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Insights for Interviewing and Counseling Clients OHIO STATE JOURNAL ON DISPUTE RESOLUTION VOLUME 23 2008 NUMBER 3 Good Lawyers Should Be Good Psychologists: Insights for Interviewing and Counseling Clients JEAN R. STERNLIGHT* & JENNIFER ROBBENNOLT** I. INTRODUCTION Practicing law means working with people. To be effective in working with clients, witnesses, judges, mediators, arbitrators, experts, jurors, and other lawyers, attorneys must have a good understanding of how people think and make decisions, and must possess good people skills.' Yet, law schools * Saltman Professor of Law and Director of Saltman Center for Conflict Resolution, UNLV Boyd School of Law. ** Professor of Law and Psychology, University of Illinois. We thank the faculty and students at the Ohio State University for the opportunity to give the Schwartz Lecture and for providing excellent feedback. We are indebted to Matthew Engle, Michael Hammer, Brandon Kemble, Matt Taksin, and Hetty Wong for their valuable research assistance, to the library staff of the University of Illinois College of Law and the Boyd School of Law for their very helpful assistance, and to Michael and Sonja Saltman, the Boyd School of Law, and the University of Illinois College of Law for financial support. Our heartfelt thanks go to Richard Birke, Chris Guthrie, Rebecca Scharf, and Nina Tarr for their valuable comments on a previous draft of this article, and to colleagues at the Boyd School of Law for feedback on any early lecture-version of this Article. I An ongoing study by law professor Marjorie Shultz and psychology professor Sheldon Zedeck has identified twenty-six factors that contribute to lawyers' effectiveness. Many of these factors draw from psychological insights. The twenty-six factors are: analysis and reasoning, creativity/innovation, practical judgment, researching the law, passion and engagement, questioning and interviewing, influencing and advocating, writing, speaking, integrity/honesty, ability to see the world through the eyes of others, self-development, organizing and managing others, negotiation skills, networking and business development, building client relationship including advice and counsel, organizing and managing own work, developing relationships, evaluation/development/mentoring, problem solving, stress management, fact finding, diligence, listening, community involvement and service, and strategic planning. University of California, Berkeley School of Law, 26 Effectiveness Factors, http://www.law.berkeley.edu/beyondlsat/effectiveness.pdf (last visited Feb. 8, 2008). The ultimate purpose of this study, supported by the Law School Admission Council, is to 437 OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol. 23:3 20081 have tended to teach very little, directly, about how to be good with people, and current critiques of legal education do not focus much on the importance 2 of psychological insights to attorneys. At the same time, the insight that the practice of law is far more people- oriented than is legal education is not new. In 1955, then Harvard Law School Dean Erwin Griswold gave a speech entitled "Law Schools and Human Relations." He wrote: There is some tendency, with the case method, for the study of law to be something like the study of chess or the analysis of a bridge hand. When analyzing the law in intricate detail, it may be hard to keep in mind the vital fact that the problems really relate to people, either the people who are parties to the case, or the people who will be affected by the law established 3 once the case is decided. Responding in part to the comments of Dean Griswold and others, as well as to documents such as the MacCrate Report,4 law schools now offer far more people-oriented courses than they did in the 1950s. Specifically, law schools now often sponsor clinics that involve direct client contact and skills courses such as trial practice, interviewing and counseling, negotiation, and design a law school entry exam that can predict success as a lawyer, and not just as a law student. See University of California, Berkeley School of Law, Law School Admission Project: Looking Beyond the LSAT, http://www.law.berkeley.edu/beyondlsat/ (last visited Feb. 8, 2008) (containing articles discussing study). See also Stephen Feldman & Kent Wilson, The Value of InterpersonalSkills in Lawyering, 5 LAW & HUM. BEHAV. 311, 320 (1981) (reporting study showing that clients' perceptions of attorneys are most favorable when the attorneys have both technical competence and good people skills). 2 See, e.g., Roy STUCKEY ET AL., BEST PRACTICES FOR LEGAL EDUCATION passim (2007) (recognizing that lawyers need to possess communication and problem-solving skills but failing to place much emphasis on psychological aspects of lawyering). 3 Erwin N. Griswold, Law Schools and Human Relations, 37 CHI. B. REC. 199, 201 (1956). 4 The MacCrate Report urged that law schools place more emphasis on teaching a broad array of skills, and not merely focus on legal analysis. A.B.A., LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENT-AN EDUCATIONAL CONTiNUUM 330 (1992). This Report received substantial attention, and has sparked follow-up symposia. See, e.g., Symposium, The MacCrateReport: 10 Years After, 23 PACE L. REV. 513 (2003). See also WILLIAM M. SULLIVAN ET AL., Summary of the Findings and Recommendations, in EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW 6 (2006), available at http://www.carnegiefoundation.org/files/elibrary/EducatingLawyers_summary.pdf (noting that law schools offer clinics and skills courses but urging that law schools typically "give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice"). 438 INSIGHTS FOR INTERVIEWING AND COUNSELING CLIENTS mediation, as well as some doctrinal courses that incorporate various psychological insights. 5 Nonetheless, lawyers and legal education have still not taken full advantage of the great strides that have been made in the field of scientific psychology in recent decades. 6 Psychologists know much and are learning more about how people think, remember, and decide, but law schools have not broadly integrated these insights into the law school curriculum. 7 Some courses do draw on psychological science but still fail to take note of many 8 of the insights that psychology can offer. Similarly, psychologists are not doing as much as they might to apply their discipline to all aspects of law. While law and psychology texts and 5 SULLIVAN ET AL., supra note 4, at 7 (observing that while law schools offer more experiential and contextual courses than they did fifty years ago, such courses are still often placed in a subordinate status). One professor urges that interpersonal skills are so important to lawyering that they should be taught directly. See Joshua D. Rosenberg, Interpersonal Dynamics: Helping Lawyers Learn the Skills, and the Importance, of Human Relationships in the Practiceof Law, 58 U. MIAMI L. REV. 1225, 1283 (2004). 6 E.g., Austin Sarat, Lawyers and Clients.: Putting Professional Service on the Agenda of Legal Education, 41 J. LEGAL EDUC. 43, 43 (1991) (noting that law students learn little about encountering people in stressful situations and fashioning solutions that are responsive to human as well as legal concerns). 7 Psychology is not the only relevant social science. Lawyers can also learn a lot from the fields of communications, sociology, economics, and many others. But to us, psychology seems particularly relevant and, at a minimum, psychology offers enough insights to fill an article. 8 For example, a number of excellent books have been written to teach the skills of interviewing and counseling clients. Yet these books do not cover psychology in the detail we think would be useful. See ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING, COUNSELING & NEGOTIATING: SKILLS FOR EFFECTIVE REPRESENTATION (1990) (drawing extensively from psychoanalysis and psychotherapy but failing to consider various other psychological insights); DAVID A. BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT-CENTERED APPROACH (2d ed. 2004) (offering practical suggestions, some based on psychological insights, but failing to provide detail regarding background psychology); ROBERT F. COCHRAN, JR. ET AL., THE COUNSELOR-AT-LAW: A COLLABORATIVE APPROACH TO CLIENT INTERVIEWING AND COUNSELING (1999) (including some psychology, such as a section on information processing flaws); STEFAN H. KRIEGER & RICHARD K. NEUMANN, JR., ESSENTIAL LAWYERING SKILLS: INTERVIEWING, COUNSELING, NEGOTIATION, AND PERSUASIVE FACT ANALYSIS 59-107 (2d ed. 2003) (devoting a relatively small portion of the book to interviewing and counseling, and within those pages focusing only briefly on psychology); THOMAS L. SHAFFER & JAMES R. ELKINS, LEGAL INTERVIEWING AND COUNSELING IN A NUTSHELL (3d ed. 1997) (drawing on literature from counseling, psychoanalysis, and other sources to provide practical suggestions on interviewing and counseling, but failing to cover other links between psychology and interviewing and counseling). 439 OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol. 23:3 2008] courses are now commonly offered for undergraduate and graduate students in psychology as well as for law students, these almost always focus exclusively on a few limited aspects of law and legal practice. The typical law and psychology course or book tends to cover primarily criminal rather than civil law and practice, and places its emphasis on the psychology of 9 juries, eyewitness testimony, interrogation, and trials. This Article begins to
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