When meeting a client for the first time, I tell my younger colleagues they need to be mindful that a new client almost always tells us only the favourable aspects of their case. They will leave out the awkward or unfavourable aspects of their case. It doesn’t matter what the dispute is – civil, criminal, estate inheritance, family, industrial – a new client always starts with their best foot forward.
When I was younger, I used to be annoyed at this. Just give us the bad with the good lah! Why be all coy and virginal about the bad bits? Slash those arteries and let them spill over. Everybody is going to see the splatter after this anyway. Why keep the unfavourable part from us? We know you are holding things back.
After all, we are on your side. We are not beguiled by one-sided narratives. We have seen enough disputes to know there are almost always at least two sides. We have been on the opposite side before. Plus, there is common law legal professional privilege. That means lawyers cannot disclose confidential information about their client or case without their permission. Section 129 of the Evidence Act 1950 fortifies that privilege as it applies to court proceedings too.
Having since grown up a little, I flatter myself to believe that I better understand why clients tend to do that. We are humans. Trust takes time. A relationship of trust takes time to foster, mature and consolidate. Truth takes time. Truth is a ball of string that unfolds, unravels and disentangles as it moves; it is not the shifting of 32 gigabytes of data from a USB Drive to a desktop computer hard drive at 300 megabytes per second (oh, how quickly this analogy will age).
An appreciation of psychology, behavioural and decision-making science helps with legal practice. These subjects are about how our minds work which influences how we behave. An appreciation of the psyche aspect eases access to empathy and understanding another. It helps us tactfully move a client or a witness along their narrative. It helps us appreciate the court’s human challenges and constraints. It helps us avoid drama with our opponent. Above all, it reminds us to keep ourselves sane.
I now appreciate people tend to hold things back not because they want to mislead or lie to us. But because they are concerned about attracting our disapproval, dismissal or dislike at the start. They are fearful that if we are any of those things, we, as lawyers, will not act for them to our best. To begin with a favourable impression requires disclosing only the favourable part of the narrative first.
That, for me, explains why people tend to give us the favourable parts first. They want us to have a favourable impression of their case. They want us to like them or sympathise with their cause, usually both. They want us to empathise with the moral injustice they suffered and, if possible, have our moral outrage stirred. We can at least give them a full hearing.
They will get to the bad bits, sometimes only if we ask, but they want us on their side before they get there. They want to feel secure that when they give us the big reveal, we will remain by them. That we won’t abandon them. If clients or witnesses appreciated legal ethics, they would be comforted to know it is our duty to stand by and stand up for them irrespective (and so long as the fees are fully paid up), and shut up about it to everyone else.
At client interviews, I tell my colleagues to let the client speak with minimal interruption on the first telling. Let them tell it how they want to tell it. Don’t constrain them with a volley of questions. Because that first telling is how the client wants others to appreciate their story: as they do. That is their narrative at its highest without the intrusion and inconvenience of other facts or evidence. Give them the privilege of a full empathetic listen.
We should carefully record what they tell us. Stories may change incrementally or significantly in subsequent interviews. Shh. It happens.
So at first, ask questions only to make sense of or to clarify what they are telling us. Probe a little if we must but avoid asking questions to contradict, question or cast doubt on what they are saying. Listen to them carefully, appreciate the sequence in which they unfold the story, and appreciate how they introduce their evidence and what importance they place on it.
Where and how do they start their story? Which part do they linger over? Which part do they quickly gloss over? Which part of their story do they look and sound nervous and anxious about? Have they omitted anything? If so, what? Why? Which part do they grow confident and entitled to? What documents do they have? Which do they not mention?
As they relate their story to us, make a note of which parts of their story or documents require closer and critical scrutiny after they are done with their first telling. I encourage them to be intensely granular, like a stop-motion animation. That way, it is easier to see the parts that don’t make sense or do not follow what came previously.
After that, take stock of the story in its entirety. Is the story or explanation reasonable or sensible? Do the documents or evidence support what they say about them? Sometimes we read what we want to read and hear what we want to hear. Don’t take their word for it. Read it. Compare their understanding of the document with what it actually says. You may be surprised.
After they are finished with their telling, politely take the client back to the areas for further examination. Can we now go back to the part before you entered the house? Remind them what they told us earlier. You said you saw a silhouetted figure behind the house before entering. Ask our questions relating to their testimony. Which direction was he moving to? Confront them with inconvenient or contradictory facts or evidence and elicit their responses. Earlier you said this, but if we take this piece of evidence into consideration, what would your response be? We must not shy away from asking uncomfortable questions for fear of embarrassing or inconveniencing them. It is better they put up with the smaller discomfort in our offices than the bigger discomfort in court before less forgiving listeners.
If their explanation does not make sense or is not rational, explain why to them. Shepherd their explanation into a coherent and deliberate recollection so their story is sensible to us. We must not relent until we have a full grasp of their story. This is important.
We will be explaining and defending them in court, in front of others. So we must be thoroughly clear about their story. We should have a ready response to all parts of their story, especially the tender portions. If they are not sensible to us, we are not going to be sensible to the court. If we are not sensible, we are not convincing. That puts us at an immediate and serious disadvantage. I encourage them to empathise by placing them in an imaginary judge’s chair looking back at their conduct or listening to their argument. How do you sound to yourself?
Once we are done with the first interview, we should have recorded the main facts and the immediately occurring ideas from the interview. The first gush of ideas frothily fresh from the telling is as fertile as those that stealthily emerge later after mature reflection and refinement.
Any unsatisfactory parts of their story that persist should be noted. We don’t have to deal with everything at the first interview. We will explore those at the next meeting when we will go over their narrative again and compare it with what they told us earlier.
We are never going to get everything on the first pass, or the second. We ought to appreciate that even as we come to some finality on our client’s narrative, the story inevitably goes on.