Listening to Clients

What may be the most important procedure in civil or criminal practice is not written in the rules. It occurs at the outset of litigation during the initial client interview. The procedural principle is simple: listen to the client!

Have you ever encountered a member of our sister profession — medicine — who insisted on talking rather than listening? Dr. Jerome Groopman in How Doctors Think admonishes his colleagues to shut up and listen. Fortunately my medical team listens to their patient.

Here are some techniques I’ve developed over decades of representing clients. First I try to put the client at ease. Looking over the intake information sheet, I note the client’s address. Perhaps we can discuss people and places we both know in that area.

Then I set my legal pad and pen aside and ask the client to explain the problem for five or ten minutes while I remain quiet. After the soliloquy I jot a few notes while asking clarifying questions.

Next I move to gathering potential evidence. “What documents do you have? Let me see them. Give me the names of witnesses and ways to reach them.”

Now comes the hard part. We need to cross-examine our own client. We can easily handle the good facts, but we need to know the bad facts in order to start working on ways to handle those. “What will the other side claim, even if you believe it untrue? What is your position on those claims?”

A recent appellate opinion suggests that we may need to cross-examine to learn our client’s true name. Surely, Paine, you jest! Well take a look at Urtuzuastegui v. Kirkland, (Tenn. Ct. App., W.S., Stafford, Mar. 17, 2011), perm. app. denied Aug. 24, 2011. The lawyers for the plaintiff in this wreck case thought their client’s name was Jose M. Carrion-Casillas. At a deposition they learned that his real name was Roberto Carlos Urtuzuastegui, an undocumented worker who immigrated from Mexico. Now his lawyers must obtain relation back of an amendment changing the plaintiff’s name in the complaint.

Before your client leaves mention two things. You will call with followup questions once you begin investigating. And what is most important: “Call me if you think of something else; I assure you that I shall listen.”


Donald F. Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, and the Tennessee Judicial Conference.