Counseling skills can help you become an effective helper. (Practice Tips).
The legal profession qualifies as "helping profession." Like doctors, nurses, social workers, and counselors, lawyers are in the business of helping their clients.
While this help centers primarily on "legal problems," the desired outcome should be that the client receives the assistance he or she needs. Thus, your goal as a lawyer should be to do whatever you can to best help your client.
One pay do that maybe in the attention we pay to the interpersonal aspects of lawyering, for these aspects lie at the heart of the professional relationship between lawyer and client.
Every lawyer has, at a minimum, the ability to recognize the client's underlying emotions and meaning as well as the potential impact on the course of your representation. Let's review some of the basic counseling skills you can use with clients to help identify their underlying meaning.
Attending refers to a concern by the helper with all aspects of the client's communication. It includes listening to the verbal content, hearing and observing the verbal and nonverbal cues to the feelings that accompany the communication, and then communicating back that the helper is paying attention. It is physical, emotional, and mental presence which communicates you are listening to, interested in, and understanding of what the client has to say.
The main purpose of attending is to en courage the free expression of the client's ideas and feelings about their issues and to build a sense of security for the client, thus, leading to openness and trust. We do this by listening to and observing the client. I imagine that most people would say they know how to listen. After all, it seems like a very basic tool that we learn early on in our lives. However, the reality is that true listening is very difficult for many people. People usually are capable of hearing what another is saying. However, hearing is not the same as listening. Listening implies you are with the person communicating, that you are present and engaged. If you are thinking about something else while the other person is speaking, then you are not listening effectively. If you are thinking about what you are going to say next or about what case law might apply, you are also not listening effectively.
If you are engaged and are listening to the client without distraction, you are off to a good start, but it is not enough. In order to truly "listen" you must hear and you must observe. This is referred to as "active listening." You can learn a tremendous amount about the client through observation of his or her nonverbal behavior. Body language can say a lot about what a client is feeling or experiencing. Thus, hearing the words without putting them in the context of the client's nonverbals is insufficient for the real message may be in the nonverbals. This also applies to you - remember communication is a two-way street. Your feelings and attitudes maybe conveyed to the client through your own nonverbal behavior, such as facial expressions, posture, eye contact, and gestures.
Several commentators have noted the importance of good active listening skills for attorneys and other business people.
Ritter and Wilson describe the reluctance of law students to use active listening. Their responses tend toward the idea that "it is so unnatural" and "we are not therapists." While these are true statements, despite the awkwardness, the client will most likely appreciate the effort to connect with them.
Encouragers are verbal and non-verbal means the attorney can use to prompt clients to continue talking. They include head nodding, using phrases such as, "uh-huh," "hmmm," "go on," tell me more," using silence as a prompt, and verbal following: Verbal following is the process of repeating a key word back to the client as a question (e.g., the client says, "It's been really difficult since the divorce," and you say, "difficult?" which more likely than not will prompt elaboration).
Paraphrases deal with the content of what the client says. It is the process of feeding back to the client the essence of what has just been said. This is done by shortening and clarifying the client's comments. It is not parroting back to the client exactly what he or she just said. Rather, it is using your own words plus the important, key words of the client, to clarify the main point that was made. By doing so, you can be sure you are following the client's story and that the client knows you understand what was said. An example of a paraphrase with fictional client Bob might be, "So what happened was you asked your friend to join you in the business, he was with you for several good years, and now that he's left, he's accusing you of not treating him fairly. All of this seems to be hitting you out of the blue."
Summarizations are similar to paraphrases but cover a longer time span and more information. They help clients organize their thinking and can be used to help tie the main points of the story together. Summarizations are used to tie together a number of seemingly unrelated ideas being expressed by the client, to add direction/coherence to an interview, and to conclude an interview session or start a follow-up interview session.
Reflection of the client's feelings requires the listener to say back the essence of the speaker's feelings. It is similar to a paraphrase but we are adding feeling words to the content of what the client is saying. The focus of a reflection of feeling is on the emotional element of the speaker's communication, whether verbal or non-verbal, director indirect. The goal is to use your attending and listening skills to identify the client's Feelings. Using Bob as an example, a reflection of feeling might be, "I imagine you must Feel very betrayed and hurt by what your friend is doing."
Confronting a client, from a counseling perspective, is probably different from what most people would think. The skill of confrontation involves noting discrepancies in the client and feeding them back via attending skills. These discrepancies could be between what the content of what the client is saying and his or her nonverbals, between contradictory content, between behaviors and stated goals, etc. Clients often. are not consciously aware of the fact they are presenting discrepant information. They may sincerely believe they are being motivated by X when in fact, after talking with them, it becomes apparent it is Y that is the basis of their current behaviors. In order to be aware of such discrepancies, the attorney must practice effective listening and observational skills. If done correctly, confrontation can result in the client examining core issues. Confrontation is too often thought of as blaming the client for his or her faults; rather, the issue is helping the client face the incongruity squarel y.
Confrontation, as it applies in the legal counseling arena, involves two major steps: (1) identifying mixed messages, discrepancies, and incongruities, and (2) pointing out these issues to clients and helping them work through the conflict. Discrepancies can take three major forms: (a) between what clients say and how they behave (e.g., the client who claims to be shy but talks. nonstop during the interview), (b) between how clients say they feel and how their behaviors suggest they are feeling (e.g., the client who says they are not bitter at their ex-partner but is contemplating filing a lawsuit against him or her), and (c) between two verbal messages. of the client (e.g., the client who claims to want to continue in a business relationship but is looking at ways to get out of the contract without penalty). An example of a commonly used form of confrontation would be, "On the one hand you say you are not bitter about the divorce, but on the other hand, your behavior in fighting every motion your ex-husband files indicates otherwise."
These basic counseling skills can go a long way in helping a client to feel heard, validated, and safe. In order to do your job in representing the client's legal interests, you must know the client's full and complete story. Your ability and skill in attending, paraphrasing, summarizing, and. reflecting will allow you to get the full story and then apply the law to that story.
Next, I offer an approach that integrates these two aspects of your role as counselor to your client. I refer to it as "The CLIENT[TM] Approach to Legal Counseling."
As much as you need to implement solid interpersonal skills in your client relations, you also need to help the client resolve the legal problems they bring to you. This approach provides a mechanism for you to utilize both your interpersonal and legal skills.
C: Connect with your client. Remember that a client will open up more readily to someone she trusts. The focus should be on relationship building: expertness (i.e., skills, knowledge, substantive understanding, confidence), attractiveness (i.e., the degree to which you are likeable and "real" to the client), and trustworthiness (i.e., the client's perception of you as genuine and honest). Use the skills of active listening, paraphrasing, and reflection of feeling to put the client at ease. The goal should be to create a safe. environment for the client to be vulnerable with you. The more vulnerable, the more you will know about that client and the better you can legally represent him or her.
L: Listen and attend. It is extremely important for clients to feel heard. Whether or not everything they say bears on your case, sometimes just getting to tell their story to another person can be therapeutic for a client. Remember that you are their lawyer, but you also are their counselor. Use your skills to truly "hear" the client's story and be prepared to refer that client tothe proper professional if it appears the issues are clearly out of your sphere of expertise and comfort zone.
I: Investigate the client's story. Use your questioning, interviewing, reflecting, and confronting skills to uncover the pertinent facts of the client's story. Investigate and explore the legal issues as well as the underlying emotional/psychological issues the client maybe facing.
E: Empathize with and enlighten the client. Remember that telling their story is often very difficult. You need to show empathy (i.e., the ability to put yourself in the shoes of another; to communicate a "quality of felt awareness") for the client and their situation. At the same time, you need to enlighten the client about their legal rights and options based on their story, doing so in a way that maintains the connection and empathic relationship you have. built.
N: Negotiate the final action(s) to be taken (i.e., what the client wants to happen. Discuss all options and collaborate with the client to negotiate a reasonable strategy for addressing all of the issues: one that is acceptable to both of you).
T: Tie it all together. Bring together all of the facts (i.e., the client's "story"), the law that you will need to apply to those facts, your judgment as to the best legal remedy to pursue, and the underlying emotional/psychological issues the client may be experiencing. Do this so that you can create a holistic strategy and game plan designed to truly help the client.
The attorney-client relationship should be collaborative and mutually respectful. This implies an understanding on the part of both parties of the need to be sensitive to emotional needs as they surface. Both parties need to understand that ignoring emotional needs results in a less than productive legal interaction. Only through identifying and addressing the psycholegal soft spots through use of the basic counseling skills can a lawyer hope to maximize the probability of truly "helping" the client.
(Editor's Note: Original footnotes were inadvertently omitted from, this two-part column. Dr. Sheehy wishes to acknowledge the following authors and their works as sources for many of the original ideas presented throughout the series. The News regrets the error.)
Dennis P. Stolle, David B. Wexler, Bruce J. Winick & Edward A. Daner, Integrating Preventative Law and Therapeutic Jurisprudence: A Law and Psychology Based Approach to Lawyering, PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS A HEALING PROFESSION 5 (Dennis P. Stolle, David B. Wexler & Bruce J. Winick, eds., 2000).
Stephen Feldman & Kent Wilson, The Value of Interpersonal Skills in Lawyering, 5 LAW & HUMAN BEHAVIOR 311, 312 (1981).
Paul Brest, The Responsibility of Law Schools: Educating Lawyers as Counselors and Problem Solvers, 58 LAW & CONTEMP. PROBS. 5 (1995).
Harrison Sheppard, Time to be Peacemakers, CAL. ST. B.J. (Sept 1997).
Amiram Elwork & G. Andrew Benjamin, Lawyers in Distress, 23 J. PSYCHIATRY & L 205 (1995).
David B. Wexler, An Introduction to Therapeutic Jurisprudence, THERAPEUTIC JURISPRUDENCE: THE LAW AS A THERAPEUTIC AGENT 3 (1990).
David Binders, Paul Bergman & Susan ice, Lawyers as Counselors: A Client-Centered Approach, 35 N.Y. L. REV. 29 (1990).
John W. Collins, Improving the Relation ship Between Lawyers and Business Clients 20 AM. Bus. L. R. 525, 527(1983).
Marjorie A. Silver, Love, Hate and the Emotional Interference in the Lawyer-Client Relationship, PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS A HEALING PROFESSION 357 (Dennis P. Stolle, David B. Wexler & Bruce J. Winick; eds., 2000); citing Charles Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 329 (1987).
David B. Wexler, Practicing Therapeutic Jurisprudence: Psycholegal' Soft Spots and': Strategies, PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS A HEALING PROFESSION 45 (Dennis P. Stolle,.. David B. Wexier & Bruce J. Winick, eds., 2000).
Aaron Lazare & Wilton S. Sogg, Shame, Humiliation, and Stigma in the Attorney-Client Relationship, THE PRACTICAL LAWYER 16 (June 2001)..
Allen E. Ivey & Mary Bradford Ivey, INTENTIONAL INTERVIEWING AND COUNSELING: FACILITATING CLIENT DEVELOPMENT IN A MULTICULTURAL. SocIETY (4th ed., 1999).
David Flack, Active Listening is Skill That Needs Undivided Attention, SAN ANTONIO Bvs. J. (Sept. 28, 2001).
R. Hal Ritter & Patricia A. Wilson, Developing the Fine Art of Listening, TEXAs ST. B. J. (Oct. 2001).
Bruce J. Winick, Client Denial and Resistance in the Advance Directive Context: Reflections on How Attorneys Can Identify and Deal With a Psychol. gal Soft Spot, PRACTICING - THERAPEUTIC JURISPRULENCE: LAW AS A HEALING PROFESSION 327 (Dennis P. Stolle, David B. Wexler & Bruce J. Winick, eds., 2000); citing J.T. Barret-Leonard, The Empathy Cycle: Refinement of a Nuclear. Concept, 28 J.
Dr. Richard Sheehy is the founder and president of SRS Solutions, LLC, a company dedicated to providing consulting, executive coaching, and counseling skills workshops for the legal community and other business organizations. Dr. Sheehy, a member of The Florida Bar, also is an assistant professor at Drake University in Des Moines, IA, where he teaches in the counselor education masters program. He received his Ph.D. in counseling psychology from Arizona State University in 2000 and his J.D. from the University of Miami School of Law in 1987. He can be reached at firstname.lastname@example.org.