NON-VERBAL COMMUNICATION.

LAWYER-CLIENT INTERACTION

Outcomes

Know and understand the importance of non-verbal communication  Conduct interviews, especially with clients and witnesses  Know and understand the various styles of listening  Understand the importance of logic in making legal arguments  Apply the principles of oral advocacy

WHY? A career in law demands a lot from the practitioner in terms of his/her communicative competence, which includes verbal as well as non-verbal communication. It is therefore important that you learn the key elements of communication that are essential to the lawyer’s daily life as a practitioner.

sounds. Non-verbal communication.Non-verbal communication 1. There are three main elements of nonverbal communication: appearance. body language. such as facial expressions. . and tone of voice—is an important component of most human communications. posture. gestures.

a speaker's clothing. socioeconomic level. ." according to Murphy and Hildebrandt. the appearance of both the speaker and the surroundings are vital to the successful conveyance of a message. personal appearance and the appearance of the surroundings convey nonverbal stimuli that affect attitudes. For example. etc. and stature may cause a listener to form impressions about her occupation. Appearance In oral forms of communication. hairstyle. neatness. use of cosmetics. competence. even emotions toward the spoken words. "Whether you are speaking to one person face to face or to a group in a meeting.

furnishings.Similarly. The importance of nonverbal clues in surroundings can be seen in the desire of THE HEADS OF LEGAL OFFICES to have a corner office with a view rather than a cubicle in a crowded work area. . decorations. such details of the surroundings as room size. lighting. and windows can affect a listener's attitudes toward the LAWYER and the message being presented.

For example. an employee may deny having knowledge of a problem. . and particularly facial expressions. but also have a fearful expression and glance around guiltily. can provide important information that may not be contained in the verbal portion of the communication. Facial expressions are especially helpful as they may show hidden emotions that contradict verbal statements. Other forms of body language that may provide communication clues include posture and gestures. Body Language Body language.

while an employee who leans forward to listen may convey interest. a lawyer who puts his feet up on the desk may convey an impression of status and confidence. but the continual use of gestures can distract listeners and convey nervousness. .For example. Gestures can add emphasis and improve understanding when used sparingly.

or the lack of sound. and volume of a speaker's voice can convey different meanings. as does physical contact between the speaker and the listener. Silence can communicate a lack of understanding or even hard feelings in a face-to-face discussion. Sounds Finally. It is also important to note that perfume or other odors contribute to a listener's impressions. throat clearing. Silence. is a form of nonverbal communication as well. or humming. rate. as can sounds like laughing. . the tone.

Research has shown that 35% of your message is communicated verbally. clothes. emotions and attitude. You should use non-verbal communication to give credibility to your appearance in court while arguing a matter. . while 65% of the message is transmitted through non-verbal communication. attitude. and so on can help you on your route to success. or it can be the reason for your failure as a lawyer. Verbal communication usually transfers information or facts. In other words. your body language.THE IMPORTANCE OF NON-VERBAL COMMUNICATION FOR A LAWYER Non-verbal communication can make or break a lawyer. while non-verbal communication transfers feelings.

Dress for success! Attorneys. If you are an advocate you should wear only black and white under your gown and bib. should be dressed neatly under the gown. . You need to dress professionally. People expect their advocate or attorney to look like an advocate or attorney.EXAMPLES OF NON-VERBAL COMMUNICATION  Clothes: Remember the legal world is a professional world. who have to wear a gown in court.

Sit up straight. If you stand with your hands behind your back. If your hands are on your hips. Body language Your body language must complement your professionalism. you are aggressive. the message is that you think you are better than the rest. If you fold your arms in front of you. Act with confidence. . Never lie on your backside during a consultation or interview neither in court. it signals that you are on the defence and are closing in. Do not chew bubble gum! In court. pull your shoulders back so that you create a dynamic look. stand up straight.

Up to 87% of all information is conveyed through the eyes. Do not fidget with papers while speaking — be prepared! Look the accused or a witness in the eye when you ask them questions. Eye contact Look the judge or magistrate in the eye when you make your submissions. . Show respect to everyone. only 9% is conveyed through the ears and 4% through the rest of the senses.

 Facial expressions As we already indicated. Show sympathy and interest — your client wants to see that you are involved in his/her case. People can see whether you care or not. 65% of what you are saying is transmitted through non-verbal communication. Use your face to your advantage. Do not make the right sounds but look bored. Never look at your watch while interviewin .

otherwise they will not pay your bills. Remember. In court you can use . Speak loud enough so that everyone can hear you. Repeat a person’s words if you want to stress a particular point. Speak louder when you want to emphasise something and a little bit softer when you want to create atmosphere. especially in court. your clients have to believe in you. Tone of voice: Vary your tone of voice.

Ultimately your whole image must be professional. Be punctual with appointments and paper work. The quality and promptness of the letters and accounts you send out are a reflection on you.Just remember that non-verbal communication also includes other professional behaviour and service delivery such as answering phone calls and responding to messages. .

listening and logic should not be seen in isolation. you need interviewing skills because you act for someone else (your client).  Why interviewing skills? As a lawyer.INTERVIEWING It is important to note that non-verbal communication. It is the nature of the profession that you will have to . It thus makes sense that you get your client’s story before taking any action to advance his/her interest. interviewing.

experts or other role players in a specific matter or issue. how to ask these questions. . consult with witnesses .Thus you will need these skills when you. It is important to know what kind of questions to ask. and how to conduct yourself when interacting with these people in order to obtain the information relevant for your case. for example.

advise accordingly.  To determine the client’s objectives.  To prepare the way for further action on behalf of the client.  To identify the issues and obtain sufficient detailed information to advance the matter. .Maughan and Webb (2005:110) state the following functions of an interview:  To establish the interpersonal dimensions of the lawyer-client relationship. and so far as possible.

this will make you ‘know what you want’ from the interview. In short. In other words you will be better placed to ask questions that will elicit relevant information from your interviewees. Preparing for interviews We need to reiterate that it is important to prepare thoroughly for your interviews with clients and witnesses. .

contact numbers. addresses. you may have to refresh your knowledge of Labour Law. for instance. employment. Read textbooks on the issue and get relevant cases on dismissals and related topics. birth certificates. the matter is about your client’s dismissal from work. Make sure the . etc. Research the applicable law.  Know the kind of information you will need for the file: personal details. identity documents. If. marital status.

Write down the relevant questions for the information you want to obtain from the person you are going to interview.  Think of the possible questions that your opponent may ask your client. You will find this strategy useful when you ultimately frame your questions during the interview.

Student activity Think of possible or relevant questions that you may ask your client concerning a case where he/she has been dismissed from work. You are free to add your own issues/headings that you think may be relevant in a case of dismissal.

CLIENT INTERACTION

Being a lawyer is about more than simply knowing the law and applying it, it’s actually about people’s skills. And it’s relating to clients, and if you can learn those skills earlier on, it actually makes you a better lawyer in the future. When you meet the client or witness, try to make him/her feel at ease. It is at this stage that clients or witnesses feel apprehensive, anxious or nervous.

Establish whether he/she would like to be called. and how he/she would prefer to be called.  Enquire about his/her name.  Do not rush into the main issue that has necessitated the interview. You should allow them to relax. ‘‘Mr. Benton’’ or simply‘‘Richard’’.One of the approaches you may take is to start off by showing interest in the client or witness. . say.

Reassure the witness about the confidentiality of the discussion or interview. coffee or a soft drink. When the client or witness seems relaxed.. .e your client). If you are interviewing a witness. you may get to the ‘‘real’’ questions relating to the matter. you need to tell him/her who you are acting for (i.    If possible do offer him/her tea.

and he said you witnessed the collision and that you were willing to assist the court in the matter. and would like to get more information from you. whose car was one of the cars involved.’’ Consider the following points:  A safe approach is to ask the client or . We got your details from our client. Mr.“We are preparing a court case regarding the collision that happened on the Lydenburg Road on 03 January 2012. Peu.

 After this initial run.  At this stage you should check inconsistencies.  You may stop the witness if he/she speaks too fast or if you want something clarified. you may politely ask him/her to start the ‘‘story’’ from the beginning (that is.Take notes as he/she speaks so that you have the necessary information. and whether there are any  . he/she should give an outline of the events again).

In this way you should be able to sift away his/her emotions or opinions. Take notes.You should. be free to stop him/her and politely ask him/her to clarify such deviations.  Finally.  Remain focused on the facts or the ‘‘story’’. ensure that the client or witness gives you the information that is relevant to the questions you considered before the  . again. and stick to the facts.

LISTENING SKILLS Why? The following statement by Maughan and Webb (2005:121) is most relevant in this respect: Failure to listen to the client’s story will not only limit the accuracy of your information gathering and advice. not natural. but may damage your ability to build up a rapport and gain the client’s confidence. . Corin Kagan (1982:56) makes the point that listening is a skill and that ‘‘skills are acquired.

We often downplay the difference between listening and hearing. but in that time we also listen to certain sounds we are interested in.She emphasises that students must thus learn techniques and practise them ‘‘till they are comfortable habits’’. However. such skill is not ‘‘as easy to acquire as we tend to think’’.We spend most of the time hearing sounds around us. . as Maughan and Webb (2005:121) would say.

spontaneous and rather indifferent. whereas listening is a more active. You will probably realise that communication. . especially listening. conscious and deliberate exercise by the interlocutor to receive certain messages or sounds! Think about a lawyer’s daily professional life.Hearing is mostly passive. forms a key part of his/her life.

in the first place. The following are some of the points that characterise a good.  A good listener keeps eye-contact . and effective. listener:  Be empathetic.What is a good listener? A good listener would be someone who understands why he/she has to listen to something. He/she knows what he/she wants from the context in which he/she is listening.

This is especially so in face-to-face interactions where the listener is able to receive messages transmitted by non-verbal communication mode. as you listen to the speaker. you also give that speaker feedback to make  . In other words.A good listener also listens with his/her eyes.  A good listener also participates in the interaction. such as facial expressions. by active body language. silently.

A good listener would thus also encourage the speaker that he/she is actively involved and is interested in the interaction by using both receptive language (e. ‘‘I see’’) and non-verbal cues (eg nodding or shaking head). He/she would thus ask questions if he/she is  .g. or signs that there is coherence in what is being presented.  He/she seeks clarification where there is any misunderstanding.

In a professional setting this will be evident when the listener takes notes.  .He/she pays full and genuine attention to what is said. Allow your mind to be open to new ideas and criticisms and thus be comfortable with ideas you may not agree with. and commitment to.  A good listener must be open-minded.  A good listener shows interest in. He/she does not fake attention. the interaction.

you can see that listening may be passive or active. You should be aware that our focus in this discussion has mainly being on listening as an active process. You can listen in two ways: (i) listening for facts. and (ii) listening while also taking cognisance of feelings or emotions. Listening for facts .Ways of listening From the points already discussed here.

In order to benefit from lectures you should:  Think about the topic before attending the lecture/conducting an interview. .  Note which arguments support the main ideas.You listen for facts.  Listen for main arguments.  Read about the topic before attending the lecture. and analyse what you hear (on the basis of the facts that are presented).

This is an even more active . understanding and objectivity.Emotions cannot be finally bundled and named. etc. ‘I have sympathy’. Life experience and reading help to understand people and to listen with empathy.  Listening while taking cognisance of feelings This way of listening is extremely important for a lawyer. and to be able to judge expressions such as ‘I am sorry’. ‘I was angry’.

 Do not quote examples from your own life.Do not judge the speaker.  Avoid disturbances like phone ringing etc.  Do not give advice unless you are asked for it.  Once the person is finished make a summary  .  Do not interrupt the speaker.  Use non-verbal communication to help the speaker relax and to trust you.

Student Activity 1 Make a summary of what you consider to be qualities of an effective listener during an interview with a witness. 2 Explain why it is very important for a lawyer to have the skill to listen ‘while also taking cognisance of feelings. 3 How and why should a lawyer be on his/her guard against faked emotion? .

. The concept of oral advocacy will be explained in the next section. This is because argumentation forms the basis of all forms of legal argumentation or oral advocacy.Logic and legal arguments  Before we delve into the technical and procedural aspects that characterise oral or trial advocacy we think it is necessary first to explain what argumentation as such entails.

. This should be done in such a way that you are able to persuade the courts (that is the judge or magistrate) about the validity of your argument. by now. This suggests that you should know how to convincingly find the relevant law and formulate ways of solving that particular legal problem.You should know. that as a lawyer your role is to look at a problem that has to be solved by application of the relevant laws.

After completion of your legal studies you will have theoretical knowledge at your disposal. The ability to argue effectively depends on how logically your ideas are organised with reference to sequence. combination and reaching acceptable conclusions. It is very important that you . but you would still have to acquire knowledge and experience of how to put this knowledge to good effect to convince judges or magistrates.

In short. it gives guidance on how to argue and to get to grips with issues of argumentative nature. As such it has to do with good thinking. It should be obvious that meaningful and correct thinking is of .What is logic? Logic has to do with the ability to solve problems by argumentation. It tries to provide answers on what is involved when a point is argued. and what good argumentation entails.

If you are interested in this field.In fact. otherwise.  Address the magistrate: ‘‘Your worship’’— State your name: ‘‘My name is Joe Makolobe’’— State for whom you act: ‘‘I act  . Note: The sources mentioned at the end of this Unit are not prescribed. we can hardly scratch the surface. the sources mentioned at the end of this study unit may be of some help. consult the experts in this specialised field of Philosophy.

as witnesses’’. an expert in reconstruction of accidents. a panel beater. as well as Mr. It should now be clear that in an opening .‘‘This is a claim for damages resulting from a motor collision that occurred on 31 December 2011 on the Lydenburg Road between Sasekani and Lenyenye’’— State the issue in dispute: ‘‘The parties differ on the quantum of the claim’’— State what evidence you will present: ‘‘I will call Prof Duvenage. Papenfous.

fluently and coherently. Here you should remember that the objective is to make sure that the witness tells the story logically. You will find that his/her demeanour shows whether he/she is .Examination-in-chief The examination-in-chief may only be conducted after the witness has been sworn in. It is therefore important that you ensure that your client (or witness) is relaxed and is focused on the facts.

go to the extent of saying that ‘‘during examination-in-chief your witness’ evidence . Ensure that your way of framing questions will only prompt the witnesses to provide information that is relevant for your purpose. easy and purely conversational. et al.Although you need to be formal. information that would be in line with your particulars of claim or pleadings. Kok. For example. make the whole communication friendly.

which usually .The most problematic aspect in examinationin-chief is your ability to avoid asking leading questions. In court you (and your opponent) are entitled to object if either of you asks leading questions. is how will you know that a leading question is being asked? Such questions presuppose information that has not yet been given. The issue now. In other words the question somehow leads the witness to a particular answer.

You should. Instances where you or your opponent may not normally object to include situations where that question is meant to elicit facts that are not in dispute. facts which may simply be regarded as ‘‘common course’’. In other words. note that not all leading questions may be objected to. Example:  Is your name Maya Leton? And you stay at . That is. both parties are in agreement as to the truthfulness of those facts. however.

Kok.Tell the court where you were on the 2nd of January 2011. Roberts is an accountant has not yet been given by Mrs. Mrs Roberts?’’  If the information that Mrs. (2002:180) give examples and brief explanations of leading questions: Examples 1. ‘‘How long have you been an accountant. ‘‘Were you in hospital on 2 January 2006?’’ will be leading. et al.  . But.

for example that Mrs Roberts is an industrial psychologist. Therefore approach it as such: First question: ‘‘What is your name?’’Answer: ‘‘Mrs Roberts’’Second question: ‘‘What work do you do?’’Answer: ‘‘I am an accountant.This is because you are already presupposing information. And your opponent would certainly object.  ’’Third question: ‘‘How long have you been an accountant?’’ .

why and how? The following example shows how the above question can be asked in this way: . The best way to ensure that you do not ask leading questions is to frame the so called open or WH-questions: where. For instance. This becomes a leading question. that he shot someone that the said person is Mr. Kitier and that he used a shot gun. you are already presupposing certain in formation.If you start with a question like this. when.

your  . Kitchen.Answer: ‘‘Yes. Kitier?’’  Answer: ‘‘I shot him.  ’’Third question: ‘‘How did you kill Mr.’’ Remember.’’Fourth question: ‘‘With what did you shoot him?’’Answer: ‘‘With a gun.’’Second question: ‘‘Why are you in court today?’’Answer: ‘‘I killed Mr.’’  Fifth question: ‘‘With what kind of a gun did you shoot him?’’  Answer: ‘‘With a shotgun.

You have to be robust or .Cross-examination Your opponent will cross-examine your witness after you have finished your examination-in-chief. Thus. Cross-examination is a very tricky activity for a lawyer. be focused: know what you want to get from the cross-examination. You will have to practise it a lot one day! If you have to cross-examine be careful not to strengthen your opponent’s case inadvertently.

 Re-examination Re-examination is conducted after your witness has been cross-examined. . otherwise you should not as witnesses may actually worsen matters by further contradicting themselves. Some people feel that you should really re-examine when you have to. Generally. the purpose of re-examination is to try and lessen or repair the damage done during cross-examination.

Closing arguments are presented by the opposing sides after all the evidence has been presented to court. and hopefully to find in your favour. It is at this stage that you may find some of the points discussed earlier. Where possible. ‘‘logic and legal argument’’ very useful. in the section.Closing argument The closing arguments are meant to persuade the court to follow your line of argument. .

and (4) finally ask the court for a specific order or orders. Remember. as we have indicated already this module is only an overview of the real scenario in a court case. (3) applicable law and sources.(1) the facts or background of the case. (2) the evidence. As your studies progress. You will orally present these heads of arguments as your closing statement. you will see the . These orders are sometimes referred to as ‘‘prayers’’ or ‘‘remedies’’.

and Viljoen F. Coping with College: The Efficient Learner (McGraw Hill New York1982).Sources: Cleary S. Kok A. Kleyn D. Beginner’s Guide for Law Students (Juta Kenwyn 1995). and Rowland F. et al. (Ed) The Communication Handbook (Juta Cape Town 2003) Kagan C. A guide to learning independently 2nd ed. (Open . Skills Workbook for Law Students (Juta Lansdowne 2002) Marshall L.

Palmer R. Talking Philosophy: A Workbook (Routledge London 1991). Morris E Techniques in Litigation 5th ed. et al. Becoming a lawyer: Fundamental skills for law students (Butterworth Durban 2003). .W. (Juta Landsdowne 2003). Sparkes A. (Cambridge University Press 2005). Lawyering Skills and the Legal Process 2nd ed.Maughan C and Webb J.

Thank you! .

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