How Lawyers Should Conduct Interviews

An important skill never taught to lawyers in law school is how to interview a potential client or a witness whom the lawyer may wish to use in the trial of a lawsuit.

Establishing Rapport, Avoiding Formality

To effectively conduct an interview of a potential client or witness, the lawyer should act as if he or she were having a pleasant conversation with a person introduced by a friend or relative.

Unlike the formality of a deposition or trial testimony, an interview puts no restrictions on the lawyer. When starting an interview, the first action the lawyer must take is to establish rapport with the person being interviewed. Rapport can be established by finding some interest that the lawyer has in common with this person, such as:

• similar family background;
• common faith or membership in the same religious denomination;
• military service;
• children of the same age;
• club affiliation;
• a hobby or an interest; or
• interest in sports or a particular sport.

The lawyer must also deal honestly and squarely with the person being interviewed and avoid the formality that might be appropriate when taking evidence at deposition or trial. Regardless of the informality of the interview, it is important to emphasize that the interview is part of an investigation that will determine whether the lawyer will agree to be engaged as counsel or that it is needed in the lawyer’s duty to represent a client.

The interview must be an informal fact-gathering session. Confident inquiry of a potential client may allow a lawyer to decide whether the case should be declined or whether it is honorable and will be profitable to the proposed client.

A lawyer acting as an interviewer rather than an advocate must have:

• an interest in the operations of human nature;
• a thorough knowledge of the principles of civil investigation;
• a thorough knowledge of the specific subject matter of the interview; and
• the ability to engender trust and inspire confidence.

The lawyer acting as an interviewer should convey to the person interviewed an attitude similar to that of a friend who has not seen the person to be interviewed for a year and honestly wants to be filled in on the person’s activities during that time.

When conducting an interview, it is best to feign total ignorance and ask the witness to help you understand the subject of the interview. A nonlawyer is always ready to show a lawyer how much more intelligent he or she is than the lawyer and will work diligently to provide the lawyer with thorough and knowledgeable information.

Preparation and Follow-Through

The lawyer should prepare for the interview beforehand by determining the type of information needed and how to present the need for information to the person to be interviewed.

When the interviewer is organized, focused, and coherent, the subject of the interview will eventually be forthcoming. Efforts to hide within irrelevant answers will be thwarted by an experienced interviewer.

The lawyer acting as an interviewer should recognize that elderly people often need to tell the entire story from beginning to end rather than recognize and reveal the few essential facts the interviewer requires. Now that I am a seasoned citizen myself, I practice patience with the elderly (and give an occasional approving nod of the head) to eventually get the answers needed. Given time, the elderly subject will get to the part of his or her story that is of most relevance to the interviewer.

The prudent interviewer recognizes that there is no “wrong” answer to a question. There are only truthful answers. He or she will also conduct the interview with the knowledge that the person interviewed will only give information if convinced that the interviewer is professional, worthy of respect, and someone with whom the witness is willing to confide.

The lawyer conducting an interview will consider every movement, every shift of seating position, and every scratch, shrug, or detectable change in body odor in relation to the question asked. The interviewer will often assign a law clerk or paralegal sitting in at the interview to observe the body language of the witness and report to the lawyer which question or series of questions changed the body language of the witness.

It is also important for the lawyer not to oversell or try too hard to convince the witness of the necessity of telling the truth and being forthcoming. Successful interviewing requires an air of steady confidence and cool detachment—a “soft sell” versus a “hard sell” approach.

The lawyer taking an interview should consider some basic rules of salesmanship as they apply to the interview:

• To sell the interviewer’s product—honesty, integrity, and a desire for complete and truthful information—the interviewer must be convinced that what he or she has to sell is exactly what the subject needs or wants.
• Once the professional is sold on that idea, he or she can much more easily get the person interviewed to adopt a similar attitude.
• An agreement about the purpose and benefits of finding the truth means that the person interviewed will be much more inclined to tell a complete story—to “buy into” the interviewer’s goals.
• People relate more favorably to those who like them than to those who do not.

Conversation, Not Interrogation

The lawyer must remove from the interview his or her litigation training. The lawyer must revert to the type of conversation that would be used at a family dinner or a meeting with friends for pizza.

When conducting an interview, lawyers must be consummate salespersons who would never insult the person being interviewed any more than they would insult their Uncle Oscar.