The Drive to Advise

1. The Drive to Advise A Study of Law Student Interviewing

2. The Setting • A “Clinic” serving Pro Se Parties • Providing Brief Advice • Staffed by Pro Bono Law Students and Volunteer Attorneys • Students Conduct the Interviews • Students Consult with Attorneys • Students then Counsel the Clients

3. The Study • Recording of 46 Student-Client Interviews • Transcriptions of Recordings • Analyzed Using Conversation Analysis

4. Conversation Analysis • “the dominant approach to the study of human social interaction across the disciplines of Sociology, Linguistics and Communication.” Tanya Stivers & Jack Sidnell, Introduction to The Handbook of Conversation Analysis 1 (Jack Sidnell & Tanya Stivers eds., 2013). • Relies on the “close examination of language in interaction.” Applied Conversation Analysis: Intervention and Change in Institutional Talk 1-2 (Charles Antaki ed., 2011). [hereinafter Antaki]. • Does not involve any beginning hypothesis or intervention, but a careful study of the transcripts to see what lessons emerge

5. Clinic Protocol • Client gives a narrative • Student questions to explore relevant facts and goals • Student consults with Attorney • Student counsels client • Best practices for client centered representation • Best practices to avoid unauthorized practice of law and to permit attorney to supervise advice

6. Students Describe Protocol 30 of 46 interviews (65%) began by describing this protocol

9. Students’ Drive to Advise • Despite the described protocol, 25 of 46 interviews (54%) include student giving suggestions, information, apparently expert commentary or legal advice during the Interview • 17 of those 25 (68%) had begun by setting forth the protocol

10. Concerns • Are there problems due to the breach in protocol? • WHY does this happen? • If there are benefits to following the protocol, how can we support students to follow it?

11. Students’ Helpful Suggestions

14. Information 12 Interviews (26%) involved students giving Information during the Interview. . . How to Answer, How to complete a Petition, etc.

20. Problems with Premature Information • In three of eight (37.5%) information was complete and accurate • Of five with inaccurate or unclear information, in three cases the information was corrected or clarified after attorney consultation • Most information, but not all, was revisited in counseling sessions • One case of misinformation that put client at risk was never corrected • Providing information sometimes delayed learning important facts from the client • Taken together, it should be more efficient and more effective to delay providing information until the counseling session & after attorney consultation

21. Students Provide Assessment or Commentary

27. Theories about Assessment & Commentary • Comments did not suggest course of action, thus hardly legal advice • Did sometimes portray particular images of the justice system • Emancipation is the easy solution • Clients shouldn’t have to pay for lawyers who do a bad job • Pro Se Clinics help both sides of the case • Judges shouldn’t let pro se parties “rattle on” about “irrelevant things” • Judges are too busy to give pro se parties face time • Might these comments diminish confidence in the justice system? • Do students make these comments to express empathy?

28. Legal Advice During eight interviews (17%) students made recommendations for actions the client should take.

37. INTAKE FORM • What Happened? Briefly describe what has happened that brings you to the Clinic: • Domesict [sic] violence -- separation • Divorce, preservation of my home • How can we help? Briefly describe what questions you have and/or the help you think you want: • Information on my rights through divorce. Need attorney provided for me pro bono. Do I need to file something to stop immediate sale of home by husband by end of next month.

41. Problems with Premature Legal Advice • Erroneous advice (2 of 8 interviews) that was not corrected • Incomplete advice (4 of 8 interviews) – legal standards not provided or not applied to facts of client’s matter • Early turn to counseling cuts short client narrative and questioning, resulting in more general information and less individualized legal advice

42. Why the Drive to Advise?

43. Personal Motivations? • Clients appeared needy • Pro bono students were motivated to be helpful • Law students were proud of their evolving knowledge • Law students may be reacting to demoralizing classroom experiences where there are always questions they cannot answer • Lawyers modeling – lawyers themselves often turned to advise as soon as possible during the interview

44. Conversation Conventions? • Conversation is a cooperative activity • Adjacency pairs • Questions call for answers • Requests call for compliance

45. Possible Solutions

46. Instruction in Interviewing Skills • Disadvantage of pro bono programs – compared with Clinics – is the absence of instruction in interviewing skills • Studies of medical interviewing show premature advice -- before information-gather stage is complete -- is a common problem • Interview protocol taught in medical schools: • Do not begin with confirming questions -- many patients/clients have more than one concern • Do surface all concerns before exploring any one of them • Confirm with clients all their questions, concerns • Listen to narrative • Follow with questioning

47. Instruction Regarding Rapport and Empathy • Disadvantage of pro bono programs – as compared with Clinics – is the absence of instruction regarding developing rapport and expressing empathy • Active listening – reflecting the content of the client’s statements and attaching emotional labels • Medical text recommend responding verbally to patients’ expressed emotions • Naming feeling or emotion • Understanding or legitimating the feeling • Respecting the feeling or appreciating the patient’s plight • Supporting the patients (I’m here to help)

48. Thank You! Linda F. Smith, University of Utah S. J. Quinney College of Law