourself as ‘Mr Smith’ or ‘Ms Mbuyisa’. If you wish a client to call you by your first name, you should make your intention known. Clients should be addressed formally, jor example as ‘Ms° or ‘Mr, until they invite you to call them by their first names. Always be friendly and courteous. The legal profession undoubtedly imposes mental and emotional strains on those who practice it. Do not allow these strains to influence your behaviour towards the client. Before commencing with the substance of the interview, it may be best to pre- sent the client with a brief introduction of who you are; information on the firm or clinic: the process the interview will follow: and the legal fees payable. Often, the matter of fees proves fo be a client's main concer. It may help the communica- tion process if this matter is dealt with early on in the interview. The following is an example of how to open a consultation: I'd like to start this interview by explsining how | usually go about deing things with » new liant. What I usually find useful, is to esk you to give ma the reason why you heve came to S66 me, in your own words, 50 that I can get sn ides of ths problem. | den't want to spend toa much time on thst, but Id like to start by just listening end not interrupting. ‘Then, what I'd like to do is to ask a few very short questions to clarify any things that | may have misundersioed. After thet, I'l meed to start taking down some notes, and to ask you specifc questions in more detsil. Towards the end of the interview, | ope that [il bs. able to offer some advice and suggest some course af action. | offen find that iter the initial interview, we have to agree on what further information I should need: who is going to do what snd when we need to meet sgain. Well Mr Grave, I've spoken long enough. Is there anything at all about whst I've ssid thst confuses you? (Pause) Well, can we stgrt? ‘The first thing is, would you like to tall me why you have come here today to see me? - At law clinics, some particular matters may At law clinics, some require attention at this stage. Although the particular matters may services provided by law clinics are generally require attention free of charge, clients may nevertheless be at this stage. expected to contribute towards disburse- ments. If so, this should be explained. This is also the appropriate time to assist clients in completing the application forms for legal aid. You should take time to explain legal aid, the means test, the indemnity form, and cost implications to the client. The client should sign the application form once he/she is clear on the contents. Where language presents a problem, you should not proceed without the aid of an interpreter. 6 Hysms, Campbell and Evsns (1998) Practical Lagas Skills st 21-22. 7 Brayne and Grimes (1904) Professional Skills for Lawyers: 2 Student's Guide at 04. 64Consultation skills 44,2 The listening stage The second and perhaps most important stage of the consultation simply requires the practitioner to listen to the client. Listening is not as easy as it sounds. In fact, one of the major barriers in the communication process is the failure of the parties to listen to one another. Contrary to widespread belief, waiting for a client to stop talking is not the same as listening to what a client has to say.* Active listening is a communication skill used by practitioners to help the client to deliver clear facts and instructions. ~ It is said that active listening takes place ‘Its said that active listening) o, four levels the head. the heart, the sio- takes place on four levels: | mach and the feet? Listening ‘with the the head, the heart, head’ means absorbing facts and other forms the stomach and the feet, | of informaton. Listening ‘with the heart means understanding emotions. Conflict is ‘offen associated with strong feelings, such as anger, fear, frustration, and disap- pointment. Strong feelings often block the way to rational discussions and there- fore have to be identified and dealt with before moving on to substantive issues. Listening ‘with the stomach’ means being aware of basic human needs, and listening ‘with the feet’ means identifying intention or will. Here, one identifies in which direction the person is moving and how strong their commitments. During the client's narrative, you should encourage the client by using active listening techniques such as: Silence: Although it may sound strange to think of silence as an active response, it has proved to be most effective. If the client says something important and you remain silent, it conveys the message: ‘I don’t want to inter- rupt. | am listening. What you have to say is important. | am giving you a chance to continue’. This is a positive and active silence. You should however, avoid creating the impression that you are not listening or that your thoughts are elsewhere. ‘ Restraining yourself from interrupting: It is quite natural that, because of your legal education and experience, you want to cut through unimportant details and get to the heart of the matter as soon as possible. You should however, ‘try to avoid interrupting your client as it could prove to be counterproductive. Consider the following example: Interviewer (after having desit with the preliminaries of the interview): So how can I help you today? Client: Well | was driving back from work sarly the other day — so | could pick up my son from schgol. | was just tuming into Helgs Street, when I saw a truck coming towsrds me. wasn't reslly thinking, 80... Interviewer (interrupting): Helge Strat. is that in Gariton? Client: Yeh — anyway, | sew the truck coming... 8 Crouch ‘Barriers to Understanding in the Legsl Situation’ 1878 Law institute Joumal 808. © Centre for Conflict Resolution (2001) Communiestion in Conflict Resolution Manual st 24. 65Interviewer (taking out @ pen and paper: Look, esn you draw me = diagram of where ‘your car was snd where the truck was coming from? Draw in all the other traffic too please, and write down the names of the roads. Client Well ok, but I don't 386 how that will help much. Interviewer: Trust ma, 've done = milion of these — it's essential thet | get 2 disgram. (The client then spends five minutes drawing a diegram.) In the above scenario, the solicitor was (much) Ister surprised to learn that the issue the client had come in to discuss, was an argument he'd with the truck driver once he got inside the Scheel, relating to one of tham bullying the other's child. It was not s car sec dant, a5 the selistor had assumed. Valuable ms was lost... Early diagnosis and inter- Tuptons resulted in s frustrating interview for both clisnt snd interviewer. 1D Using appropriate body Janguage: Appropriate eye contact, nodding of the head, facial expressions, gestures, body positioning and tone of voice may all be used in such a way that the message ‘I am eager to hear and | understand your comes across effectively and meaningfully. 1D Encouraging elaboration or response: This may range from a simple ‘mmm’ (meaning: ‘yes, go on’) or ‘I see...’ (meaning: ‘| understand’) to ‘I'd like to hear about...” or ‘What happened then... 7. O Restating. This technique involves the use of the client's own words in response to the practitioner. It may be an exact restatement or summary. Restating words is a good way to let the client know that you are listening. Try ‘to emphasise the important parts by asking the client to restate certain facts. Resiating gives the client a chance to hear his/her own words. A ‘playback’ of something that one regards to be of great importance often prompts the client ‘to elaborate. OO Paraphrasing: This involves restating the client's exact words. Correctly used, it could indeed prove to be a powerful tool in communicating your understand- ing of the problem. Paraphrasing could also move the consultation to a deeper level, bring out more refiective responses, slow down the interview, launder ‘vicious’ or emotional statements whilst retaining the basic points, and assist in reality testing." Paraphrasing tends to alter the practitioner's natural tendency to listen only for points that match his/her own preconceived ideas. It gives the client the chance to clarify facts if he/she has been misunderstood. When paraphrasing, one should avoid mere parroting, judging or evaluating. Taking notes: Comprehensive and accurate notes may prove to be essential during the consultation. However, a detailed recording of facts utilised too early in the consultation may impede the flow of communication. It is therefore suggested that notes should be taken during the next stage of the consulta- tion, which is the questioning stage. At this point, you should restrict your notes to important basic facts, such as names, times, dates and places. Should you wish to record the interview and if this is allowed in terms of the internal rules of the clinic obtain the client's permission first. 1D Hyams, Campbell and Evans (1808) Practical Legal Skills st 24. 11 Centre for Conflict Resolution (2001) Communication in Conffict Resolution Manual at 26.Consultation skills: Showing empathy. Competent interviewing, which involves active listening, shows empathy for the client's feelings. Empathy is not the same as sympathy. Empathy indicates that the practitioner acknowledges the distress or other emotional state of the client You should always try to focus on the client, rather than on yourself, by using phrases Such as “You felt..." Avoid saying ‘ know exactly how you feel. I've been in similar situations . _ 4.4.3 The questioning stage After listening to the client's narrative in its entirety, the practitioner should see the bigger picture. At this stage, you should start to ask questions, listen and evaluate responses, and ask appropriate follow-up questions. Be aware that the manner in which a question is phrased can significantly influence the response. Various types of questions may be used. Each form of question has its own particular strengths and is appropriate in different circumstances. Ol Open questions: Open questions cannot be answered with a simple yes or no. ‘These questions are likely to elicit more information about the client's problem and expectations. Open questions allow clients to explain situations from their perspectives, rather than simply responding to the questions put to them. It gives clients the opportunity to express what is important to them. It also allows for a more interactive process that will result in the delivery of more accurate information. However, open questions also extend the length of the interview. It may also elicit irrelevant information and is therefore usually not appropriate when you require specific information on a particular issue.” Open. questions could be phrased as follows: ‘Why did you do it?) ‘How did you interpret this?’; ‘What were you doing?’; ‘Describe the .. . me more?” It is often taxing to sit through a long-winded explanation that may include legally irrelevant details. You should be patient, but feel free to guide the client. This. may be done by occasionally offering a question or a summary of your understanding. This helps to keep the conversation focused and also reflects ‘the interviewer's active listening skills. Closed questions. Closed questions restrict the range of responses to either a yes of ano. Closed questions permit you to ebtain much information in a short period of time. This manner of questioning is especially beneficial if one is completing a checklist. However, closed questions restrict the flow of infor- mation as the ‘why’ questions are not dealt with." For example: ‘When did you start working at the company? ‘Who was your immediate supervisor?” and ‘Did you call him on that day?” Many writers suggest the use of the ‘T-funnel' technique.”* Al the start of any particular line of enquiry, the questions are broad (this constitutes the top of 12. Craig ‘Effective Interviewing Skills for Auditors’ 1801 vol 1 Joumal of Accounting 121. 12 Supes at 122, 14 The funnel sequence’ of questioning wss first described by Kahn and Cannell (1975) The Dynamics of interviewing: Theory, Technique and Cazes. orClinical Law in Seuth Africa ‘the funnel), but as one becomes familiar with the information the client is con- veying, one narrows down the focus with progressively narrower questions. After one issue has been exhausted, the next issue should be tackled using ‘the funnel technique from the beginning again. O Biased or joaded questions: Biased or loaded questions should be avoided. The bias of a question affects the validity of the response. The interviewers objective is to obtain valid and relevant evidentiary matter. Biased questions produce neither valid nor relevant information." For example: ‘The company's rules regarding absenteeism are well-known, wouldn't you say?” O Reflective questions: Reflective questions are aimed at establishing whether the interviewer has accurately understood what the client is saying, with regard to ‘the facts and feelings underiying the situation. For example: ‘Correct me if I'm wrong, but | got the impression you were extremely angry when you realised ‘that the landlord had no intention of having the leaking roof fixed... Am | right?" O Process controlling questions. Questions can also be used to move the con- sultation along in cases where the interviewer needs to take control of the pro- cess. For example: ‘Shall we move on to consider. ..? and “What happened ‘the next time you met MrX__..?" The persuasive question: There is never a good reason for trying to persuade ‘the client to answer a question in a particular way. You might get the answer you want, but if it does not accord with what the client actually recalls or wants, you will be left with a confused client and a poorly prepared case. There is an inherent danger in trying to get the ‘right’ answer in that it could easily lead to you only seeking information that matches your preconceived ideas. Always keep an open mind and look for information relevant to your theory of what happened, but try to disprove or prove it constantly. For example: ‘Don't you ‘think it is more likely that you did use your indicators before you turned? After all, that is what they taught you in driving school.” Occasionally, a client's responses to questions are inadequate, evasive or not appropriately responsive to the practitioner's questions. In such instances, you may choose to rephrase or ask the question again at a later stage. If the client is still giving inadequate responses, you need to assess the cause. For example, the client may not have understood the question, lost focus in answering, had a memory lapse or has problems articulating. It may also be that the client is con- sciously trying to conceal or fabricate information. When dealing with this scenario, you should use a more probing technique, but avoid acting hostile towards the client.” You may also find it helpful to involve a colleague in the consultation. By listening to the client using active and passive techniques and asking rele- vant open and closed questions, you should succeed in obtaining all the relevant 18 Craig (1801) at 122. 16 Brayne snd Grimes (1904) Professional Skills for Lawyers: 3 Student's Guide st 139. 17 Mahem Frofessional Skills Gourses: interviewing Counseling, Negotiation http:/Awww pili.org! 200Sr/content/views! 162/26).Consultation skills details of the client's problem. By summarising, paraphrasing and ‘playing back’ to the client, you will ensure that your understanding of the facts correspends with that of the client. Despite your best attempts, you may, however, still find gaps in the facts. In such circumstances, you should explain to the client that you are unable to give proper advice until you have a complete understanding of the facts, much like a doctor who would not give advice regarding a broken bone until the xfays have been studied." ‘Similar to establishing the facts, the relevant law needs to be researched in most instances before the client is advised. As practitioners become more experi- enced and as their expertise develops, they may find it possible to give final and conclusive advice at the initial consultation. More often, practitioners will at this stage only be able to give an outline of advice and the options open to clients. In this event, clients must understand that the advice given is only preliminary and that a more detailed analysis will only be given at a later stage." 44.4 The advising stage ‘Of all the skills legal practitioners must possess, the ability to advise clients properly may be the most critical. In order to advise clients about their legal problems, you must be knowledgeable about substantive and procedural law. You must also be able to engage in strategic planning, have well-developed interpersonal skills and be able to predict, with some degree of certainty, the likelinood of certain results flowing from a particular act or failure to act. You must effectively communicate to the client the many nuances of your craft in understandable and non-technical language. As a practitioner, you must have a breadth of vision that enables you to present to clients a wide range of alternatives and options to consider and weigh. Your vision must be deep and wide. This means that you must be able to assist clients in examining the underly- ing reasons for their goals and contemplated actions. > The legal practitioner's duty to clients seeking advice is to give a competent opinion, based on sufficient knowledge of the relevant facts, adequate considera- tion of the applicable law and by drawing upon the practitioner's awn experience and expertise. The advice must be open and undisguised, clearly disclosing what the practitioner honestly thinks about the merits and probable results.*' It is good practice to point cut to clients that although the legal services you render come free of charge, unreasonable or unrealistic demands or claims may result in an adverse costs order being granted against the client. 18 Hyams, Campbell and Evans (1898) Practical Legal Skills at 43. 1 Supra. 20 Dinerstain ’A Client Centered Counselling: Respprsissl snd Refinement 1990 Arizona Law Review 501. 21 American Sar Assovistion Code af Professional Canduct ch 3 at 7. 69Clinical Law in South Africa If it becomes apparent that the client has misunderstood or misconceived what is really involved, the practitioner should inform the client of the true position and advise hinvher about the real issues or questions * ‘You should clearly indicate the facts, circumstances and assumptions upon which you base your opinion, particularly where the circumstances do not justify an exhaustive factual investigation resulting in extra expenses to the client. This having been said, the legal practitioner should investigate each matter in sufficient detail before expressing an opinion, rather than giving non-specific advice with many qualifications. ‘You should never overstate the merits of the ‘You should never client's case in an attempt to reassure the client. overstate the merits | Sooner or later reality will catch up with both you of the clent’s case in | and your client. This could leave the client unhappy with your performance and with the legal system. On an attempt to reassure) the gther nand, avoid understating a client's pro- the client. spects in an attempt to avoid later disappointment ‘on the part of the client. A client who has had the merits of his/her case understated may decide to settle for a lesser amount than he/she would have been awarded had the client been accurately advised.* 4.4.5 The taking of instructions stage Your role as a legal practitioner is not to tell clients what to do, but rather to help clients decide on the appropriate strategy. Thus, clients must be allowed to partic- ipate in the process. The following strategy in obtaining instructions may be useful. © when exploring the available options, lay out each option separately and dis- cuss the consequences of taking that option before moving on to the next option, O ensure that clients have the opportunity to ask questions about your explana- tion before moving on to the next option: O consider drawing up a list or presenting a grid of options and consequences for your clients as the discussion progresses. This would enable them to remember what you have said: C insist that clients do not make a decision until you have laid out all the options. OC do not omit possible negative consequences, such as increased costs or court delays, for fear of clients’ reactions. Clients should be fully appraised of all the potential repercussions of making a particular decision; O if there is bad news to convey, for example if all the possible options are negative, you should be brutally honest with the client. Sometimes practition- ers must be harbingers of bad news, and 22 American Ber Association Code of Professional Conduct ch 2 at 7. 22, Maham Professional Skails Courses: Interviewing Counselling, Negotiation http/Ammpii.org/2006c/ contentiview 162/264. 24 As suggested by Hyams, Cempbell and Evans (1998) Practical Legal Skills at 51. 70Consultation skills O if a client insists that you make a decision about which course to take, you should politely but firmly refuse. Ultimately, it is the client's problem, and it is therefore in his/her best interests to participate in the process of dealing with it. Not only is it the client's right to make a decision relating to his/her own prob- fem, but the client will more than likely be able to live with the consequences of that decision. The client will also be less likely to blame you or your firm or clinic for any negative consequences. You should give an opinion as to what you think is best, but the client must understand that your opinion is subject to the client's priorities. As in medicine, legal practitioners must obtain their clients’ ‘informed consent’. A. patient has the right to make medical decisions based on the diagnosis, prognosis and available options. Similarly, the clients of legal practitioners have the right to make informed decisions about the litigation strategy. This means involving clients in the decision-making process. 4.5 After the consultation ‘Once the practitioner and the client have -, - devised a strategy, it is essential that the It is essential that the client client has a clear understanding of the | fas a clear understanding of procedure that will follow. At the earliest | the procedure that will follow. possible opportunity, you should provide your client with a letter summarising the decisions made together and the agreed strategy to be adopted. You should set out the procedure to be followed on a step-by-step basis. If appropriate, you should point out how the strategy may be affected by the reaction of other parties, for example if an offer is rejected. For this eventuality, you should, in consultation with your client, have devised a ‘Plan B’, which should also be confirmed in writing. During the course of legal representation, the practitioner's strategy may change. New, previously unconsidered facts may come to light that may affect the outcome of the case. Clients should understand that as the case progresses, the predicted outcome might change. itis a dynamic process. In many situations, it is appropriate to give clients tasks that will assist in the practitioner's strategy, for example obtaining quotations or contacting possible witnesses. Some clients may want to hand ~ complete control of the matter over to the pract- | Explain to your clients tioner. You should avoid acting under such circum- | that together you are stances. Rather emphasise to clients that the | different players on resolution of their matters require a co-operative the same team. appreach and that they are equalpariners in the 25 Vilardo ‘Communicating with Clients’ 2001 27 Litigation at 45. 26 Hysms, Campbell and Evans (1968) Practical Legal Skills at 51. Letter-wrting skills ere Siscussed further in ch @ 27 Mshern Professional Skills Courses: interviewing Counselling, Negotiation http://www pili org! ‘200Ericontentviewe!1 62/26. ral‘Clinical Law in South Africa process.2= Explain to your clients that together you are different players on the same team.** It is also important that clients know what to expect. Practitioners and clients often fail to communicate on this point, and each gets increasingly annoyed waiting for the other to do something! The practitioner's last comments to the client, as part of his/her interview or letter of advice, should set out the actions to follow. If you are waiting for your client to provide you with quotations for damages in anticipation of writing the initial letter of demand, you should point out that you are unable to proceed until the necessary documents have been provided to you. Likewise, if you have received instructions from the client to make an offer of settlement, you should ensure that the client understands that he/she will not hear from you until the other side responds to that offer? Throughout the course of representation, a legal practitioner should continue to interact with the client. It is frequently the practitioner who must identify issues which require consultation with the client, but clients should, however, not be allowed to become overly dependent on the practitioner. Similarly, as a practitioner, you should not take too much control in the relationship. Clients who are kept informed and who participate in decision-making throughout, the representation are the clients who are the most satisfied with the relationship.” Advising clients on the law and assisting them to make decisions that may nave Serious consequences are some of the most demanding tasks undertaken by legal practitioners.* It also brings with J it the risk of liability for damages suffered as a result of incorrect advice is given. 4.6 Utilising checklists or client instruction sheets Some useful checklists are provided below, dealing with delictual claims and divorce matters. A word of caution: these checklists are for guidance purposes only and should never be followed in a mechanical way. They are merely intend- ed to prevent you from overlooking important details: to assist in providing a logical sequence: and to avoid ‘getting stuck’ during the interview. Properly used, they could assure the client that you are well-prepared and organised. In addition, be aware also that clients’ problems often cover a large range of issues, not always catered for in a single checklist. Following a checklist slavishly may be- come a barrier to communication. A checklist does not replace a proper consulta- tion or necessarily canvass all the relevant issues. Clients may.2 also feel that they are being treated as just another statistic on a pre-printed form ** 28 Hysms, Campbsll and Evans (1888) at 86. 26 Vilerdo “Communicating with Clients’ 3001 27 Litigation 45. 30 Hysms, Campbell and Evans (1908) Practical Legal Srills at 56. 31. Mahern Professional Skills Courses: interviewing Counselling, Negotiation hiip:!\wwn.cil.cra! 2008ricontantiviewi! 162/26). 32 Hysms, Campball and Evans (1888) st 64. 33. On practitioners’ lisbility for professionel negligance. see pars 3.6.7 above. See also pare 7.7 below where suggestions to minimise risk in lagel practice ere discussed. 34 Brayns snd Grimas (1994) Professional Skills for Lawyers, 3 Student's Guide st 143; Hyams, Campbell and Evans (198) st 33-34. 72Consultation skills 4.6.1 Checklist: delictual claims* Ol Onwhat date and at what time did the wrongful act occur? OO Who caused the harm? Oi Was such person an employee or agent of another person/body/corporation! government/organisation, acting in the course and scope of his/her ment or mandate? (This would be considered for establishing vicarious liability.) OO Where did the wrongful act occur? O Provide ful! details of the wrongful act. ‘These particulars should account for the greater portion of the statement. If, for example, the wrongful act is an assault, provide ful! details as to: * the manner in which the client was assaulted, on what part of the body, and the weapon used: the number of people involved in the assault, their detailed descriptions, and the manner in which each of them assaulted the client; the number of blows that were inflicted, and the period of time over which the assault continued, and generally, a full narrative of the events. If, for example, the wrongful act is negligent driving, giving rise to a motor collision, provide full details of the accident, such as: + full particulars of the owners and/or drivers of the vehicles concerned; * the directions in which the vehicles were travelling and their estimated speeds; + whether any rules of the road were disobeyed: « in what respects the drivers were negligent, + the weather and traffic conditions, + the events occurring immediately after the accident, with particular refer- ence to statements made by the drivers and the passengers, + a full narrative of how the collision occurred; and * asketch plan of the accident. If the client was examined by a medical practitioner after the incident giving rise to the claim, ask the client to obtain a J8% form from that practitioner, or obiain a power of attorney authorising you to obtain the relevant form. 1 Was the wrongful act committed intentionally or negligently? Provide particu- lars to support the contention. OO Provide full particulars of any person who witnessed the wrongful act. Obtain statements from the witnesses. Was the wrongful act reported te the police? If so: + at which police station; + who is the investigating officer, 38 Acknowledgement to the University of the Witwatersrand Law Clinic. 73Clinical Law in South Africa = has any person been charged criminally; « what is the charge, = has any person appeared in court? If so, provide full particulars of such person and satisfy when and in which court such person appeared, + ifthe matter is still proceeding, to what date has it been remanded; and + ifthe matter has been finalised, what was the outcome? Damage to property ifthe client's property was damaged as a result of the wrongful act 1D Describe fully the property damaged. Cl Provide full particulars, and where available, include photographs, of the damage. Provide full particulars of the cost of repair and provide supporting documenta- tion such as quotations or assessors’ reports . C What was the market value of the property immediately prior to the wrongful act? Provide supporting documentation. What was the market value of the property immediately after the wrongful act? Provide supporting documentation. 0 Provide the registration, make and model of the car. Proof of ownership is required. O Obtain particulars of any applicable insurance Note that, in all motor collision cases, a copy of the police accident report and sketch plan is essential. Bodily injuries Provide full particulars of any bodily injuries suffered by the client. Has the client suffered permanent physical disability? Where did the client receive treatment as an in-patient and an out-patient? ‘Which medical practitioners treated the client? What is client's hospital num- ber? Ensure that he signs a medical consent form. For what period did the client receive treatment? ‘What are the client's medical expenses to date? Has the client been unable fo work as a consequence of the injuries? If so, get the details. O Provide full particulars of the client's likely future oss of earnings? O Provide full particulars of the client's state of health before and after the acci- dent. D_Eamings of the client before and after the accident: + occupation immediately before the accident; + details of the employer, + total earings in the 12 months preceding the accident; oooe a oo 74‘Consultation skilis + monthly earings at the time of the accident; if applicable, attach a copy of income and expenditure accounts and income tax assessments for the last three years, if an employee, attach a letter fram the employer which confirms monthly income and which indicates future expected eamings; * name of pension fund; + date of joining the pension fund; and + expected retirement age. O Other information: + establish if a claim based on injury on duty has been lodged; + establish whether particulars of compensation have already been received (for example through the Occupational Health and Safety Act, and + attach a copy of other actuarial report(s), if available. 4.6.2 Checklist: divorce mauers™ The following information must be obtained: Plaintiffs full name(s) and surname. Defendant's full name(s) and surname. Wife's maiden name and/or previous name(s). Identity number of the plaintiff. Identity number of the defendant. Residential and postal address of the plaintiff. Residential and postal address of the defendant. Work address of the plaintiff. Work address of the defendant. Occupation of the plaintiff. Occupation of the defendant. Date of the marriage. Place where they were married. How the parties are married: + in community of property; * out of community of property: — with accrual; or — without accrual. How long have the parties resided within the jurisdictional area of the relevant Division of the High Court, or alternatively the Regional Civil Court? Hannon annnAanae 28 Acknowledgement to University of Pretoria Lew Clinic. ws2 The number of children born from/adopted into the marriage. OO The names, ages and gender of all minor/dependent children born out of the marriage or adopted. O Who will have custody of the children? Where will the children’s primary resi- dence be in future? Furnish reasons. Ol How much maintenance is needed per child? Set out expenditure. OO If the party (defendant) from whom maintenance is claimed is unemployed, how will he/she be able to afford to pay the maintenance claimed? Ol Have any arrangements been made regarding contact, as in access to the children? If the right to contact is to be limited, provide the reasons for this. OC How will the children be cared for if the person wanting custody and providing primary residency over them works? ‘Who is responsible for the medical, dental and scholastic expenses of the children? ‘The reasons for wanting the diverce. If any party left the communal home. ‘What attempts have been made to save the marriage? Have any arrangements been made regarding the division of the movable and immovable property in the communal estate? ‘Who is to pay the outstanding debt of the communal estate? Forfeiture (marriage in community of property or forfeiture of share in accrual in marriages out of community of property with inclusion of the accrual sys- tem). Supply reasons. O Does the plaintiff want maintenance for him/herself, and/or is the defendant prepared to pay maintenance to the plaintiff? Cl Does the plaintififdefendant want to share in the pension or policy interest of the defendant/plaintiff? Dl Does the plaintiff have the original marriage certificate in his/her possession? If not, arrange for a new marriage certificate. Co Ifchildren are involved, complete ‘Annexure A’ and let the plaintiff sign it in the presence of a commissioner of oaths. Explain to the client where to find a commissioner of oaths or accompany the client to a commissioner of oaths. Cl Marriage out of community of property: Did the husband/wife contribute to the ‘growth of the estate of the other party during the marriage in the case of mar- tiages entered into prior to the introduction of the accrual system, that is, in terms of section 7(3) of the Divorce Act? Oi Costs: In a divorce action, the court shall not be bound to make an order for costs in favour of the successful party. However, the court may, having regard to the means of the parties and their conduct insofar as it may be relevant, make such order as it considers just. The court may also order that the costs of the proceedings be apportioned between the parties. oooo oa ooConsultation skills: 1 Instructions to the client: + Fill in ‘Annexure A’ and sign it at the police station, in the presence of a commissioner of oaths. + Obtain original copy of the ante-nuptial contract or obtain a copy from the Deeds Office. + Objain the original marriage certificate or a copy thereof as well as the original birth certificates of minor children or copies of such birth certificates from the Department of Home Affairs. « Draw up 2 complete list of all assets and liabilities and of income and expenses of oneself, one's children (if applicable) and the other party. Get full particulars of the applicable pension fund(s) and/or preservation fund(s) in cases where the parties are married in community of property or ‘out of community of property with inclusion of the accrual system. 4.7 Assessing consultation skills The student in the law clinic must be able to show that he/she has competently prepared for the interview; regarded the relevant information available before the interview, conducted the interview using appropriate communication techniques; obtained all the necessary information in a timely, effective and efficient way; ensured that the both the student and client left the interview with a common understanding of the instructions, if any, as well as any future action the clinic or client is to take; and recorded the interview in a manner that satisfies the requirements of law and practice.” The following interviewing checklist may be a useful tool for students assessing their own consultation skills or that of their peers. 4.1.1 Interviewing checklist™ Attitude towards the client How well did Ir introduce myself to the client? make the client feel at ease? Oo listen attentively? 1 notice any problems of understanding? OO give opportunities to ask questions? O explain clearly? i allow the client to make decisions? 37 University of Pretoris Lew Clinic (2006) Practical Law Study Guide at 3. 38 Brayns, Duncan and Grimes (1608) Clinics! Lega! Education: Active Leaming in your Law ‘Sohgol st 7-78,