Attridge, Margaret C.

English

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The Lawyer in the Interviewing and Counselling Process, by Andrew S. Watson

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 53 | Issue 3 Article 11Spring 1978The Lawyer in the Interviewing and CounsellingProcess, by Andrew S. WatsonMargaret C. AttridgeIce, Miller, Donadio & RyanFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Evidence Commons, Law and Psychology Commons, and the Legal ProfessionCommonsThis Book Review is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Law Journal by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationAttridge, Margaret C. (1978) "The Lawyer in the Interviewing and Counselling Process, by Andrew S. Watson," Indiana Law Journal:Vol. 53: Iss. 3, Article 11.Available at: http://www.repository.law.indiana.edu/ilj/vol53/iss3/11Book ReviewTHE LAWYER IN THE INTERVIEWING AND COUNSELLING PROCESS. By AndrewS. Watson, M.D.Indianapolis: Bobbs-Merrill Company, Inc., 1976. Pp. xxi, 163.MARGARET C. ATTRIDGE*Harkening back to the model lawyer of Robert Traver's The Anatomy ofa Murder,' Andrew S. Watson, M.D. advocates a psychological approach tointerviewing and counselling by the lawyer. In a decade in which bar associa-tions and lawyers throughout the country are considering permitting not onlyspecialization and the advertising of specializaion, but also group and prepaidlegal service contracts, the immediate question arises: Can or should one per-forming "legal" services for a client additionally provide psychological andcounselling functions? A reading of The Lawyer in the Interviewing andCounselling Process mandates an overwhelmingly affirmative response.The main thrust of this book is to point out that lawyers, upon gradua-tion from law school, are generally ill-equipped to deal with the problems,prejudices, and fears of an individual client during the interviewing process,and are woefully inexperienced in the dynamics of an interview and theresponses elicited by certain types of questions and activities. Using descrip-tions similar to the case book method with which law students and lawyersare all familiar, Doctor Watson describes and suggests means by which alawyer may obtain the information necessary to proper legal representation ofthe client, while reassuring him without putting him in the position of a childsupplying appropriate information to please a parent. While many lawyerswill disagree with the various "styles" suggested by Doctor Watson, the alter-natives suggested are stimulating, and run a basic theme throughout: First, alawyer must have a goal in the interview; second, he must learn to listen toboth what is said and what is not said, without preconceived notions of thelegal nitch into which the client will fit; third, he must recognize the client'sdesires; and forth, he must attempt to reconcile the client's desires and thelegal options available. However, before any lawyer, law professor, or law stu-dent adopts The Lawyer in the Interviewing and Counselling Process as the"horn book" of interviewing and counselling, several points require commentand consideration.*B.A. 1969, Wells College; J.D. 1972, Indiana University. Associate with Ice, Miller,Donadio & Ryan, Indianapolis.1R. TRAvER. ANATOMY OF A MURDER (1958).INDIANA LAWJOURNALFirst, and perhaps most important, is that Doctor Watson is apsychiatrist, and although the interface between law and medicine is dailyrecognized as more important, Doctor Watson has written from apsychiatrist's, rather than a lawyer's, point of view. Doctor Watson freely ad-mits this, describing his book as an "abbreviated description." While thisreviewer cannot state the degree to which it is abbreviated with respect topsychological considerations, the book is extremely abbreviated with respectto legal considerations, as is especially evident in the questions and problemsat the conclusion of each chapter. For example, one of the questions con-sidered is what method should be employed to handle an opponent or a judgein a jury trial who is constantly making a variety of suggestive gestures to thejury during the examination of a witness.2 While the point of the questionmay have been to alert a lawyer that the gestures of an opponent or a judgemay have an effect on a jury, the answer to the question posed does not liewith the use of psychological tools learned in the interviewing and consellingprocess, but rather with the legal tools and objections learned by the lawyerduring his law school years. While it is surely an axiom that a trial lawyermust always consider the effect upon the jury of any objection made (Is thejury going to side with him for protecting his client? Is the jury going tobelieve that the objection is frivilous and merely an attempt to keep outevidence that would lead to "the truth"? Is the objection simply going to callattention to the matter and give it more prominence in the jury's eyes than itdeserves?), a trial lawyer must also recognize that he is making a record, andthat the record for appeal must be protected with legal, not psychological,objections.Second, Doctor Watson lays some emphasis upon the counselling process,indicating that a lawyer has a duty to counsel, as well as represent, his client.While the duty to counsel and help a client is present, it is often necessary fora lawyer to "play a role," sometimes to the point of hostility to a client, toobtain a reading on the client's truthfulness and honesty. It is indeed unfor-tunate, but a fact, that many clients with the type of problems described byDoctor Watson have a preconceived idea of what the law requires for arecovery or a judgement in their favor prior to retaining a lawyer, and suchpre-conceived notions often, consciously or subconsciously, affect the client'spresentation of the "facts." While the coaxing and almost coddling of a clientsuggested by Doctor Watson to get to "the bottom of the facts" may assuagethe conscience of a not-quite-truthful client, it ignores the pressure on theaverage lawyer of dealing swiftly with the facts of the case, as presented bythe client and revealed by investigation, and the necessity, both in court andout, of rapid-fire decisions. It is the facts of a case, not a client's personality,his problems, or the lawyer's desire to help with the problems which generallyresult in a favorable or unfavorable judgement.2A. WATSON, THE LAWYER IN THE INTERVIEWING AND COUNSELLING PROCESS 74 (1976).[Vol. 53:615BOOK REVIEWIn this same line, Doctor Watson provides insights into why a lawyer doesor does not like his client. While understanding why a client is liked or dislik-ed will help a lawyer present his client to the jury, hopefully with the likeablefoot forward, whether a lawyer likes or dislikes a client has nothing to do withwhether the client ran a stop sign or was in fact struck when another ran astop sign.It must be noted that Doctor Watson throughout recognized a sense ofright and sense of wrong. There are discussions of how a lawyer handles acase which he loses, which "should have been won," or wins the case which"should have been lost. ' 3 One of the most difficult adjustments a younglawyer must make in a transition from law school to practice is avoiding thejudgmental "should have won" or "should have lost." Few lawyers would everadmit to losing a sense of right and wrong, and there are cases which are lostwhich surely should have been won. However, in the legal system in theUnited States, who wins and who loses is for a jury to decide, subject to theappeal of legal issues. If a lawyer makes legal and tactical errors which causeda case to be lost, he should recogn~ize his failures and learn from them.However, for a client/or a lawyer to mull over. a loss/win vs. right/wrong inthe abstract is a misunde standing of the United States Judicial System.Finally, in discussing/Ihe ultimate outcome of a case and its correctness orincorrectness, Doctor Watson has abbreviated to the point of slighting one ofthe most important aspects of the practice of law, the settlement procedure.Surely the settlement procedure, whereby a compromise satisfactory to bothsides is reached, is equally important as the interviewing process, and in mostinstances is the ultimate outcome of a proper counselling process. For exam-ple, a trial was recently commenced in which the plaintiff alleged certainphysical injury and psychological damage occurred to her as a result ofassault and battery committed on her while a guest at a motel, allegedly as aresult of the motel's failure to provide a safe place for her to stay with ade-quate locks on the motel door. The verdict range for similar injuries acrossthe country was extremely high; nevertheless, on the third day of the trial thecase was settled for substantially less than similar reported verdicts. Thelawyer for the plaintiff was professionally disappointed, and, because of therapport he had established with his client, would have been able to have herchoose to turn down the settlement and "roll the dice" hoping for a profes-sionally satisfying jury verdict. Nevertheless, the lawyer, a man of great per-sonal and professional integrity, because. of his understanding of his clientthroughout the interviewing and counselling process, recognized his client'sneed to settle the case, recognized that the settlement, at an amount sug-gested by the pre-trial judge, was moral victory for her, and understood that,if the case had been lost, his client would have been psychologicallydevastated. That lawyer properly concluded the case by settlement-a settle-Uld. at 100.1978]INDIANA LAWJOURNALment which would not have been reached had he not been sensitive to, andaware of the "psychological" implications of settlement. The handling of asettlement under such instances, the lawyer's role with his client, and thelawyer's role with himself, is a phenomenon which deserves more than meremention in a discussion of the counselling process."If wishes were horses, then beggars would ride" and lawyers could be allthings to all men. Doctor Watson has suggested and outlined methods which,if employed by lawyers, would undoubtedly improve the legal system. But itmust be remembered that lawyers do deal primarily with legal issues, and inmany practices, as for example commercial practice or tax practice, themajor source of evidence is documentary, rather than coming through theinterviewing and counselling process, and that lawyers must rely primarily onthe law and evidence, rather than the psychological aspects of interviewingand counselling. Nevertheless, The Lawyer in the Interviewing andCounselling Process is an important touchstone for the growing interfacebetween law and psychiatry and the growing recognition by lawyers of thevalidity of psychological and psychiatric methods. Even if a lawyer disagreeswith the methods and alternatives suggested by Doctor Watson, his book willat least make lawyers aware of potential problems.[Vol. 53:615

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The Lawyer in the Interviewing and Counselling Process, by Andrew S. Watson

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