Edited by Barbara Kate Repa
Communication Skills: Communicating with Clients
By Diana Mercer and Tara Fass
Although lawyers are duty bound to abide by clients' decisions concerning representation (American Bar Ass'n Model Rules of Prof. Cond. 1.2), helping clients understand and articulate their motivations can often go a long way toward achieving a reasonable solution to their legal problems.
Of course, attorneys should promptly communicate settlement offers to clients and keep them informed (American Bar Ass'n Model Rules of Prof. Cond. 1.4(a)), but much can also be accomplished by cultivating a good relationship, built on good communication.
Here are a few techniques for fostering the communication necessary to get the best results-in client consultations, in court, and in settlement negotiations.
Reading Facial Expressions
Most people think of communication as pertaining to words, but facial expressions can reveal as much as words or pleadings. And learning to read others' facial expressions will help you in every legal setting, from conducting initial consultations, to choosing a jury, to conducting cross-examination.
One technique is to make eye contact with the left side of the person's face, preferably with your left eye. Neurological studies show that the right hemisphere of the brain houses emotional feeling, which is expressed on the left side of the face. By tuning in to what's happening with the left side of a person's body, a lawyer can sometimes read an emotional reaction that may not be clear from words alone. Many claim this can also help to calm down clients. It can also be very helpful during a deposition, when you want to put the adverse party at ease to get him or her to do more talking.
Listening for Nonverbal Messages
Other nonverbal cues include dress and behavior. Begin my noting, for example, the divorce client who comes in wearing a wedding ring, mediation clients who come in holding hands, opposing parties who sit next to each other rather than across the table, and clients who cry easily during simple discussions or who are hard to console.
Some other things to note: Does the date of the client's appointment coincide with an important milestone, such as the anniversary of the date of the accident? Do clients say they're ready to litigate and then fail to return necessary paperwork? Or do they say they're ready to settle and then immediately pick a fight?
The meaning of ambivalence
These are all outward manifestations of ambivalence, the back-and-forth of simultaneous, conflicted feelings. One moment the litigation is necessary and must be completed as soon as possible; the next moment the client waivers, not sure whether pursuing the claim is a good idea. One moment clients are working together on an agreement, and the next moment they are fighting over what was just settled.
Ambivalence is often evidence of unfinished emotional business, either for the parties as individuals or in relationships-and it is often an underlying force in the toughest cases. You can watch for it in the parties' behavior, any significance to the date of the client appointment, and in the left side of their faces. Then address that ambivalence so it won't destroy the case or settlement.
Be sure to tune in to all the parties evenhandedly, particularly if you're working for multiple parties on the same side of a case or if you're a mediator or settlement officer. Even a party who is not your client may be more amenable to settlement if he or she feels you're listening to and understanding his or her particular concerns. Lawyers generally are trained to ask only closed-end questions that have known answers or that will elicit facts, but some situations may benefit from a more expansive approach in questioning-particularly in settlement negotiations, mediations, or collaborative law.
The requirement to act competently as set forth in Rule 3-110 of the California Rules of Professional Conduct generally pertains to an attorney's legal ability to handle a particular case, but subsection (B)3 includes in this "mental, emotional, and physical ability reasonably necessary for the performance of such service." High-conflict cases and challenging clients call for greater abilities on the part of attorneys-including the ability to be attuned to nonverbal communication.
Listening for Shame and Trauma
Clients may posit that a past event triggered whatever current conflict they are experiencing-blaming a past affair, a lost promotion, a business deal gone awry, or another traumatic event as the reason for their present problems. In truth, although such events may have galvanized a problematic situation, often they are not its cause.
It is important to not be seduced by the symptoms of the problem, or caught up in its particulars or its many manifestations. In your role as counselor at law, you can use the litigation or mediation setting to give your client-and perhaps the other parties involved-an opportunity to confront the impediments to agreements, including the ambivalence described earlier. In some instances, you can help by moving the focus away from the past and identifying and working on healing the actual ruptures in the relationship.
Similarly, when clients issue complaints, often they're really talking about unmet needs. For example, a client complaining about an imbalance of power might in fact have unarticulated feelings of unworthiness and inadequacy. Fueling the complaint may be an undigested trauma that is reenacted over time and which undercuts the client's confidence. Unaddressed, these feelings of inferiority can become a loop of self-sabotaging ideas and behaviors. For example, a client who is backing away from settlement actually may desperately want to participate and be taken seriously.
Getting to the Roots
When what clients are doing and saying doesn't make sense to you, it is often a sign that something else is going on that doesn't meet the ear or eye. Patterns formed in childhood often influence the way adults act, especially when they're in a traumatic situation such as divorce litigation. What you are hearing may be a re-traumatization of an unresolved childhood issue that is now playing out in the marital relationship.
It is your job to monitor and work with the verbal and nonverbal signs of ambivalence. When not dealt with properly, these can become impasses to settlement or make it impossible for a client to participate meaningfully in litigation.
This situation is akin to looking at a Polaroid photograph. There is a much larger back story to the snapshot that you are seeing at that moment in your office. Impasse can provide a glimpse into the psychological disconnects, self-fulfilling fears, and interlocking pathologies that have taken root and grown from early in the conflict.
Bear in mind that, as a lawyer or mediator, you are coming into an ongoing conflict at the middle, not the beginning. Also bear in mind that you can decode only a small cross section of the individual and interpersonal aspects of the conflict. You can focus only on the part involved in resolving the case and attempt to navigate the client's personal problems with skill, sensitivity, and good faith.
Sometimes, as you work to satisfy your legal duty to keep a client informed, you learn that the client has another agenda beyond simply gaining the relief initially requested. For example, communicating all settlement offers as required by Rule 3-510 of the Rules of Professional Conduct can be frustrating when the client seems set on rejecting any reasonable settlement-including better offers than he or she might receive in court.
When clients can't seem to focus on the process of the case, other forces may be at work. For example, caught up in the problems at hand, a client may no longer think of the other person's needs, only of himself or herself. This is most evident in mediating divorce cases, but the dynamic may also be at play in business disputes, contested probate cases, sexual harassment claims, and sometimes even personal injury cases. Finding room for all parties in the agreement is a key to resolving conflict.
Being lost in conflict is another way of saying, "I don't remember what's important to you or about you." It can be a way to negate the pain of realizing that one person doesn't care about a relationship anymore. If people in conflict can forget the other person or negate the dream of the marriage, business relationship, or family relationship, it's easier-at least on the surface-to cope with the disappointment of that failure. A lawyer or mediator then becomes an intermediary in the hostile energy-and can often help most by reminding the parties to deal with the details of handling the current situation rather than focusing on the underlying conflict.
Moving Beyond Conflict
Particularly when entering settlement negotiations, it can be important to help clients feel and then release their pain, so they won't remain stuck in it. At times, simply talking about the pain out loud can help. For example, if one party calls the other a liar, a mediator could ask the accused to think back and articulate what the accuser might mean. Bringing out the specifics often helps the client to let go of the hurt. And letting go is often the first step toward being ready to enter an agreement.
In settlement negotiations, a lawyer can use neutral, two-way statements and proposals that address both parties, even though only one may feel aggrieved at the moment. For example, the lawyer in a custody dispute can suggest adding reciprocal, neutrally phrased language about house rules, such as the need to approve all movies the children watch.
The lawyer, mediator, or settlement officer also can ask the clients to give one another the benefit of the doubt in whatever it was that happened in the past, with the goal of developing greater mutual trust. For example, you could help a client to say, "If I had known how much my paying the rent late again upset you, I never would have done it," while encouraging the other party to believe that, although the action was upsetting, this had not been intended. Be patient, because for many clients, the temptation to blame and shame may be irresistible, especially early in the case.
Many complaints clients voice may be offensive to the other party, or something the other party is reluctant to acknowledge. An example of this is a claim of violence or unfair treatment. The alleged perpetrator may be reluctant to admit to wrongdoing, but for the purposes of a particular civil case, it isn't necessary for him or her to confess. You can point out that whether or not it happened isn't as important as the fact that now one party is afraid or suspicious of the other. The dynamic in the relationship has caused confusion or fear in the other party, and that confusion or fear becomes the problem to be solved. Taking guilt and blame out of the equation makes it easier to negotiate a resolution.
Another communication technique is to normalize the situation, to let the client know that what he or she is going through is normal, even if it's difficult. Remind the client that even positive change can be stressful. You can use empathy and acknowledgment such as, "I know it's hard" or "I can appreciate why you feel that way, but..." or "You are not alone in feeling that way."
Giving the other party the benefit of the doubt is another way the client can avoid feeling slighted or hurt. For example, encouraging the client to say, "I'm sure that the failure to send my refund check on time was an oversight, and that it wasn't meant to punish me," may help the client remain calm when asking for the check. For more difficult situations, a lawyer or mediator can ask, "What would help the other party put this issue to rest, even if you don't think he or she deserves it?" or "What can you do to put the other party's mind at ease?"
This benefit-of-the-doubt approach also is useful in the discovery process. The more forthcoming and cooperative the parties are, the more trustworthy each becomes. Encouraging both parties to offer the expected disclosures before the other party asks for them is an easy way to help clients begin to build or regain trust.
Handling Sensitive Topics
Consider a new way to address the requirements of Rule 3-310 of the California Rules of Professional Conduct, requiring disclosure of the foreseeable adverse consequences of the circumstances to the client.
Work with empathy and compassion to get cooperation, and never rush in where you do not have permission to go. For example, you could say: "We're going to be going into some very sensitive material now. Are you ready? If it gets to be too much, give the time-out sign and we'll take a break, knowing that we will come back to the discussion." You may be surprised at how well clients accept bad news or challenges to their position if you first ask their permission to proceed.
The goal is to understand the other side's perspective, and to help the client understand it, without the appearance of alignment. For lawyers this can be tough, because you're trained to align and empathize with one side only. The key is to acknowledge that there are two sides to the story, but with your client feeling you're still on his or her side. This both satisfies your duty to respond promptly to your clients' status inquiries, keeping them reasonably informed of significant developments (Cal. Bus. and Prof. Code ?6068(m)), and strengthens your relationship with your client.
Diana Mercer (firstname.lastname@example.org) is an attorney-mediator and Tara Fass (email@example.com) is a therapist-mediator at Peace Talks Mediation Service in Playa del Rey.