THE EFFECTIVE LAWYER-CLIENT COMMUNICATION PROJECT Clark D. Cunningham W. Lee Burge Professor of Law & Ethics Georgia

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

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

3. What is Their Story? 15 minute series of scenes edited from the movie Amistad based on the 19th century slave ship mutiny and subsequent U.S. Supreme Court case a kind of fable or parable about what it means to learn and tell a client's story Sydney, Australia

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

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

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

7. MANAGING CLIENT EXPECTATIONS AND PROFESSIONAL RISK: A Unique Insight into Professional Negligence Exposure in the Australian Legal Profession RONWYN NORTH & PETER NORTH 1994 Sydney, Australia

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

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

10. Each solicitor was interviewed privately for several hours • the nature of the matter • how the solicitor usually approaches such work • the nature and evolution of the client/solicitor relationship • the legal issues involved • solicitor's relevant skills and experience • specific events before and after the allegation In most cases, the panel solicitor was also interviewed Sydney, Australia

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

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

13. Common Problems with All Lawyers(Sherr Study) • 51% failed to get the client’s agreement to advice or plan of action • 76% failed to confirm with client the lawyer’s understanding of the facts • 85% failed to ask before ending whether there was anything else the client wanted to discuss Sydney, Australia

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

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

16. What do clients most care about? CLIENT PERCEPTIONS OF LITIGATIONWHAT COUNTS: PROCESS OR RESULT?Tom Tyler,Trial Magazine (1988) • Clients care most about the process • having their problems or disputes settled in a way that they view as fair • second most important is achieving a fair settlement • least important factor is the number of assets they end up winning. Sydney, Australia

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

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

19. ELCC Partnership with Glasgow Law School • Glasgow Graduate School of Law (GGSL) operates largest Diploma Program in Scotland • Emphasizes competence in client interviewing • Test for Diploma includes videotaped interviewing exercise Sydney, Australia

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

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

22. For More Information and Further Developments • Handout in your materials • ELCC Web Page [http://law.gsu.edu/Communication/] • Burge Chair Professionalism Pagehttp://law.gsu.edu/ccunningham/Professionalism/Index.htm Sydney, Australia