Client Science Instructor's Guide

THE CLIENT SCIENCE COURSE INSTRUCTOR’S GUIDE

Marjorie Corman Aaron Professor of Practice Director, Center for Practice University of Cincinnati College of Law

TABLE OF CONTENTS

INTRODUCTION ...... 1 ALTERNATIVE COURSE STRUCTURES ...... 2

THE FOUR‐DAY PRE‐SEMESTER CLIENT COUNSELING WORKSHOP ...... 3 WORKSHOP TIMING ...... 3 LOGISTICS ...... 3 Workshop Days ...... 4 Faculty Coverage ...... 4 THE TEN‐WEEK CLIENT COUNSELING COURSE ...... 5 Timing and logistics ...... 5 Logistics ...... 5 OTHER FORMAT OPTIONS ...... 5 A Walk through Content, Method, and Intent ...... 6 PRE‐COURSE PREPARATION TASKS FOR THE PROFESSOR AND ADMINISTRATIVE ASSISTANT ...... 7 CONSIDERATIONS IN SETTING DROP‐ADD DEADLINES ...... 8 When the Deadline is Breached ...... 8 ROLE ASSIGNMENTS ...... 9 PRE‐COURSE COMMUNICATION WITH STUDENTS (ABOVE AND BEYOND THE ORDINARY) ...... 11 PRE‐COURSE SUBMISSION: CASE ASSESSMENT EXERCISE ...... 11 THE CASE ASSESSMENT EXERCISE: WHY AND WHAT IT IS ...... 12 EARLY WARNINGS ON DECISION ANALYSIS AND SOFTWARE ...... 13 AT LAST, PREP FOR THE FIRST – THE OPENING SKIT...... 14 POWERPOINTS AND LAPTOPS ...... 15 Regarding Laptops and Role Information ...... 16

LET THE COURSE NARRATIVE BEGIN ...... 16 INTRODUCTION TO METHOD AND COURSE STANCE ...... 17

AT THE VERY BEGINNING ...... 17 PARADIGM OF INTERVIEWING, COUNSELING AND DECISION‐MAKING: WHAT’S PERFECT (POWERPOINT9) ...... 18 THE LAWYERING SKIT ...... 18 Act One – Client Centered Lawyer ...... 18 Act Two – The Authoritarian Lawyer ...... 19 Obvious Third Act – The Collaborative Lawyer ...... 20

EFFECTIVE LEGAL INTERVIEWS – PHASE I ...... 21

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. i OVERALL GOALS FOR EFFECTIVE LEGAL INTERVIEWS ...... 21 TO REVIEW OR NOT TO REVIEW THE STEPS OR STAGES IN AN INITIAL INTERVIEW? ...... 21 JUST DO IT –A TERRIBLE JOB OF THE FIRST FEW MOMENTS OF AN INITIAL INTERVIEW! ...... 22 SHIFT FROM TERRIBLE TO GOOD…THE SOLER METHOD AND BODY LANGUAGE ...... 23

INITIAL INTERVIEW EXERCISE – IN TWO STAGES, WITH SKILLS EXERCISES IN BETWEEN ...... 24

FIRST STAGES OF THE INITIAL INTERVIEW, IN CONTEXT AND IN REAL TIME ...... 24 Confidentiality in the Initial Interview ...... 24 As to Fees ...... 25 Launch the Initial phase of the initial interview in Hapless Harvest and Family Matters .... 25 Pause on Pausing: Provide a Helpful Hint on Conveying Complex Information ...... 25 Yet More Prelude: Encouragement and Exhortations on the First Real In‐Role Simulation 26 The Initial Interview phases in Hapless Harvest and Family Matters ...... 26 To Re‐Pair or Not to Re‐Pair? ...... 27 Balance of Debriefing...... 27 Back to Confidentiality ...... 28 On to Fees ...... 29

EFFECTIVE LEGAL INTERVIEWS PHASE II ...... 32

ON NARRATIVE AND CONVERSATION ...... 32 HEARING FACEWORK ...... 34 SUBSTANTIVE SEGUE ON STRUCTURE ...... 36 THE UP FRONT OVERVIEW – NICE, BUT NOT NECESSARY ...... 38 UNOBSTRUCTED, UNDIRECTED NARRATIVE IS NOT JUST POLITE, IT’S BETTER ...... 38 ABOUT FUNNELS ...... 41 A SECOND PRELUDE TO HEARING THE CLIENT’S STORY: FACT GATHERING INTERLUDE ON PSYCHOLOGY OF MEMORY AND PERCEPTION ...... 41 MAKING MEMORABLE IMPRESSIONS OF MEMORY ...... 42 MEMORY IS SUGGESTIBLE AND CONFUSED ...... 43 PERCEIVED DOESN’T MEAN POSITIVELY TRUE ...... 43

ON LISTENING ...... 45

REGARDING OPEN AND CLOSED QUESTION FORM ...... 50 WHAT ABOUT RUN‐ONS? ...... 50 WORK THROUGH THE BALANCE OF THE INTERVIEWS ...... 50 RESERVE JUST A BIT OF TIME FOR A BRIEF DEBRIEFING ...... 50

CLIENT COUNSELING AND DECISION‐MAKING ...... 52

CHALLENGE #1: CLEAR AND COMPLETE COMMUNICATION ...... 55 CHALLENGE #2: CLIENT COUNSELING—SHARED UNDERSTANDING OF CLIENT INTERESTS ...... 59

THE DALE DORAN EXERCISE ...... 60 Insider Information and a (Gleeful) Confession ...... 60 Now for the Consequences (Chart) ...... 65

CHALLENGE # 3: EMOTIONS AND THE CORE CONCERNS MODEL ...... 66

PHASE ONE – READ, IDENTIFY, AND DISCUSS ...... 73 PHASE TWO – SMALL GROUP, TARGETED ACTIVE LISTENING ...... 73

CHALLENGE # 4: WISDOM IN THE FACE OF INEVITABLE UNCERTAINTY ...... 75

4 BASIC STEPS TO STRUCTURING A DECISION TREE ...... 76 1. Define the Decision ...... 77 2. Identify the Possibilities ...... 77 3. Judge the Likelihood ...... 77 4. Figure Net Gains and Costs ...... 77 ANATOMY OF A DECISION TREE ...... 78 LITIGATE OR SETTLE GAME ...... 80 QUALITATIVE RESISTORS SURRENDER: WHAT’S THE SETTLEMENT VALUE? ...... 80 Prose vs. Percentages ...... 80 END OF THE SEGMENT/DAY ...... 81

NEXT DECISION TREE ANALYSIS SEGMENT ...... 82

AFTER THE BREAK ...... 86 1) Walk through Real Life Examples ...... 86 2) Demonstrate How One Might Use the Tree in Discussion with a Client ...... 87 3) Student Practice with Clients ...... 87 CLOSING POINTS ...... 87

CHALLENGE # 5: WORKING WITH PSYCHOLOGY...... 89

TALKING POINTS...... 90 1) EGO CENTRIC US ...... 90 2) SELECTIVE PERCEPTION, PARTISAN PERCEPTION BIAS, JUDGMENTAL OVER CONFIDENCE, BIAS BLIND SPOT...... 90 Selective and Partisan Perception Bias ...... 90 Judgmental Overconfidence AND Lawyers’ Predictions ...... 91 Bias Blind Spot ...... 91

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page iii 3) NAÏVE REALISM AND FEELING RIGHT ...... 92 4) ENDOWMENT EFFECTS ...... 93 5) COMMITMENT ...... 93 6) ANCHORS AWAY – ON THE PHENOMENON OF ANCHORING ...... 93 The Impact of Anchoring on Willingness to Accept Offers ...... 95 7) FUNDAMENTAL ATTRIBUTION ERROR ...... 95 8) EQUITY SEEKING (AND SELF‐SERVING EQUITY) VS. RATIONALITY ...... 96 9) RISK AVERSION AND GAIN, RISK SEEKING AND LOSS AVOIDANCE ...... 97 10) PROSPECT THEORY (POSITIVE AND NEGATIVE FRAMING) ...... 98 FINALLY, FINALLY, WE TURN TO THE VIGNETTES TITLED: WORKING WITH CLIENT ...... PSYCHOLOGY ...... 100

DRAMA DOES IT! ACTORS’ ADVICE FOR LAWYERS’ CHOICES IN GESTURE & VOICE . 101

ACTORS’ TECHNIQUES IN BODY POSITION AND GESTURE (AUTHORITY, CLARITY, CONNECTION) . 102 On Authority, the Appearance of Competence and Confidence ...... 102 On Clarity and Connection ...... 103 Body Language and Gesture for Connection ...... 104 On Vocal Choices for Connection, Authority and Clarity ...... 104 Warm Up with One‐Liners ...... 106 ABC Exercises in Emotional Range ...... 107 20 ‐25 minutes, including debrief ...... 107 ABC Exercises in Synchrony ...... 107 10‐15 minutes ...... 107 ABC Exercises in Gravitas ...... 108 15 minutes ...... 108

SOUP TO NUTS – INTERVIEWING AND COUNSELING WITH BAD NEWS GLOSS ...... 109

READING ASSIGNMENTS ...... 110 Selecting the students, invitation with an opt out ...... 110 THE INTERLUDE ON BAD NEWS: FOR DOCTORS & PATIENTS, LAWYERS AND CLIENTS ...... 113 Insensitive Delivery by a Pro ...... 114 No Avoiding It! ...... 115 CLIENT COUNSELING IN UPSCALE ACCUSATIONS ...... 116 FINAL COUNSELING SKILLS EXERCISE ...... 119

FINAL WRAP‐UP SESSION ...... 120

Introduction

Since 2004, the University of Cincinnati College of Law’s curriculum has included a 2L two credit client interviewing and counseling requirement. Since then, we’ve traversed the ugly initial resistance to a new requirement, the not‐too‐bad, the good and the pretty‐darned‐great response, and have learned much along the way. I’m pleased to say for the last several years, we’ve successfully delivered a substance‐rich, interactive, and valuable course that teaches client interviewing and counseling, with specific introduction to formal risk analysis within decision‐ making and a focus on voice and gesture as part of effective communication.1 Most gratifying: students often express appreciation for its contribution to their future success in legal practice. This guide is intended to articulate everything an instructor would need to know to teach the current fully evolved version of this course, either in a four‐day workshop or somewhat more conventional course format, through ten weeks of a semester.

After the classroom hours are (almost) complete, each student participates in the “Final Counseling Skills Exercise” (“FCSE”), a 30 minute recorded session with an actor as client and professor as coach. To complete the exercise, the student‐as‐lawyer must deliver “bad news”—a pessimistic and unexpected prediction—to the client, explain some fairly complicated law for the bad news to make sense, and obtain client authority for settlement in an amount far lower than the client would have imagined earlier. Success is declared when the student‐lawyer accomplishes all of this and facilitates the client’s comfort with the decision and confidence in the lawyer and the lawyer‐client relationship.

Over the years, the insights and experience I gained from coaching law students with client‐ actors in the FCSE informed numerous course revisions and became the foundation for my book, Client Science: Advice for Lawyers On Counseling Clients Through Bad News and Other Legal Realities (Oxford University Press, 2012) (hereafter referred to as Client Science). After two years of distributing various chapter drafts as “optional” readings, I assigned the entire book for the first time in 2012, and adjusted classroom presentation components as a result. For professors who adopt Client Science as their course text, this manual includes syllabi, agendas, and powerpoints, all premised on the assumption that students have read assigned portions of Client Science. (Professors who have not assigned this book will likely want to supply some additional content

1 At the risk of providing too much information about our curricular evolution, this client counseling course had gained acceptance and much appreciation by 2010. However, we decided that providing student choice would be better and that having a requirement taught by only one faculty member was probably unwise. Thus, beginning in the 2011‐2012 academic year, our Professor of Practice who focuses on business transactional work developed and taught a version of client counseling in a transactional context. Thus, course dubbed “Client Counseling” came to be (and to be listed as) “Client Counseling (dispute context) and Client Counseling (transactional context).

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 1 from it in class lecture and powerpoint, unless that content can be covered through other readings.)

When putting together my first syllabus with Client Science the course text, I faced my book’s deficiency for that purpose: it lacks a chapter on interviewing! That choice made sense for a book focused on client counseling challenges for lawyers. But of course, law school courses always (appropriately in my view) package client interviewing with counseling and decision‐making. Mine does too.

For that first time, I did some modest research and cobbled together materials on interviewing to assign. Since then, I have written my own “chapter” on interviewing, available on the course website. Without pretense to originality, the piece synthesizes what I found to be the most insightful and useful advice for structuring and conducting client interviews – with particular focus on the initial interview. Professors who adopt Client Science for their courses should feel free to distribute it to their students, without copyright guilt, or have them download it. It’s yours.

In prior years, the course text was Cochrane, DiPippa, and Peters, Counselor‐At‐Law: A Collaborative Approach to Lawyering, 2d Ed. (LexisNexis 2006). I have great respect for that book and remain committed to articulating and recommending its collaborative approach, consciously balancing between client‐centered and authoritarian models.

Alternative Course Structures

Faced with the original annual challenge of delivering a valuable, contentful, and interactive course to approximately 110‐120 students, we developed two different structures: a four day, pre‐ semester workshop and a ten week course, meeting once per week during the semester. Our learned constraint was that our students were not comfortable with more than 30 or so students in a single section. Thirtyish is about the limit when students are asked to take part in simulations and participate in meaningful debriefings. With much larger groups, some students were reticent to talk freely in about what they found challenging in the simulation exercise just completed. While listening to lectures, watching demonstrations or even participating in exercises or discussion aren’t universally intimidating in a large group, some students tend to disengage, knowing that others will speak. They rely on slipping under the professor’s radar screen and engage less fully in simulation work. (I have never favored cold‐calling in a course such as this. It generally cuts against the spirit of what I teach.) I’ve also learned that cold‐calling 2Ls in a required class is toxic; resentment grows and smothers most impulses to participate voluntarily. This guide frequently offers strategies for encouraging volunteer participation at various junctures.

Experience suggests that maintaining a relatively small size seems just as important, if not more so, in the ten‐week course as in the workshop. Because students meet only once a week, there is less opportunity to form relationships or feel group cohesion until substantial time has passed. The workshop students have more immediate “esprit de corps” because it is their sole focus during that pre‐semester week.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 2 Moving away from our small mid‐western school, this workshop or the ten‐week course theoretically could be delivered to a greater number of students, divided into more sections. The January negotiation workshop at Harvard Law School is taught with six instructors and six sections of twenty‐four students. All 144 students participate in plenary session together, but much time is spent in sections. Students’ comfort level with class size will have as much to do with their expectations and the law school culture as the absolute number.

The Four‐Day Pre‐Semester Client Counseling Workshop

Workshop timing

The workshop runs from approximately 8:30 or 9:00 a.m. to 4:30 p.m. for the first three days, and until approximately 3:00 p.m. on the fourth day.2 Each day includes an hour for lunch and at least one 15 minute break in the morning and the afternoon. Class consensus often eliminates or shortens lunch and breaks on the Friday, in favor of earlier end time.

After the workshop, each student is scheduled for a 30 minute “Final Counseling Skills Exercise” (“FCSE”) with a client actor. This is instructional time as the professor actively coaches the student through the exercise. I require students to hand in a simple decision tree right before their FCSE session.

A final one‐hour to 90 minute wrap up session is scheduled after all of the FCSEs are complete. It is our practice to hand out the course evaluations in the last 15 minutes or so of this wrap up session.

Logistics

Reserve one or more rooms with much, much greater capacity than the enrolled number of students. For our sixty‐student/two section workshop, we reserve two adjacent rooms that are both quite large (the largest two rooms in the law school building). Even in plenary session, students will be asked to participate in short interactive exercises. It’s helpful to have both rooms large enough for students to spread out into pairs or triplets for separate conversations.

It is not necessary and may not be desirable for each student lawyer‐client pair to have a separate break‐out room for simulation work. (We don’t have that choice as our building doesn’t have a sufficient number of such rooms.) The time allotted for in‐class simulation work is relatively short, even for the lengthier counseling simulations that occur toward the end. Too much time would be spent in transit and then rounding up the stragglers. Keeping students in one large room permits you to roam and observe, and discourages them from slipping out of role. If your

2 When the course began, the ABA’s required instructional time was 700 minutes per credit or 1,400 minutes for a 2 credit course. 9:00–4:30, is 7.5 hrs, less 1.5 hours for 1 hour lunch and 2 fifteen minute breaks is 6.0 hours or 360 minutes x 3 days = 1,080 minutes, plus 4.5 hrs or 270 minutes‐on Friday = 1,350, plus 30 minutes for the FCSE and 60 minutes for the wrap up class is a total of 1,440 minutes. The newer total requirement of 750 instructional minutes or 1500 for a two credit course is easily met by adding 30 minutes on two mornings, or on one morning and onto the wrap up session. As you’ll see from this guide’s text, you will often feel pressed for time. The additional 60 minutes, distributed wisely, will seem like a gift rather than a burden.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 3 law school’s physical set up permits or requires it, you might let student pairs inhabit nearby nooks and hallway benches, with an emphasis on nearby.

Perhaps it should go without saying, but a projection unit for powerpoints and video will be needed.

Workshop days – If possible, start on Tuesday, end on Friday

Thus far, we’ve scheduled the workshop for Tuesday through Friday of the week before the regular semester begins, either in August or January (or, in some years, both).

Beginning on Tuesday permits students to come back to town and to campus over the weekend or on Monday morning, take care of pre‐semester business, and/or blitz on the course readings before a Tuesday start. At the least, they’ve used Monday to check the syllabus and the course website (or TWEN or Blackboard—whichever the on‐line interface). Thus, they understand and can fulfill their obligation to be prepared for the first day’s assigned simulation roles. While the reading is important, their preparation for the role simulation is more so, as it affects the classmates assigned to play the counterpart role.

The advertised Tuesday start may encourage students to elect the workshop option (and not to drop it). When Mom and Dad decide to extend the family reunion over New Year’s weekend, or a friend’s out‐of‐town wedding is the weekend before the workshop, students feel comfortable knowing they’ll have Monday to get ready. From the co‐faculty perspective, that Monday permits a relaxed flight in, and time to review and prep together. For faculty and administrative assistant, the free Monday creates a window to resolve last minute logistical and technical glitches (eg. students can’t download simulation materials) and alert the waitlist of spaces that opened up over the weekend.

Faculty coverage

For 60 students in one workshop, I’ve co‐taught with an esteemed professor colleague from another law school (Richard Reuben, University of Missouri at Columbia). The course is delivered partially in plenary session with all 60 students, and partially in two sections of 30, where sustained simulation work and significant debriefings take place. My co‐faculty and I divide up the plenary material and sometimes use each other for staged demonstrations. In a four‐day marathon on any topic, the audience appreciates different presenters’ voices and presentation styles. That would be true even if my co‐faculty never brought a different perspective or experience to the discussion. Of course, the opposite is true. While we agree on the core material and course stance, my co‐faculty does bring another view and alternate responses to student questions, all to the good.

The attached annotated course agendas indicate where the workshop has stayed in plenary session and separated into sections as well as how students’ section and simulation role assignments are made. (The section and role assignment process carries a bit of complexity, as does the process of accommodating authorized and unauthorized drop‐adds. Suggestions for managing these are included later in this guide.)

Solo‐teaching the four day workshop for 30 or so students also has been a pleasure for me. I have done so—in January 2011 at the University of Michigan and in August 2012 in Cincinnati—and

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 4 will no doubt continue in the future.3 Thus far, student experience seems similar to that in our small weekly section, though intensified and, I believe, enhanced by the compressed workshop format.

The Ten‐Week Client Counseling Course

Timing and logistics

The ten week version of the course has been delivered in weekly 2 hour and 10 minute sessions (130 minutes) to 2 hour and 30 minute sessions (150 minutes), finishing approximately a month before semester’s end. This permits time for each student’s FCSE exercise (30 minutes, plus preparation) and a collective wrap‐up session (60–90 minutes).

Given the ABA’s switch to 750 minutes per credit hour, the minimum would be 140 minutes, or 150 minutes if you want to schedule a short break. While flagging student energy is not generally a problem when class time is taken up with simulations and exercises, a break is helpful for sessions long on presentation and discussion. For sessions in which a significant break seems unnecessary or would interfere with the class flow, you are always free to end a bit early.

Logistics

As indicated for the workshop, the class is best conducted in a room large enough to accommodate student pairings and triplets with a great deal of elbow room and space to separate from other groups during role simulation work.

Other Format Options

Because this is a required course for 2L students, we make every effort not to schedule the semester version opposite large 2L classes. We have sometimes taken some or all of the lunch block in the law school schedule and encouraged students to bring a brown bag lunch. That way, even a relatively lengthy class session conflicts with only one other course block. (Inevitably, this does conflict with lunch speakers and other student organization meetings.)

There is no reason one couldn’t become more creative with scheduling, particularly if the course were NOT required. For example, I have taught this course at a law school summer institute over four evenings and two weekend days. It might work well in a Thursday evening, Friday

3 At the time of UC Law’s curriculum initiative to require client counseling for all, I was its sole provider, but we had learned the hard way that the 2L class was NOT happy to be there on masse. Thus, offering a workshop for 60, with visiting faculty co‐teach and enable two sections of thirty was a creative solution for us. We covered the rest of the 50 or 60 2Ls via two ten week course sections. In the interim, we’ve added a Professor of Practice who designed and now delivers a two‐credit client counseling course in the transactional context. Because he now covers half of the students, we have each shifted to combination of workshop and ten week course offerings, but there is no need for visiting faculty and a 60 student workshop.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 5 afternoon format. That would permit delivery of the course material in three or four weeks. Not as compressed as the four day workshop, but worth trying.

While I’m liberal as to format, I prefer orthodoxy regarding inclusion of the Final Counseling Skills Exercise (“FCSE”) in the course mix, if at all possible. As you will no doubt recognize from the FCSE problem and this guide’s description of its mechanics, it is time intensive and somewhat costly. Still, because it is profoundly valuable to our students, I believe it well worth the time and cost to run with actor‐clients. Less valuable, but also possible, is a written submission responding to the FCSE prompt, also included in the website.

A walk through content, method, and intent

This instructor’s guide aims to cover the content, method, and intent of each lecture and discussion segment, role simulation, and other exercise in The Client Science Course, from preparation assignments through the FCSE and wrap up session.

First, an overview seems appropriate. The course begins with an articulation of its goals: a well‐ counseled and satisfied client. We explain that the 1L year was dedicated to “thinking like a lawyer” and now they are “becoming lawyers.” We frame the course as a gift,4 enabling students to be “practice ready,” and indeed, to distinguish themselves from other young lawyers when they graduate. We emphasize the wisdom of using the course to become autodidacts henceforth, in summer jobs and early in their careers. Law students and younger lawyers can and should critically observe more experienced lawyers engaged in client interviewing and counseling. Their observations should inform their own practice. We return to and emphasize the themes of critical awareness, observation, auto‐didacticism and reflective practice throughout the course.

The course structure is previewed: some initial work on interviewing and then a full shift to more extensive work on client counseling, and what I’ve labeled the “Five Counseling Challenges” that inform and create the agenda for the balance of the course (explained in more detail below). After some open discussion of what qualities people seek in their lawyers and what might make client counseling difficult, I use the vehicle of a light‐hearted skit to recommend a collaborative approach, as described in Cochrane, DiPippa, and Peters, Counselor‐At‐Law: A Collaborative Approach to Lawyering, 2d Ed. (LexisNexis 2006), in contrast to purely client‐centered or authoritarian models.

The first day of the workshop and first few sessions of the ten‐week course cover through elements of a successful initial interview, including ice‐breaking and establishing a relationship, suggesting agenda, explaining confidentiality and fees, gathering information, setting next steps, and building trust and rapport along the way, of course. The balance of the course is built around my deconstruction of what makes client counseling difficult: the “Five Counseling Challenges”, “Clear Communication”, “Deep Understanding of Client Interests”, “Working with Emotion”, “Making Decisions Under Conditions of Uncertainty”, and “Dealing with Psychology”. The readings, presentations, and simulations are designed to teach practice skills and strategies for each challenge. By way of polish, the course includes a segment on the use of voice and gesture to enhance the lawyer’s clarity and connection with the client. It closes with a

4 I admit, framing the course as a gift was inspired by anticipated (and sometimes real) resistance to its requirement for 2Ls.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 6 short segment on the added difficulty of communicating bad news before working through a “soup to nuts” interviewing and counseling exercise in a difficult case.

One might observe that the course’s claim to teach students to meet “the five counseling challenges” is ambitiously writ. More challenges could no doubt be named; skills and strategies are introduced that may require experience and practice to execute at the highest level. Yet, articulating great aspirations seems an appropriately optimistic way to position the course. More accurate is to say, as we do, that the course offers an introduction to skills and strategies essential for excellence in their future practice. Through simulation exercises, it requires students to wrestle with some but not all of the difficulties in clear communication, understanding interests, and working with psychology, emotion, and decision‐making when interviewing and counseling clients.

At another level, the course encourages students to reflect upon deliberate choices in lawyering, the nature of the lawyer‐client relationships they aspire to, and how others will perceive them in the lawyer’s role. We are convinced that playing the client role in class simulations is as valuable as playing the lawyer’s role. As clients, students observe and respond to their peers‐as‐lawyers’ affect, word choice, and efforts to persuade or counsel. Even without an actor’s ability to be fully in role, the engaged student‐as‐client will feel an inkling of what a client might feel in response to a lawyer’s phrasing or actions. This enhances students’ awareness of their foibles and strengths in client interactions. Aware that they are on the precipice of professional practice, we encourage attention to how their phrasing, voice, and other aspects of delivery will contribute to a client or colleague’s perception of their competence and confidence.

And now, from overview to the nitty‐gritty: the pre‐course preparation, delivery, materials, and content of the course.

Pre‐Course Preparation Tasks for the Professor and Administrative Assistant

Administrative Advice (because someone should benefit from my administrative struggles!)

Particularly if you are teaching in pre‐semester workshop format, advance preparation and posting of materials is more important and more complicated.

Drop‐Adds (especially, but not only, with a wait‐list in a pre‐semester workshop)

I strongly advise you to adopt an early‐inviolate drop‐add date5 for the purposes of making role assignments that will stick. The early drop‐add date should be noted prominently in the course registration materials.

5 If an early inviolate drop‐add date is inconsistent with the registrar’s rules, it’s worth announcing a less official but strong professor’s notation of “good faith” rule that students remaining on the course list after a certain date are making a good faith commitment to stay. Do send a reminder email or two of the impending deadline and emphasize that other waitlisted students will lose the opportunity to add if they drop late. Also dropping after the deadline will wreak havoc on role assignments to the disadvantages of students who remain in the class. Do strongly urge students who must drop after your deadline to email

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 7 Early drop‐add is important because you REALLY want to make student simulation role assignments, and you want students to have their roles in time to prepare for the first workshop day.

When the course is wait‐listed, there’s an equity issue. If a spot opens up because a registered student drops, you will want to offer it to a waitlisted student. AND you want the new student to have the role assignments necessary to make pairings work and in time to prepare. At UC Law, the fact that the course is required provides additional incentive. If five students drop the workshop, and I can’t take from the wait‐list pool, I will end up with five net additional students in the ten‐week course or the second workshop of the year. The ten‐week course population becomes too large and the workshop operates with fewer‐than‐capacity: inefficient and sub‐ optimal all around.

As always, reminders and warnings are helpful. Even though your posted syllabus and perhaps a memorandum (sample included) will contain reference to the early drop‐add deadline, I suggest sending out an email or two as the last semester winds down and/or just before and/or just after the Christmas holiday for an early January workshop. If you’re teaching in August or during a fall or spring break, the same principle would apply: send out a reminder of different drop‐add deadlines, with reassurances about the availability of course materials for students who will be in remote locations.

As soon as drop‐add has passed, and the role assignments are theoretically final, I suggest entering them in a separate pairings sheet available on the course site. If you are working with a website administrator, he or she will have to change the web text, and upload a revised document. (Redundancy is good: provide many ways for students to learn that they’ve been assigned to a group with particular exercises and simulation roles.) If you’re working on TWEN or Blackboard or another web‐based application, you or your assistant will make the quick switch.

Considerations in Setting Drop‐Add Deadlines

When the workshop is scheduled for the second week in January (say January 10‐13), our drop‐ add deadline is December 28 or so. While it would be administratively simpler to make it much earlier—say December 15—we doubt students will have focused on family vacation plans or other opportunities affecting their willingness to return to school a week early. Pre‐fall semester permits a bit more flex. Set the drop‐add deadline on a date by which students would have started to think about school, but leave a sufficient window for making role assignments and working with the waitlist.

When the deadline is breached

Of course, the dog dies, non‐refundable airline tickets are gifted and received, the appendix bursts: some students reasonably and unreasonably seek permission to drop the course after the deadline. Life happens. When a space opens up, I suggest alerting the waiting list en‐masse, you or your administrator immediately so that waitlisted students can be notified and role assignments adjusted.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 8 allowing entry into the course in the appropriate order, with short deadlines for response. (This is different from our law school’s general waitlist policy to notify the first two or three waitlisted students of an opening, with 24 hours to respond, and then notify the next on the list.) We tell the newly admitted students to disregard the alphabetical categories for their role assignments. In effect, the new admit is filling in for one who dropped and assumes his or her role assignment. (Mr. Zacharias adopts Ms. Adams’s last name for the purposes of role assignments.)

Role Assignments

We divide students into four groups for role assignment purposes, primarily because the initial case assessment exercise involves four different cases.6 Each member of a group has the consistent role assignments throughout the workshop, with the exception of the Dale Doran case (as noted in more detail below). Thus, when Groups I and III will be the lawyers, Groups II and IV will be the clients, and vice versa. The role assignment sheet’s columns constitute a checklist for every student, enabling an easy view of all of his or her assigned roles and exercises for the course, as indicated in the following sample.

One advantage of labeling four groups in a large workshop with two instructors is that it facilitates even student exposure to each instructor. For example, if I know that Professor Reuben debriefed student client‐lawyer Groups I & II in breakout sessions today, while I debriefed Groups III and IV in the other room; we can make a clean switch tomorrow.

In a single section workshop (one instructor only), having four groups makes it easier to avoid pairing the same student lawyers and clients. For one simulation, you can instruct the lawyers from Group I to pair up with clients from Group II (and so on). For the next simulation, you can pair lawyers from Group II with students from Group III (instead of Group I).

6 You could divide a class into two groups only, if you elected not to use the four‐piece Case Assessment Exercise, or if you use only two pieces of the Exercise, which should still be worthwhile. Additional creative ways to manage role assignments may of course be possible.

Group and Role Assignments Sheet

Group I Group II Group III Group IV Last names between Last names between Last names between Last names between ______and ______and ______(Except in ______and______and _____(Except Deciding exercise below) Deciding exercise below)

Eval/Estimation Ex: Calculations in Confidence Eval/Estimation Ex: Eval/Estimation Ex: Eval/Estimation Ex: Due before workshop Predicting What’s Probable Finally A Great Case Betting on This One Due before workshop Due before workshop Due before workshop

Case 1 Case 1 Hapless Harvest Interview‐ Hapless Harvest Interview‐ Case 1 Case 1 Client Atty Hapless Harvest Interview‐ Hapless Harvest Interview‐ Case 2 Case 2 Client Atty Family Matters – Atty Family Matters – Client Case 2 Case 2 Prepare for first day Prepare for first day Family Matters – Atty Family Matters – Client Prepare for first day Prepare for first day

Case 3 Case 3 To Ditch or Not to Ditch To Ditch or Not to Ditch Case 3 Case 3 Design Display Design Display To Ditch or Not to Ditch To Ditch or Not to Ditch General Information; General Information; Design Display Design Display Instructions for Attorney General Information; General Information; Names: _____ ‐ _____ Instructions for Attorney Prepare for second day Instrs. for Dale Doran ( 1) Names: _____‐ ______Names: _____‐_____ Prepare for second day Instrs. for Dale Doran ( 2) Instrs for Dale Doran (2) Names: _____‐_____ Instrs. for Dale Doran (3) Prepare for second day Decision Analysis Prepare for second day Problems Decision Analysis Simple Hypotheticals: Decision Analysis Problems plaintiff’s side, defense side, Problems Simple Hypotheticals: Decision Analysis optional Simple Hypotheticals: plaintiff’s side, defense side, Problems Balanced Trees on Balance plaintiff’s side, defense side, optional Simple Hypotheticals: Beams optional Balanced Trees on Balance plaintiff’s side, defense side, Prepare for third day Balanced Trees on Balance Beams optional Beams Prepare for third day Balanced Trees on Balance Upscale Exhibit Prepare for third day Beams Interview Exercise Upscale Exhibit Prepare for third day Counseling Exercise Upscale Exhibit Interviewing Exercise Lawyer and Client Roles Interviewing Exercise Counseling Exercise Upscale Exhibit Prepare for fourth day Counseling Exercise Lawyer and Client Roles Interviewing Exercises Lawyer and Client Roles Prepare for fourth day Counseling Exercise. Prepare for fourth day Lawyer and Client Roles Prepare for fourth day

Role assignments in To Ditch or Not to Ditch Design Display (with clients Dale Doran 1, 2, 3)

The To Ditch or Not to Ditch simulation involves one set of general information (for clients and lawyers), one set of lawyer’s instructions, but THREE DIFFERENT sets of confidential information for Clients Dale Doran. These are labeled Dale Doran 1, 2, and 3.

Here’s the trick to making alphabetical role assignments, assuming four groups of students divided in alphabetical order. The lawyers’ parts are easy: two groups are assigned the lawyer’s role.

For Dale Doran: take the ENTIRE list of the remaining students, all of whom will end up as Dale Doran, and divide it in thirds. The first third are Dale Doran 1, the second third are Dale Doran 2, and the last third are Dale Doran 3. If you want to do this just from WITHIN the two client group lists then, in one group, the first 2/3 of the names are Dale Doran 1; the remaining 1/3 are Dale Doran 2; in the other group, the first 1/3 of the list are Dale Doran 2, and the remaining 2/3 of the list are Dale Doran 3. (This sounds complicated but becomes easier over time.)

Pre‐Course Communication with Students (Above and Beyond the Ordinary)

I advise you to alert students, early and often, they will have to be prepared and particularly ready for their first role simulation exercises on the first workshop day.

It’s best to post the syllabus as early as possible, along with on‐line access to assigned readings, exercises, and assigned role information. Do reassure students, in the syllabus and in a separate memorandum, that everything will be available to them on‐line. This is important for students who plan to be out of town, and may be nervous about being able to prepare before the workshop starts. (These are the very students you want in the workshop, of course.)

Even though you will post your syllabus and perhaps a memorandum (sample included on the course website) in the normal places, I suggest sending out an email or two as the last semester winds down and just before and/or just after the Christmas holiday for an early January workshop. If you’re teaching in August or during a fall or spring break, the same principle would apply: send out a reminder of different drop‐add deadlines, with reassurances about the availability of course materials for students who will be in remote locations.

Pre‐Course Submission: Case Assessment Exercise

In addition to assigned readings from the text, the piece on interviewing, and other articles, I ask students to complete a case assessment exercise and submit it prior to the course (more recently through the course TWEN site). While one could collect them in the first session, that would mean more papers to track or lose.

The case assessment exercise is designed to gather data to demonstrate the psychological phenomenon known as anchoring: even irrelevant numbers act as anchors when people are asked to make numerical estimates or assessments. (See Chapter Five in Client Science.) It is important and, I hope, sobering for students to realize how much their advice to clients and clients’ receptiveness might be influenced by irrelevant but available data.

The case assessment exercise consists of four documents with four different titles: Finally a Great Case, Betting on this One, Calculations in Confidence and Predicting What’s Probable. Though titled differently, in fact, each document contains identical descriptions of a sexual harassment case, including considerable discussion of numbers that would affect a damages estimate (numbers indicating different claims and calculations regarding lost income and potential damages multipliers, etc.). However, the documents differ by what is said, after the case description.

In Calculations in Confidence, it states: “This case will be tried in the Federal District Court of Ohio.” It then goes on:

You are very confident of this case. You seem to be “on top of” your trial game. Last month, you tried a personal injury case in Kentucky, and brought back a verdict of $300,000, including $150,000 in punitive damages. This was at least 50% more than you had predicted on the case.

The language in Predicting What’s Probable is identical, except that it reports the Kentucky State Court verdict in the personal injury case as $6 million, including $3 million in punitive damages.

In the other two Case Assessment Exercise documents, Finally a Great Case and Betting on this One, the reader is told that his law firm recently LOST a personal injury case in the state court in Kentucky, leaving settlement offers of $300,000 or $6 million on the table, as follows:

You and your firm could really use the 1/3 contingency fee in this case. Last month, a personal injury client of the firm refused to take your partner’s recommendation to accept a [$300,000 settlement offer in Betting on This One, a $6,000,000 settlement offer in Finally a Great Case] in his Kentucky case. While the injuries were catastrophic, you knew the liability case was shaky. Your partner tried the case, which resulted in a defense verdict.

References to the attorney’s prescient concern and settlement recommendation are intended to mitigate the impact of the reported Kentucky loss on the reader’s confidence in his predictive accuracy.

Then, all four documents ask the student to record what he thinks is the likelihood of a plaintiff’s award (finding of liability), an estimate of high and low damages ranges in which an award might fall, his best estimate of what the damages award might be, and the minimum settlement he would recommend to the client.

For students handing in hard copies, it’s helpful to create separate folders labeled with each Case Assessment Exercise document title (Finally a Great Case, etc.). This reinforces the fiction that the students are assessing different cases.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 12 After all Case Assessments have been submitted, we create a spreadsheet that tabulates the separate results for each case/student group. The spreadsheet inevitably reveals a VERY wide range of estimates on all fronts. The separate averages are tallied. These usually SOLIDLY demonstrate the anchoring effect. (Note, however, that when the number of students is smaller, an outlier can dramatically skew the results. My most robust results occurred in the first year, when the case assessment exercise was administered to approximately 130 students.)

I record the averages for each column, and put these into a powerpoint that is used during the psychology presentation day in the course. Some of our annual results are also included.

During the psychology presentation/discussion, students are engaged (and I hope, sobered) by evidence that they too fall prey to cognitive traps, and their clients would be impacted. It strengthens the impact of the later course presentation and readings on psychology. They are (and should be) amazed also to see the wide range of assessments regarding the same case facts.

While I can’t produce data, I believe that asking students to complete the Case Assessment Exercise before the course impacts their expectations and mindset. The exercise puts them in role as an attorney making a case assessment and considering a settlement recommendation. For a 2L, particularly beginning the first semester, this is a dramatic shift. It introduces them to the course’s orientation, and to the lawyer’s role as counselor to clients. It may generate some pre‐ course excitement, as well as recognition that there is much to learn.

Early Warnings on Decision Analysis and Software

I have been steadfast in including a unit on the use of decision analysis—more accurately, risk analysis using a decision tree approach—as part of this course. I use the TreeAge software, available from TreeAge.com. A complete discussion of how and why I teach the decision analysis unit is included later in this guide. As an administrative matter, please note:

Though I often use the TreeAge software when creating a risk analysis or decision tree, I am just as likely to use a sheet of paper. For the most part, I use Microsoft powerpoints (and a white board or blackboard) to teach this module. (The powerpoints are included with the course package.) Where the powerpoints include examples of trees created using software, these have been converted in to images and inserted.

You could teach the unit entirely without the TreeAge or any other decision analysis software. I do use the software in class after the basics on powerpoints, when working through assigned problems. My goal is familiarity and ease with the software, to develop lawyers who will perform litigation risk analysis for more complex cases in their future—cases in which the software will be a practical necessity. Also, when you use the software in presentation, and the student raises a question or suggests an alternative tree structure, probability or damages number, the software enables you to change it on the spot.

 Make sure you have a version of the software loaded onto the computer from which you plan to project.

 Work out with the school and with TreeAge whether additional software or temporary licenses will be purchased.

 Let the students know that they do NOT have to purchase the software for the course; it won’t create any advantage. That is clearly stated in my syllabus.7

 TreeAge offers a three‐week downloadable version of the software, with limited capacity that is MORE than enough for the problems students will be asked to do. Students might want to download this trial version before the workshop, or at least before Day Two, when the unit begins. It is absolutely NOT necessary to use software at all for these problems; they are simple enough to draw and calculate by hand or with a pocket calculator.

Note: if you will require the students to hand in a decision tree for the FCSE exercise at the end of the course, they shouldn’t wait too long to do it, lest the three week license expires. Again, the assignment can be done by hand, without any software, but many students opt to use the software.

At Last, Prep for the First – The Opening Skit

Last but not least on my list of preparation for the workshop or the course is to think of and set up the skit that occurs within the first hour or so. I can’t say that a skit is a requirement, but it has become a tradition.

The opening “skit” is a tongue‐in‐cheek, over‐the‐top way to set up the difference between authoritative, client‐centered, and collaborative lawyering models, intended to favor the collaborative. It also very much functions as an ice‐breaker, a light‐hearted opener, and a common reference point. In the first year, the skit involved a Cincinnati Bengals football player coming to see a lawyer about suing a rival team football player who may or may not have intentionally tried to injure him. The actual incident had dominated the sports news. In other years, we’ve been visited by celebrity husbands seeking justice against celebrity spouses, Lady Gaga irate at a radio announcer . . . .

You are seeking a situation where a famous person might assert a colorable but somewhat shaky claim of legal injury, violation of rights or interest. The famous person is angry, irate, upset— some strong emotional reaction. They will express desire for vindication, enormous damages, legal action against a range of people and entities (if possible). However, a broader and deeper understanding of the potential client’s interests, circumstances, and goals would suggest a

7 My Advanced Decision Analysis course does require students to purchase and use the student version of the software, but it’s not worth it for this short, easy module.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 14 strategy other than immediate or aggressive legal action. For example, the injured football player might not want to sue the player, the network, the football league. If his injury is long term (and even if it’s not), he might want to be an announcer someday, or a TV commentator. Given his astronomical salary, he might anger fans by seeming greedy and suing for more money. His real interest might be a change in the rules, or a way to compensate other injured players.

It’s best if the skit character and plot line arise out of a reasonably fresh news item. If I had an “Evergreen” episode, it would be included here, but I do not.

In some years, I’ve “crowd‐sourced” creativity, emailing the previous year’s students to ask if they know of a celebrity legal dispute that might give rise to an opening skit. I also spent some time searching websites that track celebrity law suits. In some years, I’ve sent an email to students enrolled in the upcoming course. This does generate some good anticipation for opening day.

Having selected a character and a circumstance, you’ll have to recruit a student to play the part. Because our course is for 2Ls, and I don’t teach 1Ls, I sometimes ask first year professor‐ colleagues which students might handle it well, fit the celebrity part and enjoy the limelight. Because I want participation to be voluntary, I send an email request to several students. The first positive responder generally gets the part.

Having found a student celebrity actor, you’ll want to meet to work out the skit. A bit of brainstorming unearths more possible legal claims or angles and hidden interests than initially imagined. I encourage the student to play it “over the top” and to bring in costume elements. I review the three stages of the skit, first with the lawyer‐professor playing it as entirely client‐ centered, then as authoritative, then collaborative. The student‐celebrities have been terrific and the skit has worked wonderfully well.

Note: I have chosen to have the student play the celebrity and the professor(s) play lawyers, demonstrating various approaches to client counseling. This takes the pressure off student volunteers: no heavy substantive lifting. And it insures that the lawyer behavior demonstrated will be as intended. I don’t direct or rehearse the student celebrity clients’ reactions or responses to the client‐centered, authoritarian, or collaborative lawyer‐behaviors. Yet they always ring true in class.

PowerPoints and Laptops

I sometimes feel that my brain lives in my powerpoints. After all, I poured my thinking into those powerpoints and there it remains. Visual value aside, they insure against the many times that thoughts are not easily retrieved from brain to tongue.

It is my general practice to post the day’s powerpoints after class, on the course’s website or TWEN site. While I’ve occasionally posted them in advance, I prefer not to do so for two reasons. First, I often put the “punch lines” to some in‐class exercises on the powerpoints. A punch line isn’t punchy when read in advance. Also, when students have powerpoints in hard copy or on laptop, they tend to focus on the page and not the discussion.

Most importantly: I have a general “no laptop” policy in class, with some exceptions. I explain that I want students’ full participation. I explain that even when students are NOT surfing the web, but rather taking notes “in good faith,” class discussion suffers. A sort of private space exists in the interface between student, keyboard, and screen that causes detachment and chills participation. I want students to have a relationship with the class and the professor, not with the screen. In that context, I promise to post the powerpoints right after class and to create intentional interludes for laptop note‐taking regarding occasional important and difficult concepts. I note that most course content not found in powerpoints is contained in the readings. I remind them that it’s a pass‐fail course, after all, and it’s not rocket science. The client interviewing and counseling skills are learned from practice and observation in class, not note‐ taking.

Regarding Laptops and Role Information

Because students will have downloaded role information for various course simulations from the website or TWEN site, many will want to refer to these on their laptops in class when playing the role. Professors who teach other simulation‐based courses (e.g. negotiation) will acknowledge that students often choose to have their role information in front of them. A quick reference for a key fact is fine. But, really reading role information during the exercise is not. When I wander the class and see a student heavily relying on his role sheet, I conclude the student was not well prepared. More important, no student can play his role convincingly (to himself or his counterpart) while reading it.

For some reason, reading the role information text on the laptop screen is even worse. It’s harder to pick up and just glance for a second to find a missing fact. Eye contact is broken for more time. The exercise becomes even less real. That’s problematic because so many other factors already conspire against realism: the classroom environment, classmates as counterparts, and artificial time constraints.

I don’t know of a perfect antidote, except to strongly urge students to print out role information and know it WELL before class. Tell them that they can check the hard copies in class, but you don’t want to see the laptops open. It’s also wise for the professor to bring a few (or five or six) extra hard copies of the day’s simulations. That way, when a student opens her laptop, acknowledging that she doesn’t remember her role, you can provide the hard copy to “refresh her recollection.”

Let the Course Narrative Begin

This guide “tells the story” and sets forth the structure of the workshop and the ten‐week course, discussing content and teaching methods, exercises and full simulations, tracking and referencing the powerpoints along the way. It’s divided into topical units, with approximate time allocations, as well as notation as to where a session would end in the weekly semester course and where a workshop day would end. To a great degree, the full simulations are self‐explanatory, though they’re provided with a synopsis and stand‐alone teaching notes on the website. Less obvious are the in‐class exercises and prompts used to elicit or illustrate important points. These materials are provided, and this guide describes how to use them.

A note, or perhaps disclaimer, regarding the large number of powerpoints posted on the website: I never, never show every powerpoint, not even close. That’s not my goal. In many instances, I will pose a question to the class, and then elicit discussion. I look to the powerpoints that follow the question to see if the class raised salient points. If so, I skip over those powerpoints. If I see that class discussion has missed something important that appears on a prepared powerpoint, I’ll raise it before moving on to the next topic. During class discussion, I will often type fresh student observations into a powerpoint to be integrated into the full set before posting.

Introduction to Method and Course Stance

Time allocation: Approx. 1 hour. This is a very tight hour; it could easily be extended if you’ve allocated more total hours to this workshop or course. Our overall timing constraints dictate the hour’s time limit. That and a general preference for moving quickly, particularly in segments that do not involve substantial student practice.

At the Very Beginning

The course begins with an introduction to its purpose, importance, method, and professor(s). Perhaps because this is a required course, I’ve opened it with a spirit that is unabashedly “rah rah,” emphasizing that the course goal is to enable students to distinguish themselves as lawyers at the highest level of practice from the beginning. You might spend a just minute asking students what they or their friends or parents WANT to feel when they go talk to a lawyer.

After brief reference to the course method, I directly frame the course as an intentional GIFT (because I mean it to be a gift and, in part, to remove the sting of its being required). I will make reference to the fact that I’ve observed many lawyers who might be analytically strong, but are terribly ineffective with clients. This course is intended to raise awareness, teach skills and strategies for working more effectively with clients. This leads to happier clients and more clients, or so we hope. This should attract notice of more senior lawyers, who will say, perhaps earlier in the student’s future career: “that lawyer might be a bit young, but I think s/he can handle this client meeting when I’m out of town [etc.].” At this juncture, I also introduce the idea that the course is intended to equip the student to be autodidacts, and reflective practitioners (often citing to Donald A Schön, The Reflective Practitioner: How Professionals Think in Action (Basic Books, 1984). They will observe other lawyers interacting with clients, in an interviewing or a counseling role, and observe what is effective and what is not. They’ll have a language for identifying why the dynamics are less than perfect, and how the lawyer’s choices impact the client’s responses. And so, they will continue to learn and build expertise as they take on direct client interaction.

As is my practice, I close the basic introduction with a word or two about my practical experience as it relates to client counseling, and quickly review the day’s agenda. I’ve always included an

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 17 agenda in professional training workshops. Professionals appreciate knowing where they’re going for the day; students do too.8

Paradigm of Interviewing, Counseling and Decision‐Making: What’s Perfect

Still within the framework of the course’s general purpose, I pose the question: What does PERFECT interviewing, counseling and decision‐making look like? After all, isn’t that the goal? And if we don’t have a vision of the perfect in our minds’ eyes, how will we recognize it? After entertaining student amendments to the definition or vision of what would be perfect, I pose the question: Why is the paradigm challenging in practice? What makes it difficult, in real life? The blank powerpoint is to record student responses. There should be many offered. Professorial encouragement helps, as does patience, of course. After a while, I’ll flip to the content in powerpoints, note that the students made most or all of the key points. I may highlight one or two important ones missing from our discussion, but do NOT read them through. Too boring, and there’s not enough time!

Close the segment with the observation that a lawyer’s approach to client interviewing and counseling should be intended to meet those challenges. Next up on the agenda is to look at some lawyering approaches. This serves as transition to the lawyering skit.

The Lawyering Skit

First, call down the student playing the celebrity role in the skit with some fanfare. Ask for applause, and do note that the student was asked and graciously agreed to undertake the celebrity role. It’s important for the students to know this was NOT a cold call; their classmate coming down to the front is happy to be taking center stage.

As the commotion dies down, and before you begin the skit, it’s wise to make a disclaimer to the effect that the skit they’ll see will be very short, and will show some combination of initial interview and maybe the beginning of some counseling. There won’t be sufficient time to proceed in careful stages, much less explain confidentiality and get a full careful version of the facts. (Students who have done the reading on initial interviews will notice this.) Explain that this skit interlude is more of a gestalt, intended to depict overall approach.

Act One – Client Centered Lawyer

With co‐faculty teaching a large workshop, one of us will first play the client‐centered attorney in a completely over‐the‐top performance.9 We typically place two chairs in front of the class. When the classroom floor plan has permitted, I have put a small table between lawyer and client.

8 Note my student evaluations generally give me high ratings on “organization.” I suspect that starting with an agenda helps propagate that happy myth or at least creates a rebuttable presumption in my favor. 9When working with co‐faculty of the opposite gender, we’ve always opted to have the female (me) play the authoritarian lawyer role and the male faculty play the client‐centered role. In other words, we’ve deliberately contradicted any gender stereotype. The collaborative lawyer role is up for grabs.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 18 The prof‐as‐lawyer sits; the student‐client‐actor knocks on or opens an imaginary door, and comes “on stage.”

In the client‐centered lawyer’s role, the faculty‐as‐lawyer will be humble and perhaps a bit fawning or obsequious with the celebrity client. I shamelessly and completely over play this! Body language is completely engaged and responsive. The client leads, the lawyer follows. Whenever the client explains what happened, what the other side did, how he was aggrieved, etc., the lawyer supports the client, empathizes, indeed expresses similar outrage and wonder at how they could have done such a thing to this client, etc. Whenever the client names a person or entity he wants to sue, the lawyer nods eagerly and writes it down, with a smile. “Yes of course, the network and all of the network owners, anyone else?” The lawyer completely accepts the client’s interpretation of what occurred, and reinforces his framing of the problem.

After a bit of this, break the action and ask students to name the model of lawyering. This is an easy one. Their reading will have introduced the notion of three models: client‐centered, authoritarian, and collaborative. Facilitate discussion a bit, asking the student‐actor‐client how he or she feels about the lawyer; ask students in the class what they observed. Every time, the student clients report feeling validated and happy that the lawyer is obviously on their side.

The next step is to describe the Client Centered Model. Having poked fun at client‐centered lawyering, I confess to over‐playing and express strong respect for its focus on honoring the client’s interests and concerns and its intent to counter the more traditional model.

Act Two – The Authoritarian Lawyer

Professor‐lawyers sits, waiting, student re‐enters, and the scene is replayed with an entirely different, HIGHLY authoritarian approach. Speech is somewhat clipped, impatient when the client rambles on. The affect is regal and perhaps somewhat cold (or not warm). Sharply define the legal problem, and note that nothing outside of the legal problem is the lawyer’s concern. If the client has named claims that are outlandish, or wants to sue parties who clearly bear no legal responsibility, DO cut the client off and tell him so. Imperious, impatient, and sure your advice is the only sensible way to go. Avoid open body language: cross your arms and sit back when you make a point. (This one is also great fun to overplay.)

Once again, stop action, ask the students to name the lawyering approach. Ask them what they observed. Ask the student‐client how it made him or her FEEL, and what he thinks about his lawyer. Over the years, the student‐client reactions have been quite striking. They strongly register negative feelings. They feel unheard, disrespected, frustrated or dismissed, or all of the above, and they don’t like it. It may make them feel angry, uncomfortable, or insecure about who they are (in role, of course). Quickly summarize the Authoritarian Model (or not).

By now, it’s obvious to all that the third act will demonstrate collaborative lawyering. Unless you have recruited a student‐as lawyer who is highly skilled, fearless, AND thick‐skinned, I recommend that the course professor take this on.

Again, the prof‐as‐collaborative lawyer has choices: you can simply play the collaborative lawyer in the best way possible. Use engaged body language. Listen actively, but maintain some appropriate distance (no fawning). Reflect what the client has said, but also Invite the client to think about a full range of interests. Ask about longer term goals. Be candid about prospects for success under some theories (if appropriate). Encourage perspective taking, etc. Note client’s authority, but offer to provide input.

Another way to do this is to announce, up front, that you are going to play this in a collaborative way but you will do one thing “wrong”—not quite in accordance with the collaborative model as you envision it. Invite students to observe and name it. The students DO pay attention; they like the sport of naming the “wrong.” And it gives the prof an excuse for straying from perfection, most likely more than once.

However you’ve chosen to set it up, stop action after just a few minutes. Ask the student‐client how s/he felt about the interaction. Ask the class what they observed. You might put up powerpoints regarding the collaborative model. Often, student comments lead to a discussion about the fact that some clients may prefer a lawyer who tells them what to do, that one size doesn’t necessarily fit all. You can make the point that NO one is perfect all the time, and that one client’s definition of the perfect lawyer (if he could define it) will no doubt be different from another’s.

Eventually, I’ll punctate this discussion with reference to the course stance: “Collaborative Lawyering” as the ideal model of interviewing and counseling. It’s good to have a shared, collective stance in mind as we work together in this course. More fundamental is that you (student) must define the professional you would like to be. It’s good to have a model in your own head of what that looks like—your own paradigm.

Believe it or not, it’s only an hour into the course, if you’ve moved quickly. The skit, including introduction and discussion after each “act” will have taken approximately 25 minutes of that time. Add perhaps 5 minutes for wrapping up and encouraging students to envision and become the lawyer they want to be. As the student‐client goes back to his or her seat to classmate’s applause, you might allow for a stand up and stretch, but no break yet.

Note on Timing and Organization: The next 45 minutes is spent on elements of an effective legal interview, followed by a short break. Then work through practice simulations of the interview in Hapless Harvest and Family Matters, divided (a bit artificially) into two stages or phases.

For the purposes of this manual, I’ve labeled them as Effective Legal Interview, Stages I and II, with the first focused on goals and initial matters, and the second focused on hearing the client’s story and determining next steps. They are separate teaching modules, each further deconstructing the stages of an initial legal interview to highlight and permit practice with essential content, choices, and skills sets.

Overall Goals for Effective Legal Interviews

I begin this segment by articulating the course shift from broad paradigm or vision of lawyering approaches to the nitty‐gritty: how to be that model lawyer at each step of the way thought client interviewing and counseling. Teaching and learning involve “deconstruction” of the whole into its parts, and focused examination and practice of each part. So it is with tennis and golf and any skilled and serious performance. Now, we’re at the beginning of an initial client interview, and examining it as a discrete stage, much more carefully than in the skit.

The goals of the initial interview are defined as building rapport and trust, establishing the relationship, obtaining information, conversational attunement, and understanding the client’s perspective, priorities, interests and constraints. Depending on time, you can pose questions to elicit these goals, or just announce them by way of introduction. It is useful to spend a few minutes on the question of why trust matters so much, and what it is about the attorney‐client context that may make trust difficult. In addition to naming possible differences in class and culture, embarrassment for defendants or in divorce and family cases, etc., student will eventually name the mercenary problem. Much of the time, the lawyer stands to profit from the client’s legal trouble, either as plaintiff’s counsel or defense counsel, as well as in transactional arenas. When I get into a cab in a strange city, how can I trust that the cab driver will take me the most direct route with the meter running?

To Review or Not to Review the Steps or Stages in An Initial Interview?

Here’s a choice point for the professor: you could ask the students to name the steps or stages of an initial interview, based upon the reading, and to state what occurs at each stage. Or, you could march through the points made (using the powerpoints, or not) and then go back to focus on stage one. Having done the latter for some years, I recommend the former.

In other words, I suggest asking students to name what has to happen at an initial interview, and get out some idea that it generally proceeds in nameable stages. At most, put up a single powerpoint that just names these things—or just stick to what students generated. Then proceed to the Initial Stages of the Initial Interview.

It’s important to note, either at this juncture or after the little exercises to follow, that you (or the course) are offering a default setting—an order of things that makes sense most of the time. But,

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 21 if a client comes in and begins pouring out the story and her anger, it’s not wise to insist on an ice‐breaker or preliminary chit‐chat. Insistence on backtracking for discussion of your or your potential client’s background won’t be well received.

One piece of advice to highlight here is that research suggests the VERY first words out of a client’s mouth are often keys to what is most troubling—what the legal problem means for the client. Research in the medical arena first gave rise to this observation, thus medical residents and physicians are now advised to scribble a note about the very first words out of the patient’s mouth. Imagine a patient or a client who begins with: “I’ve been waiting so long for this day” or “I’ve been so worried my boss will hate me for this.” These themes are bound to recur and may impact perceptions and decision‐making.

After that brief note, I’ll make a quick reference to what typically happens at the INITIAL stages of an Initial Interview: introductions, ice‐breaking, open questions to elicit the client’s purpose; and discussion of time constraints, confidentiality and (perhaps) fees. Students should be familiar with this from the reading. The class is more than ready to move from talking to doing.

Just Do It – A TERRIBLE JOB of the FIRST Few Moments of an Initial Interview!

Ask students in adjacent seats to pair up. One will elect to be the client and one the lawyer. They can imagine themselves in any of the client roles assigned for the day, or they can be themselves with an imagined legal problem. It really doesn’t matter. All that matters is that the student‐ clients decide who they are within 10 seconds of your instruction. You can encourage some of the client‐lawyer pairs to spread out in the room, if the spacing is tight.

Once the class has settled into pairs and they have chosen places and identities, announce that the lawyer’s charge is to do an ABSOLUTELY terrible job at the first two or three minutes of the interview. Consider what was in the readings, consider what has been discussed about trust and rapport, and do the opposite. The students love this; the air will be filled with happy hubbub. Let it go for two minutes or so after they really begin, three minutes at the outside.

Conduct them to a stop, and ask: “So, clients, what did your lawyers do that was REALLY terrible?” Undoubtedly, clients will report that their lawyers were texting, looking at their watches, taking or, worse, making phone calls. “That’s great!” “Perfect” you say, after each one. Lawyers will have called their clients stupid, blamed them for getting into this mess, asked them for blank checks . . . talked only about themselves—all sorts of great stuff! Each creatively terrible behavior gets a laugh. You can ask the lawyers how they decided on the most “terrible” things to do. What was the measure of terrible? What gave them that idea?

Then ask of all of the students, “Have you or anyone you know ever had something like that happen to them when they went to see a lawyer, or maybe a doctor, or another so‐called professional? Very often, they have. Maybe their doctors weren’t texting mid‐appointment, but they will have cut off patients in mid‐sentence, registered disapproval, failed to make eye contact, etc. You can push the discussion here: how does that make the client/patient feel? (In general, in this course, if you want students to liven up and register the importance of these skills, just shift questions and examples to the way doctors treated them, their parents or other relatives and friends.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 22 Knowing the negative—what not to do—suggests a sense of the positive prescriptions that follow.

Shift from Terrible to Good…The SOLER METHOD and Body Language

Announce the shift from terrible to the real aspiration: great practice. Focusing on the physical foundation in body language, ask students to recall from the readings how they should be seated with a client. The answer is in the acronym “SOLER.” Ask the same student pairs to face each other again, switch who is the lawyer and who the client, and do those opening moments well, with attention to SOLER. Have the student‐lawyers to undertake fresh introductions, an ice breaker, and an open question about the client’s purpose.

This exercise should take no longer than three minutes; they should NOT get into the substance. Ask student‐clients how attention to SOLER felt. Some may report that when the lawyer leaned forward, it invaded personal space. Others may raise what they perceive as a contradiction between engagement and eye contact and being relaxed. I sometimes ask a student or two to come up to the front to demonstrate adjustments in body posture and position. I like them to be able to see that an upright posture can indeed be relaxed; I call it a yoga posture, permitting full diaphragm space for deep breaths and use of voice, and free arm movement. I may ask if students are familiar with Alexander Technique, and how it describes optimal, relaxed posture.10 If you have the demo up at the front, they can see how much difference the seated posture can make, and how a larger person might want to sit back a bit to allow distance to lean forward without invading personal space.

This has to be done very quickly, given the time constraints. But if you do have time to spend a moment or two on body language and posture, it’s time well spent, as it connects to the voice and gesture module toward the end of the course, priming their powers of observation early.

I do like to quickly summarize some of the research supporting the importance of body language (It’s within the powerpoints for this segment; see also the Client Science book, chapters 6‐9).

Timing: If you started the Initial Interview segment an hour after you began the day’s session, it should now be 20‐30 minutes later (20 if you’re lucky, but don’t let it go more than 30). In the earlier years of teaching the workshop, we would introduce the topics of confidentiality and fees here, have the students perform this stage of “just any” initial interview—raising the issue of confidentiality and fees—devoid of context. Then we would discuss it, take a later break, and move into sections. That’s not a bad choice, if co‐faculty haven’t taught together before, or if one faculty member is less comfortable with these topics.

More recently, I favor taking a break at this point, after the SOLER/body language segment. It seems the more natural time. We explain that, immediately after the break, we’re going to work on how one talks about confidentiality and fees in their Hapless Harvest and Family Matters cases. This gives them a chance to brush up on their role information as well as attorney client‐privilege and confidentiality obligations. If the class is divided into sections, they meet in section after break.

10 For a short description of Alexander Technique, visit Wikipedia at http://en.wikipedia.org/wiki/Alexander_technique.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 23 With a bit of luck, you’re breaking 90 minutes in (at 10:30, assuming a 9:00 a.m. start time), and you’ll pick up at 105 minutes (10:45).

Initial Interview Exercise – In Two Stages, with Skills Exercises in between

First Stages of the Initial Interview, in Context and in Real Time

Confidentiality in the Initial Interview

First, confidentiality. Depending upon when in the academic year your course is scheduled and who is enrolled, many students may know very little about the attorney‐client privilege or a lawyer’s confidentiality obligations. This will be true of any 2L who has not yet taken professional responsibility. While the relevant rules and a summary of the attorney client privilege will be in the readings, it’s best to briefly review them in class. You might assert that it’s important to communicate with a client about confidentiality and fees at some point during an initial interview. There are choices about how and when, but lawyers must be familiar with these topics.

On the topic of confidentiality, ask for one or more students to explain what the attorney‐client privilege is. And ask student(s) to set forth the relevant rule and its exceptions. Elicit some discussion about the purpose and the origins of these rules, and the potential problems they raise. Then do put the “right” answers up in powerpoint form and/or refer them to the reading.

Students will ask whether it wouldn’t be prudent (and simpler) to make sure the client has seen a written description of the attorney‐client privilege and confidentiality obligations before the meeting, as well as a fee schedule. The answer, of course, is yes, for many if not all clients. And it’s also true that in a large law firm, the partner might assume that clients are familiar with the privilege and fee structures, or at minimum, will feel comfortable asking if they are uncertain. Leaving aside large law firm policies and practices, imagine yourself as an attorney where such policies are not established or are unclear, or are yours to set. What’s the best practice?

If an administrative assistant hands your potential client a sheet on the attorney‐client privilege before your initial meeting, can you be confident that he will have read it? That he understands it? What if you read a summary of an insurance policy before you met with an insurance broker, would that be sufficient?

Suggest that students abstain from taking a firm position as to their own future policy regarding whether to rely solely upon a document that describes the attorney‐client privilege. Explain that, in this class, we will undertake the not‐always‐easy exercise of explaining attorney‐client privilege and the lawyer’s confidentiality obligation in the early stages of the initial interview before getting to the client’s full story.

How and when a lawyer should raise the topic of fees in the initial interview is also a matter of choice and judgment. In some classes, students in the lawyer’s role were instructed to raise the fee issue early, right after confidentiality. In other years, they were asked to discuss fees with their clients at some point during the initial interview, but permitted to reserve it for the end. I have also instructed half of them to discuss fees early, and half later.

Over time with this exercise, I’ve developed a strong preference for raising the question of order before they begin it, asking each student‐lawyer to make a deliberate choice regarding when to introduce the question of fees. This always leads to rich discussion in later debriefing regarding the pros and cons of each approach.

It is important to mention that, under basic contract principles, if initial consultation session is NOT going to be free, the fee issue should be raised up front. (As a practical matter, the initial consultation fee should be prominently mentioned in written materials provided by the lawyer’s administrative staff and on the firm’s website.)

Launch the Initial phase of the initial interview in Hapless Harvest and Family Matters

Pair students up to play their client and attorney roles in Hapless Harvest and Family Matters. Explain clearly that they are to conduct ONLY the initial portion of the interview, from introductions to ice breakers, to an open question about the client’s purpose. Then they should move to explaining confidentiality—and fees, if preferred and appropriate. The student‐lawyer should give some thought to each of those elements, whether to set out an agenda or a plan, how to frame and phrase his or her points in a way that would be understood and appreciated by the potential client.

Pause on Pausing: Provide a Helpful Hint on Conveying Complex Information

Time permitting (and irony noted), I like to make a quick reference to the power of pausing when conveying complex information. In that context, I put up the powerpoint titled, a “A Pause on Pausing.” The text is self‐explanatory but its source is worth explaining. As explained in Client Science, after watching student‐lawyers struggle to explain complex concepts to actor‐clients, I have come to understand the value of the pause. This is particularly (but not only) important for people who speak quickly. The client‐actors assert that the pause time is NOT empty space; it is completely filled for them as their minds race to process the complex information received. (See Client Science, Chapter 6, “Choices in Voice”.) I ask that students pay close attention to their own phrasing, in this instance when explaining confidentiality and the attorney‐client privilege. The pause is also a wonderful opportunity to clarify and correct. If a student pauses between sentences when conveying complex information and concepts, he can see by the client’s facial expression whether s/he is confused. He can ask about what’s unclear, and clarify.

The value of pausing is introduced here to alert students to be mindful. It will come up again as students explain more law and legal process to mock clients during the course, in the Final Counseling Skills Exercise, and eventually to real clients.

Now is the time to state the rules of playing simulation roles. Acknowledge that it’s difficult to suspend disbelief, to feel like real clients and lawyers, when they are seated in a classroom and working with a classmate. Stress that when they get into the role, it helps their partner to do so. It benefits and informs them to simulate and thus feel, even to some degree, how it would be as client and lawyer.

Emphasize the importance of giving each other feedback within role and within the exercise time. All feedback is valuable, but in my view, negative feedback is gold. In real life, the client won’t tell you he felt uncomfortable or didn’t like the way you said something. He just won’t come back. That’s why the best gift students can give to classmates is negative feedback, privately. The student‐client could say, “I’m sure you didn’t mean it this way, but when you said X, I started to feel mad; it made me suspicious about what was going on.” Emphasize that, in these circumstances, a student‐client’s glimmer of a reaction or an emotion is important, even if faint. So, if a student‐client finds himself feeling vaguely annoyed at what he perceives to be his lawyer’s dismissive tone, rest assured that the real client’s annoyance wouldn’t be so vague.

Encourage the students to view direct feedback as a serious obligation, when prompted in the class, and over breaks and lunch, if class time runs out. Let them know that there may be times in the class when you’ll ask for reports on what worked well and what didn’t. If students aren’t comfortable with negative feedback in front of the class, that’s fine, as long as it’s communicated to each other.

The Initial Interview phases in Hapless Harvest and Family Matters

Pairing the students up will take 3 minutes or so. I typically ask all Group I clients to stand up, and have the Group II lawyers pick their clients or vice versa. I ask them NOT to pair up with their classmate in the next seat (with whom they would have worked in previous exercises), their roommate, romantic partners, etc.

Allocate approximately 10 minutes for the initial interview phases in Hapless Harvest—everything covered thus far, but only that. CLEARLY INSTRUCT THEM TO STOP JUST BEFORE THE CLIENT’S FULL STORY OF WHAT HAPPENED. (For some reason, a significant number of students miss this instruction and forge ahead.) Allocate two minutes for feedback with each other, about what worked well, what didn’t, and what the client did and didn’t understand about confidentiality (or any other topic).

Time permitting, it’s good to debrief the class VERY quickly (5 minutes) on what seemed to work well, and what didn’t. I suggest directing your questions to the lawyers: “Was there anything you said that, as soon as the words left your lips, you thought, “oops,” or “oh, that was awkward?” This enables them to self‐report, and the clients don’t feel pressure to “tattle.” The student lawyers will only report what they are comfortable having the class hear. Usually, everyone is good‐natured about it. You can ask what moments or phrasings they found difficult. Why? What choices were hard to make? Turning to the clients, ask them to name a phrasing or

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 26 choice their lawyers’ made that seemed really effective. They will be comfortable reporting the positive.

With acknowledgements that the second group of lawyers now has had some guidance to work, move to the same exercise for the Family Matters case.

Note: you could of course do them in the opposite order, Family Matters first and then Hapless Harvest. I prefer to start with Hapless, because I think Family Matters is a more difficult case, and because the Final Counseling Skills Exercise will involve the Hapless Harvest plot line. I like the idea of bracketing the beginning and end of course with the same case at different stage. To add a third reason, the real case upon which Family Matters was based had a sad ending, which yields an important lesson. It seems better to make that rather dramatic point at the end of the day, when they’ve just finished working on that case. So, I aim for Family Matter to be second simulation and thus the later debriefing.

To Re‐Pair or Not to Re‐Pair?

It is easier and takes less time to keep students in the same pairs when switching to the parallel ten minute, early phase interview stage in Family Matters. But, if you have the time, it’s better to break up the pairs. That way, the students come to recognize different styles and strengths. And, the student stuck with a partner who has not really learned his role, or isn’t taking it seriously, won’t have to work with the same partner. Again, it’s easy to ask all in Family Matters lawyers to stand up, and have the other students re‐select a lawyer. Or you might ask groups in close proximity to switch partners (maintaining the no‐roommate, no best friend, no fiancée rule).

Balance of Debriefing

Initially, I’d use the same debriefing plan as above, turning first to the lawyers to self‐report on what was problematic, and what was difficult. Or you can start with accolades by asking clients to report on what worked well, and then turn to what did not.

With a little bit of luck, a number of effective choices will be highlighted:

 Agenda: clients generally appreciate it when the lawyer sets out an informal order.  Client input: It’s also appreciated, and oh‐so‐collaborative, if the lawyer asks the client whether he’d like to add anything to the agenda and whether he’s comfortable with the order.  Normalizing: It’s works well when the lawyer frames the agenda as “normal,” whenever he meets with a potential new client, it’s his practice to talk about x, y, z.  The lawyer‐client relationship described as one of mutual choice: reference to the idea that the client and the lawyer have the right to decide if they feel comfortable working together. (Extra points when the lawyer mentions that the confidentiality protections apply to this conversation, even if the client decides not to retain the lawyer.)  Explanation and transparency: clients generally appreciate the lawyer’s explaining why something is important, or why it’s part of his “normal” practice. For example, the lawyer might say: I will want to hear what happened, in your own words, the

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 27 way you understood and perceived it. Then I’ll go back over it what you’ve said pretty carefully. It might seem repetitive to you, with lots of detailed questions, because there are often details that are important for some legal questions, and we want to make sure I’ve got those straight.”

Back to Confidentiality

Then, without regard to whether it was in Hapless Harvest or Family Matters, focus on the challenges and tensions inherent in describing the attorney client privilege. The following points generally come up and if not, the professor might raise them:

 Discussion of confidentiality can make the client feel more comfortable about confiding in the lawyer.  The exceptions to the confidentiality obligation and the attorney‐client privilege are confusing and off‐putting. It’s awkward to say to a potential client: “Well, if you were to tell me that you’re going to commit a serious crime, I would have to disclose that.” It sounds as if you think this person might be a criminal. And before the client has decided whether or not to hire you, it sounds odd to talk about future fee disputes or professional misconduct.  Is it better to just tell the client that “everything you say is confidential” or to note that there are exceptions without naming them?  If you list the exceptions, are you encouraging the client to lie or to withhold certain information to avoid the exceptions?  If you DO reference the exceptions, do you have to describe ALL of them?  How can you explain, without offending the potential client, that if s/he were planning to commit certain crimes, there would be no confidentiality? You would be obligated to report.  How much of this can be handled through a written handout regarding confidentiality?

As always, it depends, and there is no script, but certain conclusions make sense and usually emerge from the discussion:

 If you do NOT supply the client with written material on attorney‐client privilege and confidentiality, and real time to review it, these concepts should be explained in the initial meeting. At minimum, the lawyer should ask if the client is familiar with the general rule and whether he has any question.  If and when a lawyer does describe the privilege and confidentiality obligations, it’s simply not accurate to say “EVERYTHING you [client] say in the meeting is privileged and confidential.” And it’s not good practice to be knowingly inaccurate when speaking with a client or anyone else. Thus, it makes sense to say, in words or in substance: “In general, what a client or a potential client says when speaking with his attorney is confidential and protected by the attorney‐client privilege. There are some exceptions, which I would be glad to describe and discuss with you.” In other words, at minimum, mention that there ARE exceptions. One might go further and say: “There are some exceptions that have to do with criminal activity and future disagreements. I would be glad to discuss these in more detail, if you’d like, or answer any questions. [Real pause] I

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 28 am not too concerned about them in this case, but I will let you know if I see that as an issue further down the road.”  Some lawyers prefer to describe the exceptions more directly. This demonstrates the lawyer’s commitment to communicating accurately and completely. In debriefing, I suggest turning to a student pair in which the lawyer did that—described some of the major exceptions to the client and found it awkward. Ask them what about it was awkward. Perhaps ask them to re‐play it. Ask for class observations. Generally, people will observe that when the lawyer mentions exceptions relating to perpetrating a crime, causing bodily harm or suing for malpractice, it seems as if he thinks the client might in fact do such a thing. It’s particularly jarring in an initial interview where the lawyer is also trying to build rapport and trust. Then ask the class how one could deliver the same information in a less jarring way. With a bit of luck, the students will make good suggestions. Is there an answer? It seems that using a somewhat lighthearted phrasing, in the third person, works better. So, the student‐lawyer might say, “Well if a potential client was meeting with my partner down the hall and tells him he plans to rob a bank, that would be a problem and he would have to disclose it.”

I suggest raising the question of body language and its impact here. It’s my advice that the lawyer break direct eye contact and use a “wave away” arm gesture when referencing the potential bank robber meeting with the partner down the hall. Imagine a sacrosanct channel of space between lawyer and client—the space in which their conversation takes place. Reference to the privilege exceptions and any bank robbery (etc.) is best made outside of that channel. (See Client Science, Chapter 6, “Choices in Voice,” and Chapter 9, “Channel Navigation Notes.”) If you demonstrate this, or have the students demonstrate it, they will immediately see that speaking of the exception is less uncomfortable when conducted with a third person reference and gestures directed off to the side.

On to Fees

Many second year students have NO idea how fees are set or collected, ethical rules that apply to setting fees and to contingency fee arrangements. Students who have worked in a law firm may have some idea of the range of hourly billable rates, but they have not witnessed a conversation about fees. And, as a practical matter, they are unlikely to be party to such a conversation for a while. Others will have been included in meetings on the topic of fee estimates and litigation budgets. Those working with in‐house counsel may have been party to discussions about outside litigation fees and the like.

Limited class time has never permitted detailed discussion of students’ many fee‐related questions. Sometimes, I provide an overview of the types of cases likely to involve contingency fees, and point students to the relevant rules. Students are interested to learn basic information as to the range of hourly rates.

As efficiently as possible, move discussion back to the client communication question: when to raise the issue of fees. Should it be early—in the initial phase of a client interview—or later in connection with retention and next steps? Within the debriefing, I’ll ask students for a show of hands: who brought up the question of fees? Why? Why not? Clients: how did you respond to that? Lawyers who did raise the fee question: how did it feel? Many if not most students will

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 29 report that bringing fees up early seems awkward. After all, we learn that in the initial stages of the interview, we’re supposed to be building trust and rapport. It’s hard to do that and talk about the money we plan to charge. Talking about fees seems to confirm that all the lawyer cares about is the money, not the client or the client’s problem. Moreover, the interviewing lawyer hasn’t provided any indication of his value at that early stage. Better to wait until the end, by which time the client will be better able to judge or feel that the lawyer will be worth the price of his services.

I sometimes chime in with the fact that, in our culture, many people are uncomfortable talking about money, particularly earnings. I recall a radio show in which a psychiatrist recounted that he was once working with a long term patient about whom he knew the most intimate details: family, medical history, marriage, sex life, everything. Once, the psychiatrist asked: “How much do you make?” The patient snapped back: “That’s a personal question!”

Turn then to the other side of the coin, and ask: Why did some people decide to raise the fee issue early, instead of waiting? Why did some clients appreciate that? Even if the initial interview will be free, many students will note that, if the eventual fee scale will be too high it’s better to know it now, before wasting anyone’s time. This answer has practical merit. Still, for some cases, an attorney might be willing to suggest a full contingency fee agreement or a modified contingency.

Ask the students who were in the client role why they might have appreciated the lawyer’s raising the fee issue early. With any luck at all, a student‐client will say: “Well, if I were worried about it, or wondering about it, I would be relieved if he brought it up early.” In my view, it would be best to raise the fee question early IF the client is concerned about it, worrying and wondering whether he’ll be able to afford the lawyer’s services. After all, those of us without unlimited funds often check a recommended restaurant’s menu on line to see if it’s out of our range. Unfortunately, the client who is worried and uncomfortable also may be reticent to raise the question. But, he will be thinking about it all the way through.

A good piece of advice the discussion often yields (and that I raise if it doesn’t) is for the lawyer to offer the client an early choice regarding when to cover the topic of fees. For example, when reviewing the meeting agenda, the lawyer might say (in words or in substance): “Another topic that is on my agenda when I meet with a prospective client is that of fee arrangements. I’m happy to wait and discuss that in more detail at the end of this meeting when we’re talking about next steps and whether you’d like to retain my services. Or, if you’d prefer, I’d be happy to answer any fee questions you have now.” In short, the lawyer can raise the question and let the client decide. That gives easy permission to the client who is worried about fees to ask questions early. For others, fee issues can be handled at the end. From a collaborative lawyering process and relationship perspective, it is parallel to the lawyer proposing an agenda, but inviting the client to make changes or additions.

Just as was true for the attorney client confidentiality and privilege, the question of written office handouts on fees will be raised. If not the professor is wise to raise it. Do you want to have an administrative assistant provide information as to fee schedules? It would be worth a survey to see how many lawyers—from solo, to small, medium and large offices—do this. After all, most offices charge a range of hourly rates; some will entertain full or partial contingency fees in appropriate cases; some services involve a flat fee. Moreover, rate information will not answer the question of how much the attorney’s representation in a particular matter is likely to cost. It’s complicated! Ultimately, the fee agreement should be reduced to writing. But upfront fee

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 30 information documents raise tricky questions (questions we’re not prepared to answer in the course). Fair to say that it might make sense to offer a general written description of lawyer’s or the firm’s policies or fee arrangement options.

Timing check: With any luck, it should now be three hours after the start of the workshop, noon if you started at 9:00 a.m. This is doable—barely—if the actual interview time is just about 10 minutes.

Before the students leave for lunch or other break, DO:

1) Remind them to re‐review their client roles in Hapless Harvest and Family Matters, because they will get to the factual details in the afternoon; and 2) Ask them to think of a story of a conflict or other not‐so‐great circumstance in which they were recently involved. It should be a story that could be told in just a few minutes to a classmate. (A powerpoint in this set states the instructions.) Emphasize that they will NOT be asked to talk about that story in front of the whole class, but just within a group of three, shortly after lunch.

This module consists of various content and skill‐focused preludes to the students completing the balance of the client interview—hearing the client’s story, distilling facts needed for legal analysis, and closing steps. It consists of three distinct segments, each involving interactive exercises, presentation, and discussion. The first segment, on narrative and conversation, was included in the workshop in 2012, motivated by a desire to teach insights from research on the topic of legal interviews. The second segment is an introduction to listening skills: not new to one who teaches in this field, but often new and terribly important for law students. The third segment consists of an extraordinarily short interlude on the psychology of memory and perception. While additional topics in psychology are covered later in the course in connection with client counseling (and in the Client Science book, Chapter 5 “Predictable and Potent Psychology”), I wanted to introduce important information on failures of memory and perception, before hearing the clients’ recitation of remembered and perceived facts.

This order—narrative and conversation followed by listening, and then memory and perception—is the order we adopted in 2012 and it worked well.11 But I have no experience with possible alternative ordering. Note also that while I generally favor fast over slow movement through material, this module—three segments in 2 hours of class time—may be overly compressed. If extra time were available, I would likely allocate some of it here. With these caveats in mind, we proceed to the module’s teaching structure and experience.

On Narrative and Conversation

This segment was a brand new and, I’m happy to say, successful experiment in 2012, motivated by research that is summarized in “Client Science: Advice for Lawyers on Initial Client Interviews,” published at The ClientScienceCourse.com, in a section sub‐titled “Interlude On Narrative and Principles of Conversation,” at 41‐45, reference notes 34‐38. All of the scholarship discussed in this portion of the guide is fully reference in this article and subsection. For the most part, I have chosen not to “re‐reference” here.)

When the students return from lunch, I remind them of the lunchtime assignment to think of a story about a conflict or dispute in which they were involved, or a “not so wonderful” occurrence. (In fact, it’s good to alert students to this mini thought assignment in the syllabus.)

First, have students form groups of three with others sitting nearby. It doesn’t seem necessary to disrupt their natural seating arrangements. Within the groups of three, each was asked to adopt the number 1, 2, or 3.

Numbers established, all Student #1s are instructed to tell that story (of a conflict or dispute or something important and not‐so‐wonderful) to the group’s Student #2. Student #2s are instructed to ask for the story and just listen. They should listen in a normal manner, as in a normal conversation, and not interrupt the flow too much. Student #3s are instructed to observe

11 If memory serves, and it doesn’t necessarily, I believe that in the January 2012 workshop, the pre‐lunch segment on the initial interviews ran over time. Thus, while our initial agenda and powerpoint order would have started with the interlude on memory and perception, my notes indicated that we changed the order within the post‐lunch series.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 32 and listen as one who is not part of the conversation, and to take VERY good notes regarding what the Student #1s—the storytellers—say, how they tell the story. Total time allotted for story telling is 3 minutes. Then call time and let the hubbub die down. Students should then be asked to put the story aside temporarily during the coming presentation segment.

A short lecture follows, presenting the idea that client interviewing is a conversation and referencing the academic fields of communication and discourse theory and study of narrative or storytelling. I give full credit to Law Professor Linda H. Smith for introducing these ideas into legal scholarship. The lecture begins with the notion that communication scholars would call a client interview an “institutional conversation” as it is embedded in and bounded by a certain legal institutional framework.

If the client interview is a conversation, then we should look to the work of Philosopher H. Paul Grice, who observed that “conversation is a cooperative activity” and that certain principles apply to any conversation. These are known as “Gricean Principles of Conversation,” first articulated in Grice’s now famous William James Lecture at Harvard University in 1967 (later published in his essay, “Logic and Conversation,” in Syntax and Semantics, Vol. 3 P. Cole and J. Morgan eds., Academic Press 1975, pp. 45‐46). There, Grice observed that in conversation, we try to speak in appropriate

Quantity, quality, relation and manner, in other words, to be:  As informative as necessary (but not more – quantity)  Accurate and truthful (quality)  Relevant (in relationship to the topic at hand)  Brief, orderly, and clear (manner)

When a speaker violates these principles in conversation, we notice it. I suggest asking students to think of people whose conversational and narrative (story telling) habits they find problematic or annoying. Direct them to the list and see if their habits tend to violate one of the Gricean principles of cooperative conversation. Let the students have a moment to consider this question and ask for a comment or two. Depending on their responses you can prompt the students to think of times they’ve remarked of someone: “She always starts from Adam and Eve” . . . “He goes off on tangents” . . . “I would take what he says with a grain of salt” and “It always comes out in a jumble and you have to sort it out.”

Next, move to a short presentation of what are commonly understood by communication scholars as elements of a “Prototypical Spoken Narrative” (drawn from the work of William Labov & Joshua Waletzkey, “Narrative Analysis” in Essays on the Verbal and Visual Arts, 12‐44 (J. Helm, Ed., 1967). These are:

 A beginning ABSTRACT, a short phrase or sentence indicating the story’s point or purpose;  An ORIENTATION, a segment briefly filling in background information;  A COMPLICATING ACTION –description of the event, usually in sequence that is the meat of the story and moves it along;  A CODA – a shift to the present, stating the story’s meaning or moral;  An EVALUATION – in which the narrator comments on the story from the outside.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 33 After presenting these categories, ask the Student #3s (the observers) to check their notes on the conversation they witnessed and see if these ring true. Did the story they heard follow this structure? Were Gricean principles operating? Other students are also encouraged to remember the conversations, but first target the observers. Time permitting, you could ask each threesome to consider these questions. But, if pressed for time, just address the question to the whole group, with a focus on the Student #3s and their notes.

Student responses have involved a great deal of smiles and nodding. They were pleased to recognize that their stories generally followed Gricean principles.

Students might observe that the distinction between coda and evaluation is a bit nebulous. While I am not sure it matters for our purposes, you might ask students to think of a distinction using a commonly known fairy tale. (Remember, you’ve pledged NOT to ask for revelation of their stories to the class). You could suggest that they consider how Little Red Riding Hood might tell the story of what happened with the Big Bad Wolf. She might begin with an ABSTRACT, that this will be about what happened in the woods and at her grandmother’s house. Her ORIENTATION might be to explain that her grandmother is ill and so she frequently goes through the forest to visit her and bring her food. The “complicating action” would be the telling of all of the events of the day, finishing with the demise of the wolf. Perhaps her CODA would reference the danger of traveling the woods where there are wolves, or of failing to trust her instincts about the hairy paws in the sleeves of her grandmother’s nightdress. Her EVALUATION would step back, perhaps, and comment on the general evils of wolves and thankfulness for good folks who come to the rescue.

Hearing Facework

Next, remaining within their triplet groups, instruct Student #2s to tell their stories to the Student #3s, and Student #1s to be outside observers and to take VERY GOOD NOTES of what the story teller says. The Student #3s are to listen attentively and naturally, not interrupt much at all. As was true for the last exercise, the Student #2s are to tell a story of a conflict, dispute, or something else not‐so‐wonderful that happened to them. Allot 3 minutes for the telling.

Again, ask the students to listen to your brief presentation about an important scholar’s contribution in to our understanding. Introduce them to Erving Goffman, a world renowned sociologist and linguist, who wrote about theories of “Face‐Work” and the way people present themselves. Do reference some of his early and important works: “On Face‐Work: an Analysis of Ritual Elements in Social Interaction” Psychiatry Journal for the Study of Interpersonal Processes 18 (1955), and The Presentation of Self in Everyday Life (Anchor, 1959). Goffman wrote that conversants present their “faces” to each other. We generally try to create and/or preserve our own positive self‐images and social images in the face we present. We often cooperate in conversation to preserve face for others. So, when a friend ruefully laments that she neglected to send a thank you note for a recent gift, you might be inclined to say: “You thanked her in person. That’s enough. You know and she knows you are so good about that type of thing. But you’ve been so distracted by taking care of your mother, and the whole college application process with your son.”

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 34 Goffman also observed that in, conversation, we are sometimes required to “self disclose”. A self‐disclosure involves revealing information about oneself that was not previously known. When a self‐disclosure threatens face, we tend to be indirect and to delay. In other words, we make negative self‐disclosure later in the story than might otherwise be logical, so that our listeners might evaluate us more favorably.

An “accounting” is Goffman’s term for a justification or excuse to deny or reduce responsibility for the negative self‐disclosure, to mitigate negative evaluation and “save face.”

Lead the discussion on the application of Goffman’s facework by asking the observers, Student #1s, to review their notes of stories told in their group. Other group members may also try to recall and/or you can suggest a few minutes of discussion. The question is: do Goffman’s descriptions of face‐work and the categories of “self‐disclosure” and “accountings” appear in their stories? Remind the students that they will not be asked to talk about their actual stories in front of the entire class. But does their private review of the notes reveal self‐disclosures and accountings? Did any negative self‐disclosures come relatively late in the story? If so, did the listener feel mildly annoyed and think, “Why didn’t s/he tell me that before?”

Again, our student responses have been lots of nodding, recognition, and clear engagement in finding facework through the exercise. At this point, it’s useful to ask: “WHY does this matter?” I’ll confess that, as the professor, I have a bent in favor of injecting some more academic language and insight into the class. But why might knowing these categories make students more effective client interviewers?

The answer, I believe, is that it makes them more attentive and more patient listeners. If, when telling his story, the client’s self‐disclosure comes later than it logically should have, we can at least hypothesize that the client fears loss of face, believing the lawyer might judge him negatively. At the least, we recognize that this behavior is normal. Thus, rather than be frustrated by the client’s failure to supply the information earlier—to conclude that he’s shifty, or not a logical thinker—we recognize it as a common human conversational pattern. The same is true for accountings. If a client makes weak excuses or creates far‐fetched justifications, the lawyer might evaluate her harshly (ironically) for failure to take responsibility or to see reality. Knowing that people use “accountings” to save face and avoid negative evaluation might make us more understanding and more patient. Students will see that impatience and lack of understanding can undermine a strong attorney‐client relationship!

This segment concludes with a brief lecture noting that certain situations tend to threaten face, making Goffman’s labeled conversational patterns more likely to occur. The operative factors include differences in relative power, social distance, and degree of imposition. So, if a client has lower power, lower social status, and seeks assistance he cannot otherwise obtain, he may feel “face threatened” from the start of the conversation. In some circumstances, the shoe may be on the other foot. The lawyer may have lower power and status, and seek client action; the lawyer may feel face‐threatened. DO ask, if anyone can consider some real life legal practice contexts in which threats to face might be the norm? Examples would include a lawyer’s initial meeting with: a divorce client with little income, abandoned by a spouse, seeking immediate hold on a joint bank account; a small business owner seeking a lien on a contractor; or a client charged in an environmental enforcement action; just about any criminal defendant.

Before moving on to the inevitable third exercise involving student stories, I’ve included some observations relating to the structure of a client interview, with full credit to Professor Linda Smith’s research. I note that most law school texts in client interviewing recommend a certain sequence for the “institutional conversation” that is the initial client Interview. While recognizing that a particular client or set of circumstances will suggest deviation, they suggest that newer lawyers use this sequence as a guide or default setting:

 Icebreakers or Chit Chat;  Reference to the Attorney Client Privilege and confidentiality;  Request a brief problem overview, statement of the client’s purpose;  Request client’s narrative, and listen without directive interruption. But, as long as you’re non‐directive, do practice active and empathetic listening. (This is emphasized in the Client Centered and Collaborative Lawyering Models.);  Summarize the client narrative, at the end (and perhaps at key junctures) and explain that you’re going to review it and ask questions along the way;  Attorney probes the narrative, using open questions first, then funneling from open to more closed questions to pin down details and chronology;  Attorney summarizes again;  Attorney moves conversation back to client interests and goals;  Move to next steps, formalize the relationship.

It’s worth some collective critical examination of this sequence before presenting some friendly amendments with research support. You might turn first to ice breakers and chit‐chat. Ask students what they think? What’s the downside of chit‐chat before moving to the business at hand? Did any students find it awkward, when in the client or the lawyer role? Why?

Some students will comment that the icebreaker interlude felt artificial. They all knew they were “doing an ice breaker.” While arguably due to the classroom context, it is also true that, a real client may experience an ice‐breaker or early chit‐chat as robotic or fake. Haven’t we experienced what seems like an obligatory ice‐breaker as the customer, client, or patient in other circumstances? How do we respond? On the other hand, what’s a real potential benefit?

A few additional points can be made here.

 First, while starting with chit‐chat or ice breakers is generally a good idea, different cultures and different people may be more or less comfortable with prologue. For example, in the South, people generally begin professional interactions with more elaborate pleasantry rituals. Some people are more or less comfortable with that, by personality.

 Also, exactly HOW you break the ice carries some risk. Without knowing what brought the client to the consultation, or any familiarity with the person, you don’t want to create discomfort. Even a simple question about traffic conditions may yield the response that “since my license was suspended, I can’t drive and had to take the bus.” Or, what would seem to be a safe comment about the weather might yield a divorcing client’s observation that he’s been forced to sleep at a cousin’s un‐air‐conditioned apartment in the summer

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 36 heat since his wife threw him out of their grand (air‐conditioned) house. Would these be fatal to establishing a positive lawyer‐client relationship? Certainly not, but they do suggest caution. Perhaps it should go without saying the neither religion nor politics work well as ice‐breakers, unless you’re following the client’s lead and in his camp on those topics!

 Ice‐breakers and chit chat can be very helpful. The potential client may be uncomfortable. He or she is soon to confide in you regarding a legal problem that is impacting personal, home, business or professional spheres. If it wasn’t important, the client wouldn’t’ be in your office. It’s nice to have an opportunity to converse as human beings, to adjust to speech patterns, physical presence, voice, and other human characteristics.

 If your chit‐chat relates to something you have in common, or something you observe about the other person, this can create an immediate connection. So, after introductions, the lawyer might note that the client had told his assistant that Mrs. X referred her, and ask: “So how do you know Mrs. X?” You might then learn of a kid’s soccer team, a distance cycling group, or a work association. Follow up with GENUINE, not fake curiosity, noting any commonality. “Oh, my son did some distance cycling; that can be grueling . . . But great for keeping in shape, I’m impressed . . . .” Client: “Oh really, did your son belong to a team? . . . .” And so on.

 Leaving aside the opportunities for making connections and establishing rapport, some early ice breaking or chit chat can provide a helpful transition to the interview conversation. In any new interaction, it just takes people a while to orient, to focus. We need a transition. How many times have I provided a piece of information right at the beginning of a class, only to field a question a few minutes later, seeking precisely the information conveyed? I thought I just said that! I did, but it was right at the beginning; people weren’t focused, they weren’t ready to process it.

Two important caveats regarding chit chat and ice‐breakers:

1) First, as suggested earlier: if you can’t make it sincere and real, don’t! It shouldn’t sound as if you’ve checked “ice‐breaker” off your to‐do list. Do genuinely listen to and observe the other’s response to a conversational question. Be interested!

2) Don’t let chit chat render you deaf. A good deal of research indicates that the very first words out of a patient’s or a client’s mouth are highly significant, often revealing strong emotions and wishes. “I’ve been waiting so long for this day”, “It’s been so hard to get here”, “Finally, we’re going to get what’s ours.” New medical residents in some programs are instructed to record these words. I agree—make it a habit to write down your client’s first words, or early phrases of this type. They may be telling and worthy of a later look. Don’t become so caught up in thinking of chit chat that you forget to listen. (See “Client Science: Advice for Lawyers on Initial Client Interviews,” published at The ClientScienceCourse.com, at 23‐24, reference notes 17‐18.)

Looking back to the suggested initial client interview sequence, highlight the recommendation that the lawyer ask the client for a brief overview. In a brief lecture format, I comment that I see this as a legitimate recommendation, perhaps an aspiration, but surely not required. It is helpful when a prospective client can articulate a succinct overview of the problem that brought him to your office: “A key employee is threatening to sue us for age discrimination because we hired someone younger at a high salary. Frankly, I’d like to fire her . . . and I definitely don’t want to be sued or to give her a raise.” Or, “I came to see you because I’ve seen what I think are serious environmental problems caused by my employer. I don’t know what to do. I care about the environment, but I can’t afford to lose this job.” These statements provide helpful guidance later, when you are ready to hear it all. But, many people just don’t start this way, notwithstanding a request for a “brief overview.” Relieved, nervous, or excited—for whatever reason—just launch into the story. You begin to hear a flood of emotions, facts, dates, and names.

Even without the organizing overview, the client’s goals and the nature of the problem will emerge naturally as the story is told. Particularly as the client begins, the lawyer should avoid fighting for control of the conversation.

In the best of all possible worlds (one without time constraints), you might ask students to think of circumstances in which a lawyer SHOULD insist on interrupting the client’s story, as soon as possible. However, given real time constraints, I simply have made the following points:

 If possible, it’s wise to try to carve out a moment to review the attorney client privilege and confidentiality obligations (as discussed earlier). You might acknowledge that you are interrupting what is an important story. “Mr. Smith, I can hear that the environmental damage you observed is troubling, possibly quite dangerous, and raises some serious legal questions. I will ask you to describe what you saw and what has happened in detail in a few minutes. Before that, as your lawyer, I feel obligated to review the attorney‐client privilege that applies here.”

 In some cases, the client will not be deterred and the lawyer need not double‐down on the effort to delay the story for explanations of privilege and confidentiality. However, if based upon what you’ve heard, exceptions to the privilege may be relevant, or you suspect an unforeseen ethical conflict, more insistent interruption is required. (Note that this speaks to the wisdom of providing clients a simply written document describing confidentiality and privilege obligations and the exceptions, before they enter your office.)

Unobstructed, Undirected Narrative is Not Just Polite, it’s Better

Announce that, finally, the Student #3s will tell their stories to Students #1s, with Student #2s as observers. Students seemed eager to go through this last exercise round. There’s been considerable pause for lecture; they are ready to interact. And, having completed two storytelling rounds, they are eager for the “punch line” from the third and last round.

The instructions are mostly the same as before:

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 38  Student #3 tells his/her story to Student #1;  Student #1 hears the story, listens naturally, with minimal interruptions; BUT, half of the Student #1s get different specific instructions from the class.  Student #2 observes, takes notes.

Invite half of the Student #1s (the designated listeners) to come to the front to get special instructions. (I’ve done this by calling upon only Student #1s from the right side of the room, etc.) In a small huddle, I instruct these students to politely interrupt their storyteller Student #3s with any questions that occur to them as they listen. The point is not to interrupt merely to be annoying, but to do so when they are curious about a detail, or when they would like some background information for better understanding the story. One could also hand out slips of paper to all of the Student #1s—half with the standard instruction stressing natural listening and no or minimal interruptions and half with the instruction to interrupt to ask questions whenever more detailed or background information would be helpful to the listener.

Instruct the students that they will have three minutes for the stories, as was true for the other stories. After three minutes, ask who is not yet finished. Anticipate that there will be quite a few, and do give them the additional minute or two they need.

For debriefing the exercise, I suggest that you first ask the storytellers how they felt about the interview. Did it go smoothly? How did it feel to be listened to? Any frustration? Did it seem to be efficient? Did the story come out as intended, and within the time planned? Depending on the responses, follow up: how many story tellers felt good about the process? How many felt some frustration? Go to the groups that felt frustration, and ask how many of the Student #1s— the listeners—were among those who received special instructions. If you gave those instructions to students on one side of the room, the more frustrated story tellers will be concentrated there.

Focus on the time factor: Ask how many of the groups were finished or just about finished at the three minute mark when time initially allocated was complete? How many really needed the additional minutes? Again ask how many of them included Student#1 listeners who received special instruction.

It should be that more of the story tellers were frustrated and needed more time if their listeners were instructed to interrupt. Explain to the class what the secret instructions were. Ask what they conclude from these results. They will likely observe that interruptions are frustrating. You might note that’s hardly a revelation if we’re talking about interruption as a general matter. But in this exercise, the interruptions were [supposed to be] motivated by genuine curiosity, the listener’s desire to get the story straight. Often, we interrupt with a question because what we’ve heard doesn’t make perfect sense. We’re missing a detail or some background information that would clarify matters. If WE (not the listeners) were telling this story, we would have started in a different place or supplied certain information along the way. That is what we were asking for.

Why is that problematic? Turn to the Student #3s, the storytellers, and pose the question to them. With any luck, one or more will explain that they wanted to tell the story their own way, and the interruptions, even well motivated, threw them off course. The storytellers would have provided the details and background they thought important. Sometimes, a listener’s questions seemed patronizing, as if the listener knew what was important, or restrictive, as if dictating the course of the story.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 39 You might then transition to a mini‐lecture, noting research support for the proposition that:

Letting your client tell the story is the most efficient and reliable way to get information you need.

I have described the two contrasting interview transcripts included in Professor Linda Smith’s article, “Always Judged – Case Study of an Interview Using Conversation Analysis,” Clinical Law Review 10 (2003‐2004) in which experienced lawyers interview a client in a simulation involving a legal business problem. The contrast is striking. One interview is much lengthier, reflecting the lawyer’s many questions, clearly driven by honest curiosity and desire to understand the business context of the client’s story. Yet, the essential information takes a great deal of time to emerge, as the conversation travels down many tangents and dead ends. In the other interview, the lawyer just lets the client talk. While the client’s story does not proceed in the logical order we might prefer, in fact, the relevant information comes out quickly and efficiently. (This important article is cited and discussed in “Client Science: Advice for Lawyers on Initial Client Interviews,” published at The ClientScienceCourse.com, at 36‐38, reference note 29.)

Note: I think it would be better to dramatize this instead of merely describing it, if time allows. One might pre‐arrange for two students to act out the transcript in class or, in the best of all worlds, create a video of this or similar interaction.

It’s worth asking students if they can think of a time when they were trying to tell a story to a friend, spouse, or family member, but all of the listener’s questions made it impossible to get the story out in one piece! How did that feel? You should get nods and confirmation of frustration. I have added the personal note that when I read the dialogues in the article, I immediately recalled a recent, frustrating storytelling attempt with my spouse. I wanted to (or likely did) YELL: “just let me tell my story, please!”

Thus, the bottom line advice when listening to a client story for the first time is:

 Ask as little as possible—just listen;  Make mental note of face issues, disclosures, accountings;  Avoid directive interruptions. Don’t try to turn the conversation;  Active listening is effective and well appreciated, but only very, very short encouraging, empathetic interruptions . . . mmhmm . . . wow . . . Oh, I see . . .) [Active listening comes soon in this course.]

In fact, well‐meaning questions can throw the speaker off, sometimes resulting in failure to convey certain information our uninterrupted narrative might have included. Why?

 Conversational principles of cooperation and politeness, as well as face needs will govern;  Thus, responses to (even simple) questions will pull the narrative off track. We do tend to respond to questions posed, even if they were not in line with our original conversational direction;  And, once responding to a listener question, face needs will still govern. Thus, our responses may be circuitous, delaying self‐disclosure and full of accountings. All of this may cause the speaker to lose his way within the story;  It will take longer;

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 40  Your client (and perhaps you, the listener‐lawyer) will be annoyed;  The listener‐ lawyer may miss important clues available if the narrative had come out naturally. Most law school texts on client interviewing DO recommend that the lawyer hear the client narrative through with little or no interruption (except perhaps some active listening, but no directive interruption). Both the short classroom experiment and the research support this recommendation. AFTER the client’s initial narrative, the lawyer is advised to review it and ask questions. Anticipating that this might seem and (indeed might be) repetitive, the lawyer could explain to the client that it’s his or her practice to go over what he heard, so that he can ask detailed questions. The lawyer might acknowledge that it will seem repetitious at times, but he doesn’t want to risk missing important points.

About Funnels

When the lawyer does review the statement and ask questions, most texts suggest that the lawyer’s questioning occur in a “funnel sequence.” Thus, you would focus on a part of the story, start with open questions and then move to closed questions. And where the lawyer focuses his question funnel should be doctrinally driven. In other words, if a potential client describes a situation in which an employee has threatened age discrimination for failure to promote, the lawyer might start by asking the client to describe hires, fires and promotion within the last few years, particularly within the employee’s department. As information is gathered about a round of lay‐offs and a round of promotions, the lawyer might ask specific questions about how many employees in a recent promotional round were over and under 40, etc. The lawyer zeros in on possible theories, to build or eliminate them. That would be a traditional funneling sequence.

Professor Smith’s research suggests that for less experienced lawyers less familiar with the law, asking questions in a doctrinally driven funnel sequence is more difficult. The good news is that less experienced lawyers will fare just as well—learn as much critical information—by proceeding chronologically, and just being curious about the facts and circumstances. The form of the questions turns out not to be critical. When a lawyer poses a closed question where more information and explanation need to be conveyed, clients tend to ignore the form of the question and just answer more fully. Gricean principles apply.

One important warning (made more fully in the segment on memory and perception coming up soon): lawyers SHOULD avoid questions that suggest facts you haven’t heard yet.

Full credit to my main source on applying conversational analysis and discourse theory to legal context, Linda F. Smith, Professor and Clinical Program Director, University of Utah S.J Quinney College of Law, author of: “Always Judged – Case Study of An Interview Using Conversation Analysis,” Clinical Law Review 16 (Spring 2010) 423; “Was it Good for You, Too? Conversation Analysis of Two Interviews.” Kentucky Law Journal 96 ((2007‐8) 579; “Client‐Lawyer Talk: Lessons from Other Disciplines,” Clinical Law Review 13 (Fall 2005) 505.

A Second Prelude to Hearing the Client’s Story: Fact Gathering Interlude on Psychology of Memory and Perception

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 41 Although this course and the Client Science book include substantial material on psychology for client counseling, I introduce certain elements of the psychology of memory and perception here as critical to competent interviewing. When the lawyer hears the client’s story, that story is inevitably a product of perception at the time and memory after the fact. How much is the lawyer wise to rely upon? What expectations can we have regarding accuracy? How might the very act of telling the story, and the act of questioning, influence what is communicated and what is remembered? (Virtually all of the discussion in this segment of this guide references material from the Client Science book, Chapter 5, “Predictable and Potent Psychology.” Thus, I have generally not included citations for each reference within the chapter.)

Making Memorable Impressions of Memory

I begin this interlude with a little experiment, asking the students to take a minute and try to remember speeches at UC Law’s 1L Luncheon attended by all: Who were the speakers? In what order did they occur, and what was said? The goal is to choose any major ceremony or other event the students have in common. Then, ask students to pair up with the person next to them and compare memories. After two or three minutes, do a quick debrief, asking students whether their memories matched completely and whether they had any memory at all! It is typical for students to be quite fuzzy on the details of the event, and for some to remember more vividly than others. It’s also quite common for one student in the pair to report remembering little, but recalling more as his partner talked. They jointly reconstruct memory of the event by recalling and discussing it. Then ask: what does that tell us about memory? What if someone asked you to testify regarding a particular person at your table or sitting at the head table? The conclusion should be that memories are sketchy and unreliable.

But what about highly emotional events? Maybe the 1L Luncheon wasn’t an emotionally searing experience. You could note that the “Flash Memory Theory”—that highly emotional events were “seared” accurately into our memories—has been completely debunked. Or, because this information is straight out of Client Science, Chapter 5, “Predictable and Potent Psychology,” you could ask a student to summarize. In fact, our memories of highly emotional events are equally unreliable. Yes, we THINK we remember them, but the “searing” does not bear accurate witness as time goes by.

The examples in Client Science, Chapter 5 (which draws from a swath of psychology literature) include the Challenger Shuttle and the World Trade Center disasters:

In 1986, the space shuttle Challenger was launched with a much‐ heralded crew of young teachers and scientists on board. It then exploded in mid‐air, as the world watched. When psychology professor Ulric Neisser surveyed his students about their memories of the event the next day, and then again three years later, he found: “less than 7 percent of the subjects’ second reports matched the initial reports, 50 percent were wrong in two‐thirds of their assertions, and 25 percent were wrong in every major detail. Although the memories seem vivid, research indicates that their accuracy erodes over time at the same rate as our everyday recollections.” Similar research carried out in the wake of the September 2001 World Trade Center disaster confirmed these results.

To test this proposition, you might suggest that students think of a traumatic or thrilling episode of a least a year or so ago shared with someone they know. The student should first record what they remember. Suggest that students ask friends or family members what they remember of the event, and see how well their memories match. Ask the students to email you the results and/or follow up with a brief in‐class discussion the next morning.

Memory is Suggestible and Confused

In brief lecture/discussion format, I suggest highlighting memory’s suggestibility, by referencing the examples of experiments in which test subjects were shown a video of a car accident. Post video questions about what they had seen included reference to a barn (but there was no barn in the video). Later, some significant percentage of the test subjects remembered a barn. (See the Client Science book, Chapter 5, at 153, references at notes 46 ‐ 48and 42).

In addition to being suggestible, or maybe as part of it, we suffer from source confusion. Ask your class how many of the married students have watched their own wedding video some time after the big day? Are their memories from the wedding or the video? There may be parts of the video in which you were not present, but you think you were because you have seen them. I will readily confess that after 25 years, I suspect that my wedding memories are from the video.

Ask students how many of them have ever heard a family story, over and over, and thought they remember the event. Then some smart cousin says, “You couldn’t possibly remember that, you weren’t born yet.”

A psychologist researching noted that former President Nixon’s former Counsel John Dean testified at length at the Watergate hearings about a conversation he had with Nixon. His testimony about what he said was highly detailed and, apparently, sincere. Yet, when the Nixon tapes were uncovered, it was clear that Dean remembered a different conversation than found on tapes.

Ask students why that might have happened? Entertain discussion. Then you might note that, if you read the testimony and observe the differences between the two, it’s easy to say that Dean “remembered” some combination of what he might have wanted to say to Nixon, what he was thinking he should have said, and what he actually did say. Our memories don’t necessarily distinguish between our inner and outer conversations.

Have you ever listened to two entirely honest people recount a COMPLETELY different version of the same event or conversation? Why and how might that happen? In summary, inner voices, later conversations, dreams, wishes, anonymous sources can shape memory.

Well then, memories of past events are unreliable. What about our perceptions at the time? Perceived Doesn’t Mean Positively True

To dramatically highlight the degree to which human perception is variable and inaccurate, I show the Invisible Gorilla video in the class, created by two professors and available from Viscog

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 43 Productions at www.viscog.com and no doubt on Youtube. (Viscog Productions offers a discount for educational use.) Skipping some of the more subtle examples, I go straight to the clip that shows people in a gym wearing black or white clothing, and explain to the students that they will be asked to count the number of times the ball is passed between players wearing white shirts. I do caution students that if they have seen this before, they should refrain from responding and from laughing etc., thus spoiling the exercise.

After the video clip has played, ask students how many passes there were. And then ask, so “how many people saw anything unusual?” Some students may not have seen anything, but will raise their hands as their classmates do. Thus, it might be better to ask students to shut their eyes. And then raise their hands if they believe there was a gorilla on the tape.

No matter how the question is posed, some students will indicate that they did NOT see a gorilla. I’ll replay it to establish that, indeed, a gorilla walked across the gym floor. I’ll note that those who missed it are in good company: 56% of those in Professors Chabris’s and Simons’s experiments missed the gorilla too. (Client Science book, Chapter 5 at 144, references at note 23.)

Ask the students why that might happen? With any luck, they will observe both that some are better at perceiving, AND that some who concentrate very deeply on one aspect of a scene will miss everything else. So, perhaps they are not deficient observers but talented concentrators. Inattentional blindness may be that, but it also may be due to singular focus. Time permitting, you can reference a few of the other examples from Chapter 5 or ask students to describe them. (I tend not to spend much time on the readings in class here, but do suggest that the students go back and re‐read these sections as essential for a lawyer to know.) Do pose the question: what does this suggest for a lawyer interviewing a client?

The students will recognize that a client might have missed important occurrences and details relevant to the story. This is true not only for sights and sounds, but also for events in a sequence. You might conclude this segment by noting: We are not perfect observers, even without a pre‐directed focus (to count the passes thrown). And, when we come upon a scene, we may focus on a single aspect. That causes “inattentional blindness” to other elements in plain view. When the other side’s main witness testifies in deposition that the neighbor’s car was parked in the driveway, it may be true. Your client may have missed it. The witness who denies any seeing his co‐worker rifle through the personnel files may be not be lying; he didn’t see it, even though it happened when he was there. The bottom line is even when your client truthfully describes what he saw and remembers, other witnesses or evidence may contradict it. Thus, if at all possible, the lawyer should reserve judgment on the strengths and weaknesses of the case until more of the testimony and evidence can be known. When your client presses and asks: “In light of what I’ve just told you, we’ll be able to get this thrown out of court at the first stage, right?” in addition to noting that nothing is ever certain, the lawyer might say (if it’s true), “Yes, the defense seems strong assuming that all of the evidence completely confirms everything you have told me. But, if the other side’s testimony or documents are in conflict, then my assessment would have to be different as well.”

Timing and logistics: Timing records suggest that it’s now 90 minutes after the last break. (If you’re operating within a full workshop day, the lunch break would have ended at 1:00, so it’s approximately 2:30).

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 44 In the large workshop, we move into two sections, for one last prelude on listening before completing the full Hapless Harvest and Family Matters interview exercises. I n some years, we did the active listening work back in plenary. However, as we grew more comfortable with the material, it seemed wise to move this to sections. Students have been in plenary for quite a while and they generally feel more comfortable in sections. The active listening exercises and discussion seem to play better with a smaller group.

On Listening

(Approx. 20 minutes) (2:45 – 3:05 on Workshop Day 1)

Materials Needed! Make sure to bring a copy of two very different types of reading material, but preferably NOT legal. You might use a news magazine and Scientific American, or a novel, or any unrelated article.

When the students reassemble after break, I often introduce the segment with the following reading and listening exercise:

 Pick two students give each one of them one of the articles and ask them to go to opposite and far sides of the room (or you could select students in these locations.)  Explain to all that these students will each read out loud from the article or book you give them. The rest of the class is instructed to listen.  Let the reading go for a minute. You can make an adjustment for “sound balance” at the beginning, to insure that both are reading at sufficient volume for the room to hear, and that one reader isn’t significantly louder than the other.  At the end of the minute, ask for a show of hands: “How many people know what the two articles were about? What do you think?”  Then, ask if anyone can tell you the “plot line” or what information was conveyed in both articles. Generally, no one can do that, or not very well.

Then, ask: Why this exercise? How might it relate to the task of listening to a client? Take a response or two, followed by the punch‐line: We are not capable of really listening and hearing the plot line or the important information from two voices at once. Put up the powerpoint with the header: “Why is good listening hard?

Either class discussion or you should lead to recognition that most of us have that “little voice” in our minds: “What errands do I have to do?” “How long is this going to take?” “What about that exam tomorrow?” Or, if we are indeed focused on the interview, the voice might be saying: “What a ridiculous idea to just quit the job. How in the world will we argue constructive discharge?” “What law might apply here?” “I wish this client wouldn’t ramble so.” “I hope he’ll hire me; I’d like to be a young rainmaker at this firm.” Sound familiar? It’s normal, but it’s also a problem. Because, hearing that voice prevents us from fully, really fully listening to the client. It diminishes our ability to pick up on subtleties—to notice patterns and emotions. That client just used the strong word “humiliate” twice within a paragraph.

By way of summary: What does bad listening look like?

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 45  Listener clueless as to what speaker said;  Listener is thinking of the next point to raise: “Do you listen or are you waiting to talk?”;  Listener is looking elsewhere;  Listener changes the subject;  Listener is thinking about something else entirely.

As commentary and reference for the quoted line, you may note that the DVD version of the 1994 film, Pulp Fiction, includes a few scenes cut from the final movie. In one, Mia Wallace (played by Uma Thurman) interviews Vincent Vega (played by John Travolta). She asks him: “In conversation, do you listen or wait to talk?” Vincent responds, “I have to admit that I wait to talk––but I’m trying hard to listen.”

What does good listening look like, sound like? It is evidenced by practice of several skills:

 SOLER: Mechanics of listening;  Listening with your eyes and body: non‐verbal communication;  Listening with emotional radar;  Listening without direction;  Active listening.

The powerpoints function as a brief lecture outline, I amplify the point that if we’re listening with full emotional radar, we WILL notice subtleties and patterns; whether the client’s face flushes or neck vein bulges whenever he mentions his boss, whether an emotionally charged word is used or repeated, whether his “accountings” can be understood as response to felt loss of face.

To listen without direction is important, but what does it mean? (Ask for responses.) Make the point that if we listen with a purpose to find what we are looking for—legal issues, expression of anticipated reactions or responses—then we may be blind, or perhaps deaf to other things. I may perceive or hear only what I sought and miss other important themes. Also, when listening, it’s important not to respond favorably or approvingly ONLY to what satisfies your expectations or agenda, for that may steer or direct what follows.

Time permitting, I might raise the concept of “mindfulness” and ask students if they know what it means and whether it could be used in listening. Either from their responses or your own, let it be known that to be mindful is to be acutely aware of what you perceive, but not to direct it. Mindfulness—and mindfulness practice in meditation—increases one’s ability to filter out distractions—that other voice—and be entirely present, or in the moment. It enables us to muster our full powers of attention and concentration. Surely, that power would inform good listening in an initial client interview or in any conversation.

I confess the truth: I find it difficult to maintain mindfulness, particularly to silence that voice in my head. Anyone else? (Many students appreciate this and will join in nodding.) My thoughts seem rather relentlessly to want to talk to me, no matter what. One suggestion is to direct that inner thought voice toward the speaker with sincere curiosity. If you just can’t maintain a single, mindful focus on listening, turn the second focus to consciously observe your potential client’s body language, vocal intonation, speech patterns. Wonder what the story means to him, note his agitation, consider the impact within his social or professional context.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 46 A central piece of “what good listening looks like” is referred to as active listening. Before turning to material on active listening, ask how many students have encountered this phrase, in what contexts, and what they understand it to mean. See if you can smoke out some skeptics by asking: “When you learned about active listening in your HR job, or in your pre‐marriage couples counseling, [or wherever] what did you think of it?” I readily admit that, for many years, I was a skeptic about all things that border on the “touchy‐feely” but have come to learn the value of active listening done well.

Acknowledge or lament that fields of counseling, negotiation, and dispute resolution might rightly be charged with inconsistency in terminology around active listening. When some writers or trainers use the term “active listening,” they mean that the listener repeats or paraphrases back segments of what he hears. Some would say that “active listening” is silent but engaged, and would describe the repetition or paraphrase as “reflective dialogue.” Some might include simple rephrasings as part of active listening, but reflective dialogue as deeper. Too much dancing on the head of a pin and no point in arguing about it.

For the purposes of this course, I define “active listening” as expressed in two ways: (1) fully engaged but largely silent, maybe with encouraging sounds, but no paraphrase, and (2) “active and verbally interactive,” the same engagement, but ALSO demonstrating cognitive and emotional understanding of what’s been said by paraphrasing or reflecting back what you heard.

Which is better? Does it matter? What’s the downside, the upside of either? When to do what? Ask for some student input.

The downside to “engaged but silent” active listening is that the client can’t read your mind, doesn’t know if you’re internally disapproving or skeptical or thinking about your dinner plans. The upside is that you don’t risk directing his narrative.

The upside to active listening that is “active and verbally interactive”—sometimes described as “paraphrastic feedback” or “reflective dialog” in that it enables the client to know that his lawyer‐listener really DOES understand the story and its impact. Sometimes, if a client is repeating and re‐emphasizing, it indicates lack of confidence that the lawyer in fact understands. If so, and you’ve been a mainly silent active listener, you might want to become verbally responsive—paraphrase back. Imagine a potential client faced with threat of termination, telling you the story of what happened at work. She has been emphatic about her boss’s inattention and unfairness. Your active listening might include a paraphrase: “Based on what you’ve said, it seems your boss just really wasn’t bothering to notice what you were doing day to day.” You might also reflect the impact or the emotion: “It was not just frustrating, it was unfair and unjust that your boss would slam you with a mediocre evaluation based upon what someone else reported, without even asking about your major contribution to that successful marketing initiative.”

The downside to active and verbally interactive, or reflective dialog/paraphrastic, is two‐fold: you might sound wooden or insincere, and you might inadvertently direct the discussion. As to the first, paraphrasing often begins with words that sound like chalk on a blackboard to some of us. “So, what I hear you saying is….” If I understand what you’re saying….” I advise students to use the time between this course and graduation to come up with a better range of

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 47 introductory phrases. I advise them to skip the prologue about “understanding” and “hearing” and moving to: Well, then your boss didn’t pay attention and couldn’t have known what you were accomplishing day‐to‐day.” When seeking to reflect the emotion, it’s easier to skip stock phrases and start with an accurate observation: “Wow, it doesn’t seem fair or right that he can get away with evaluating you without even asking about what your contribution had been to the project.”

What’s the best practice? There is no all‐purpose best, as long as the client perceives that the lawyer has indeed heard and understands the content of what he says, as well as its impact and meaning to him.

One good practice suggestion, perhaps as a default, is to stick with active but relatively silent listening in the interview’s earlier phases. Full engagement but less interjection by the lawyer insures that the full client narrative and range of client concerns will come out fully. It eliminates possible lawyer‐client power struggles for topic control, and prevents the lawyer’s assumptions or preferences from directing the client’s words. Fewer interjections (even in service of good active listening) may be particularly important where there’s a perceived power or status imbalance. In a study of legal aid clinic practice, lawyers controlled the conversation 94% of time. Interactive, paraphrastic active listening tended to narrow the focus, sometimes frustrating the clients, and causing the interview to miss client concerns and issues. (See the article “Client Science: Advice for Lawyers on Initial Client Interviews,” published at The ClientScienceCourse.com, at 19, reference note 16.)

Let’s assume that we’re in the latter portion of a client interview and/or it seems that active/interactive listening would be helpful. What exactly are the activities that comprise active/interactive listening (including reflective dialogue)? What do you do?

 Step 1: Speaker speaks  Step 2: Listener reflects back what speaker said – paraphrase using some of your own words – Fact – Emotion  Step 3: Listener inquires if he/she is correct – If not, go back to step 1 – If yes, continue

A few active/interactive listening tips:

 Work in small increments. (Don’t wait until the end of the story);  Focus on fact, or emotion, or even better, couple fact with emotion;  Do not engage in the conversation (don’t try to move it forward), simply reflect back.

Either at this point, or after the exercise, students will ask or I will raise the question of interrupting. What if the client is talking and I want to do active/interactive listening, but I can’t get a word in without interrupting? Isn’t that rude?”

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 48 Here, I recommend demonstrating a trick I learned from an actor‐colleague; if you take a deep breath as if you are about to speak, most people will pause to let you do so. That enables you to interject to express your understanding of what you heard without forceful or rude interruption.

If that doesnʹt work, and the client really seems agitated, you can try interrupting with apologetic acknowledgement of the interruption. “I’m sorry to interrupt, but I want to make sure I have this right…. Your boss was not present during a six month period, and wasn’t working on any projects with you, even from afar.” [active listening paraphrase, focused on the factual].” Or, “I’m sorry to interrupt, but it seemed both irresponsible and unjust that he would put that into your evaluation without any attempt to investigate, much less ask you. I can see that really rankles, given your contribution to the company.”

Finally, finally, it’s time for an active listening exercise as prelude to its application in Hapless Harvest and Family Matters. Have the students pair up with someone sitting nearby. (I generally suggest it NOT be the same person they were paired with earlier. If possible, students should look to the other side.) Then, instruct students to describe a dispute or difficult or unfair circumstance in which they have been recently involved. This should NOT be the story told earlier, as that will be old by now. But it should be something about which they felt strongly. If faced with blank looks, you might suggest that they describe how a law professor’s grade was unfair, or some terrible law school administrator’s decision, or something rotten perpetrated by their father‐in‐law, the landlord, the boss, the car repair shop, etc. Generally, mentioning law school professors or administrators is enough to get the juices flowing.

At one point in the history of this course, 10 minutes may have been allotted for each person to tell their story as the partner actively and interactively/reflectively listened. No such luxury of late. At most, each story gets 5 minutes, sometimes less.

To get students to overcome hesitancy or discomfort with lots of paraphrasing and reflecting emotion, I recommend encouraging them to take it “over the top.” In other words, to get comfortable with the skill, they should paraphrase and reflect more than they would in “real life.” The point of the exercise is to try it.

Reserve time for a quick debriefing. Ask how it felt when the students were in the disputant/client role. Ask what felt awkward in the lawyer‐active‐listener role? Were there any surprises? Ask for examples of active/interactive listening that in fact, seemed to be really effective when they were in the client/disputant role. How? Students are always happy to volunteer to talk about things their classmates did well. Finally, ask what seemed difficult.

Summarize by noting that active listening, done well, so that it feels natural, can be tremendously helpful when working with clients AND when in conversation with family, friends, and colleagues. It really is a skill, and it’s worthwhile practicing. Suggest that they DO try this at home, this evening, and thereafter. Now, drumroll, it’s time to apply what we’ve learned about Gricean Principles of Conversations, natural structure of narrative, loss of face and presentation of self through disclosures and accountings, and finally, what comprises the art of listening well. Students will take on their

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 49 roles as lawyers and clients in Hapless Harvest and Family Matters and conduct the balance of the interview.

Emphasize that the interview is picking up AFTER the preliminary phase, just as the client is about to tell the full story of what brought him to the lawyer. In other words, skip ice breakers, confidentiality, fees and all of that. In my experience, it’s wise to repeat this instruction—loudly. (Otherwise, some students will go back to the beginning.)

If possible, briefly summarize the three major tasks remaining in the interview (1) an unfettered listening, noting points for later inquiry, (2) then the lawyer’s review of what the client said by clarifying, probing, and exploring crucial elements, and finally (3) ending the interview in a way that covers practical issues and next steps.

Regarding Open and Closed Question Form

Candid note: the powerpoints include reference to open and closed questions. Truth be told, I often skip these entirely or whip through with lightning speed. The students have heard enough lecture, and in my view, learn more from working in role. Thus, when pressed for time (always), I favor saving time for them to go through balance of the interview. I remind them that the powerpoints will be available on TWEN.

What About Run‐Ons?

Often in later debriefing, questions arise regarding what to do when a client runs on and on, repeats, or is terribly difficult to follow. Do underscore this advice: Frame tasks and questions at turning points. Summarize that story to that point, eliciting client amendment, correction or shift in emphasis, and then transition to another topic in the client story. This is useful when working with clients who seem stuck in a certain groove on the broken record.

Work through the Balance of the Interviews

Pair up the Hapless clients with the Hapless lawyers. You can simply allocate 30 minutes for both interviews (15 minutes per) and let the students stay in the same pairs, since you know that students assigned to the lawyer role in Hapless will be the client in Family Matters and vice versa. However, if at all possible, allow 15 minutes—or less—with brief client feedback toward the end, time permitting. But I ask them NOT to move on to the next case.

I like to sneak in just a minute or two of debrief before we transition to Family Matters: what worked well? What was hard; what was easy?

For Family Matters, if possible, I prefer to switch lawyer and client pairs, so that they are working with different classmates in this exercise. This makes it fresher, and marginally more realistic.

Reserve Just a Bit of Time for a Brief Debriefing

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 50 In the course of debriefing Family Matters, I do and you are welcome to reveal, with some drama, the fact that the scenario was based on a very real case I mediated several years ago. The type of business and other details are different but the basic problems, issues, and family dynamics were the same. In the real case, the client—one of the sons—did decide to file suit against his father and his brothers. While I wasn’t witness to that lawyer‐client meeting, I don’t believe the lawyer would have strongly encouraged litigation. I hope he alerted his client to some of the risks and costs, including its predictable impact on the family. By this time of the mediation, suit had been filed and a great deal of discovery had been done, with many battles over access to the business’s financial documents. The father had stopped speaking to this son, and had written him out of his will. The father had been diagnosed with cancer. His condition had deteriorated so that he was on oxygen by date of the mediation. The lawyer and the client wanted to resolve the case and repair the relationship before the father’s death. I remember meeting with this client‐son in caucus during the mediation. On the one hand, he kept repeating that his decision to file suit was about the money; he had no accumulated savings and wanted financial security. Now, he was also upset over the fact that acquaintances in this small town, all of whom knew the family and his father, would turn away from him in the grocery store. His children’s cousins would not speak to them because of the litigation. We made progress in mediation that day, but could not keep at it too late because of the father’s condition. Over the next few weeks, I worked (through the lawyers) toward final agreement terms. But the father passed away before agreement was reached.

At the end of the segment, I show a brief video of a lawyer‐client interview in Hapless Harvest and invite both appreciative and hyper‐critical student comment. (This video will eventually be made available on this website.)

End of first workshop day: If possible, pose the question, “What might be hard about a collaborative approach for a new lawyer?”By this time, students may be lacking energy and we are inevitably lacking time for good discussion. So, most often, that question is posed for students to think about before the next session. I also try to end the day with a challenge to observe patterns in discourse and narrative and to try active listening with friends, family, or on the job.

Whenever there’s discussion about a new lawyer’s possible concerns regarding a collaborative approach, I suggest eliciting and recording student responses. The following are my thoughts on the topic, but these are neither definitive nor comprehensive.

 Desire to demonstrate credibility and expertise ‐ temptation to gain respect and credibility by “commanding authority” – being authoritative;  Concern about “foolish” client decisions (for which you may be blamed);  Concern that you will not be ABLE to “save” client from “foolish” decisions;  Anxiety about letting the client “watch”;  Discomfort at a higher likelihood of questions you may not be able to answer.

Note that the interviewing segment of this course is limited to the initial interview and, admittedly, makes short shrift of the fact gathering function. It pays no attention to how an initial, likely pre‐retention client interview might differ from subsequent client or witness

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 51 interviews. 12 One could easily expand and enhance this material enough to make it a three credit course. Or, a professor less comfortable with the decision analysis material could expand the interview segment to include witnesses, or add a segment on client letters and email correspondence.

Client Counseling and Decision‐Making

The course now shifts to client counseling and decision‐making. It’s fair to say that I see these as the course’s core focus. It’s also true that the collaborative law stance and work on building rapport, understanding narrative discourse, and listening actively are foundations for effective client counseling and decision‐making.

For those teaching the four‐day workshop, client counseling and decision‐making begin on the morning of day two. In once weekly, ten‐week (or longer) format, it would fall after session three or four, depending upon the length of each class session. Whatever the course format, approximately 6.5 class room hours will have been spent.

The morning generally opens with a reprise of issues raised, overnight challenges from the first day. Regarding why a “collaborative stance” might seem difficult for a less experienced lawyer. I might observe that the first day’s skit poked fun at other models, perhaps unfairly, while collaborative lawyering “was presented as the paradigm. Ask students if they see any downsides, or circumstances in which a lawyer should adopt a different stance – either more to the client‐centered or the authoritarian ends of the spectrum, particularly as we move from interviewing to client counseling.

In response, students often express concern about being perceived as indecisive, lacking confidence: don’t we go to lawyers to get clear advice on what to do? If a lawyer is too collaborative, will the client perceive him as withholding wisdom? Imagine when the doctor tells a patient: to have the surgery or not is your decision. Of course it is, but we might prefer that the doctor tell us what he would do, indeed quite strongly. The patient (or the patient’s responsible family members) might want the doctor to make the decision for them. That will relieve them of the burden of regret or guilt if it does not go well. Isn’t the same true for clients and lawyers? On the other side of the spectrum, the collaborative model may be viewed as too directive. After all, if the client will be paying, shouldn’t we let them decide without interfering?

Often, students comment that the collaborative approach seems to take more time: isn’t that a problem for a lawyer in a free initial interview or consultation? And for the client when he is paying? In general, the instructor’s role here is to listen and facilitate discussion. As one who

12 This is a reflection of where I see my own claim to experience and expertise, as I initially came to client counseling material through experience teaching mediation and negotiation and in mediation practice. My entry point was years of observing lawyers struggling (or not bothering) to counsel their clients regarding settlement. I was familiar with the challenge of advice‐giving and barriers to reaching agreement. While my practice as a young litigation associate and later as an Assistant D. A. involved interviewing, I was then woefully uninformed and unreflective about this aspect of practice. Moreover, I don’t recall meeting a prospective client prior to retention. As a mediator, I sometimes listen to the narrative and ask questions of a party in a preliminary meeting, where building trust and rapport are indeed important. However, this context is markedly different than that of a lawyer meeting a potential client for the first time.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 52 generally favors offering experience and perspective, I will observe that the time required is probably not significantly greater for a collaborative approach, in general. Even where it is, early investment of time may lead to greater efficiently later, as the lawyer will have a better idea of the client’s preferences and will have built a strong relationship. Moreover, sometimes the distinction between the varying lawyering models are more a matter of approach and phrasing, as opposed to raw time.

Finally, I like to suggest the option of discussing with your client his preferences as to how you will work together particularly as you move into counseling. You might ask whether the client would prefer that you: (1) just provide your conclusions and advice – what you would do – or (2) just set out the options without weighing in, or (3) work with the client to discuss your analysis and the options you see and how they might match his preferences.

Time permitting, I will return to the previous day’s exhortation to “try this at home” by practicing active listening and paying attention to discourse and narrative patterns. On a good day, a student will report hearing a story from a friend or family member and noticing “disclosures and accountings.” Or a student will report his frustration while telling a story to a friend or spouse, who constantly interrupted with well‐meaning questions. Perhaps the student cited the course lesson, and requested: “Please, just let me tell it my way.”

With respect to active listening, anticipate reports at both extremes: “I tried it and it didn’t work at all. My friend was still ranting at me.” Or, “I tried to listen actively and say how I understood, but my spouse noticed and thought it was strange.” Sometimes, a student will proudly report a dialogue with his or her mother‐in‐law that was “entirely different when I tried active listening.” Of course, the professor’s role is to applaud the effort. Note that it’s difficult to listen actively, with reflective paraphrasing of fact or emotion, and have it seem entirely natural. It’s not rocket science but it is an acquired skill. You can remind the students that active listening was not invented for this course (or by a bunch of law professors). Rather, it’s a technique taught for and used by a range of professionals for whom it’s important to build trust rapport and gain deep understanding of clients and patients. Students are encouraged to keep practicing so that it will become easier and sound more natural.

I also use this time to field questions regarding any and all other open questions , concerns and comments relating to the previous course discussions and exercises.

After approximately 15 minutes or so of this prologue discussion, turn to the day’s agenda, the goal of client counseling (reprise from the early course overview): What is the lawyer’s goal? A wise decision; A decision that best meets the client’s interests.

In a brief lecture, explain that to accomplish this goal, we tackle “The Five Client Counseling Challenges.” These are derived from thinking about makes client counseling difficult or “challenging,” and thus what an effective lawyer‐as‐counselor must be equipped to handle:

1. Clear and complete communication 2. Shared understanding of client’s interests 3. Effectiveness WITH emotion 4. Lawyer and client wisdom IN THE FACE OF uncertainty 5. Psychology and its impact (on lawyer and client)

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 53 Explain that the balance of the course takes aim at these challenges, with a focus toward the end on “polish in delivery” – work on voice and gesture to enhance communication – for greater clarity where concepts are complex, for building rapport, and gaining client confidence. Also, in the latter portions of the course, we’ll focus a bit on the particular problem of communicating ‘bad news” because that is most difficult, drawing upon the counselor’s greatest knowledge and skill.

If you’re in a workshop, ambitions are high for this second day. We’re aiming at clear communication through practice in translating legalese, then moving quickly to working with client emotion, and then eliciting client interests, and finally to dealing with uncertainty through an introduction to decision analysis.13 (They will be VERY tired by day’s end! We’re covering a tremendous amount of ground. Acknowledge that we are not doing justice to any of these topics: each could be enormous. We are taking quick dips, perhaps better thought of as important but all‐too brief immersions.

To gain insight into the named client counseling challenges, it seems wise to start by thinking about typical clients’ starting points when they come into a lawyers’ office. 14 Segue to the question posed in the syllabus:

Your client has come to you because he or she was terminated, physically injured, or sued. The client has never been involved in litigation before.

 What underlying beliefs in the U.S. legal system is the client likely to have?  What were your beliefs about the U.S. legal system before law school? How have they changed?  How might a client’s beliefs about the legal system impact the lawyer’s role as client counselor?

With any luck at all, students will volunteer responses, especially if you remind them that this is in the reading! I suggest listening for student responses that add to the “Top 10” list. You might record only those, to save time. Then turn to the Top 10 list with a “voila,” crediting them for anticipating and adding to it.

Profs’ Top 10 List of Inferred Beliefs

13 When I first mention decision analysis as the end of the day, I’ll often mention the fact that “there will be cookies” and there will. This is my strong advice: whatever budget you can find, even if it’s your own Costco card, do manage to provide AT LEAST cookies during the afternoon break that comes before the unit on decision analysis. In fact, UC Law has graciously sponsored coffee and cookies from the vendor across the street. The students WILL be tired by mid afternoon: this is an enormous workshop day. And while I would argue that decision analysis isn’t really dry and boring, it surely has that reputation and it does involve numbers. While this would argue for beginning when people are fresh, in the morning, it’s important to introduce the topic today so that students can do the practice problems overnight and bring them in the next morning. We recognized the need for sugar and caffeine in the first year of teaching the workshop and it was the right call. 14 The students are too young to remember comedienne Joan Rivers’ monologues, which began with “can we talk” in her inimitable NY accent, but that’s my reference here.

1. The legal system is always fair. Results are just. 2. A trial gets out the REAL truth. 3. Most cases go to trial. People get their day in court. 4. In this country, people can tell their stories to a jury. The jury will believe the honorable party and do what is fair right. 5. Because I have been sued, my name and honor have been damaged. When I win, my name and honor will be restored. 6. If I sue and win at trial, the other side’s name & reputation will be ruined. I have power to injure! 7. The winner does not have to pay attorneys fees. That wouldn’t be fair! 8. I will win millions in punitive damages because the other side deserves to be punished. 9. The litigation process is pretty much like what I’ve seen on television. 10. It won’t take too long (just like on TV).

It’s good to ask whether students have heard any of these beliefs expressed. Did they hear a summer law firm client talking about their honor and the record? Was a family member shocked to learn that he would still have to pay fees even if successful at trial?

The next question is: “What implications does this set of false assumptions, or lack of knowledge, have for client counseling. What are clients unaware of when they walk in the door? These ideas are articulated rather thoroughly in Client Science, many clients will be unaware of: how long the whole process will take, time intervals between stages, legal impediments to trial, uncertainty and impact of procedural steps, and the power of discovery to intrude upon business, professional, and personal lives, at high cost. And of course, many clients will not be prepared for the idea that the end results are not at all certain.

Yet, in order to make a wise decision, the client must understand possible outcomes, costs, risks, timing, and realistically accomplishable goals. That client must be fully aware of his business, professional and personal interests and linked interests of others AND be able to see which interests well served (or not) by a decision.

Challenge #1: Clear and Complete Communication

With the client in mind, we turn to Challenge #1: Clear and Complete Communication. Explain that the classroom exercise aimed at this challenge will be to explain a legal process concept to a classmate client, as noted in the syllabus. This is not the only arena in which clear communication is important. Still, explaining to a client how law and legal process work can be particularly difficult. After all, we all went to law school, and that first year was tough. General advice for success is summarized as follows:

 Use precise language – no untranslated legalese  Don’t assume knowledge. Describe each intermediate step. Make the abstract concrete.  Check understanding. Encourage questions. Listen and respond.  Allow for differences in processing.  Visuals: Draw time lines, list steps, make maps (more on this later)

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 55 The next move is an exercise in translation of legal process concepts for clear client communication. Pair students up. For this exercise, I let them work with someone sitting nearby. In a larger, two section workshop, this can take place in plenary. The students are asked to remember the assignment in the syllabus to think of explaining a litigation situation involving summary judgment, or a judgment notwithstanding a verdict, or preliminary injunction. They should be prepared to explain it either in the context of an imaginary case, or in one of the cases from the first day. While I downplay the context question for this exercise, students find that referencing a context does help the communication task.

Implicitly or explicitly naming “Student A” of each pair to be the first one acting as laywer, give Student As approximately four or five (or three or four) minutes to explain the concept to “Student B,” in the client role. Do remind the Student B’s to recall their pre‐law school state of knowledge. What would their non‐lawyer mom or dad or roommate understand of what they heard? After the explanation, Student B’s should provide 2 or 3 minutes of feedback. I remind them that negative feedback is “gold.” In real life, a client may understand very little, but be embarrassed or blissfully unaware of what he missed or misunderstood. Student client feedback should identify which communication was clear and unclear, and also the way the explanations made them feel. Acknowledge that this is a class, and it’s difficult to pretend you are really the lawyers and the clients. But they should make every effort. And, as suggested yesterday, if the student‐client has even a passing inkling of a feeling in reaction to the lawyer’s phrasing, he should convey it. In real life, that reaction would undoubtedly be stronger.

I suggest playing with micro‐instructions here. When setting up Student A, you could suggest that the student simply listen – not ask any questions as the lawyer goes. But ask that s/he make mental note of what a client might not understand or how the client might react. In the second round, you might give the opposite instruction: suggest that student‐clients ask questions when they think an explanation would be unclear to a client. Or, you could simply suggest to students that they should decide whether they want to be active questioners or more passive listeners.

In the second round, Student B to Student A, a DIFFERENT legal concept should be explained. This should not be too onerous, as the syllabus asked them to prepare an explanation of two out of three legal concepts.15 So, if even if Student A chose to explain one of Student B’s chosen concepts, Student B should have another at the ready.

If you are pressed for time, I suggest calling the time limit for the first round (A to B) and announce two minutes for feedback. Then skip class discussion between rounds and move immediately to Student B as lawyer and Student A as client, with feedback. As stated above, Student B should choose a DIFFERENT legal concept to explain. (This requires a reminder.) If you do it that way, do give the first round clients a moment or two to make some notes about lawyer phrasings that were unclear or tactless, or particularly well done. That will enable them to recall examples more quickly in the eventual debriefing.

If possible, I prefer to debrief VERY briefly in between rounds. That way, some of the less successful types of explanations can be collectively recognized and improvements seen in the

15 I have no regrets over asking the students to prepare two explanations, when they will only present one. They retain some autonomy with the two out of three choice. If they did prepare one that their student lawyer chooses, they should be keen critics or duly impressed.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 56 second round. Another option, reflected on a powerpoint mini‐agenda, is the one I choose more often, because I am always pressed for time. That is: let the student pairs do their explanations back to back, Student A to B, then feedback, then students make quick notes for reference in the later debriefing, then Student B to Student A, then feedback. When it’s all done, give the student pairs a few minutes to nominate, or craft together, good phrasings for key aspects of the legal concepts described. Let them know that they will be asked to contribute these to class discussion. Either way, for debriefing, I generally: Ask the lawyers to self‐report unsuccessful explanations – phrasings they now realize would be unclear or poorly received by a client. I explain that I’m looking for something that: “As soon as you said it you thought, ‘oops, that is NOT going to work.’” While the clients are not likely to “tell” on their classmates, the student lawyers are usually pretty good natured about volunteering, especially if they can say they recognized it when it left their lips. Applaud the wonderfully terrible. If it’s true, confirm that you’ve heard real lawyers do worse. Ask the pair (and perhaps the class) if they can parse what makes the explanation ineffective. Often students will recognize that a client is unlikely to know what a “material fact” is… for example. The observations generally fall into at least two categories: explanations that contained legal jargon, and explanations that rely upon legal process knowledge.

Ask the student‐clients to report some of their lawyers’ explanations that were well done. Give credit where it is due. Often, the students are appropriately proud of having made certain small things concrete: a summary judgment is a motion – a request to the court – and we file it as document in which we argue.”

Be sure to repeat any explanation you get (whether proffered as effective or the opposite) and ask if the class hears any ambiguities or assumed knowledge. Entertain the discussion, which is usually quite rich.

Very often, I find that what the student‐clients tout as a clear explanation from their student‐ lawyers would in fact be incomprehensible to many real clients. Some common examples are:

“They’ll argue the motion to the court.”

Point out or elicit that clients don’t know:  The court means the judge and there will be no jury present.  The motion would generally be argued long before any scheduled trial.  What exactly a motion is and what form it takes.  That the other side can oppose the motion.  Why both sides might not initiate a summary judgment motion.

“If the case doesn’t have to go to a jury, then the judge will decide it.” Or, a variation: “If it’s so one sided that no reasonable jury could decide one way, then the judge decide it.”

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 57 Point out or elicit:  Clients don’t know that, in our system, the juries are the triers of fact. So when you say: “If the case doesn’t have to go to a jury,” that means very little. They have no idea why that would be.

Adding insult to lack of clarity, “if the judge thinks the case should be thrown out because no jury needs to hear it.” Or, “If the judge thinks the case has no merit…”

Point out or elicit:  The client will react negatively to the idea that his case should be “thrown out” or might be found to have “no merit.” At some level, they make no sense and they are insulting.

In short, listen with a keen ear for the underlying knowledge the explanation relies upon, and any insider’s terminology. To say “the court” or a “motion” is often not recognized as legalese – they’re not in Latin and they weren’t on the Civil Procedure exam. But they are nonetheless examples of insiders’ language choices that might not be clear to one unfamiliar with legal territory.

After a few examples of phrasing that rely upon assumed knowledge, turn to the idea of meaning as impact: what that would mean for his case? Turn to a student explanation of summary judgment16 (which may have been reasonably good – based on the legalese test) or supply one, such as: “the judge could rule on the motion, on the legal arguments made, before the case gets to a jury.” Once again, ask what’s missing, and what’s misleading. Assume your client is a plaintiff – as in the Hapless Harvest case, and the defense has made the summary judgment motion. Does the client know what will happen if the judge rules for the other side? Not necessarily. The client doesn’t know that the case could end there, and he would recover nothing. Recover nothing – means get no compensation, no money for his very real injuries. Indeed, note that the explanation was a little bit misleading, because it said: Rule on the motion… before the case gets to a jury.” This suggests that the case WILL eventually get to a jury after that. Better word choice would have been, “the judge could rule on the legal arguments made and if he rules for the defendant, then the case would never go to a jury. It would be over and you wouldn’t receive anything for your injuries. “ These words aren’t happy, but at least they clearly state reality.

The goal is to illustrate that the lawyer’s phrasing matters a great deal. There are many accurate descriptions of legal concepts but some will be incomprehensible to a client lacking background knowledge. These come out beautifully in debriefing.

On the somewhat less dramatic, interim procedural matters, time and cost are important aspects of impact. For example, the defense lawyer might say: “After the discovery process, we’ll hope to file a motion that will get the case thrown out, so that we’ll never have to get to a jury.” “Great,” thinks the client. But what about discovery? Does he know that this process could take six months or a year, that he and his key employees may be deposed, that he’ll likely be sifting

16 In the earlier years of teaching this course, I avoided letting the students explain summary judgment in this exercise because a clear‐to‐the‐client summary judgment explanation is an important part of the final counseling skills exercise. I though that practice in class would make it “too easy” later. Wrong! Explaining summary judgment is quite difficult even though students are familiar with it from 1L civil procedure.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 58 through reams of documents during his busy season, that the litigation will be an blot on his financial statements while he’s entertaining purchase offers? The answer is no, not unless he’s been through this before. When explaining the discovery process, the timing and the cost will matter greatly to his client.

The insights sought from the debriefing are summarized with the observation that “meaning” goes beyond a dictionary definition. Once the conceptual meaning of the legal phrase is made clear, the client may still not understand what it will mean for him… what impact it will have.

Time for a break! It should now be approximately 90 minutes after the session began, or 10:30 a.m. on a workshop day. Take a break, but be sure to pick up with 90 minutes at least, preferably 105 minutes before the next break (presumably, lunch). That is the time necessary to introduce the “Counseling Challenge #2 – Shared Understanding of Client Interests” and to set up and complete the Dale Doran exercise, designed to demonstrate that challenge.

Challenge #2:—Shared Understanding of Client Interests

The module on “Challenge #2: Shared Understanding of Client Interests” can be introduced with questions such as: “Why is this a challenge?” “Why does it matter?” “Assume your client comes to you will a reasonably well‐defined legal problem, isn’t it your job to help resolve it in the best way possible? Why might it sometimes be a challenge to consider those interests?”

To elicit thoughtful student responses, it’s helpful to reference the scenario in the skit from the first day, or the Family Matters or Hapless Harvest clients. Don’t extend the discussion, because in many ways it’s the direction of the exercise. Barring terrific student input, you can quickly summarize:

 Clients’ business, profession, life, others’ business, professions, lives are linked and overlapping, messy. Decisions are not made in a vacuum. You cannot control the impact and interaction or counteraction.  Client may (or may not) present a narrowly defined legal problem: “They haven’t paid under the contract. Make them.” Broader interests may or may not be best served by litigating and “winning,” by a specific transactional term, or even by an attorney’s direct involvement.

[More reasons shared understanding is not so easy….]

 People VERY often have not THOUGHT about their broader interests, which are more important, which could be traded.  Lawyer may incorrectly assume client interests, priorities.  People often have not thought through how the potential legal process will affect other interests, contexts, as it unfolds.  NO ONE KNOWS how the litigation or negotiation process will unfold! No one knows the future of a business transaction. UNCERTAINTY is the rule, rather than the exception.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 59 The way to an understanding of the client’s interests is simple: broad curiosity and questions about:  Client context; business, family professional, personal, professional goals, linked circumstances and people: family in the business; community/social relationship; customers’ responses.  The weight of various interests: Would the client value settlement more than public vindication?  Whether he or she has the necessary financial support in the interim while litigation is pending?  How the business be impacted by a discovery and deposition schedule?  And you, may then draw/link client interests to possible decisions and consequences.

The Dale Doran Exercise

Insider Information and a (Gleeful) Confession

Client Dale Doran and the lawyer have the same background information regarding the initial client interview. In the meanwhile, the lawyer has investigated and analyzed the client’s options. All lawyers have the same information and should have prepared to present the same options and analysis to the clients. But, there are three different Dale Dorans. Their feelings, interests, preferences, and capabilities vary, as dotheir versions of events at Design Display since they last met with the lawyer. Their family circumstances and employment opportunities differ, as do their predictions and confidence about their abilities to sell within the industry. Their differences are summarized in a chart, which appears a few pages hence in this guide, as well as in Instructor’s Notes for To Ditch or Not To Ditch Exercise, available on TheClientScience Course website. Thus, while their cases are the same, the optimal decisions for Dale Doran 1, 2, and 3 are different.

I hereby confess that the process I have designed for the Dale Doran exercise is complicated! I find that I have to announce it to students before we start, put up the powerpoint with the instructions and the timing and leave it up as they participate in the exercise. I also make sure to call the timing and the steps clearly as we go along. It is designed this way to insure that all students have some time in the lawyer’s and the client’s role for the exercise, and to provide some time for separate focus on the option to create a “consequences chart” with the client. I firmly believe that the charting portion of the exercise has value, even if I suspect that most lawyers don’t use the device in practice. The more I work with it, and with clients in mediation, the more I can see that a formal way of mapping consequences may rightly be called a best practice in some circumstances, for some clients. It also links nicely to the Decision Analysis unit that will begin at the end of the day and continue the next morning.

Note: if you are teaching a two or more section workshop, I suggest moving into section and running the entire set up within section.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 60 Here’s how the Dale Doran Exercise works, described in annotations to the mini‐agenda, below:

3 minutes Attorneys and Clients Pair Up

This exercise is paired based upon the pre‐assigned attorney and client roles. I generally ask all students assigned to lawyer roles to stand up, and then ask students to pick a lawyer, with the caveat that they should not work with roommate, fiancés, best friends, or a student they’ve been paired with previously in the course. Have student lawyers and clients pair up and sit together.

Do explain that this exercise is complicated and it’s important that they pay attention to your explanation of the process.

20‐25 minutes Counseling Session – First Phase

Assessing: Attorneys take stock of the client’s circumstances; explain legal options; Ask and learn about the client’s interests, goals, priorities, and concerns, etc.

This is stated on the class agenda as 20 minutes, but I will extend the time if students aren’t finished. The conversation should feel close to “real time.” Explain that the goal is for the client to choose and authorize a planned course of action. The attorneys are advised to take stock of the client’s circumstances. They should understand the client’s interests and goals. And the attorneys should explain the legal options.

Emphasize that the lawyer and client pairs should NOT be reaching any decisions during this time. If it is done in real time, it takes quite a while for the lawyers to explain all of the options, learn about the client’s interests, answer questions, etc.

3‐5 minutes Students are allocated time for feedback as indicated.

Suggest that the clients address the questions: Was the lawyer clear? Does the client have confidence in the lawyer? How was unwelcome news delivered?

In recent years, I have given clients the option to call “time out” during the initial 20 minutes or so, to give constructive feedback at a time the student lawyer could incorporate it into the exercise. So, if a student client feels that the lawyers has been unclear, or that the lawyer’s assumption regarding his preferences might be perceived as offensive, s/he can stop action let him know. Then students should go immediately back into role, continuing the exercise. I have found this to be productive with a good class that seems to be taking the feedback task seriously.

10‐15 minutes Lawyer and client decide on criteria for evaluating options.

Narrow to 3 options and select 1 option. (If you took extra time in the first phase of the counseling session, you can easily cut this back to 10 minutes.) Do allow 2 minutes or so within this time for additional client feedback.

Acknowledge that this will feel a bit artificial but do ask the lawyers and clients to explicitly decide on criteria for evaluating among the available options. In other words, what’s most important in judging what would be the best decision? Name and discuss

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 61 the criteria! Then they should narrow their options down to three, and choose one. STUDENTS SHOULD WRITE DOWN WHICH WHERE THE THREE OPTIONS they decided to consider (before picking one).

5 minutes Lawyers and clients switch roles within the exercise.

This step is tricky! The student clients and lawyers are asked to physically give each other the printed copy of confidential role information they would have read in preparation for the class. (The syllabus instructs them to print this out and bring it to class. Still, the professor is wise to have to extras on hand.) By now they should each know the other’s information pretty well. The lawyer should know the client’s circumstances and the client should understand the options. Still, give them a few minutes to read the sheets.

If you thrive on chaos, one way to handle the next stage is to switch the lawyer and client pairs too! In other words, have the lawyers stand up again, and have clients select a different lawyer, preferably someone located nearby. (Time issues generally determine whether I switch the pairings at this point, as the extra chaos also takes extra time.)

Once the groups are set, or as they are forming, hand out copies of the Consequences Chart. Each pair needs three copies of the sheet (or two double‐sided copies).

25‐30 minutes Lawyer and client discuss 3 options selected previously and work through the consequences chart.

The client should decide on the option s/he will choose. This may but absolutely need not be the same option as that chosen in the first round.

You will get many questions about the consequences chart, and some resistance. Explain that it is surely not perfect, but it’s intended to help the client assess and visually organize the impact of various options along several dimensions. Some students assume that because it’s a chart, they have to use numbers and then do calculations (maybe because the know decision trees are coming later). Explain that they are free to use the chart in the way it feels most helpful. There is no single meaning to the words in the boxes. “Financial circumstances” or “family and friends mean what they mean to the client in this case. They are prompts for thought and discussion, for considering long and short term impacts, concerns, predictions, and priorities.

The lawyer and the client should look to what were the three last options the CURRENT CLIENT considered earlier (in the pair in which he was the lawyer – yes this is confusing). Now, this lawyer and this client have to work through and discuss the boxes in the consequences chart for each of the three options. (Each option gets a separate chart). And based upon their discussion, the client should pick the option this client thinks best.

20 minutes Debrief/Discussion

First, about those Dales

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 62 The early debriefing aims for an “aha” moment when students recognize how easy it is for an attorney to unintentionally steer a client toward his (the attorney’s) pre‐existing preferences and priorities – even if these don’t match the client’s. First, I direct the following question to students in the lawyer’s role in the first stage of the exercise: “How many of you, preparing for the attorney’s role, reading your part last night, identified the option you would choose if you were the client?” Some hands will raise, somewhat tentatively. (They know you’re up to something). I will encourage them to acknowledge this (if it’s true), by noting that would be normal behavior. More hands will raise, higher and straighter. Then ask: “or how many of the lawyers with raised hands, did your client also end up choosing the option you had initially, when you were preparing the night before?” Typically, at least half of the hands remain up, often a majority. “Hmm…. That’s interesting, unless somehow so many of you were miraculously paired with the Dale Doran whose preferences matched yours.”

It’s time to pull back the curtain on the three Dale Dorans. Turn to the Dale Doran 1’s, ask how they felt about their boss, about the other employees, what their financial circumstances were, how much they like travel, how they think they would fare if they had to get all new customers, and what their career prospects are. The Dale Doran 2s and 3s will hear that the Dale Doran 1 responses are different than theirs. Of course, next get the Dale Doran 2s and 3s circumstances out. These are reflected in the chart on the next page. The lawyer’s legal analysis is the same for all three Dales, but would it make sense to follow the same plan of action for all three? Turning back to those lawyers whose initial choice was also, coincidentally, chosen by the client: why does this happen? When the lawyers were preparing to meet with their clients, were they aware of the client’s feelings, predictions, financial circumstances, willingness to travel, ability to tolerate risk, etc.? Don’t these determine the best decision for Dale?

Dale Doran 1 Dale Doran 2 Dale Doran 3 Current Deteriorating, bad Deteriorated, revenues flat Deteriorated dramatically Revenues circumstances at decisions create long term despite economic uptick, up modestly overall, but Dale now work risk, day‐to‐day commission reduced 25%, $ bears more of his expenses. Three unpleasant put into marketing, Boss customer accounts recently “stolen” intends to pay back. Dale and given to boss’ daughter. bears more of his expenses.

Views re boss, Sees boss as paranoid, Boss’ increased anxiety Boss more difficult, and directly recent actions bitter, increasingly makes him irritable & insulting and abusive to Dale. May be abusive, threatening acts insulting to all staff; has due to daughter’s jealousy and Dale’s to reduce income targeted somewhat toward ownership share. Dale.

Views toward co‐ No love lost, all are Other sales people are Others have been cold and workers jealous friends, concerned about unfriendly, may be viewing him as a them if the company goes “traitor in our midst.” under.

Prediction, Confident of new Uncertain re getting new Would not feel right going to Upscale confidence re customers, $50K customers & reasonable Design, abandoning old customers. building new commis.1st yr,; est. 3 yrs to commissions, est. 3‐4+ Doubts Upscale maintain job offer customer base, current $, est. min $100K years. Much travel without customer base. commissions, in 2d required, many potential Upscale year, higher if new customers far away. keep some customers.

Willingness to Not mentioned, Hates travel; it interferes Spouse’s job requires travel. travel presumably ok. with coaching soccer/ homework; spouse travels a lot. Family finances: Could pay attorneys’ fees Could only pay attorneys’ Spouse’s salary doubled. Can afford ability to pay legal fees if NEITHER his nor attorney’s fees for litigation. fees without client spouse’s income decline income significantly. Non industry None mentioned, but NO idea re other options, Wouldn’t mind leaving industry, at options? does feel some customer other industries; concerned least for a while; enticing job offer loyalty about long days, travel. with college friend’s new business.

Other Believes judge/jury on his Worthwhile to fight non‐compete, to side. go to Upscale with customers; values Boss won’t release, fears showing boss and daughter they competition. Leverage can’t treat people this way. required.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 64 For this initial portion of debriefing, the punch‐line is clear: neither analysis of the legal case nor an attorney’s inclination determines the client’s best option. The three Dale Dorans differ greatly on the following dimensions: feelings about the boss and co‐workers, financial constraints and time horizons (relating to family, other job offer or not, Upscale’s willingness to employ, wife’s job, etc.) predictions about the future (how fast can I build up my business without the current clients), confidence levels (about future business and clients), and ability to tolerate risk. Without understanding these, a lawyer and client can’t collaboratively discuss what may be most important. They cannot assess the impact of a decision on the client and his context – family, professional, business relationships, now or in the foreseeable future.

Now for the consequences (chart)

It’s helpful to announce the deliberate shift to focusing on the consequences chart.

I often prefer to get the complaints on the table first and so often start with the question: “How many people found it awkward to use the consequences chart? Why? Did it seem artificial?” Some significant number of students will have found it awkward and artificial. They observe that it was not tailored to the case, and the meaning of the categories was unclear. Just acknowledge it; observe that in a real case with a real client you would tailor the categories to the client and the case, then steer the discussion to the value of the exercise.

As segue to the impact (consequences) of using the consequences chart, I ask: “How many students ended up with the same option – the same decision, when you used the consequences chart as the first time, without it?” There won’t be many, but there are likely to be a few. Follow up with those student groups: ask what about the exercise led them to a different conclusion. They may raise the “consequences to others” piece or the fact that attorneys’ fees were written down.

Of the majority who will have reached the same decision, ask what difference the chart made. Did it affect the interaction? Did it affect how they felt about the decision? Some students will say they felt better knowing they had been thorough and had thought about ramifications of their decision. Students will report that it took more time to work through the chart for each option. While comments and responses to the chart are quite variable year to year, you can generally count on several student pairs’ acknowledging that using the chart meant that they discussed important issues and concerns that were glossed over or not raised without the chart. Sometimes, student will observe that the chart leads to a greater power balance between lawyer and client: the conversation is more clearly and naturally collaborative. The lawyer recognizes that s/he can’t evaluate an option through the chart’s categories for the client. And the client recognizes that s/he needs the lawyer’s input regarding law, legal process, and negotiation and the way they typically unfold. Their collaboration is real. That really is the point.

While I’ve never kept the statistics, informal polling results as to perceived value of the consequences chart, have varied greatly from class to class. Sometimes, there’s strong consensus that the chart has great value, other classes not so much. I emphasize the importance of intangibles and raise the importance of the lawyer’s helping the client to imagine the realities before they unfold. What will their Thanksgiving conversations be like during litigation? How will their business function during the discovery phase – through documents and depositions?

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 65 How well will they tolerate some financial uncertainty? Slowing down the conversation to think through the reality of what will or might occur has value, either for decision making or just to prepare for what will be. Psychology research confirms at “measurability bias”: people tend to overweight the value of what can be measured (often $) and underweight or undervalue that which is difficult to measure – even if the latter is terribly important.17

Some students will have used the chart to create a numerical scoring and/or ranking system. They will observe that it helped them to compare “apples to oranges” by translating to numbers. Note that this links to the decision analysis module (coming up soon in the course), which uses a formal method to depict a visual and numerical map of the case. That too slows down the conversation between lawyer and clients, forcing the lawyer to articulate the case’s twists, turns and uncertainties in a way that makes them less abstract. It also highlights the time line and uncertainties over time and for distinct issues. Within decision analysis, it’s also useful to find a way to “count” and enter intangibles into a decision tree. The students’ efforts to weight and rank less tangible consequences could theoretically be used in a decision analysis (at least in an advanced version).

The punchlines are:

 Intangible, non‐monetary interests are IMPORTANT;  That which cannot be measured and counted is too often ignored;  Charting less tangible consequences makes them appropriately important;  Charting the more tangible but distant consequences makes them more real.

It’s been a long workshop morning, or a long class session: time for lunch or a break until next meeting.

Challenge # 3: Emotions and the Core Concerns Model (Approx. 75 minutes) (1:30 – 2:45 on Workshop Day 2)

As is true for each “counseling challenge,” I begin by announcing the shift to the Challenge: Working with Emotions. My introductory comments generally began with an admission: “I hereby admit, when I started to practice law as an associate at a firm, the partners would advise the clients (and the more junior lawyers), to ‘set emotions aside,’ ‘leave emotions at the door,’ or ‘separate emotions from decision‐making.’ That sounded fine to me. No one talked about emotions refusing to leave, but they were surely remained present.

Many students may have read or heard about Getting to Yes,18 the negotiation book that introduced the idea of “win‐win” negotiation. In that book, the authors Roger Fisher and Bill Ury famously advised negotiators to “separate the people from the problem.” While much in

17 Brian J. Hall and P. Trent Staats, “Do the Numbers Get in Your Way?” Negotiation, Vol. 7, No. 11(Nov. 2004). 18 The first edition was: Roger Fisher and Bill Ury, Getting to Yes: Negotiating Agreement Without Giving In (Houghton Mifflin, 1981). Published by Penguin Books in 1983, the second and third revised editions (most recent in 2011) include Bruce Patton, editor.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 66 Getting to Yes has stood the test of time, that particular advice has been roundly criticized for naïvte or impossibility. After all, too often the people ARE the problem and they are difficult. In this course, it’s fair to say that people’s emotions may be the root of the problem.

Why spend class time on emotion? GREAT lawyers understand the sources of emotion and their impact; great lawyers work effectively with emotional clients and their emotions (not to mention lawyers’ emotions); great lawyers help a client make a decision that meets their interests, including their emotional interests.

An alternative opener is to ask how many students consider themselves pretty rational, logical decision makers? Most will raise their hands. Ask whether these students don’t, in fact, take pride in their ability to use cool reason and judgment, to rationally analyze facts, law, and circumstances. The response will be raised hands and/or widespread affirmative nodding. Then you might ask if the students “know any one – a family member, friend, colleague or co‐worker in any job, or client from any summer placement, who just didn’t or doesn’t make decisions that way?” “Yes!” “Do you know anyone who just acts on emotion – admittedly and unapologetically?” “Have you ever dealt with someone who says their being rational, but in fact, you can see they’re being driving by emotion?” Ask what their responses are to this – to decision‐making driven by emotion? Students will respond to the effect that reason and rationality are important, shouldn’t be ignored. I’ll push this a bit, depending upon student comments or examples given. Eventually, it will be clear that a sizeable portion of the class believes in reason, and reacts negatively (disdainfully) to people who just act on emotion. Assuming the discussion has evoked strong and numerous student comments to that effect, it’s worth noting, in essence: “well then, perhaps we are passionate about REASON!!! Or, if you think about it, we are emotional about reason. We feel strongly about its importance. So, maybe we lawyers are emotional too.” Linger over this; pause. You’ll see some self‐recognition and smiles at the twist. (There’s a delightful irony in word choice here, worth playing with, as you juxtapose verbs, nouns, and adjectives associated with thinking vs. feeling. I’m not sure if students catch this, but I sometimes linger on the words.

The assigned reading, Chapter 4 in the Client Science book, sets forth basic information about physiology of emotion, describes the role of identity and meta‐emotion, and discusses the “core concerns model” in Fisher and Shapiro’s Beyond Reason: Using Emotions as You Negotiate (Viking 2005) applied to client counseling. Thus, as usual, the question is whether to review this material in lecture format at all, or to what degree. I continue to struggle with this balance, particularly having taught it for seven years before the Client Science book existed. In those days, I would review the core concerns model (excerpted in their reading), but spend more class presentation time on the physiology (amygdala), and the idea of meta‐emotion and identity, as these were not in the readings. Because these are discussed in Chapter 4, my preference is to ask if there are any questions, or ask student to name the core concerns and how meta‐emotion and identity impact these. Little if any lecture should be necessary.

An over‐riding goal of this class time is to convey the utter reality and deep importance of this material for lawyers and clients. Students should come to understand that their ability to navigate through and with client emotions matters tremendously for their clients and their future legal practice. Otherwise, many students will relate to the material as “just touchy feely stuff” or “obvious for anyone who has been dealing successfully with people my whole life.” Others may view it as too abstract and academic to be worth bothering with.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 67 Thus, the pedagogical challenge is to persuade students that emotion’s impact is real, and that learning the material contained in this unit is worthwhile. To that end, I often start by asking students to think about a recent situation in which their emotions ran very high – and at least partly negative. If possible, they should choose a conflict or time when a decision had to be made or agreed upon. The situation does not have to be professional. It’s helpful to suggests likely contexts as prompts: a conflict with your sister relating to her wedding, or your wedding, a disagreement with your professor over a grade or an assignment, a conflict with the law school’s registrar or placement office, unfriendly discussions with a landlord, a neighbor, a store manager. For older students with kids: a bad circumstance with a pre‐school teacher, a school principal. Or, perhaps at work, an unfair assignment or accusation by a boss, an incident with a co‐worker.

Let students take a minute or so to think of their “highly emotional incident” – perhaps jot down a note. You can reassure them that they will NOT have to describe the situation to the class or to a classmate. Then, ask the students to write down all of the emotions the situation generated in them. Creating this highly emotional personal reference point is intended to yield greater student engagement with discussion and exercises that follow.

On the topic of emotion, you might ask students a series of questions:

 What is emotion, can you define it (and maybe what it isn’t)?  What is the upside of emotion in client counseling and decision making? Can you imagine how emotions – negative or positive emotion – might be constructive in a client meeting? Examples?  What is the downside to emotion in client counseling and decision‐making? Can you imagine how emotions – negative or positive emotion – might be destructive – unhelpful – in a client meeting? How?

Another way to prompt discussion is through separate questions on types of emotion and their likely client impact. First, ask students to generate a list of positive emotions; record them on a projected powerpoint. Then ask them to generate a list of negative emotions and project these. (Or, you can project the preset list on powerpoint, after students have offered most of them.) Then ask: “Imagine a client who strongly feels one or more of these positive or negative emotion or emotion clusters, how could these impact the meeting and their decision‐making?” Let the discussion ensue.

By way of summary, or to raise any points missed, you might quickly project the relevant powerpoints.

In the spirit of asking students to recall and discuss the readings, you might ask if they learned anything – or learned anything surprising about the physiology of emotion from the Client Science chapter. See what the discussion yields on these topics. Ask if any student recalls which organ is the most important for understanding the physiology of emotional responses. The answer, of course, is the amydgala. You might ask if any student has a medical, nursing, or biology background who can describe what the amygdala does and how it works. (See the powerpoints for this segment, summarizing information about the amygdala: Amygdala are almond shaped organs above the brainstem near the internal ear structure. Sever amygdala from the brain, and we lose most or all recognition of feelings. Amygdala triggers hormones mobilizing heartbeat, muscles, blood pressure, breathing, concentration.)

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 68 It’s advisable focus for a while on the fact that the amygdala acts FAST, before rational thinking, and then prevents us from processing subtlety or complexity. Observe that when a lawyer is counseling a client, the legal issues and options discussed may be complex and involve understanding subtle distinctions and concerns.

At this point, I often relate an anecdote in an intentionally comical way, about a “difficult moment” with my spouse. I “confess” to having done something that I realized was NOT going to make him happy [I honestly don’t remember what it was.] I knew that without really understanding the reasons at the time, the mitigating circumstances, and that what I did wasnʹt the worst choice… etc. he would be really mad. So, of course, I launched into a careful explanation of the full story, the circumstances, what I really didn’t do, what exactly …..lots of detail. And of course, as soon as my husband got wind of what had happened, he GOT MAD, and he let me know it, voice raised, ANGRY! Then I responded with the classic: “You didn’t listen to me!” And I went back to explaining (protesting) how it wasn’t really quite exactly that, and this was why…. and so on. Unpleasant. Within a few days after that, I happened to be doing research on the amygdala and realized that, of course, my husband’s amygdala had kicked in… at that moment, he wasn’t capable of processing the subtleties, my rather complicated explanations.

I’ve included this story because I have told it every time I’ve taught this course or an executive workshops on the topic). It always generates a good laugh when told in an exaggerated, dramatically comic way. While you’re welcome to use it, I assume most instructor‐readers will be more comfortable recounting their own. In lieu of the story, you might ask students to think back to “a time in which you were in a heated argument, you might have been angry, or not , but your counterpart was really angry. He or she physically heard it but just didn’t get it right? Maybe the amygdala was to blame.

I generally move to a warning to WATCH OUT FOR EMOTIONAL FLOODING!! As suggested in the book, emotional flooding is when all systems shut down. It’s the extreme, and not at all common. Some people may never experience it, others very seldom. If you believe your client is experiencing emotional flooding, you simply need to give him or her time. It will do no good to talk at all. Get them a class of water, suggest a break. You can reassure the client that it’s normal, but really don’t say much. He or she won’t hear what you’re saying, in any event. The focus is inward, without much awareness of externalities.

The point here is that our emotional states are complicated. Again, to reward the student‐ readers, you might ask: “How are emotions complicated?” The answer should be that emotions usually come in bundles (anger and resentment, upset and fear, shame and guilt). Moreover, we often have meta emotions. What is a meta emotion? An emotion about or in response to an emotion. (Meta‐Emotion: I feel guilty (silly, etc.) about feeling angry and resentful.)

Time permitting, ask students to think back to the situation you asked them to recall and record earlier (the conflict or difficult situation that generated strong negative emotions). Were they single emotions, or clusters? Can they identify meta‐emotions operating?

The last point to make is that when a circumstance threatens identity, emotions tend to be stronger. So, if your are angry and upset with your boss when he takes credit for your work, you might ALSO be angry with yourself for having trusted him to deal fairly (given that you worked all weekend on it). Your identity may include confidence in your ability to judge character. Or, if

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 69 I am angry with my son for his terrible Latin grade, my meta‐emotion might be guilt over my failure to help him study or my failure to have inculcated strong study habits. If my identity includes being a parent, my feelings of anger and my guilt will be heightened.

Again, bring the students back to their own stories: can they find an identity issue that may have fueled their or the other person’s emotions? You can encourage comment and discussion, but note that will keep your promise not to ask for particulars about the personal circumstances.

A segue to Fisher and Shapiro’s Five Core Concerns model is to observe: emotions are complicated, clustered, layered, ever‐present, often impossible to ignore or set aside, and they impact client counseling greatly. They impact both the client’s ability to hear and process information and his or her ability to make good decisions. So, what’s a lawyer to do?

Let’s acknowledge, we are NOT psychiatrists or psychologists. For most of us, there’s a reason we didn’t go to medical school and never played with lab rats. We’re just working on being lawyers. It’s simply not possible to know and keep track of your client’s emotional state; emotions are fluid and complex. And you don’t want to know your client’s relationship to his mother, father or any of that unless it relates to the legal problem.

That’s why, as stated in Client Science, Fisher and Shapiro’s Five Core Concerns model for working with emotion is useful for lawyers working with clients. Their model was envisioned and their book was written for negotiators across the proverbial negotiating table. However, just prior to its publication, Dr. Daniel Shapiro worked with a law professor (me) to develop a program applying their core concerns model in the lawyer‐client counseling context. As stated in Client Science, our insight was that lawyers working with clients should be alert to the core concerns at two levels: in the underlying circumstance giving rise to the client’s legal problem, and in the lawyer‐client interaction “across the table.”

The good news is that there are just five core concerns to remember. They help us identify the source of the client’s strong emotional response to underlying matter and then to create a positive lawyer‐client interaction. This matters: the client’s positive emotion enhance energy, creativity, and cognitive abilities needed for thinking through legal issues and tricky decisions.

Because the assigned reading describes and discusses each of the core concerns, I first ask students to name them. Then put the list of five up on a powerpoint, and ask if there are questions – what each one might look like. Perhaps ask if students can think of a circumstance – say in a legal case – where one of the concerns would have been violated or “unmet.”

Questions often arise as to the distinction between the concerns referred to as “status” and “role.” Noting that proper labels are less important in practice, “status” seems more generalized – social or professional – while “role” relates to one’s function in a particular activity. (“I was sitting there like a bump on a log… they didn’t want me to do anything.”) People like to be meaningful participants or contributors in an interaction.

Next, I’ll ask students to think back this last time to their remembered situation, this time using a “core concerns” lens. Can they see ways in which their appreciation, autonomy, affiliation, status or role concerns were “unmet” or smashed? Take 30 seconds or a minute. Ask them to scribble down which core concerns they think were salient. Take five minutes or so to discuss the results.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 70 Ask students if they found “core concerns” at play. Which ones? Does that give them insight to why this particular incident was so troubling – or emotionally charged?

Then ask them whether any of the core concerns might have linked to identity. An example I’ve used is: if I am playing the understudy, or the underling, and I’m comfortable in that role for now, my boss’s failure to give me autonomy might not thrill me, but it won’t bother me too much. For now, being the one who calls the shots is not part of my identity. But, as in the Family Matters case, if being the dutiful favorite son or daughter IS part of my identity, and my affiliation concern is blighted when my father locks me out of the business – you can bet my emotions will be heightened many times over. Affiliation with my father IS a key part of my identity.

You and your students will find that, with a little creative effort, one can often find all or most of the core concerns in play in any given problem. And it’s also true that what I might label “affiliation” you might label “appreciation.” There will always be interpretation, and reasonable people will hear the expressed concerns differently.

Still, it’s worth some thought before you affix a label – some consideration of the label’s intended characteristics. That is the label you choose – the core concern you perceive as most salient ‐ will affect your strategy in the conversation.

At this point, articulate the deliberate shift from learning about emotion and the core concerns model (with meta emotion and identity added), to learning what to do with this information when counseling clients.

First, when the client’s core concern and identity are problematic is to consider reframing around a different identity. Move from abstraction to an example: Suppose your ciient is a VP for a large corporation. He is resisting a contract term demanded by the other party – a much smaller business owner whose land offers valuable benefits for your client’s corporation. Perhaps your client feels his status hasn’t been appropriately recognized, or perhaps he feels a challenge to autonomy. And status and autonomy are large parts of your client’s identity. You might (subtly) reference the concern and reframe, saying:

You’d think that the other side would recognize that they’re dealing with a large company and with someone who has done much bigger deals than this. Somehow, it seems like they’re trying to force you. On the other hand, this might be heard as an expression of the importance of this transaction for them. Their insistence is clumsy. As the bigger player here, you have a great deal of flexibility and the power to make it happen. I wonder if it’s worth your time to sweat the small stuff.

Easier examples might be a client resisting a document discovery request or a far‐reaching “reasonable accommodation request” by a disabled employ in the workplace. The client protests: “They can’t tell me how to run my business!” I hear this as an autonomy concern with identity undertones. The lawyer might say:

Yes, it must seem like they’re asking you to jump through hoops, when you have a workplace to run. On the other hand, I know from our dealings, and from the way you run your business, that ‘you are someone who plays by the rules’….. or ‘someone who does everything in his power for loyal, longtime workers…

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 71 Surrendering some autonomy is consistent with these identities. The lawyer’s reframing raises the client’s additional identities and values.

Either by pronouncement or by question, now is the time to introduce the way the core concerns can be used for “strategic active listening” in a client counseling session. This idea is articulated in the Client Science book, Chapter 4. And, if you introduced either of the examples just above (or a similar one), you’ve already demonstrated it.

You might articulate or elicit (and applaud) the prescription that lawyers should be alert to their clients’ core concerns, and use them for “targeted active listening.”

By way of example: the corporate VP, the wealthy socialite, or the university professor may want recognition of status, or autonomy. The twenty‐something may also have autonomy concerns. The uneducated may have different status feelings: not a need for higher status, but discomfort at status presumed to be lower. Attending to those concerns in the interaction is important. So, the lawyer should reference the high level of his client’s position with appropriate respect. Our need for “affiliation” reinforces the idea that it’s helpful to find connections or common interests. When a client meeting begins to feel awkward or uncomfortable, the client seems vaguely discontent, do run through a mental inventory of the core concerns. Address them to improve the interaction.

The lawyer is also wise to listen for core concerns in the client’s underlying story of the legal problem. To some extent, routine intake information can help. The client who has lost his job is likely to feel lower status. From the beginning of your meeting, make sure you address the client as “Mr.” or “Ms.” If helpful, ask about his or her successful work experiences or education.

As the client tells his story, hearing his anger at having been forced to go with the purchasing company, you might reflect: “Given that you were the vice president of the division, it’s hard to understand why they wouldn’t have included you in the meetings, and have given you some say in this.” Even if the client recognizes his decision to proceed without a signed contract was not wise, he may seek the lawyer’s appreciation – acknowledgement of pressured circumstances and desire to accommodate the customer.

In the course segment on active listening – active, reflective listening ‐ we spoke of paraphrasing to reflect back factual or emotional content. The suggestion here for “strategic active listening targeted to the core concerns” is located squarely within the act of reflecting back emotional content. Then, when listening to a strongly emotional portion of the client’s story, do listen with an ear for the core concerns. Intentionally choose words for reflective paraphrasing that relate to the client’s most salient concern.

Imagine your client has said:

I couldn’t believe they would let me go after twenty years of working side by side, from the time we were all young. I went to their weddings and their kids christening, and they to mine.

Affiliation (lack thereof) sounds like the core concern. You might respond:

That’s hard. You thought you were lifelong friends, like family. It’s awful to feel that they weren’t loyal to you with the new management.

I couldn’t believe they would let me go after I literally helped the found the company at my kitchen table and gave them so many ideas on how to manage through many tough times before they got their big break.

The core concern breached sounds like appreciation. You might say:

So, when they didn’t block the new management from letting you go, they seemed to ignore your enormous contributions to their entire venture.

You are using the core concern to shape words you choose for the reflective statement.

Finally, finally, you’ve arrived at the time to work with vignettes, the document entitled “Ever‐ Present Ever‐Real Emotions,” available on the Client Science Course website. You can teach with these in a number of ways, depending upon time constraints. Each time I teach the course, I aspire to leave more time for the vignettes and less for up front discussion. Indeed, assuming students have done the reading, one could start with the vignettes and use them to tease out the core concerns.

Phase One – Read, Identify, and Discuss

If possible, I prefer to put students in groups of three, and ask them first to discuss vignette #1, seeking to identify the core concerns likely to be most salient. This will take nearly 10 minutes, 5 to read and five to discuss. I have not assigned these as reading before class in the workshop setting. (I’m more interested in their reading the Dale Doran information for the morning and the decision analysis material for later in the afternoon. That’s enough. However, the vignettes could be assigned for review in advance if teaching in a weekly format. (You would still no doubt want to allow a minute to skim them over during class, to refresh recollections.) I then facilitate a short class discussion about which core concerns seem to be triggered in the vignette, and why. There is always variation. You can make the point that people will see things differently, and that while all concerns can no doubt be found, some are likely to be more central.

Phase Two – Small Group, Targeted Active Listening

Ask the students to stay in their groups of three. One student should take on the client role— imagine he or she is telling the story—with great emotional and dramatic flair. Another student is primed to listen—but to listen actively, with active reflective dialogue—targeting the core concerns. The third student is the observer. The observer can comment, suggest a different approach. Let this go for approximately three to five minutes. Then, do a quick debrief regarding what was difficult, how it worked, what the student‐client response was.

I do stage a demonstration of how this can be done well, so that all can see it. Small group work is nice, but it doesn’t assure a common experience. So, I will ask student‐clients or observers (in words or in substance) to nominate a master of the skill:

Who had a student‐lawyer who did this superbly? And, it worked?! The student lawyer managed to key into the core concern; it informed the reflective dialogue. Most

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 73 importantly, the student‐client reported it feeling right, that the lawyer REALLY understood why he felt so strongly about the situation. Who did a great job?

Then, I’ll ask the nominated student master to demonstrate for the rest of the class. Usually, students are comfortable if they’re being recognized for a job well done.

Another way to inspire a demonstration is to ask for a volunteer to show us what they did, but note that the prof will coach and there will be a “life line”: other members of the class can suggest different phrasing.

Finally, it’s helpful to allay concerns that targeting your phrasing to a core concern is going out on a limb: What if I guess the core concern wrong? Will the client become more angry? Though without real data, I believe not. More likely, the client will appreciate your effort to understand and will provide a correction. I’ll ask students to recall the example of an employee terminated in a reduction‐in‐force just a year or so after new management acquired the company she had helped launch at her kitchen table two decades ago. Assume that you heard “appreciation” as lacking, and you did some active, reflective listening to say: “It’s painful to think that they didn’t recognize how much you contributed to their success.” In fact, while that matters, it’s not the worst of it for her, emotionally. She might say, “Well yes, it would be nice if they could see they couldn’t have started this business without me. But they’re the scientists, the inventors. They’ll never get that. What kills me is that we grew up together through all of this, from babes in our twenties to now middle‐age. We were friends, we were more family than my family . . . .” And now of course, the lawyer would hear that lost affiliation looms larger. You can adjust: “Yes, I understand. How could they let this happen to you . . . given your relationship over those years? You wouldn’t have done it to them . . . .”

If possible, try to get through at least three vignettes so that each student has a chance to be client, observer and lawyer. Sometimes, this means skipping full class discussion of what core concerns each small student group found (phase one), or dispensing with full class demo for each vignette.

The more I teach this material, the more strongly I believe it is valuable to spend less time on lecture and more with the vignettes. I have used a version of these vignettes with various CLE and other professional audiences. The content and the exercise are invariably well‐received. These audiences fully appreciate the value of “strategically targeted active listening” and the importance of practice.

INTRODUCTION TO FORMAL DECISION ANALYSIS: Focus on simple risk analysis and communication, all to meet Client Counseling Challenge #4, Wisdom in the Face of Inevitable Uncertainty.

Place in course/time allocations: First segment, 90 minutes, “The Very Basics” end of afternoon, workshop Day Two 3:00 – 4:30; Second segment, 180 minutes, “Working out the ‘how‐tos’ through problem sets, practice applications and communication, 9:00 am – 12:00 pm, morning of workshop Day Three.

You may choose to hand out the packet with the front page entitled “Anatomy of a Decision Tree” at the beginning of this segment. If so, do ask the students NOT to look through it before instructed to do so. Or, you can wait a few minutes to hand it out at the moment you will begin to use it.

Challenge # 4: Wisdom in the Face of Inevitable Uncertainty

A formal method often referred to as “Decision Analysis” can be a helpful tool for a lawyer and a client dealing with and communicating about uncertainty. Because I’m a bit of a sticker regarding terminology, I generally begin by explaining that many people use the terms “Decision Analysis,” “Decision Tree Analysis,” “Litigation Risk Analysis,” and “Risk Analysis” interchangeably. There are some distinctions: Decision analysis is technically broader, encompassing a variety of ways to deconstruct and analyze the benefits and costs of making a decision. The word “tree” refers to the use of a visual tree structure (with branches and sub branches running laterally across the page). Risk analysis, referred to as litigation risk analysis when limited to the litigation context, focuses more narrowly on assessing the probabilities, costs and consequences of possible twists and turns in the litigation path that will affect range of possible litigation outcomes, such as jury awards, judicial decisions and awards, or appellate court decisions and awards.

In the context of lawyer‐client counseling, Decision Tree Risk Analysis is ONE method for clearly, rigorously, and “collaboratively” thinking through uncertainty—particularly risk— consequences, and their impact. I do use and teach the method using a graphical tree structure (and not just a spreadsheet or influence diagram)19 In my view, the visual of the tree is important for client counseling. The value of using this method is twofold:

 It forces more careful, thorough, deliberate thinking and discussion of what might happen – the possibilities, the likelihood ‐ probabilities, and the consequences – outcomes and costs. For example, WITHOUT using this method, when an attorney orally tells a client he or she has a “pretty good case,” what in the world does that mean – to the lawyer or to the client?

 It facilitates clear and thorough communication and may reduce negative emotional impact, on the client or, at least, on the lawyer‐client relationship. When the attorney walks the client through a decision analysis in his case, it provides a constructive and shared logic and a framework for client decision‐making.

I suggest clearing any tension in the room upfront by asking how many students HATED math; how many loved it; and how many, in fact, have some sort of math‐intensive technical background or talent. I reassure the math phobic that EVERYONE will be able to learn this—it’s

19 Note: Many people prefer to structure a problem as a decision tree first. Others find that building an influence diagram helps them to think through the problem. In my Advanced Decision Analysis course I often have students construct an influence diagram before creating a decision tree to help students think through the way decisions are affected by different forces. One of the benefits of TreeAge Pro is that the user retains the flexibility to decide whether a particular problem is better modeled as a tree or an influence diagram. If you start with an influence diagram, TreeAge Pro can automatically convert it into the equivalent, asymmetrical decision tree. Having both forms of graphical output available can facilitate the often critically important task of communicating both your view of the problem and its proposed solution.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 75 arithmetic, not calculus. Still, for them, “the mathy part” may seem like an intimidating foreign language. I ask them not to be intimidated and reassure them that NO question is silly, and if anyone is still unsure how to use this method in a simple case by the time this unit is done, I’ll be happy to review it. I’ll also acknowledge to the more math‐inclined that part of the presentation may seem too simple or obvious. Ask them to bear with, perhaps help the rest of us. But note that we also will work on the skill and strategy involved in communicating with the client using decision analysis.

To my great surprise, I found that the vast majority of students saw the value of this method and its usefulness. (Lawyers’ groups are more likely to push back on it.) Law students experience it as a welcome change from the “touchy feely” aspects of the course; they are comfortable with using its logic and reason. In fact, student requests for more on this topic led to my developing and teaching an “Advanced Decision Analysis” course, taught separately.

I often note up front that if you ask attorneys whether they use “decision analysis,” some will say “sure, all the time.” But if you press them, you’ll find they understand it to mean just thinking in rough terms about whether the case is risky and roughly what they think might happen, before pulling a settlement recommendation out of their hats. But MOST of these lawyers do not use Decision Analysis in a correctly structured, methodical, and thorough way. And, I would argue that, used too roughly—not properly—can lead to significant distortion of results and unfortunate decisions. That’s another reason I am committed to teaching this unit: I want my students to do it RIGHT!

You’ll see that the powerpoints for introducing the method are light‐hearted and consistent with what’s written here. I start with the comic strip about the lottery ticket, and ask if it’s true that the odds of winning the lottery are indeed 50/50. The answer, of course, is no. But does it matter? Not really, only a dollar is at stake. Plus, one could argue that the pleasure derived from anticipating a possible win—those lovely daydreams of what we would do with millions of dollar—have a utility value worth more than the dollar’s investment. The uncertainty is the fun. Being a party to litigation is akin to having a lottery ticket. However, I have yet to hear of a client who derived only pleasure from the process and the wait. Of course, the defense’s lottery is generally negative; the question is whether his ticket will yield losses and how much.

I developed a somewhat longer version of the poem on the powerpoints for a presentation years ago and people seem to enjoy it. In class, I use it as a segue to ease the worries of the mathphobic, as indicated above. The powerpoints for this segment are intended to be reasonably self‐explanatory, enabling an instructor to more or less walk through, encouraging questions and comments, of course. After introducing the very basics, I do use a class handout (included on the website). I prompt the students to do the exercises/problems contained in the powerpoints on scratch paper, and then follow the “answer” on each page of the handout.

4 Basic Steps to Structuring a Decision Tree

First, I emphasize that there are four basic steps to structuring a decision three. These involve very simple, common, and intuitive logic. They are:

1. Define the decision: What’s the problem? What are the choices?

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 76 2. Identify the possibilities: What might happen if I decide on one course of action or another? 3. Judge the likelihood: What are the chances the possibilities will come to pass? 4. Figure the net gains or costs: What will the net effect be if it works out this way or that way?

To illustrate the four basic steps, and how common they are to all sorts of decisions we make, I show the four steps in parallel for three types of decision contexts:

1. Define the Decision

 First, in a home mortgage decision, should the buyer attain a variable or fixed rate mortgage?  Second, in a vacation decision, should the vacationer go to Cape Cod or the Berkshires?  Finally, in a legal case, should the client continue to litigate or settle for the money currently on the table?

2. Identify the Possibilities

 Home mortgage decision: If we choose a variable mortgage rate, our payments could go up, down, or remain the same. Additionally, we need to consider the amount they could go up or down.  Vacation Decision: It might rain. It might be cool. It might be sunny and warm.  Client decision: I might win or lose on summary judgment. There might be a finding of significant negligence, contributory negligence, or no negligence. Additionally, the defendant could pay the judgment awarded or could file for Chapter 11 Bankruptcy.

3. Judge the Likelihood

 Home mortgage decision: With the economy the way it has been, I think it is unlikely the rates will go down by more than a point or two, but they could go up by a great deal.  Vacation decision: I have never picked a week of good weather. I am convinced it is likely to be cool and/or rainy some or much of the time.  Client decision: Summary judgment is unlikely due to a factual issue. Liability is very likely, but significant contributory negligence is not. There’s an even chance of bankrupting them by then.

4. Figure Net Gains and Costs

 Home mortgage decision: If the rate goes up by 2 points, the net additional cost over 30 years will be $30,000 (can discount to present value).  Vacation decision: Dollar costs of the two vacations are the same. But if it rains on Cape Cod, there is nothing to do but eat and go to outlet stores. I will be miserable. If it rains and I am in the Berkshires, I can go to concerts, plays, and museums. I will be happy.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 77  Client Decision: If I win on summary judgment, I will collect $250,000 in damages but I will pay $20,000 in attorneys’ fees between now and then. If I lose on summary judgment but prevail on liability, I will pay $40,000 in attorneys’ fees through trial but will collect $250,000. If there is contributory negligence I will receive only $200,000 with 20% contributory negligence. However, if the defendant is bankrupt it will be a long time before I see a dime.

Handout the packet with the front page titled “Anatomy of a Decision Tree” if you have not already done so.

Anatomy of a Decision Tree

Walk the students though the pictures of components of a decision tree and their conventional labels. (The powerpoints are helpful here.) Make sure the students understand that each “chance node” or branch cluster must have a sum of 100% or the Expected Value will be skewed and misleading. In real terms, if a cluster did not equal 100%, it would mean that we failed to consider a possible outcome, or we gave too much weight to a possible outcome.

Rollback is the operation that involves multiplying each outcome by the likelihood that it will happen, and then adding those numbers together, and multiplying the sum by its likelihood.

It’s easier to see graphically, but if I have a case with a 50% chance of liability, and IF there is liability a 25% chance of a verdict of $100,000, a 50% chance of a verdict of $200,000, and a 25% chance of a verdict of $500,000 (never mind fees for the moment), to roll it back I would:

Multiply .25 by $100,000 = $25,000

Multiply .50 by $200,000 = $100,000

Multiply .25 by $500,000 = $125,000

Total is: $250,000

Now, I have to multiply $250,000 by .5 (likelihood of a verdict at all) = $125,000

$125,000 = the Estimated Monetary Value (EMV). Rollback is the operation that gave us the EMV.

It is important that the class understand the meaning of the EMV. The EMV is the WEIGHTED average of the results if the case were tried one hundred times. It is NOT what the plaintiff will receive in any single trial.

Before asking students to work through the Fair Decision Game Problems, I sometimes ask if students had any trouble with word problems in elementary school math. Lots of nodding will be observed. Assume that you actually understood the math operations that were involved. Sometimes, you would read the word problem, and there would be a moment—or a few very long moments—of hesitation and “oh gosh, how am I going to do that?!” before your brain could “see” how the words would become numbers and symbols. You’ll get more nods from the class. I will acknowledge that, sometimes, faced with the challenge of constructing a decision tree for a case I could easily describe in words it would coincidentally feel like a great time to clean my

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 78 office. This one generally gets a laugh. I’ll qualify it by saying this was true before becoming more adept and feeling confident of the method, but it doesn’t happen much now.

The point is that there is a natural felt barrier or hesitation when we have to translate from verbal to symbol—math and graphics. That is normal and it only dissipates with practice. We have to get into the habit of moving from words to drawing trees. That’s why I’ll ask the student to do the “Fair Decision Game” in several steps—moving from very easy to somewhat more complicated—and practicing the shift from words, to scratch pad, to structuring trees.

The Fair Decision Game is set up on the powerpoints.

For each Fair Decision Game problem, give the students a chance to think about the hypothetical, and then make sure they think about it terms of the four steps above (Define the decision, Identify the possibilities, Judge the likelihood, Figure the net gains or costs). The students should not struggle at defining the decision and possibilities, and they should understand the probabilities and pay‐offs.

I suggest instructing them first to do a “scratch pad” version of the calculation, I generally put up the “scratch pad” powerpoint first, and then ask them to draw it using the tree structure. After everyone is done, I put up the “answer” on powerpoint and encourage the students to turn to it in their handout.

The process is repeated for Games 2 and 3.

Note that in Game 3, the tree could be constructed with four different outcome branches—each assigned a probability value of 25%. Or, it could be constructed with one branch (combining red, blue and green branches) assigned a probability value of 75% and another branch assigned a value of 25%. First, emphasize that neither is wrong; both are right and will yield identical EMVs. However, in practice, it’s probably wise to “shmush” (collapse) the red, blue and green branches for the combined 75% value. Why? The tree is more cluttered and there’s no different outcome at the end of each branch.

When is it okay (indeed better practice) to collapse branches for a combined probability? The answer is when everything (costs, payouts and probabilities) AFTER that point would have been the same along each branch.

Additionally in Game 3, it’s important to highlight that the dollar amounts are increased. Students must also think about “can I afford to play?”. Hence, ask the powerpoint questions: “Would you play if you were given one try?”; “Would you play if you were given 100 tries?”; and “Would you choose to sell your ticket if the gamesman offered you $10,000 not to play?”.

Do spend some time discussing these and the implications. You can ask for a show of hands as to who would settle for $x under these circumstances, what about $y? Everyone’s tolerance for risk is different. An interesting twist on relative resources and power can be raised here. You might pose the question: “What if losing $100,000 would cause you to go bankrupt; you would be unable to pay the debt?” Somewhat perversely, would there be more of an incentive to play, knowing that they didn’t have $100,000 to lose? While having financial resources generally is an advantage, that’s not always true. Sometimes, being close to bankruptcy (having no resources) can be a source of power.

Next, I have the students apply the basics in the litigate or settle powerpoint. I ask them to draw the structure of the decision tree first for the plaintiff’s side. They should just put in words instead of probability numbers, and should put the numerical estimates in the proper places. I put up the “answer tree” which is also in their handout packages, ask if there are any questions, and then ask them to do the same thing for the defense tree.

This is the first time we’ve built a tree explicitly within a litigation context. The students should see that the STRUCTURE of the tree is the same for both sides (as is often true). But, the plaintiff and the defense may each see the probabilities and the outcomes differently. And students should see that attorney’s fees would be deducted from the defense side, win or lose.

I encourage the students to see that the tree easily could be constructed based upon the responses to a series of simple questions:

 What will happen next?  What will happen after that?  Is that the only possibility?  If you go to trial and liability is found, what are the likely damages?  What will happen with a stingy jury, a reasonable jury, and a generous jury?

Could they roll back these trees to get an EMV? No! Why not? There are no percentages; we can’t do the arithmetic calculations with “very likely,” “long shot,” or “entirely possible.” I know there will be skepticism about assigning numerical probabilities. “Garbage in, garbage out” is the usual objection. “It’s not possible to put a number on it!” “We can’t really know the number.”

To address these doubters, put up the powerpoint marked: Qualitative Resistors Surrender: What’s the settlement value?

Qualitative Resistors Surrender: What’s the settlement value?

Refer to the powerpoint titled: “Qualitative Resistors Surrender.” Explain that you’re going to read each of the case assessments, out loud. Everyone will hear your vocal inflection, etc. For each case assessment, immediately after you read it, each student should quickly write down what he thinks a fair settlement value would be—a settlement value he would recommend. Work your way through the three case assessments. When you’re done, ask for a show of hands as to how many wrote down their highest number for the first, a middle number for the second, and a lower number for the third. Virtually, all of the hands in the room will go up. What does this mean? It means that ALL of us ARE ALREADY using numerical probabilities as discount factors to arrive at a settlement value. We just don’t necessarily acknowledge it.

Prose vs. Percentages

I ALWAYS end this day (or evening) with this segment because it is important, makes a powerful impression, and it’s great, great fun. (I do mean always. If my time management skills were

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 80 subpar, and it appears that not all of the introductory materials on decision analysis can be squeezed in, I’ll skip something else and come back to it the next day, rather than end without doing this segment.)

First, ask the students to take out a piece of paper on which to write a series of 8 probabilities (so, not a tiny piece of paper). Explain that you will read, out loud, the statements on the powerpoints with particular inflection (and you’ll repeat each one twice with an effort at the same inflection). The students should record the probability percentage they would mean if they had said the statement exactly the way you did. In other words, what percentage would they be thinking if they had said it to a client that way? Do this for each statement on the two powerpoints.

When it’s done, announce that you’re going back to the first one, and ask for a volunteer to shout out a probability he or she recorded. Then ask for shout outs for any higher percentages. Any lower? This very quickly starts to sound like an auction with “Who has lower than 60? I heard 45. Anyone lower than 45?” For each of the 8, record the range of percentages in the class. It is very, very rare to have a range that is smaller than 15 percentage points (maybe a 10% range three or four times in the last 17 years). Even 15% is low. The VAST majority of the ranges are 20% and often 30% or 40%. For some of the prompts, it’s not unusual for student probabilities to straddle the 50% mark; some thinking that the prose statement (and my inflection) meant the client would have a 30% chance of winning, and others thinking that same statement meant the client had a 60% chance of winning.

All you have to do is ask: Why does this exercise matter? Students immediately understand that a lawyer may use prose and mean 50% ‐ 60%, and his client may interpret that prose as 80% or 90%. (Indeed, I have seen that moment as a mediator, when I asked the lawyer what probability he would assign to his client’s construction case claim. The lawyer said: ‘I think we have a really strong case—maybe 60%.” The client was not happy: “When you said that, I thought you meant something like 90%.” I never would have invested all of this time and money for a 60% case.”)

And of course, another benefit is that you CAN do the mathematical calculations with numerical probabilities in place. It is important to acknowledge the danger of false precision. Students often raise this point (and if they don’t, then I raise it the next day). Yes, that can be a problem. And NO one can or should be sure that a case is 55% vs. 60% likely to win or lose. You will never be able to test the proposition, because you are not going to try the case 100 times. However, we do have a gut sense that a case is in the 75‐80% range, and not the 50‐55% range. The probability you name might be thought of as the center of the “gut” range. And, as we’ll see, the method lets you test the impact of differing probabilities, as a way of acknowledging the imprecision of any single probability assessment.

End of the Segment/Day

The Client Science Course website student course materials include decision tree problem sets titled “Simple Hypos” and “Balanced Trees on Balance Beams.” Students are required to make a good faith effort to draw these trees, assign values as stated in the materials, and perform a roll back to reach an EMV for each one. I encourage them to “wrestle with” their decision trees by

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 81 themselves and bring the results to class as proof of their good faith efforts. These will not be graded. I do explain that for a substantial period of time in the next day’s class they will work in groups to check, correct, redo and talk through their answers. I emphasize that the goal is for them to become comfortable with the method, as it will enable them to build a real map of any case. On a real map, the United States is not the east coast, west coast, and a blur of some land in between. We want to know what those Midwestern, Southern, Plains, and Rocky Mountain states contain. Similarly, decision tree analysis encourages methodical, rigorous thinking when done well. It prompts important questions about what might happen, and provides a logical way to consider (and calculate) the implications for client settlement decisions.

Note: If you will want to use a student for a decision‐tree client dialogue demo in the next class segment (see page 99), it’s best to identify a possible volunteer by the end of class. Ideally, it would be a student who seems entirely comfortable with the method (perhaps has some background), or who is a ham and indicates some practice experience (particularly on the defense side). If you ask a student to play a part, and he or she agrees, you would give him or her the sexual harassment case description and completed decision tree. And you would agree upon which of you is going to take the defense client role and which the expert‐in‐ decision‐trees lawyer role in the next class session.

Next Decision Tree Analysis Segment (Morning of Workshop Day 3, or next course meeting)

This segment begins as a 30 minute “charette” in which students work on their decision trees from the “Simple Hypos” and “Balanced Trees on Balance Beams” together. Before the 30 minute segment, suggest that students form into groups of three. I may request a show of hands as to who found the homework exercises to be easy (maybe due to some background in the method). Then, ask those students to scatter themselves around the room to work within students who were less confident in their Simple Hypo and Balance Beam trees and calculations. Instruct the students to compare trees and computations within the group to see if they match, and discuss where they differ. Try to discuss and reason through the differences, and come up with the right answers together. Explain that you will roam around, but any group with a question should raise their hands to summon you for help, or come and tap you on the shoulder. The room will be a buzz of activity and discussion. This half hour is energizing and interesting. Your active engagement with the student groups gives you a clear idea of what they are struggling with, and gives you the chance to explain it in close range.

At the end of the half hour, I go back to the front of the room, and one by one, project the “answers” to the Simple Hypos and the Balanced Trees on Balanced Beams trees. It’s important to spend time with each one. I might first ask, did your trees end up looking like this one? Can someone walk us through how the EMV calculation was done? How did you arrive at the “payouts” at the end?

The Simple Hypos are deliberately formulated to teach certain key points, and the students should be clear on these by the time the unit is done:

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 82 1) All fees and costs to be expended or received from that moment forward should be added to or subtracted from any anticipated award to arrive at the payout figure used for calculation. So, in the simple hypo, if the plaintiff will have to pay the expert’s fee and the attorney’s fee (1/3) from the award, they should both be subtracted. In the Simple Hypo, client’s perspective, I have stated that the lawyer will not seek to collect the expert’s fee (which was advanced) if there is a defense verdict. So, it would only be deducted in the event of a plaintiff’s verdict.

2) Assume a client who says, “I’ll settle if I can get, in my pocket, whatever amount is the EMV of litigating, as shown in the decision tree analysis.” Note that for the plaintiff, if the EMV were $10,000, the Settlement Amount would have to be $15,000, because 1/3 of the settlement ‐ $5,000 would be paid to the attorney and 2/3 to the plaintiff. Each Simple Hypo has a question about how much the settlement would be to equal the EMV.

3) The Simple Hypo, Attorney’s Perspective, highlights the conflict between attorney and client set up by a contingency fee arrangement (particularly when it is not a million dollar case – but even in a quite substantial case). The value of the attorney’s time to be expended are put forward as an estimate of his opportunity costs; they are not what his full billable rates would be. Still, it has to be acknowledged that the attorney’s time has a value. The attorney’s “payout” is 1/3 of the award MINUS the value of time expended (beginning at the time the tree is constructed).

Because the value of the attorney’s time is deducted from the payout, the attorney’s EMV from the litigation is MUCH, MUCH lower than his clients. And, the settlement amount needed to yield that much for the attorney is MUCH lower too.

Sometimes here, and sometimes at the end of the entire Simple Hype/Balance Tree exposition, I tell a story of a mediation in which it seemed to me (as mediator) that the plaintiff’s lawyer turned on his client, exerting great pressure to settle at a low number. I couldn’t quite understand it. As the neutral, it seemed to me that the plaintiff had a pretty strong case. At first the defense had offered nothing or almost nothing, and plaintiff’s counsel was adamant about the strengths of his client’s case. Somewhat later in the day, when the defense offer had come up, but still seemed inadequate to me, the plaintiff’s attorney (in caucus with his client) started emphasizing all of the defense arguments, and ignoring their own. It was uncomfortable, as he was exerting what I thought was inappropriate pressure for the client to settle awfully low.

At that time, I was working part time at Harvard Business School, on a team assembling materials for their negotiation curriculum. I was working on an ADR unit, and was in the process of doing a teaching note on litigation risk analysis, using a plaintiff’s personal injury case. It broke out the value of the plaintiff’s attorney’s time and I had been asked to do a separate analysis from the plaintiff’s and the plaintiff’s attorney’s perspectives (as in these Simple Hypos). I kept getting such gaps between the two – and differences in the settlement values needed to equal their EMV. At first, I thought I had made a mistake. But I hadn’t. The analysis and the math were correct. And those uncomfortable moments in the mediation was the on‐the‐ground proof. In a contingency fee case, depending upon the timing (how much legal work still needs to be done) and the payouts, the attorney may be motivated to settle at a much lower figure than his client.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 83 This is just a fact. I do NOT oppose contingency fees. In fact, without a contingency fee, most of us would be unable to afford legal representation. And most attorneys who work on contingency maintain the highest ethical standards. They would NOT exert undue pressure on their clients.

The punch line and prescription is for students to be aware of this force, and NOT to bow to it. And, I strongly suggest NEVER AGAIN doing a separate tree for the client and the attorney. After all, the question is NOT what’s the best decision for the lawyer. The ONLY question is what’s the best decision for the client.

4) For the attorney, his past expenditure to advance the expert’s fees can be counted positively in the payout in the event of a plaintiff’s verdict, because the attorney will get it back from the award (in addition to his contingency fee). But it cannot be counted as a loss if it has already been expended. (See discussion of sunk costs below.)

5) Sunk costs – past expenditures should NOT be included in the end payouts (even as negative numbers or losses). The decision tree looks FORWARD in time, and asks what would be a good decision now, based on what will/might happen and its potential costs and benefits. Often, this is particularly important when working with the defense side (or any client who has already paid attorney’s and expert’s fees). Psychologically/emotionally, they want to “count” these – and they don’t want to consider settling for any amount that doesn’t seem to justify these expenditures. Many students who have worked part time or in the summer will understand this and bring it to the discussion. I will explain that this psychological/emotional component is strong, real, and normal. But it doesn’t change the logic (and good sense) that sunk costs should have no part in current decisions. In fact, explaining to a business client that this method “won’t allow” past expenditures can be helpful. You are just following the rules of the method. And you can always write down the past expenditures somewhere on the page – just don’t enter them onto the tree.

6) The Balanced Tree on Balanced Beams problem is a bit more complex, and a good one to work through the calculations – how you do the rollback math. It also illustrates that, once there’s any complexity at all (and most of life and law has some), structuring the decision tree involves judgment. How much should you “reduce” or make things simpler? Why? My sample answer tree boils down the liability question to whether (and the probability that) the defendant will avoid liability entirely. Because the other defendant is bankrupt, if this defendant is in for 1%, he’s on the hook for all of it. This tree illustrates that there are judgments to be made in constructing part of the tree relating to jury findings and the damages questions. My general advice is to create branches where a different factual finding will lead to very different damages calculations. So, if the plaintiff is found “just” to have carpal tunnel syndrome and not a back injury, some of the damages components would be very different (surgery vs. no surgery), and some the same. If the student were working with a partner in a law firm on constructing this tree, there could be robust discussion regarding all of these questions. My tree is just one cut at the problem. If it were a real case, the attorneys’ analysis would direct the structure of the tree and the damages numbers. And that would of course be discussed with the client.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 84 Review of the answers to the problem sets, including exegesis as to attorneys’ fees and the role of judgment and reality in constructing a tree can take quite a bit of time: 30 minutes to an hour.

The absolutely prime goal here is to make sure that EVERYONE in the class understands the method and could do it themselves in a reasonably straightforward case. I state that clearly and strongly encourage any and all questions, with a reminder that they will eventually have to turn in a decision tree on the Final Counseling Skills Exercise case. I advise sticking with this segment until at least that goal has been accomplished.

Time permitting, after review of the Simple Hypo and Balance Beam Trees, I go back to the question of what EMV means –mathematically and to clients cases such as these. I will devote considerable class time to discussing this, both the technical meaning and whether it “should” mean anything to a client. The technical answer is that the EMV is the average of all possible results, weighted by their probabilities. Why should that matter so someone whose case will be tried only once? The point is that there is no “should” here. EMV is not a moral imperative. The EMV is a data point, arrived at through a certain methodical logic and operation. For some clients, its method and its logic are compelling; they feel that they are “being logical” by settling at or near the EMV. Or, because of its logic, they are comfortable allowing it to influence their settlement decisions. Other clients will not respond to it. (Note: because I think this discussion is important, if going through the answer sets was length and the group is getting tired, I’ll end the segment with the pep talk outlined below, and go back to the question of meaning just after the break.)

A pep talk on value for their legal practice seems appropriate here. I take one (or both) of two tacks:

1) Even if you NEVER use a decision tree with a client (and we will soon practice doing just that), formulating a decision tree for a case – just drawing the structure, in your office – is a way to insure your analysis is suitably thorough and rigorous.

If you are an associate, researching a small question within a large case – drawing out the whole case tree will enable to see where your research question fits. That will enable you to ask good questions and to see what research path makes the most sense.

If nothing else, forcing yourself to draw the tree, forces you to consider all of the possibilities at each turn – to raise questions you might not have considered. Better now than later. That is just plain good legal practice. Of course, it is also important to update the tree as the case develops.

To illustrate, I describe a not‐so‐hypothetical mediation. Imagine that the mediator turns to defense counsel and asks where this case is going next. Defense counsel answers with the procedural posture: they intend to file summary judgment motion. The mediator responds: “I understand you are filing a summary judgment motion. Is this an all or nothing motion?” to which defense counsel responds: “Hmm… I had not really thought about that”. Plaintiff’s counsel chimes in that there is a possibility of partial summary judgment that would leave some of the higher damages claims, even if not certain. The mediator turns to both lawyers and asks: “Okay, so if the Court grants partial summary judgment on issue A, B, and C, where does that leave your case with X, Y, and Z”. When she says this, another blank looks comes across the attorneys faces; they hadn’t considered that. Or, perhaps defense counsel chimes

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 85 in with “Actually, if that happened the Plaintiff would only be able to get damages on X, Y, and Z”. Or, one lawyer says, “and at that point I would file a motion in limine to exclude certain evidence, which frankly I am confident we would win that”. Once again, the mediator turns to the other lawyer and asks “Have you considered what would happen if they filed that motion in limine”? Ah that deer‐in‐ the‐headlights look at the mediation table.

As a mediator, I expect and respect that attorneys will disagree about the likely outcomes. But, I don’t have high regard for attorneys who appear not to have thought about these questions. (And I know it means they haven’t discussed the uncertainties with their clients.)

2) Your adeptness at mapping the case through a decision tree will impress your supervising attorney! While not really new, I acknowledge that this method is NOT often used in a complete and rigorous way even by experienced attorneys. The tree may yield important insights: missing information that would be significant (or not) for settlement value or trial outcome; motions that would affect value or not; or ways to prioritize spending the client’s limited litigation dollars. If so, and you show this to the partner, that’s a feather in your cap as you serve the client well. Even if you never show it to the more senior partner, mapping will help you ask or suggest the right questions of the client and for trial or motion preparation. It’s definitely time for a break.

After the Break

A note on timing: if you’re lucky, you’ve accomplished all of this in 60 – 75 minutes: 30 minutes in “charettes”; 30 minutes to review and discuss the answers; 15 minutes on more extended discussion of meaning. Sometimes (but not usually) the review is quicker). IF you add a 15 minute break, you’re at 75‐90 minutes. This leaves you only 90 – 105 minutes (realistically 90) until the end of the segment.

Note that if you will do the “demo” described as the second option below, you may wish to hand it out during the break.

With luck, you may accomplish three more things in this next segment: discuss examples of how this method was useful in real cases; demonstrate how a lawyer might work with a client to introduce the idea of decision tree analysis and walk him or her through a tree; have the students practice. However, as they say, “two out of three isn’t bad.”

1) Walk through real life examples

Regarding examples: for this, I leave you to your own experience or gathered war stories, or the powerpoints, which outline how the method can be useful for dialog with you client and with opposing counsel. One important point to make is that many clients don’t care much about EMV. After all, they will only have one trial. They are intensely interested in the payout numbers on the right side, and what is the cumulative probability of each outcome. Learning that, 50% of the time, the outcome would be more or less than $X; only 20% chance that it would be as much as $y is highly relevant to their decision‐making. It’s also true that in some highly emotional cases, if a

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 86 client can see that his very high number (the value of the loss) is “on there”, but discounted for multiple risks, he somehow feels better. He can see that value was counted.

2) Demonstrate how one might use the tree in discussion with a client

I generally use a sexual harassment/gender discrimination case for this. A summary of the case as well as a complete decision tree can be found in the instructor’s area of the website and labeled sexual harassment case. I have done this with a professional colleague in town who typically represents defense clients (and who uses and respects decision analysis), and I have also done it with a student from the class (with warning). Depending on who you’re working with, you can have them act as the decision tree expert lawyer and you as the defense client or vice versa.

I have found it best to distribute a hard copy of the completed tree to all students so that they can follow along with the demo. That is much less cumbersome than trying to project it as you speak. And, even well‐projected, the tree is detailed and thus hard to read from a distance. While you certainly may distribute the case write‐up, I don’t believe it’s necessary. It’s not dissimilar to the facts in the case assessment exercise, but from a definite defense perspective. And it seems more interesting to have the facts emerge as the lawyer and client “on stage” discuss settlement, the tree, and the twists and turns the litigation may take. The defense client should be played as initially resistant, sure this case can just “go away” on summary judgment like so many others, and that it couldn’t possibly be worth more than nuisance value, and so on.

If I’ve done the demo with an attorney from the local community who does have experience using decision trees in practice, I will ask him or her to talk about it. Every attorney has a different story; the students appreciate and benefit from hearing an outside voice.

3) Student practice with clients

With some luck, you still have an hour or at least 30‐40 minute left before the lunch break or end of the class session. I suggest having students go back to the Balanced Trees on Balance Beams tree, also known as the Lancer Defense Tree. They should take on lawyer and client roles, with lawyers explaining the method to their clients. If you’re pressed for time, you could have the first round focus more on explaining the method and approach, let the client ask questions, respond etc. Then debrief: What phrasings worked well and which were unclear or problematic. Then have them switch roles and continue discussing the branches of the tree, what they mean, etc., followed by a classic debrief. Students generally see quite clearly how the approach could be useful in practice.

Closing Points

Building and working with trees requires judgment and skill, and some focus on both legal realities communication values. You DO want your client to be fully informed. A tree that is too

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 87 simple may distort reality and validate sloppy thinking. Conversely, a tree that reflects every single twist and turn may be hopelessly complicated and impossible for the client to understand. Further, it is doubtful that a jury will carefully break down and follow every twist and turn in a trial as well.

Our psychological biases when assigning probabilities or estimated payoffs may (unintentionally) skew the numbers and thus the EMV and the outcomes. Or, your client’s incomplete narrative may cause you to assign higher probabilities of success or a damages amount than a full account of the facts would justify. This point often comes up earlier, as students ask how one decides on the numbers to use, or argue against the method because of the problem of assigning numbers, but it’s worth repeating here. The tree’s analysis is only as good as the judgment of its builder. And it is only as valuable to the client as he believes it to be.

I re‐emphasize my willingness to work with any student who is struggling with this method, even in constructing the tree for the Final Counseling exercise. I offer to schedule a review or Q&A session if enough students send me an email, and anyone is welcome to stop by with questions.

Time for lunch or break until the next class session.

After announcing the next challenge: “Working with Psychology,” I emphasize that lawyers and clients almost inevitably fall prey to psychological traps and tendencies. One goal is to prevent our own cognitive psychological hardwiring from diminishing our legal analysis and judgment. The other goal is to work with our clients’ psychological tendencies that might lead to regrettable decisions. Once again, the teaching question centers on allocating time for presentation vs. discussion and reliance on students’ absorption of the assigned reading. The Client Science Course website includes a full set of powerpoints, usable for a complete and lengthy presentation. There’s no reason to go through most of them, if students are prepared. (All of this section’s reference to concepts in psychology and supporting research are also in the Client Science book, Chapter 5, “Predictable and Potent Psychology.” I have elected to omit citations for each.)

I start by asking what students remember from the reading (or undergraduate Psych 101) about psychology and decision‐making that would impact client counseling. After discussion, I put up a list:

1. Ego‐Centric US: Inflated self‐assessment, self‐confidence, optimism, judgmental over confidence; 2. Selective Perception – Biased Assimilation of Information – Partisan Perception Bias, Bias Blind Spot; 3. Naïve Realism and FEELING right; 4. Endowment Effects; 5. Commitment; 6. Anchors Away!! [Anchoring]; 7. Fundamental Attribution Error; 8. Equity (and self‐serving equity); 9. Risk aversion and loss avoidance; 10. Prospect Theory (Positive and Negative Framing).

Another approach is to put up the list (on a powerpoint), and ask students to walk you through it based upon the reading. Seek to elicit discussion of each item, with students explaining what it is and how it works. Encourage examples and discussion of how it might impact lawyers and clients.

Of course, this guide can’t anticipate which topics you’ll choose to cover by eliciting student discussion and which by presentation/lecture accompanying a powerpoint. Thus, I’ve included at least a précis of my talking points for each topic. These are reasonably evident in the powerpoint texts. I consider it a victory when a topic is covered largely through student discussion, rather than presentation.

As was true in for the material on emotions, one additional and important goal is for students to see that these phenomena are not mere academic abstractions, and their effects may be quite strong. So, I prefer “evidence” that arises from or close to the students’ experience.

1) Ego Centric US

A number of psychological tendencies fall under the header of “ego‐centric biases.” We see ourselves as smarter, better drivers, better employees than average. As in the Prairie Home Companion Radio Show, and its location, Lake Wobegone where “all the women are strong, all the men are good looking, and all the children are above‐average.” Not surprisingly, this impacts our predictions of how well we or our clients will fare in argument, as witnesses, as negotiators, and our assessment of our performance in circumstances leading up to a dispute.

2) Selective Perception, Partisan Perception Bias, Judgmental Over‐ Confidence, and Bias Blind Spot.

I do dwell for a time on the psychological tendencies for partisan perception bias, selective perception and judgmental over‐confidence because these so impact legal practice.

Selective and Partisan Perception Bias

The powerpoint titled “selective perception” contrasts (in two columns) what a supervisor might have said in a performance evaluation with what a hypothetical might have heard and remembered. It derives from a real case example. And it makes the point that a client is undoubtedly sincere when he recounts his version of what was said and what happened, but selective perception may make his version quite different from the supervisor’s. Ask students if they have ever been in a situation where memories differed and one side seemed to hear rather selectively. What can they imagine as the impact on client counseling?

One powerpoint under the header “Judgmental Overconfidence” draws from results I’ve generated from a settlement negotiation exercise, Bio‐Con v. Microtex, in my negotiation course. Law students are paired with business school students as clients in this complex business‐fraud case. The facts relevant to liability are almost the same in the plaintiff and the defense confidential information, with slightly different “shading” in some phrasing. Note that both sides receive the same spreadsheet with numbers relevant to potential damages. Each year, before they negotiate, I ask students to estimate the % likelihood of a plaintiff’s finding on liability and damages award if the plaintiff does win. (In fact, the students are asked to estimate the range of possible damages and then to estimate the most likely damages award. This is to avoid students reporting only their more extreme guesses.) These stats on the powerpoint are my most extreme results, but each year demonstrates strong partisan perception bias. Okay, the facts as to liability are shaded differently. But the differences in damages estimates are even more dramatic, and they come from the same spreadsheet! By the way, this is entirely consistent with the findings in Randall Kiser’s book, Beyond Right and Wrong (see full discussion in the Client Science book), indicating that defense side might be modestly more accurate predictors on liability. However, when they lose, they tend to have greatly under‐estimated damages. Using stats from my law school class makes the phenomenon more real. You’re welcome to use my

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 90 findings, but it might be worth gathering results from a pre‐negotiation questionnaire in your law school.

Judgmental Overconfidence AND Lawyers’ Predictions

A tremendous quantity of research establishes that lawyers’ predictions are NOT well‐calibrated to what actually occurs. Indeed, some studies suggest lawyers’ predictions, in the aggregate and on the average, are no better than chance. We shouldn’t blame this on arbitrary and unpredictable juries (as some lawyers tend to do. That is because judges (who, after all, were originally lawyers are better at predicting jury outcomes and generally agree with the jury. When the judges’ predictions are wrong, the divergence is in either direction. So lawyers’ unreliable predictions come from their partisan positions. A plug for mediation courses and training is appropriate: lawyers with at least 30 hours of mediation training were somewhat better at predicting – less susceptible to partisan perception bias.

It’s interesting to note that long years of legal practice experience may not be helpful. Two studies found that we may not improve calibration with experience. R. Kiser’s study indicates that ability to predict goes up at between 5 and 10 years’ experience, levels off, and then gets WORSE at 30+ years.) This may be explained by the fact that over confidence tends to rise where we believe we have significant control. (Senior partner: my superior lawyering will win!”) Moreover, judgmental over‐confidence is generally more pronounced for difficult or complex tasks (where confidence is not warranted). If more senior lawyers do get more difficult cases, that might explain their more pronounced over‐confidence.

We know that people generally become better at predicting – more accurate – and thus their confidence levels calibrate with reality when they receive continuous performance feedback. However, given that so many litigated cases settle, lawyers don’t often find out whether their predictions were right or wrong. Moreover, follow up studies (summarized in Kaiser’s book and article indicate that when lawyers are confronted with an outcome they had not predicted, they tend to attribute the error to specific circumstances. One fascinating study asked lawyers early on in a case how they would define success – what their goals were. Later, when lawyers were asked to indicate how successful they had been in the case, their self‐assessment was MUCH better than their actual success (measured against to recorded goals at the outset).

Bias Blind Spot

We like to think that awareness of biases constitutes an antidote. I suspect that most lawyers have heard the term “partisan perception bias” and would acknowledge that, sometimes and for some lawyers, it creeps into what should be objective analysis. In fact, research suggests that people generally accept that biases sometimes do influence perception and judgment. But, we generally reject the suggestion that our own bias may have influenced our judgment in a particular instance. Yet, of course, we readily ascribe the other’s different conclusion as due to his or her bias.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 91 Why? One theory is that we can (and do) engage in introspection with regard to our own decision making process. We can remember and ruminate over how we reached conclusions, believe that we were aware of and “bent over backwards” to avoid bias. So, we absolve ourselves. Because we can’t engage in introspective for the other side, we cannot absolve them. So we conclude they were biased!

3) Naïve Realism and FEELING Right

I like to segue from judgmental over‐confidence to naïve realism by using the now famous “f” exercise – an exercise I first learned at the Program on Negotiation at Harvard Law School. I put up a powerpoint with the sentence below on it, and ask students to count the number of f’s they see. Caution them not to shout out their number, just to remember or scribble it down.

How Many “Fs” Do You See?* These functional fuses have been developed after years of scientific investigation of electric phenomena, combined with the fruit of long experience on the part of the two investigators who have come forward with them for our meetings today.

* Do not count the “F” in the title or in this note!

After a reasonable amount of time, ask how many students are confident they counted the right number. Often, there’s some hesitation, as the students correctly anticipate a “gotcha.” I’ll lightly say, “well you must be awfully suspicious,” and note that most people who count what’s in front of them feel that they can be confident.

Naïve Realism is the belief that truth in the world is exactly (and exclusively) the way we experience it. We know it and we FEEL RIGHT! (we don’t socially and thus differently construct our realities, we record what is TRUE and REAL!) The phrase arose out of experiments with children, in which researchers found that young children think that we all see that world as they know it. So, if a young child sees someone put a box of crackers in a cabinet, and another person then enters the room, the child believes the other person also knows the crackers are there. What we see is shared and known to all. The shift toward understanding that we have different perspectives and knowledge starts at about age four, at least under these experimental conditions.

An aspect of naïve realism is that, even as adults, we tend to assume others know about or have focused on “our worlds” to a much greater degree than is true. “Of course the division director had to know I had been flat out on this project”… “the VP was aware that I ran a successful marketing campaign five years ago – so there’s no excuse for the decision they made.” But of course, the VP or the division director had no idea, or didn’t remember or hadn’t focused on the client’s circumstance, just as your client has no knowledge of corporate priorities set by a directors’ committee in London. Yet, the division head was frustrated by your client’s inflexibility… and so on.

It’s normal, and that means it’s wise to ask what assumptions have been made, what questions should be asked, what information should be provided on all sides.

The relevant powerpoint reads:

Endowment Effect Empirical finding that people tend to value goods more when they own them than when they do not Buy a mug? Subjects given a mug valued it at much higher price ($7.12) than those given money and permitted to buy the mug ($2.87), or than those permitted to choose between a mug or money ($3.12). What’s mine is better

This refers to the first well‐known experiment demonstrating the endowment effect, conducted at Cornell University. One group of students were given a mug and asked to record what they would sell it for. A second group were given money, shown the mugs and asked how much they would pay for one. A third group was asked to choose between receiving money and a mug. The results were different for each group, as stated above. Yet the mugs were all the same.

The endowment effect is easy to see, as we value our assets, our homes, our businesses, our ideas, our proposals more highly simply because we own them. Even if there might be some intrinsic, legitimate value difference, our feeling of ownership exaggerates it. When I discussed this with a group of venture capitalists, they confirmed that when buying a business from its original owner, it would simply take longer and they would have to provide much, much more market data to establish a value range that might otherwise be clear. So be patient with your client when he seems to be insisting on a certain valuation, or a certain term in exchange what he has offered. And do be prepared to provide information, experience, and data available that might suggest a reasonable value or position – one the other side may accept.

5) Commitment

Confidence and Commitment Once people have committed, they tend to be more confident in their choices! But the horses don’t get any faster! The outcome doesn’t become more certain!

In a classic 1968 experiment at a Vancouver race track, experimenters asked prospective betters before a race track window how confident that their horse would win . When asked the same question on the other side of the window, after placing their bets, their confidence level went up. Yet, their horses had not gotten any faster. Your client (or you) may make a decision with some trepidation, recognizing that it’s a close call. After it’s made, they become more committed and more certain. It’s a problem, if that leads you or your client to ignore newly discovered evidence or other business, professional, or personal considerations that would point in another direction.

6) Anchors Away – On the Phenomenon of Anchoring

Definition: The influence that an initial starting value or position has in determining subsequent values or positions.

In fact, even exposure to values that should be recognized as unrelated or irrelevant often impacts our guestimates, judgments, aspirations, and decisions. Anchoring is also one of the most robust and consistent findings in psychology and decision‐making.

I often introduce the concept of anchoring with a favorite “spiel” when teaching an exec ed or CLE class. It’s great fun to tell the story of the roulette wheel experiment in which the pre‐set number on the wheel greatly impacted the responders guestimates of the number of UN countries on the continent of Africa. But that’s in the book and perhaps not worth repeating in this class.

I jump to the importance of anchoring, and the fact that people – even lawyers – and certainly clients – tend to anchor on numbers recently heard, even if unrelated. To illustrate this, remind the students of that case assessment exercise they were asked to complete before the workshop. I admit to some delight when explaining that, while it seemed there were four different cases to be assessed, they were really the same cases, under different names. That sexual harassment/gender discrimination case description contained a good many numbers from which student assessors might use to think about value.

The real difference between the sheets was in the short reference to the OTHER case ‐ the personal injury case tried in the state court in Kentucky. Clearly that Kentucky case has NOTHING to do with the fate of an employment case in the Federal District Court in Ohio. In one version (Calculations in Confidence), the Kentucky case won $300,000, in another (Predicting What’s Probable) it won $6 million, in another (Finally A Great Case) the firm lost the case, after the client turned down $300,000, and in another loss (Betting On This One) the client had turned down $6 million. (For the losses, there’s a notation that the lawyer had recommended taking the offer, so student won’t be less confident of earlier judgments.)

And yet…. With a bit of a drumroll flourish, put up your class results.

In almost all years, the class results have strongly supported the anchoring phenomenon. In other words, the average student estimates of likely damages and recommended settlement value are higher when the Kentucky state court verdict or offer left on the table is at $6million, and lower when the Kentucky number was at $300,000. There is generally some adjustment down from the case description referencing the Kentucky state court $6 million award, to that referencing a Kentucky state court loss after rejection of a $6 million offer.

The students will be most interested in their own results, though I’ve also provided power points that include data from a few recent years. (In a few instances, with smaller classes, anchoring effects were less clear across all categories. Outliers have a more dramatic impact when you are dealing with small numbers.) My recommendation is to project the results and let them sink in. At first it’s funny; students enjoy seeing the numbers, and a sense of a punch‐line to their pre‐ workshop exercise. Then the response shifts from laughter to sober realization, especially when asked about its implications for client counseling. Isn’t a bit frightening to think that one lawyer

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 94 would recommend a $2.5 million dollar settlement and another a $1.5 million dollar settlement based upon what s/he recently learned about another unrelated case?

The Impact of Anchoring on Willingness to Accept Offers

Sometimes, I describe the experiment by Guthrie and Korobkin {put in cite] in which subjects were given the description of a case, with information that an earlier offer had been $2,000, but the current offer is $12,000. A different group of subjects were given a description of the same case, with information that the earlier offer was $10,000. Current offer is $10,000. All subjects were asked to state whether they would definitely or probably accept the offer (or the opposite – definitely or probably not. Here are the results:

Low anchor – mean YES – 63% (definitely or probably accept) High anchor – mean YES – 34% (definitely or probably accept) (Mediator‐prof says still avoid REALLY insulting first offers

One note of marginal comfort: even if still operative, anchoring may be less powerful when the subject has some expertise. We are more susceptible to anchoring when we are absolutely clueless. Most students will acknowledge that they didn’t know how to go about estimating damages and settlement in the class exercise. Perhaps lawyers more experienced, more familiar with likely verdict ranges, given the same exercise, would not have been anchored so dramatically. Perhaps. We like to think so, or hope so.

However, a research study involving real estate agents and property values demonstrated that even those with expertise, were anchored by different asking prices affixed to the same property descriptions. Research demonstrates anchoring effects of lawyers damages claims or dollar verdict requests on judges and juries too. Anchoring has impact!

7) Fundamental Attribution Error

Most people ATTRIBUTE ‐ seek explanations that are not random or ambiguous. Every day, on the radio, we hear stock market and currency value reports and some commentator confidently attributes change or lack of change to well‐defined factors. Really? Somehow, I suspect the causes are more complicated. There is a Fundamental Attribution Error:

In the human realm, the Fundamental Attribution Error refers to the fact that people tend to attribute others’ behavior to their character or disposition – without examining their circumstances or situation. If he is late, it is because he is an irresponsible jerk! Or it’s because he doesn’t respect my time, or he pulled a power play and intentionally made me wait!

The corollary to FAE is that most people attribute in the opposite direction for themselves. If I am late, it’s not because I’m an irresponsible time manager, it was the traffic, or the crushing workload. In the lawyer‐client interviewing and counseling context, it’s important to recognize the FAE tendency. And sometimes, it’s a lawyer’s job to suggest what I’ll call “an alternative hypothesis.” It could be that your business partner intentionally created this mess to reduce the value of your

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 95 shares in preparation for buying you out now (two years later), but let’s step back. What else was going on? What else might have impacted his decisions at the time? Do we know? Could we find out?

Note that, when you combine FAE with selective perception and biased assimilation of information, the brew may become toxic. Or, shifting to a character description, the other party is soon viewed as Darth Vader, and all actions are interpreted using assumptions about Darth Vader’s motivation. Sometimes, I ask if anyone ever dated someone their parents their roommates just HATED. And, really, he or she wasn’t so bad. But in the parents’ or the roommates’ eyes, nothing he or she did was ever good. This will resonate for many in the class!

What does this matter for lawyers and clients? In the client interview, you might be skeptical of Darth Vader characterizations of the other party. Expect to be surprised by what you learn if the case progresses. The jury might well find him rather charming.

While not all cases are better settled (even a mediator admits), most clients are less likely to feel comfortable settling with, compromising with Darth Vader, than with an opposing party who’s “not that bad a fellow, didn’t have evil intent, just made some bad judgments.” Unfortunately, FAE may prevent your client from exploring an opportunity for favorable settlement.

8) Equity Seeking (and Self‐Serving Equity) vs. Rationality

It should come as no surprise that RESPECT, FEELINGS, and FAIRNESS REALLY DO MATTER!!!! Their value is real and, for many, more important than economics.

In yet another set of experiments done by Guthrie and Korobkin, students asked to assume the rule of plaintiff were far less likely to accept a settlement offer from someone who had treated them unlawfully and unfairly, without any apology or reason. One of the cases used involved a landlord‐tenant dispute in which the heater broke in the tenant’s apartment. The tenant reported it to the landlord who promised to fix it but did not, causing the tenants to suffer a very cold apartment for four months before they moved out. Some groups were given no explanation by the landlord. Other groups were informed that the landlord had left the country unexpectedly due to a family emergency and was gone for several months. In a third group, the landlord tendered a (weak) apology. All groups were advised by their lawyer that they had a “good chance of recovering” and were given the same rather low settlement offer.

Not surprisingly, the differing conditions, no explanation, explanation, [even weak] apology affected the results – the mean likelihood that the subjects would accept the offer. [Just in case you want the numbers: In the Broken Promise group, [2.6 mean] 35% definitely or probably accept settlement, and 30% DEFINITELY reject. In the Family Emergency group: 59% definitely or probably accept settlement, only 9% definitely reject. [Weak] Apology [2.93 mean], but only 12% DEFINITELY reject. (Note: in my view, the apology really was very weak.)

Note: One year I tried giving the students the different case descriptions used by Guthrie and Korobkin but didn’t get similar results. It seems that the law students were highly unimpressed by the dollar offer, given

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 96 the strength of the case. The subjects in the original experiment were not law students. I do like the idea of conducting an experiment in the class, but would do so with a different fact pattern, pre‐tested with law students.

Rather than cite this research, which is after all, in the Client Science book, it may be preferable to ask whether students can think of circumstances where they felt they had been disregarded, dismissed, their needs ignored or trampled upon: how did or would they feel about compromising?

Would it matter if someone provided an explanation, sincere lack of intention to harm, even if it wasn’t a legal defense? Wouldn’t it matter?

On a Grander Scale, Attributions, Equity and Narrative ALL Affect Client Counseling

Parties in conflict develop understandings, or ʺnarratives,” based on attributions. Lawyers sometimes further shape the client narrative by “motive mongering”. Ultimately, the client’s narrative and its inclusion of ill motive and inequity (or not) will influence client emotion about resolving their dispute. Students should see that this is tricky territory for a lawyer!

At this point, whether we’ve arrived through discussion or powerpoint or, as is likely, some combination, I announce a shift to feelings about numbers, or how to understand and shape people’s responses to risk, gain, and loss. I do give them a heads up to the effect that the Final Counseling Skills Exercise will call upon them to understand and be able to apply these lessons. (It’s true, and it gets their attention.) I also tell them that lawyers who have attended CLEs on the topic universally recognize that this material – as it relates to presentation of settlement offers and demands to your client, and to negotiation of terms – is tremendously important.

9) Risk Aversion and Gain, Risk Seeking and Loss Avoidance

Simply stated, people tend to be risk averse as to gain and risk seeking as to loss. The Client Science book and the relevant power point include an oft‐cited example. When you ask people to choose between a sure gain of $240 and a 25% chance of winning $1000, most will chose the sure gain of $240, even though it’s slightly lower than the discounted value. But, if you ask people to choose between a sure loss of $750 and a 75% chance of losing $1000, most will take the chance.

In fact, most people would probably take the chance even if the sure loss was only $700 – don’t you think? We just hate to take a loss now. And, if the loss occurs as a result of some roll of the dice, then we don’t have to take the blame.

Already a mediator when I began to explore this literature, it immediately rang true. And it served to explain why, sometimes, I would be meeting with defense lawyers and clients, perhaps the insurer, and all would agree that they had at least a 50% chance (maybe more) of losing at trial and that the verdict would be at least $300,000. Yet, they wouldn’t agree to offer

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 97 $150,000 in settlement! At least I understood why. They weren’t trying to torture the mediator, they were risk seeking as to loss. At some point , even the dispositionally risk‐seeking will not be completely foolish. But it’s at a far, far lower number than a cool‐headed computer would suggest.

Whether this explanation of risk aversion and gain, risk seeking and loss avoidance has come from your presentation or the students, it’s worth taking a minute to ask how they might use this insight in client counseling and settlement contexts. This will theoretically prime them for the vignette exercises that will follow.

10) Prospect Theory (Positive and Negative Framing), Formulated by (Kahneman & Twersky, with Bazerman’s Assistance)

People use the idea of framing, or reframing a great deal. It refers to the accurate observation that our judgments and decisions about information, events, motives, etc., can depend upon the manner in which it is presented to us.

Prospect Theory builds upon insights into people’s attitudes toward risk, gain, and loss (describe above). It suggests that people evaluate decisions from a reference point. The way you frame the problem – present the reference point – will affect their decision Frame POSITIVELY as faced with a certain gain from a reference point – they will choose the certain gain over the risk. (We hate to walk away from gains that are “on the table.”) Frame NEGATIVELY as faced with a certain loss from a reference point – they will choose the risk over taking the loss. (We hate to pay now even to avoid uncertain but possibly larger future losses).

Additional components of Prospect Theory are that:

 People tend to be loss averse: they will give greater weight to prospective losses than to prospective gains of equal magnitude.  Our responses to losses are more extreme than our responses to gain. Or, the pain associated with losing $ X is generally greater than the pleasure associated with winning $ X.  We tend to overweight the probability of low probability events and underweight the probability of high probability events.

Prospect Theory in (experimental) practice was also demonstrated by Korobin and Guthrie in an experiment with Stanford undergraduate subjects. Different students were given different case fact patterns, involving an automobile accident. They found that whether the offer would cover loss or gain from their original status quo (the value of the car), had everything to do with whether a settlement offer would be accepted – even though they were all give the same “valuation” of the case by their lawyer (in the fact pattern).  When the accident involved a Toyota, with $14,000 as the loss of the car, and $14,000 medical expenses (NOT out of pocket, insured), the value of win was stated to be $28,000. Winning was described as uncertain.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 98  When the accident involved a BMW, with $24,000 as the loss of the car, $4,000 medical expenses (again, NOT out of pocket, insured), value of win was stated to be 28,000. Winning was described as uncertain.  For both cases, the offer was $21,000. For the first group, that offer covered the loss on the car, for the second group it did not.

90% of the subjects with the Toyota but 64% of the subjects with the BMW “probably” or “definitely” would say YES; only 2% with a Toyota but 20% with a BMW probably or definitely say NO to the offer.

While reframing can influence a client’s (or opposing party’s) decision, Korobkin and Guthrie’s experiments and my own practice experience suggest “asymmetries” and resistance points. When the settlement was reframed to Toyota owners as a LOSS, they were indeed less likely to accept it. Here’s the language used for the Negative/Loss Reframe to the Toyota subjects:

Keep in mind that if you accept this offer you will be substantially worse off than you were before the accident. The other driver did cause you $28000 worth of total damages, and accepting the offer would make it impossible for you to ever recover the full amount of the damages. Rejecting the offer, though somewhat risky, would allow the possibility of recouping the full amount you believe National Mutual should pay you.

Result of reframing gain to LOSS: Toyota folks far less likely to accept the settlement (mean 3.59 vs. 4.43 (“Definitely” or “probably would accept” shifts from 90% to 64%).

However, real losses are more resistant: we hate to lose, even by a more positive name. When the BMW subjects were given a Positive/Gain Reframe, they were only slightly more likelyt to accept the settlement. (Here is the language used:

Keep in mind that this settlement would leave you substantially better off than you are now, and you would avoid the riskiness of a trial. Although the offer is $7,000 less than you hoped to recover, accepting the offer would make you $21,000 better off than you are right now (remember, you currently have no car.)

Korobkiin and Guthrie note that in real circumstances, and face‐to ‐face, the results might be different. I would also note that the language used is not the most powerful positive reframe I could imagine.

[Korobin and Guthrie also conducted this experiment in two other cases with similar structure, one involving a wine cellar and the other a divorce case involving number of child visitation days.] Practical experience does confirm their observation that the barrier of negative frames “might prove quite stubborn to mitigate.” When your client feels that he is still in loss territory – the offer won’t cover bare expenses – it’s difficult to find a positive frame that’s convincing – even when the offer on the table is far, far better than losing at trial. So, when working with a client, sometimes the question becomes what he or she feels as a loss – what counts. Are medical expenses losses? Well technically, they count as damages, but were they paid by your client? If

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 99 not, he may not count them as his loss… and may start to find a settlement offer harder to reject after it rises to the level of his lost wages.

Finally, Finally, We Turn to the Vignettes: Working with Client Psychology

I usually ask the students to pair up, and take on lawyer and client roles for these vignettes, which describe a client, lawyer and the circumstances in a case. The student‐client should, in his or her own words, express the client’s stated position in the vignette, with appropriate levels of protest, angst, frustration, etc. Assume the lawyer knows that client position may not be wise, or that another option or decision would be worth of real consideration. The lawyer’s task is to use what was learned in the psychology reading and presentation – particularly positive and negative framing, risk and loss aversion – to inspire the client to shift position, or at least to reconsider.

A relatively standard debriefing follows each one. I suggest asking students to name the problem with the client’s initial position. Ask them to identify the psychological tendency, trap, or barrier that might be involved. Ask how the lawyer decided to handle it. You might ask if one of the student lawyers will help his or her classmates avoid future disaster by telling us what definitely did NOT work – what crashed and burned. (Students generally enjoy this, if they have the choice to volunteer it themselves.) Entertain a discussion of why it wasn’t effective. Of course, most important is to ask: “What did work well?” That question is probably best directed at the clients: “Who can nominate their lawyer’s effective phrasing? Who< as client, did feel a bit of a shift because of what your lawyer said? What was it?” Have students move onto the next vignette, switching roles, and so on.

Each vignette easily requires a bare minimum of 10 minutes and realistically 15: some time to read, play out the dialogue, and some discuss. I generally choose not to assign these in advance to avoid overloading workshop students. It would not be unreasonable to assign in advance for a weekly class.

My aspiration is to cover many of these; hence the oft‐repeated effort to reduce the presentation portion. I want students to practice and discuss how one might reframe and rephrase effectively. In part, this is because the Final Counseling Skills exercise is designed so that students must reframe the negative to the positive, and be canny about phrasing around risk, gain and loss. Arguably, that’s teaching to the test. I prefer to think of it as teaching to real future moments.

At the end of this segment, I encourage the students go beyond this quick dip into social and cognitive psychology and psychology of decision‐making. The material is endlessly interesting and always relevant to legal practice, not to mention any and all dealings with people and with ourselves. In an airport bookstore, doctor’s office, tennis club waiting for your kid to get off the court, pick up Psychology Today magazine or any recent psychology related book with a good title.

Time for a break, on to Drama Does It for the end of the afternoon and the home stretch tomorrow.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 100 Drama Does It! Actors’ Advice for Choices in Gesture & Voice (2:45 – 4:30 in the afternoon of Workshop Day 3, or approx.. 7th in a weekly course)

The “Drama Does It” module is great fun, and much anticipated by the students. As issues relating to voice and gesture come up in earlier demonstration or discussion, or even when observing students in small groups, I’ll credit that awareness as having come from our actors and mention that we’ll delve in further, or practice in the drama piece with them. I promise that it will be fun, and it is.

I must acknowledge that we have been privileged to work with very accomplished actors who make a presentation and later help observe and coach students within this module. Generally, I invite (and pay) two actors – a male and female who work well together and helped me to develop the materials. It works very well to invite two of the same actors who will later be playing the Jan Hapless client in the Final Counseling Skills exercise. This gives them credibility as Jan later (and familiarity reduces fear.

While the next few paragraphs refer to the actors’ presentation, note it has been done with one actor only, and I have done the presentation myself. My solo performance came after having observed and helped structure the actors’ presentation for many years. I just channeled them, called up my inner ham (not hard) and rather enjoyed it. That was in an off site day‐long executive seminar, not a four day law school workshop with students who might be tired, and tired of hearing my voice.

If I am working with actors who have played and will soon again play the client role in the Final Skills Counseling exercise, I ask them to speak for several minutes about their experience as clients, and to explain what want in their lawyers. The students are attentive, and the actors speaking as clients are genuine and compelling. I don’t see how this could be accomplished in your first time through, when your actors won’t yet have been through the Final Counseling Skills exercise, but I highly recommend it the next time.

When they speak, the actor‐clients strongly affirm that:

When we are clients, we want:  Our lawyers to have some authority/gravitas – for their to be some weight to what the lawyer says, so that we can feel confident about it.  To feel connected to our lawyer. We want to believe our lawyer cares about our concerns, that they matter to the lawyer too.  To feel our lawyer “really gets” it ‐‐ why all of this is VERY important (unfair, terrible… )  NOT to feel incompetent, stupid, or small when talking with our lawyer. We want to feel respected. We want our lawyer to explain things so we can understand WITHOUT feeling stupid.  To have time to process complex ideas and time and permission to react.  Our lawyer to understand (anticipate) how it impacts us when our lawyer gives us advice  To feel autonomous in making decisions, not abandoned, but not forced or manipulated.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 101 They are clients, AND they are actors. Thus, at the conclusion, the actors or I will connect to to the program content by stating that because they are actors, they have some ideas regarding how their lawyers can accomplish this.

The “Drama Does It” segment is then aimed at the following topics and skills, with student practice, feedback, and reflection on their own tendencies and strengths.

 Actors’ techniques in body position and gesture (authority, clarity, connection)  Actors’ techniques for voice (authority, clarity, connection)  Exercises for acting lawyers  Practicing emotional range  Using voice for emotional synchrony  Getting to gravitas  Taking on consequences and risk

Actors’ techniques in body position and gesture (authority, clarity, connection) We allocate 20 minutes, including the three segments below on authority, clarity and connection. As you’ll see, that timing is tight!

On Authority, the Appearance of Competence and Confidence

This segment generally begins with a discussion of the importance of posture and body language, the fact the much of communication is non‐verbal. The presenter demonstrates aspects of standing posture, and what is considered a neutral standing position, that is rock solid and powerful. It is quite amazing to see that when he (or she) stops pacing, assumes that neutral posture, and just stands, silently, looking at the class – everyone stops, and everyone listens. (One of our actors asserts that this works with a room of rowdy third graders.) The idea of neutral and powerful standing posture is likely familiar to students who have done moot court or trial practice. After or during the presentation, students are asked to stand up where they are, breathe deeply, stretch the vertebrae, put feet just slightly apart, “shoulders back, chest out,” head and neck relaxed, and arms falling naturally from the shoulder.

Because our focus is on client counseling, most of which occurs while seated, we translate neutral standing posture to the neutral seated posture. We ask students to adjust the way they are sitting – back straight, pelvis straight or tilted just slightly forward, arms natural or on the table. Of course, this is sometimes impossible to fully accomplish in the fixed seating at law school tables. (I call it yoga posture, each vertebrae stacked on the other to get maximum height.)

Unfortunately, even if students do adjust posture, they can’t see its rather dramatic impact. Thus, I am committed to a demonstration here. Sometimes an actor or I will take a seat at a table placed in the front of the room and, in rather exaggerated fashion, try slouching, try leaning way back, try the recommended posture, with pauses to discuss what each posture communicates. Note: it IS important to be light‐hearted and have fun with this!

We will also discuss matters of the way size affects perceptions of power and competence, and the ability to establish rapport and avoid intimidation or intrusion. (See the Client Science book, Chapter 7).

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 102 It’s worth calling on students of different body types, a petite female – smaller shoulders, even a male of slight build, and someone on the opposite end of the scale – very tall and physically imposing. Obviously, the goal is not to embarrass students who are over‐weight or mal‐ proportioned. You might have the larger student sit (as lawyer) opposite another smaller student, as client. Have the larger lawyer lean forward, perhaps plant elbows on the table… a bit too close to the client’s physical space. Isn’t his or her instinctive reaction to pull back?

The most important piece of this demonstration, involves a small, slight person, first sitting “normally” – not particularly straight, with hands on lap and elbows down (not on the table). Next ask that person to sit up as tall as possible – not leaning against the back of the chair ‐ and place her elbows at that the table to take up more physical space. It’s quite dramatic to see the difference. (No reason you couldn’t do this with a slightly built male student.)

I admit that, when it’s a female dressed casually, I’ve been known to stage a “take two” and lend her a blazer. Note that casual Fridays are nice, but casual blazers are better.

I often state that this portion of the course is intended to “add ten years.” This is true for the coming segments on voice and gravitas as well. The idea of becoming ten years older definitely gets the students’ attention! What does it mean? When you are the newest and the youngest, it can be a challenge to have colleagues and clients see you as confident and competent. So, perhaps it’s not about looking older, but seeming more experienced, it’s that you seem more experienced. When the senior partner comes down with the flu and has to decide which associate to send to argue the motion or cover the deposition, I want him or her to think: “Hmm…. I know that Chris looks young, but Chris does seem to have a bit of experience – maybe s/he’s older than s/he looks. Chris certainly has confidence and did a great job in that meeting last week. I bet Chris can handle this! “ That’s the goal.

On Clarity and Connection

Physical anchors can create cognitive anchors for clarifying and strengthening memory of complicated information. This is rather clearly set forth in the Client Science book, Chapter 8 (which also makes the presentation less dependent on great actor performance.)

While our actor does this, the prof or a student could just as easily tell a short story, or an explanation of how something mechanical works, or a complicated idea. Try doing it WITHOUT gesture. Then add gestures. And you can play with retelling the story with inconsistent gestures – first he went to the store (gesture left), then he went down main street (gesture forward), realized he forgot something and went back to the store. This time, gesture to the store in an entirely different place.

If you’re going to use a student, I suggest asking for volunteers or selecting a student before the break, to allow time for them to think of a story.

Within the unit on gesture, it’s important to demonstrate how gesture can make an idea or a eventuality seem real, concrete, and important, or vague, unlikely or unthreatening. You can describe the idea that we could win a million dollars, or we might get nothing or next to nothing. Do it two ways (or have a student volunteer do it), first say “we could win a million dollars” as you put put your hand slowly firmly on the table, and leave it there for a second, “or we could

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 103 get nothing” but wave off into the high air as you say that. Now reverse it: “We could win a million dollars – waving off and into the air, “or we could get nothing, placing that nothing slowly and firmly on the table.” Part of the difference will be in your tone of voice. (It’s inevitable, even if you try to not vary vocal tone too much.) Explain that we’ll get to voicing in a minute. But much of the difference – which is dramatic – is in the gesture.

You can also move objects, from peripheral to central. “I know we haven’t focused too much on the technical evidentiary issues – my department.” Gesture off to the side. But I do want to stress the importance of one of them – whether your scientist will be able to testify. Take that issue out of the air, put it on the table, and move it to be in front of your client.

You can hearken back to the attorney client privilege and explain the exception two ways. “So, if a client walked into my office and said he planned to shoot someone …” gesture off to the side, and wave it away.”…. Then say it facing the client, slowly and firmly putting it on the table. I hereby admit that I often sneak this one into the first day, when we are working on descriptions of the attorney client privilege.

Body Language and Gesture for Connection

Given the Client Science book, Chapter 9, “Channel Navigation Notes,” you should be able to reference the idea of a physical “air space” channel between lawyer and client seated at a desk or table. This is a good candidate for demo in front of the class. The actor might sit opposite the student, or you (the instructor) or you might choose to work with two students. Try making one of the statements about exceptions to the attorney‐client privilege, but look or gesture not quite in the channel. Then direct the same comments straight to the client, inside the channel. Eye contact occurs within the channel, of course. Try saying to the student‐client, “So, if you are about to commit a fraud, that would create a disclosure issue.” Make it direct, maintaining full eye contact within the channel. When discussing something that is jarring to your relationship with the client, it feels awkward to place it in the channel.

One piece of advice from our actor is to make a gesture to space behind you when referencing the opposing party or counsel. That makes you the client’s protector against the other side.

Finally, on the topic of gesture and connection, moving your hand forward within the channel – somewhat within what would be culturally accepted distance, can serve as a surrogate touch. This demo can be fun. The student or actor should say something highly emotional, “I’m so upset about my cat, I just don’t know how I can live without her!” The other (you, an actor or other student), will lean forward a bit, slide your hand toward the client within the channel – but still don’t come close to a touch. It’s pretty easy to see that this is an expression of comfort, almost a hug, but professionally appropriate.

On Vocal Choices for Connection, Authority and Clarity (15 minutes)

Our actors begin with a brief (and funny) presentation on the components of voice and speech: pitch, timbre, diction, articulation, and speed. Absent the actor, you take on the role, or call on the class to do it. Fortunately, we are able to vary all of these – they are within our control at least to come degree– except for timbre. Timbre has to do with the resonance in our voices, we either have nice round resonance, or thinner flatter voices. And, while I will never be a basso profundo,

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 104 nor will James Earle Jones take on my speaking voice, we can all vary pitch within a certain range.

Diction has to do with the words we choose, and articulation has to do with how we pronoun those words. Do we clearly enunciate the end consonants or, not so much.

We like to think that we control speed, but some of us are naturally fast talkers and others’ normal rate is slower. Some form words relatively quickly but utilize the pause, others not – or at least not as before this course. (This is indeed a hint. A key piece of advice for fast talkers, discussed at some length in the Client Science book, Chapter 6, “Choices in Voice,” is to punctuate with frequent pauses.)

In addition to body language and gesture, the way we communicate – beyond the words has everything to do with way we voice the words, not to mention sentences and paragraph. Your voice expresses emotion (or not); it communicates confidence and authority; it can speak in ways likely to create clarity or confusion.

Mirroring was a topic in the interview phase of the course, but that largely referenced mirroring as to gesture. We also mirror vocally – and most of us do it naturally. So, if you’re with a fast talking sister, you will unconsciously start to speak more quickly than you might with your slow talking southern roommate.

Recognizing that periods of client contact are often short – especially after that first meeting. Establishing rapport must happen within limited time. One strategy is to be conscious of your client’s vocal patterns and adjust your own. So, imagine that your client is hysterical and her voice is all over the place – she’s flighty, she talks ridiculously, out of control fast. Do you really want to mimic that? NO, no, a thousand times no. In fact, this client might appreciate your steadiness. But still, if you tend toward monotone and very slow, you might want to shift just a bit. Frankly, I suspect it’s more important in the opposite direction. The methodical, clipped, slower speaking client, might feel more comfortable and confident if the faster talking, widely melodic and variable vocal patterns of the lawyer were brought in a bit.

Perhaps most important to include here is that fact that people’s natural tendency to mirror with their voices can be an important way to lead your client to a shift in mood. So, your client may lack energy, be very low (like the character Eyore, for those who remember Winnie the Pooh and Christopher Robin days). You can use your voice to inject energy, and some matter‐of‐fact, “we can handle this” affect. Your client is likely to follow, both in voice and in mood.

With time and a volunteer or two, you can demonstrate this. Have the student take on an Eyore voice: “Oh, I don’t know, this is such a mess, this discovery is awful, it’s endless…” Let the other student (or you or the actor) respond with more energy regarding how they might expedite discovery.

After the demo, ask for comments and observations. It might have been fine, no critical observations. But the student audience, or your Eyore volunteer, might note that it seemed brusque, dismissive, or disconnected. Why? Because Eyore was “down here” and the other seemed “all perky, up there”. That seemed not to take Eyore’s sad state seriously.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 105 This will facilitate a transition to the next and, in my view, most important point: sometimes to lead, you have to “almost match” and then bring voice to a different place. It is described in the book, but cries out for a demo.

Note: This next piece, on reaching up to bring down, can be done here or it can be delayed until just prior to the exercises on Emotional Synchrony at page 123 below (or about half an hour later). It’s a good option if the presentations seemed long, and it’s just time for the students to be more active.

With two actors in front of the class, have one do a really, really over the top angry shouting scene – best to use something ridiculous. I CAN’T BELIEVE THAT MY HUSBAND ATE ALL OF THE CHOCOLATE ICE CREAM! THAT NO GOOD SELFISH YOU KNOW WHAT IS ALWAYS TAKING MY FAVORITE THINGS!! HE DOES IT FOR SPITE!! (The angry client can even pick up a chair or other prop.)

First, have the lawyer‐responder (actor, you or a student) say in a very calm even tone – not much energy: your husband does a lot of things that upset you, that’s why you’re here to get a divorce. [This should get a laugh… and it might evoke an even madder response: YOU BET, THAT SOB SHOULD DROWN IN ICE CREAM!!!!]

Ask students what the problem is, and you should get observations of a disconnect. Next, replay the scene – again with the wife REALLY churned up. This time, the responder should greatly increase the energy in their voice. Don’t out‐of‐control yell with the same degree of hatred laced in, but do start quite loud – almost matching volume and energy – and then bring it down over the course of the sentence.

It’s quite amazing to watch, as it really is an effective way to move high emotionality to a calmer place. I call it “reaching up to bring down.” Of course, it could work the other way, reaching down to bring up. So, back to Eyore, he would not feel diminished or disconnected if you first matched slow and low, and gradually brought your voice up to more crisp and positive sound.

The is the importance of voice in active listening, It’s worthy of practice, in class exercises and later simulations, in life, and with clients.

And now, with a bit of drum‐roll, the vocalizing and performance will be theirs, with each other.

Warm Up with One‐Liners

Hand out, or have at their desks a packet of vocal exercise, with a first page of “one liners.” Have the students form into groups of three – with those sitting nearby is generally fine.

Just for two minutes, ask them to take the first page of one‐liners, and practice vocalizing them indifferent ways, expressing one of the emotions listed on the page. So, if a line on the page were: “I’m afraid the train will be late” – each one would say the same line, but each expressing a different emotion or back‐story. So, “I’m afraid the train will be late” could be said with clenched teeth, very tense, suggesting frustration and fear of missing a connection or event on the other end. Or, it could be said gleefully – happily ‐ as if the consequences will be good. At each round, the others can try to guess the emotion. The whole process shouldn’t take longer than two or three minutes. Go quickly; there’s no need to get through them all.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 106 One minute debrief: it’s amazing how the same words have different meanings depending on how you voice them! And, did you always guess the emotion your classmate had chosen? Often not. True, we’re not actors, so it’s hard when we’re acting. It’s arguably easier when we’re being genuine. But could you imagine a client misinterpreting what you say, based in part on the way he interprets your voice?

This means we need more practice – in a legal context.

Direct students to turn to the next page in the packet of vocal exercises.

ABC Exercises in Emotional Range (20 ‐25 minutes, including debrief)

Students remain in groups of three, but take on the identity of “A”, “B” or “C”. Student A should speak to Student B and vocalize each line (which reflecting vague but unknown legal context) at least two different ways – intentionally expressing different meaning and emotion. Student C is the observer and facilitator of the exercise. There’s space on the sheet to write down the emotion/meaning intended and that perceived so they can be compared. In truth, I often ignore that, and certainly don’t enforce it. Student C’s feedback and observations can help coach Student A as to why the intended meaning was not understood.

Then, the students should switch, so that Student B is the speaker, C is the listener/responder and A is the observer/facilitator. And of course, last but not least, they’ll switch to C as speaker, A as listener/responder and B as observer/facilitator. (It takes a minute or so to give the instructions, and then five minutes per set, with a five (or so) minute debrief at the end. Without question, these times are unconscionably tight. If you have more class time, you’ll want to extend the timing.

While this activity is going on, the actors and I roam around the class, watch, offer comments, and make sure students are in fact engaged in the exercise. Even in an engaged class, some will be uncomfortable with the idea of acting or putting on emotion and thus disengage. They may feel silly when seated in a threesome of buddies.

One legitimate complaint is that it’s hard to vocalize these without knowing the context: the nature of the case or the client, the circumstances, etc. Fair complaint, theres’s no practical solution. So, just acknowledge it. Encourage the students to use their imaginations, suspend disbelief, and have fun with it.

I suggest the quickest of debriefing: What made this hard? Was anything surprising? Why do you think signals were sometimes crossed? (While it’s always an option to do a fishbowl demonstration after any one of these exercises, I generally find it not worth the time here, and opt to save it for later.

ABC Exercises in Synchrony (10‐15 minutes)

The rationale for this exercise is that synchrony helps establish connection and rapport. It becomes part of active listening. It helps clients feel that you “get it” – you really do understand their perspective, what they are feeling. [Note: if you chose not to do the demonstration of “moving up to bring down” described earlier, now is also a natural time.]

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 107 The set up for ABC Exercises in Synchrony (meant to refer to emotional synchrony) is the same for the previous exercises. The students can remain in their groups of three with their ABC identities. But this time, the speaker is acting as client. He or she vocalizes the line with an intended emotion and meaning. The responder has to respond with words – his own words. What’s important is that the responder’s voice match the speaker’s emotion. This is more difficult for the responder, who must think of a response ‘in the moment” and be attuned to vocal choices. The observer/facilitator’s role is thus more important. He or she becomes a sort of arbiter or referee: [to the speaker] What were you expressing? Did you feel matched? Did it feel like [the responder‐lawyer] got it?” “Hmmm… that’s what I heard too. I don’t’ think that really matched. I didn’t hear it that way.”

This debriefing can be relatively short as well: What was difficult? Was it effective? Could they imagine using the skill? What troubles them?

It can be worth asking students to demonstrate one with which they struggled, and/or one which a student pair did particularly well. During the exercise, I will have roamed and stopped, asking a group how they’re doing and watching for a while. If I have seen some great work, or coached a group a bit, I often ask if they’d be willing to demonstrate.

ABC Exercises in Gravitas (15 minutes)

This set is intended to explore and provide for practice with “gravitas.” I sometimes introduce it by explaining that there used to be a television commercial for E. F. Hutton, a stock brokerage, with the line: “When E. F. Hutton talks, people listen.” (This is now so old that few students will have heard it.) As much as we talk about collaborative lawyering, connection, rapport, emotion, and client meaning, clients have to feel confident in their lawyer’s competence. And new lawyers want their superiors and their colleagues to listen – to notice their competence). Perception is important. It’s helpful to be seen as self‐assured, perhaps with an aura of competence beyond your numerical age. So, ten years older? Well, perhaps ten years “ahead of your age.” Gravitas – the weightiness with which you speak. What are its elements? As suggested in the Client Science book, Chapter 6, gravitas tends to be undercut by a lot of head nodding, speaking to fast, without pause, and too much variation in tone. Gravitas involves apparent control, self‐ possession, presence.

The set up for the exercises is the same as for the others. Do emphasize the importance of feedback, of re‐voicing a line a few times to have the intended effect. Encourage them to take their time with these.

I suggest actively roaming, observing, and coaching for this set. Look for a student who started fast and squeaky, or whose voice was rather emphatically pleading for the other to listen. You might observe someone who is matter‐of‐fact, but doesn’t indicate importance or much conviction. If the people you identified were able to adjust significantly, you might request that they demonstrate it in the debrief.

The debrief begins predictably: What did you observe? What seemed to work – did you see someone about whom you’d say: “I’d tell my brother‐in‐law to hire him as a lawyer!” Why?

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 108 What caused some struggle? Did you observe or try to speak with) gravitas, but end up with something different? Advice?

If you ask for volunteers from the class during the debrief, do ask a group to nominate someone who did a great job – very much established what they read as gravitas.

If at all possible, I favor a fishbowl demonstration here. The goal is to show students who did show a fair bit of gravitas – they were convincing. There’s NO intent to embarrass someone.

Time permitting: ask for volunteers – perhaps nominated by their group because they did such a good job. Let them pick the vignette line they used, this time sitting at a table in front of the class.

With or without volunteers, I also like to end with a demo of a student I have observed, and one who is willing to do it with “zero” or “not much” gravitas first. The particular paragraph I like to reprise from the exercise sheet is one that begins: “I have reviewed all of the expert reports…” Often, even students who do a pretty good, credible delivery, will end up speaking emphatically (with forceful emphasis as their effort at gravitas). Written on their foreheads (with eyebrows arched up in the middle) is the message “please listen to me, this is really important, I’m pleading with you to pay attention.” You can play with the body language, gesture, facial expression and tone in the fishbowl demonstration. The key is generally slowing down, particularly over the words.. “I have reviewed” – spoken slowly because the review took time and was done carefully. The speaker should not be begging or pleading, just firmly putting it out there for the listener. When the demo works, it’s compelling – a great moment for all.

It’s time for wrap up, as seems right. The take away is that we have much to learn from actors. We do act all the time, but we act our real parts. And in those roles, we are wise to be attentive to effective use of body, gesture and voice.

By way of addendum, the Actors’ Exercises document available on the website includes a final set of exercises, titled ABC Exercises in Consequences and Risk. We have NEVER reached them and I no longer try. However, it might be possible with a longer class time allocation.

In the workshop, it’s now the end of Day Three. If you elect to start Day Four with a fishbowl interview, as described below, you’ll want to recruit students before they leave for the evening. (See suggestions for selecting students in the next section.)

Soup to Nuts – Interviewing and Counseling with Bad News Gloss (Final workshop day – last two to three sessions in semester course)

This course segment is designed as an extended “soup to nuts” interviewing and counseling experience, with critical examination and reflection drawing from all that has been learned. The new gloss or extra ingredient consists of specific advice for giving a client bad news.

The Upscale Accusations case calls upon all of the course skills and strategies as students interview a defense client being sued for age, gender and disability discrimination by a long time employee.20 The case facts are somewhat complicated, as are the client’s relationship to and

20 It’s deliberately placed on the defense side because the Final Counseling Skills exercise situates the students as lawyers on the plaintiff’s side.

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 109 feelings about the plaintiff and the company’s decision to terminate her. The legal issues are also complex. The defense lawyer is tasked with explaining “bad news” to the client: that they are unlikely to succeed on a summary judgment motion (as they had anticipated), and that a jury might well decide in favor of the plaintiff. Just as complicated (perhaps moreso) is the task of explaining the elements and possible ranges of damages.

To encourage engagement (lest students have become course‐weary), I tell them this is a chance to practice for the Final Counseling Skills Exercise. I see this case as more difficult.

I use a fishbowl format for the interview portion of the exercise. Before the end of the previous day, I select a minimum of three students to play the client role and three to play the lawyer’s role for the next day’s fishbowl. I explain to the students exactly what will occur:

 They will be doing the interview in “fishbowl format” in front of the class  I’ll rotate them in and out at various times.  There will be “stop‐start” interruptions, feedback and discussion as we go.  It’s possible that I won’t reach everyone.  They should prepare by reviewing notes and materials from the first workshop day (or the beginning of the course) on opening moments, icebreakers, body language, attorney client privilege, confidentiality and fee discussions, as well as active listening, questioning and eliciting the client’s narrative.

Reading Assignments

Students selected for the fishbowl must read and prepare from the Upscale Accusations interview information, available on the course website. Do emphasize that this is separate from and in addition to the Upscale Accusations Counseling information, also on the website.

In the past, I have NOT insisted that the rest of the class read the Upscale Accusations Interview role information. (The syllabus DOES assign it, as well as the client counseling role information). On the one hand, in real life, the lawyer who reaches the counseling phase will have first learned the initial interview information. So, there are no secrets to be withheld. On the other hand, it seems to build some intensity for the fishbowl when the student audience does not exactly know what’s coming next. One could also try assigning the lawyer’s interview role only – putting the audience in the shoes of their classmates who are demonstrating the lawyer’s role. Or, one could assign the client’s role only, putting the class audience into the shoes of the client. I’ve finally determined to be agnostic on this point.

Selecting the students, invitation with an opt out

I generally select students who have been particularly engaged in the course AND who seem confident and articulate, not shy or uncomfortable in front of a group.

While I try to select with a mixture of gender and age, I am particularly interested in setting up contrasts in style – primarily vocal and personality types, as well as size. In other words, I am

The Client Science Course | Instructor’s Guide | ©Marjorie Corman Aaron, 2013. All rights reserved. Page 110 looking for slow steady talkers as well as those who are more animated. For the client’s role, contrasts are also important, but you fundamentally want someone who will really act the client.

As indicated above, I select at least three students in each role, and will sometimes invite as many as four or five. This protects the exercise against student‐lawyers who prove to be ineffective as well as student‐clients who can’t act. Your goals is NOT to embarrass anyone, so if a student is not performing well (or is a bit boring), you can say that you want to give the next student a turn, thank them for a job well done and give them a round of applause.

Again, on the topic of selection, I begin with an idea of which student‐client will work well with which student‐lawyer. For that judgment, I am primarily seeking contrasts in style. After the fishbowl begins, you may find that you want to stay with one student‐client and rotate a differing student lawyer in, or vice versa.