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Skills Sets # 12: Beware the Bear 

Skills Sets # 12: Beware the Bear 

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Posted November 6, 2020

Interview, who’s interviewing who/ Are you interviewing me/ Or am I interviewing you   Cyndi Lauper

The art of interviewing a prospective client, a skill central to our business and performance, must be included in the support and training provided to our students, new associates and junior colleagues.

Because there are many ways to conduct an interview, there is no perfect way.   Our associates, with our assistance, need to develop their own way.  As all commentators agree, no one interview will be the same.  The relevance of circumstances, needs, dispositions, thin skulls, issues, solutions and applicable laws will differ, even in cookie cutter practices (if there is such a thing).

In 1979 the late Morris Schumiatcher published his classic Man of Law, A Model in which he described his assessment of a modern (cosmopolitan?) lawyer.  If you can find this book, it is an entertaining read. Not perhaps to all tastes, but certainly to mine.  It reminds me today that in conducting an interview a lawyer exercises many different muscles. One of them surely is knowledge and understanding of the subject matter.  Another is the ability to listen constructively. A third is the wisdom to differentiate between what is important and what is not.  Yet another is the patience to lead the process smoothly and carefully, without seeming to control it, all the while watching for body language and listening for distress or other motivators or inhibitors. Yet another again is judgment. Fundamentally, the interviewer must understand the difference between the client’s motivation, and the client’s objectives, what to do with that knowledge and when to do it. Subtle perhaps, but keenly important.

People with (or without) problems are mosaics composed of different parts.  In the interview the lawyer must be attuned to all of them. It is not an easy thing to conduct a suitable interview (by which we mean, an interview that will stand the test of time). And as many commentators note, it is the first, and therefore foundational interview that in particular sets the stage for everything that follows, including the nature of the relationship with the client that will unfold.  That relationship too is fundamental.  As we all recognize, clients are people with problems who believe that we have a solution; who will look to us and rely upon us.

Beware the Bear

The interviewer must not only be sure to distinguish between the clients motivation and objectives, but at the right time must necessarily apply a humble realism to what can or cannot be achieved, to what is or is not reasonable.  It is at this point that the interview becomes a mix of interviewing and counseling.

In this respect, the interview is the warm up; counselling is the pitch. Primary components of counseling are advising, recommending and advocating.  It is what the client after all is interested in and the training, knowledge and experience is what we bring to the table, what we are selling. The only thing that the client will put higher than counseling is achievement of the client’s objective, but counseling is the key.

Recall the distinction between motivation and objective.  Objective is what the client wants.  Motivation is why the client wants it.  Understanding both are of equal importance to the lawyer. But to the client, motivation and attaining the objective are rivals.  In the race for relevance, the client’s objective wins by a mile. The client’s motivation may not be entirely understood by the client, but the client’s objective is a fixation. This must not be lost on the interviewer.

This brings me to an admittedly simplistic, but relevant analogy.

I do not understand the motivation of those who hunt bear, or any other game, for sport. But I accept that they are motivated, and while their motivation may again be complex, their objective is clear. What interests me is what is happening when a hunter in pursuit of a bear, shoots instead a human.

While each hunting accident is different, and other factors may apply, there is no doubt that a hunter’s brain is fixed on the objective, which is to see and then shoot at a bear.  But as science confirms, it is not the eyes that see in the final analysis. It is the brain alone that takes the image which the eyes enable and makes something of it. What the brain “sees” in these incidents is biased by what the brain hopes to see. “If you expect or want to see something that is what you are likely to see”.

The brain of every client that both we and our younger colleagues will work with, “sees” what it wants to see.

What is more, the hunter’s brain hears what it wants to hear. Like the eyes, “the ears are a delivery system, but the brain is the true workhorse, responsible for turning a jumble of noise into coherent messaging”.  And so, the brain of every client that both we and our younger colleagues work with, also “hears” what it wants to hear.

This phenomenon is part of the challenge in the interview and counseling of clients. We must assist our younger colleagues to recognize and address it.  For thoughts on this, please stay tuned for part II of this blog.

This blog post was written by K. Scott McLean, General Counsel and Director of Practice Development.  He can be reached at (613) 369-0375 or at scott.mclean@mannlawyers.com.

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K. Scott Mclean

K. Scott Mclean

After 43 years of commercial and related litigation experience, I joined Mann Lawyers in 2020 as General Counsel and Director of Practice Management.  While I continue to be involved in complex commercial disputes, providing advocacy support and strategic advice, I am predominantly involved in supporting the development of our lawyers and their practices, including the recruitment and retention of associates, mentorship in enabling our associates to reach their professional goals, and the provision of structured training programs.  In these roles I enjoy the opportunity to reflect and write, under the heading Practice Management, on the importance of supporting junior lawyers. After completing an honours degree at Carleton University in 1973, I completed my law degree at Windsor Law School in 1975 and an M.A. in political studies in 1976.  I was admitted to the Ontario Bar in 1977.  Since 1977, I have appeared at all trial, judicial review and appellate... Read More

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