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THE EFFECTIVE LAWYER-CLIENT COMMUNICATION PROJECT Clark D. Cunningham W. Lee Burge Professor of Law & Ethics Georgia State University College of Law Initiated in 1998 by Washington University and the Centre for Legal Education in Australia

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THE EFFECTIVE LAWYER-CLIENT COMMUNICATION PROJECTClark D. CunninghamW. Lee Burge Professor of Law & EthicsGeorgia State UniversityCollege of Law

Sydney, Australia

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Initiated in 1998 by Washington University and the Centre for Legal Education in Australia
  • Other participants from Australia, England, India, Israel, Scotland, South Africa, and the United States and from a wide variety of disciplines.
  • Now based at Georgia State University.
  • long-term goal is to determine whether international and interdisciplinary collaboration on the issue of lawyer-client communication can actually change basic institutional practices and beliefs in the legal profession

Sydney, Australia

what is their story
What is Their Story?

15 minute series of scenes edited from the movie Amistad

based on the 19th century slave ship mutiny and subsequent U.S. Supreme Court case

a kind of fable or parable about what it means to learn and tell a client's story

Sydney, Australia

cast of characters
Cast of Characters

Cinque:

  • a West African captured by Spanish slave traders in 1839
  • brought to Cuba, where he was sold into a life of plantation labor
  • On the way to the plantation, he broke free of his shackles and with 52 other Africans took over the slave ship, Amistad

Sydney, Australia

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Lewis Tappan: A leader of the abolitionist movement
  • Theodore Jodson (Morgan Freeman): ex-slave also active in the abolitionist movement
  • Roger S. Baldwin: represents Cinque at trial
  • John Quincy Adams (Anthony Hopkins): former President, represents Cinque in Supreme Court

Sydney, Australia

scene 1
Scene 1
  • Outside the federal courthouse
  • Tappan tried to present a writ of habeas corpus to release the prisoners
  • He was rebuffed by the judge, who pointed out that Tappan was not a lawyer
  • Naval officers who brought the Amistad to shore made salvage claims for the ship and its "cargo."
  • Surviving Spaniards, Ruiz and Montes, claim ownership of the prisoners.
  • U.S. Secretary of State, pursuant to a treaty agreement, claims the ship and its cargo on behalf of the Queen of Spain.

Sydney, Australia

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MANAGING CLIENT EXPECTATIONS AND PROFESSIONAL RISK: A Unique Insight into Professional Negligence Exposure in the Australian Legal Profession

RONWYN NORTH & PETER NORTH

1994

Sydney, Australia

research methodology
Research Methodology
  • Based on the Risk Management Project initiated by Law Cover
  • In-depth field interviews with representative sample of solicitors who had been subject to a claim
  • The sample was representative of more than two thousand claims

Sydney, Australia

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“The results are clearly disturbing.”
  • They show how easy it is for the average solicitor - even the solicitor other solicitors would choose and trust - to become entangled in the events that often lead inexorably to a claim
  • The solicitors don't seem to understand the dynamics of the claims.
  • Most solicitors need help to see the patterns and to understand how they should act differently in future to reduce their inherent exposure.

Sydney, Australia

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Each solicitor was interviewed privately for several hours
  • the nature of the matter
  • how the solicitor usually approaches such work
  • the nature and evolution of the client/solicitor relationship
  • the legal issues involved
  • solicitor's relevant skills and experience
  • specific events before and after the allegation

In most cases, the panel solicitor was also interviewed

Sydney, Australia

common patterns
Common Patterns
  • Need to focus on client interface
  • Many cases start going wrong at the outset
  • Failure to spend enough time with the client
  • Failure to write down agreement covering all key aspects

Sydney, Australia

competence in client communication
Competence in Client Communication
  • Study by Prof. Avrom Sherr (U of London)
  • 143 actual 1st interviews
    • 24 % lawyers in training
    • 76% experienced lawyers
      • 70% at least 6 years
      • 23% more than 11 years
  • High percentages of ineffective interviews
    • Experienced lawyers generally no better

Sydney, Australia

common problems with all lawyers sherr study
Common Problems with All Lawyers(Sherr Study)
  • 51% failed to get the client’s agreement to advice or plan of action
  • 76% failed to confirm with client the lawyer’s understanding of the facts
  • 85% failed to ask before ending whether there was anything else the client wanted to discuss

Sydney, Australia

where there were differences between new and experienced lawyers
Where There Were Differences Between New and Experienced Lawyers
  • Experienced lawyers
    • Used less legalese
    • Better at “filling in the gaps”
    • Rated their own interview performance higher than did new lawyers
  • But the clients saw no difference in performance between new and experienced lawyers

Sydney, Australia

lawyer skepticism about client feedback
Lawyer skepticism about client feedback
  • Low response rates
  • Very happy or unhappy clients most likely to respond
  • Skewed by outcome
  • Clients not qualified to assess lawyer effectiveness
  • Better client communication not a focus of professional development

Sydney, Australia

what do clients most care about
What do clients most care about?

CLIENT PERCEPTIONS OF LITIGATIONWHAT COUNTS: PROCESS OR RESULT?Tom Tyler,Trial Magazine (1988)

  • Clients care most about the process
    • having their problems or disputes settled in a way that they view as fair
  • second most important is achieving a fair settlement
  • least important factor is the number of assets they end up winning.

Sydney, Australia

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PLAINTIFFS AND THE PROCESS OF LITIGATION:An Analysis of the Perceptions of Plaintiffs Following their Experience of LitigationTania MatruglioCIVIL JUSTICE RESEARCH CENTREAustralia 1994
  • Chart

Sydney, Australia

effective lawyer client communication elcc project http law gsu edu communication
Effective Lawyer-Client Communication (ELCC) Projecthttp://law.gsu.edu/Communication/
  • Focus on initial meeting
    • 100% response rate
    • Not skewed by outcome
    • Feedback can be used to improve representation of THIS client
    • Tells client the lawyer cares about how client experiences the first meeting
  • Let’s look at the forms
    • Client form
    • Lawyer form

Sydney, Australia

elcc partnership with glasgow law school
ELCC Partnership with Glasgow Law School
  • Glasgow Graduate School of Law (GGSL) operates largest Diploma Program in Scotland
  • Emphasizes competence in client interviewing
  • Test for Diploma includes videotaped interviewing exercise

Sydney, Australia

pilot project in glasgow
Pilot Project in Glasgow
  • Use ELCC client survey forms for simulated interviews
  • Train “standardized clients” for these interviews
    • Consistency
    • Clients participate in assessment
  • Inspired by medical education, now required of all MD candidates in U.S.

Sydney, Australia

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Plan to design interview exercises based on input from Scottish lawyers and studies of real client meetings
  • Potential extension to Proficiency stage, use in proposed new speciality certication program in Scotland

Sydney, Australia

for more information and further developments
For More Information and Further Developments
  • Handout in your materials
  • ELCC Web Page [http://law.gsu.edu/Communication/]
  • Burge Chair Professionalism Pagehttp://law.gsu.edu/ccunningham/Professionalism/Index.htm

Sydney, Australia