Talking Out the Side of You Neck... Effective Communication for Effective Representation of Legal Clients

Transcription

1 Talking Out the Side of You Neck... Effective Communication for Effective Representation of Legal Clients Old Dominion Bar Association Annual Meeting and Conference ~ Virginia Beach, VA ~ May 31, 2013 Speaker: Helivi L. Holland, Esq., City Attorney for the City of Suffolk, VA; Former Director of VA Department of Juvenile Justice Objective: Learn techniques for effective communication with various individuals including nice and difficult clients, client families, co-workers, attorneys, judges and others that just show up. This session will be interactive, comedic and musical. I. Differences between legal clients and other people in which you interact. A. How to Win Friends and Influence People by Dale Carnegie i. May not be able to influence the legal client to your way of thinking, but you must still be able to represent/advocate for them. B. Working with Difficult People by Ralph Lapin, Esq. i. Your legal client, on many instances, may not be working with you regarding a successful outcome of their case, but may be working against you unknowingly. Compromising may not be an option in compliance with the rules of law, rules of ethics or the rules of professional conduct. C. Working with Difficult People by Muriel Solomon i. People who frustrate, impede, maneuver, undermine, plot, connive and whine that are coworkers are different than legal clients with the same attributes because you have to convince the courts that your legal client does not have those attributes. D. Somewhere in between is your legal client i. Great Communicator and Hostile Communicator ii. Highly Educated and Illiterate iii. Truth Teller and Liar iv. Seeking Justice and Wanting Revenge v. Avid Court TV Watcher and Never Been to Court II. Why You Should Care? A. Rules of Ethics B. Standards of Conduct C. Rules of Professional Conduct D. Productivity, Morale and Job Security E. Legally speaking Why You Should Care Rule 1.1- Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. 1 P a g e

2 Comment Legal Knowledge and Skill Thoroughness and Preparation [5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lesser consequence. Rule Scope of Representation (a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (b), (c), and (d), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision, after consultation with the lawyer, whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. Rule Candor Toward The Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, subject to Rule 1.6; (3) fail to disclose to the tribunal controlling legal authority in the subject jurisdiction known to the lawyer to be adverse to the position of the client and not disclosed by opposing counsel; or (4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures. III. Talking Loud and Saying Nothing A. Loud Attorneys i. May hinder communication with legal clients and needed witnesses. ii. May make legal clients and needed witnesses feel demeaned. iii. May make legal clients and needed witnesses become combative. B. Loud Legal Clients i. Are not indicators of truthfulness or untruthfulness of legal clients. ii. Attorneys have an obligation to bring it to their attention, non-offensively, in preparation for court appearance(s). IV. Know Who are the Whos A. Who you are i. Different relationships between you and your legal client as opposed to you and the client s family, the other legal staff helping on the case, the opposing attorney(s), the presiding judge, and those who show up for the office visit(s) and court hearings. B. Your communication must change based on who you are speaking to i. Nice/Difficult Clients ii. Nice/Difficult Families iii. Nice/Difficult Co-worker 2 P a g e

3 iv. Nice/Difficult Attorneys v. Nice/Difficult Judges vi. The Others WHO Show Up C. Confidentiality must never be compromised V. The A(s) Have It A. Aptitude i. Comprehension 1. Required to determine the comprehension level of your legal client before you go into really important legal details and represent them in compliance with the Rules of Professional Conduct. 2. Communication methods and techniques must change based on the legal client s comprehension skills. 3. Considerations: a. Educational level b. Medical condition/disabilities c. Use of medication (legal and illegal) d. Other indicators B. Attitude i. Pleasantries 1. Courtesies provide comfort to the legal clients. 2. Comfort provides more communication. 3. More communication gives more details for use in case good or bad. VI. Whatcha talkin bout Willis? A. What are you really trying to say? i. Explanations must be completely understandable to avoid embarrassment in court or in a disciplinary hearing. B. Clarification i. Ask for clarification of things said by the legal client. ii. State important facts more than once and maybe in another way. C. Repeat but do not annoy or demean i. Repeating what was said by you and the legal client is imperative to assure you are abiding by the client s decision to: 1. Plead guilty 2. Take a plea deal 3. Drop a case 4. Settlements 5. Any other desire, request, refusal, rejection, etc. Rule 1.2 a) A lawyer shall abide by a client's decisions concerning the objectives of representation. VII. Know r mean A. Language Barrier? i. Use of interpreters 1. Know dialects of the language being spoken 2. Confirm interpretation skills of interpreter 3 P a g e

4 ii. Not just a foreign language 1. Street language a. Jargon b. Slang c. Nicknames iii. Excuse my French 1. Do not be offended by profanity. 2. Redirect use of profanity or inappropriate terminology in preparation for court. B. Actual listening i. Never hesitate to ask a question 1. Shows that you are listening to the legal client and his/her matter is important to you. Rule 1.2 a) A lawyer shall abide by a client's decisions concerning the objectives of representation. VIII. I-jacking the Conversation A. Keep focused i. Never let a legal client feel that he/she is not the most important person in the room B. Avoid i. I would never 1. Avoid appearances of being judgmental. ii. If I were you 1. Avoid appearances of being the smartest person in the room. IX. The Art of Understanding A. The sit-u-a-tion i. Never show any lack of understanding the importance of the case 1. Many legal clients do not care about the distinction between misdemeanor and felony when they feel that they are innocent. 2. Divorce clients do not always care about the market value of a family item. 3. Tort clients put different values on their damages. B. Issues and Concerns i. Must seek to know underlining issues and concerns for what got the legal client in a situation that caused them to need a lawyer. ii. Mitigating circumstances are learned when you find the issues and concerns of legal clients. X. End with a Closing A. Summarize i. Verbal B. Document i. Keep good records of dates, events, requests, documents that were brought to the office, admissions and denials C. Question i. Ask the legal client if there are any questions. ii. Advise the legal client they can always ask questions at a later date. 4 P a g e

5 D. Pleasantries i. Never fail to let legal client know that you appreciate their time 1. Please, Thank You, Have a Good Day 2. First interviews dictate the success next interviews and/or court date. 3. Words and Body Language Must Match: a. Interest b. Concern c. Appreciation **** The contents of this presentation have been previously approved for 1 hour of CLE by VA State Bar MCLE under the title of Did You Hear A Word That I Said?... Effective Communication in the Public Sector for the Virginia DUI Treatment Court Training Conference ~ September 18, 2012 ~ Williamsburg, VA 5 P a g e