Legal Counseling
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LEGAL COUNSELING based from the book of Mauricio Ulep
Chapter 1 Defnition o Terms A. Legal Intervieing ! the task of gathering information information which involves the gathering of relevant data specically of the following: 1. Nature Nature of the client’s client’s problem, problem, 2. lient lient’s ’s legal legal posi positio tion, n, and and !. "roba "robable ble cons conse#u e#uenc ences es of adopting litigation or some other course of action to resolve the matter. ". Legal Co#nselling $ task of formulating solutions. % process in which potential solutions with their probable positive and negative conse#uences are identied and weighed in order to decide which alternative is most appropriate. - working with a person who has a problem in which potential solution, with their probably positive positive and negative negative consequences, consequences, are identied and then weighed in order to decide which alternative is most appropriate. appropriate.
C. Co#nsel ! an adviser, a person professionally engaged in the trial of management of a case in court % a legal advocate managing a case at law D. E$e%tive an& 'igilant Co#nsel ! it necessarily and logically re#uires that the lawyer be present and able to advise and assist his client from the time the confessant answers the rst #uestion asked by the investigating o&cer until the signing of the e'tra(udicial e'tra(udicial confession. E. Attorne( at la ! class of persons who are by license, o&cers of the courts, empowered to appear, prosecute and
defend, and upon whom peculiar duties, responsibilities and liabilities are developed by law as a conse#uence.
). Tit#lo &e A*oga&o ! not mere possession of the academic degree of )achelor of *aws but membership in the )ar after due admission thereto. G. +ra%tise o La , any activity, in or out of court, which re#uires the application of law, legal procedures, knowledge, training and e'periences. e'periences. -. +reventive La(ering ! concerned with minimi+ing the risks of legal trouble and ma'imi+ing legal rights for such legal entities at the time when transactional or similar facts are being considered or made. I. Ami%#s C#riae , friend of the court , a bystander, usually a lawyer who interposes and volunteers information upon some matter of law in regard to which the (udge is doubtful doubtful or mistaken. mistaken.
Chapter +re,intervie Consi&erations A. +reparation 1. "repari "reparing ng yourself yourself $ identi identify fy your your ob(ectives 2. "repar "reparing ing your your clie client nt ". Timing C. The Environment A. Need for a reception area ". nterview room D. Seating arrangement E. Note,ta/ing ). Using a tape re%or&er Advantages - nterviewer can ask more #uestions in less time than the notetaker. - aped interviews tend to have the crisp ring of truth. - he interviewer interviewer can concentrate more in the interview.
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- / tapes interviewer reassures the interviewer that the interviewee had not been mis#uoted esp. in controversial statements. - /n interview can free a busy lawyer from a hectic schedule. - / tape recorder is of real assistance when the interviewer’s hand are tied. - ape recorders can be used for recording lengthy documents. G. Telephone Intervieing $ discouraged !imple "ourtesies - 0peak clearly, distinctly and calmly. - dentily your purpose #uickly and succinctly. - /void making side comments during the interview. - on’t allow long silence on the phone. - "rovide for verbal clues. e.i. ok, see..3
-. -o to Gather )a%ts 4actors to facilitate easy gathering of facts and information: 1. /sk the interviewee to help you by encouraging him to give you all the facts. 56ltimate facts7 $ important and substantial facts which either directly form the basis of primary right and duty, or which directly make up the wrongful acts or omissions of the defendants. 58videntiary facts7 $ facts which are necessary for determination of the ultimate facts9 they are the premises upon which conclusions of ultimate facts are based.
2. 8mploy honesty and aection and a little humor during the interview. !. evelop and ensure trust and condence with the client during the interview. ;. he lawyer should be interested in the sub(ect as he is taking notes of the interviewee’s story. . ?ake a draft of client’s story.
Chapter III Str#%t#re o the Legal Intervie )ive Stages o Legal Intervie 1. "reliminary 0tage 2. escription of the "roblem 0tage !. larication 0tage ;. /dvising 0tage . dentify the feelings behind the content G. ?i' passive and active listening techni#ues H. EeDect back meaning not words 1K. Eemember $ silence is golden $ use it constructively Chapter 'II Transeren%e an& Co#ntertranseren%e
T(pes o Non 'er*al Comm#ni%ations 1. )a%ial E@pression a. agger look *. / sh%eye look %. ’m available look &. "oker face e. hose who look away when speaking are not sure of their opinion . hose who look at others can support the validity of what they say and appear more competent g. hose who look at the Door are overcautious and try to avoid new ideas, e'periences or risk h. he more popular a person is within a group, the higher the level of eye contact i. /n open look comes from an open person (. irect look $ genuine interest and respect k. Aacant look $ talks 5round7 other people and the sub(ect l. 0idelong glance $ signals distrust, perhaps skepticism m. *ook toward the sky $ absorption in prayer and devotion n. 0mile and laughter 1. 0imple smile 2. 6pper smile !. )road smile ;. @blong smile . Fa%ha laughter G. Fe%he laughter
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H. Fee%hee laughter 1K. Fo%ho laughter 11. 0mirking o. *ip biting p. Eubbing one eye #. *ip licking r. / (utting chin al/ing gest#res a. e(ected walker b. )urst of energy walker c. Fands on hips walker d. 0trutter e. "re%occupied walker Sha/ing han&s a. @rdinary handshake b. "oliticians handshake Open Cl#ster Gest#res a. @pen handsLpalms b. 0houlder shrugging gesture c. 6nbuttoning coat d. humbs up e. @ sign f. A sign Deensiveness a. /rms crossed on chest b. 0itting with a leg over the arm chair, even if person is smiling c. 0itting, chair back serving as a shield Crossing Legs a. *eg over leg b. 4igure four position c. Ioman in a leg over leg position and kicks one of her legs gently Eval#ation Gest#res a. Fand to cheek gestures b. ritical evaluation gesture c. Fead tilted d. 0troking chin e. "inching the brige of the nose
f. ouching or slightly rubbing the nose . Use o e(eglasses a. ropping eyeglasses to lower bridge of the nose b. leaning eyeglasses c. "ut eyeglasses in the mouth d. hrow it on the table . Other %ommon gest#res a. Fands on hips b. 0itiing on the edge of the chair c. /rms spread while hands grip the edge of the table d. )ite nails e. Jick lightly f. eep breath and release air slowly g. sk%tsk sound h. lenched st i. "ointing inde' nger (. "alm to back of neck k. Jick at an imaginary ob(ect l. 0teepling m. 4eet on desk n. *eaning in vehicle o. learing throat p. Ihew sound #. Ihistling r. Mingling money in pockets or tin can s. *ocked ankles and clenched hands t. rumming on table u. )lank stare v. Fand to chest w. elicate balance of a shoe on the toe of one foot '. 0itting with one leg tucked under them y. Eubbing of palms
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+. rossing the middle nger over the inde' nger aa. Fands on lapel of coat ab. overed hands ac.linging hands ad. wisted hands ae. 6pward inde' nger af. *owered inde' nger ag. nde' nger across mouth ah. 4ingers covering the mouth ai. nde' ngers meeting a(. 4ailure on the part of the accused to make a protest during an arrest indicates his guilt
Sign Lang#age $ manner by which handicapped people communicate Chapter 'III Coping #p ith DiF%#lt Sit#ations I.
Dealing ith 2el#%tan%e % unwillingness to provide full information in a particular case or situation
Eeluctance comes in two ways: a. he topic may be discomforting for the client b. @bservations of the client’s demeanor may indicate reluctance echni#ue in handling client reluctance 1. gnore it or postpone it 2. 8mploy a motivational statement a. *aywer e'press emphatic understanding b. 6tili+e facilitators
!. 0tress condentiality ;. hange the #uestion pattern
II.
-o to Deal ith )a*ri%ation $ giving false information and withholding of information % client’s answer containds inetnal inconsistencies, fantastic and utterly incredible stories which are contraty to human e'perience, against the natural course of things and contrary to reason and common sense.
echni#ues for Fandling 4abrication 1. )uild general rapport 2. opic avoidance !. isclosure ;. onfrontation 4our echni#ues in irect onfrontation 1. *awyer re#uest for clarication 2. onfrontation through the medium of a third person $hree %orms or &ays a. Fave the client set forth the client’s perception of the adversary’s position b. Fave the client refute the adversary’s version c. ell the client that heLshe is going to be prepared for cross%e'amination !. 0ilence ;. irect onfrontation
III.
The Client ho Sa(s Too #%h DigressingH % one who rambles hree /pproaches 1. o emphati+e with whatever concern the client raises in the rambling response and then
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return to in#uiring about the designated topic 2. 8mploy motivational statement !. )reak eye contact
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Too Little Tal/ing
Fow to handle: 1. 6se open #uestions 2. 8'plain the purpose of the #uestion to the client !. ndirectly try to nd out what is wrong ;. 6se series of closed narrow3 #uestions $ if cooperating at rst but not in the later stage
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Dealing ith Coni%t an& Aggression
)O2S= 1. 0arcastic or trying to belittle your eorts 2. )eing dismissive of your #uestions or suggestions or showing impatience !. omineering client Fow to handle this: a. 0tay calm b. heck your non%verbal communication c. 0peak with condence d. Jeep your tone of voice even and low and speak slowly e. o not allow yourself to respond to personal attacks or verbal abuse
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Dealing ith -ighl( Distresse& Client Client is Not Listening
hree "ace echni#ues 1. ?irror 2. "ace !. *ead
Chapter IJ itness Intervieing )o#r Ultimate )a%ts Sets Nee&e& 1. 4acts establishing the e'istence or non%e'istence of the substantive elements entitling the plainti to relief. 2. 4acts corroborating the client’s version of the case. !. 4acts constituting the adversary’s version of the case9 and ;. 4acts contradicting the adversary’s version of the case. -o to otivate itnesses 1. evelop rapport 2. 6se facilitators !. Eemember that witnesses are governed by the same sets of facilitators and inhibitors as your clients Spe%ial Intervieing Cases A. The mentall( &ist#r*e& - Insanit( $ manifestation in language or conduct of disease or defect of the brain or a more or less permanently diseased or disordered condition of the mentality, functional or organic and characteri+ed by perversion, inhibition, or disordered function of the sensory or of the intellective faculties, or by impaired or disordered volition.
-o to 2e&#%e Tension in an Intervie Legal Co#nseling 0+atri%ia Imma(a ". Domingo
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- mitigating circumstance complete deprivation of intelligence in the commission of the act riteria in etermining the 8'istence of nsanity: a. elusion test b. rresistible mpulse est c. Eight and wrong test est istinguishable est in "lea of nsanity a. est of ognition % complete deprivation of intelligence b. est of volition $ total deprivation of the freedom of the will
"lo%/hea&s % person decient in understanding and mental pachyderm. Im*e%ile $ person marked by mental deciency Insane $ one who has unsound mind or suers from mental disorder. ". +eople ith S#i%i&al Ten&en%ies "lasses of !uicide a. /ltruistic 0uicide $ where a person takes his life with the idea that by doing so, he will benet others b. 8goistic egocentric3 0uicide $ where the suicide lacks support group c. /nomic 0uicide $ the individual feels 5lost7 or 5normless7 in the face of situations where the values of a society or group are confused or break down C. Chil&ren
alk with the parents or guardians of the child ouble check information gathered from him o N@ ask leading #uestions D. Intervieing Ol&er A&#lts a. *isten intently b. /sk simple, straightforward #uestions c. )e in control of the interview d. o not underestimate your ability to understand e. *isten to the older person’s view of the situation •
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Chapter J Legal Co#nseling "asis o Legal Co#nseling A. Constit#tion a. /rt , 0ec 12 13 $ /ny person under investigation for the commission of an oense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. f the person cannot aord the services of counsel, he must be provided with one. hese rihts cannot be waived e'cept in writing and in thee presence of counsel. *. /rt. , 0ec 1; 23 $ n all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall en(oy the right to be heard by himself and counsel ''' ". 2evise& 2#les o Co#rt
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a. Eule >, 0ec. < $ 0ignature and address of attorney. he signature of an attorney constitutes a certicate by him that he has read the pleading9 that to the best of his knowledge, information and belief, there is good ground to support it, and that is not interposed for delay. 4or a willful violation of this rule, an attorney may be sub(ected to appropriate disciplinary action. *. Eule 112, 0ec 11 $ /t any time during the proceedings referred to in the preceding section, the defendant, if he so re#uests, shall be allowed to have the services of an attorney. 4or this purpose, the (udge or corresponding o&cer may re#uire any peace o&cer to deliver any message from the defendant to any attorney re#uesting the latter’s services. c. Eule 112, 0ec. 1= $ uring preliminary investigation, the accused shall have the right to be represented by counsel. d. Eule 11!, 0ec. 1G $ Eight of attorney to visit the person arrested $ Fe shall have the right to visit and confer with the client in (ail or any place of custody at any hour of the day or in urgent cases, of the night. e. Eule 11< $ Eight of the defendant $ 0ec 1 a3. he right to have an attorney at every stage of the proceedings $ from arraignment to promulgation of (udgment.
f. Eule 11=, 0ec. !, ;, and < $ /rraignment $ Fe must be informed of his right to an attorney before arraignment and if none $ counsel de ocio must be appointed $ and he must have an opportunity for time to prepare for trial. g. Eule 12;, 0ec. 2 $ /ppointment of attorney de ocio for the defendant h. Eule 1!G, 0ec. 2K $ uties of attorneys % t is the duty of an attorney: c3 to counsel or maintain such actions or proceedings only as appear to him to be (ust, and such defenses only as he believes to be honestly debatable under the law. i. ode of "rofessional Eesponsibility
+reliminar( atters 1. t is the lawyer’s duty as a member of the )ar to abstain from all oensive personality and to advance no fact pre(udicial to the honor or reputation of a party or witness, unless re#uired by the (ustice of cause with which he is charged. 2. /ttorneys must continue to adhere to the standards of mental and moral tness set up for the practice of law. !. Ihen the lawyer’s integrity is challenged by evidence, he must meet the issue and overcome the evidence for the relator and show proofs that he still maintains the highest degree of morality and integrity, which at all times is e'pected of him.
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;. /n attorney owes loyalty to his client not only in the case in which he has represented him but also after the relation of attorney and client has terminated. . /n active participation of a lawyer on one’s party’s aairs in a case in which he is alsos the counsel of the opposing party is bra+enly unethical and should be condemned. G. / lawyer is prohibited to purchase property in litigation from his client. H. 4ailure of counsel to live up to e'acting standard of candor and honesty in preparation of pleadings may be punished. 1K. / legal counsel is e'pected to defend a client’s cause but not at the e'pense of truth and deance of laws. 11. t is the duty of the counsel to receive notices addressed to the client and see to it that his client is informed of said notice. 12. / lawyer who advices that the spouses can live separately from bed and board through a document is contrary to law, morals, and public policy. 1!. /ssisting a client in a scheme a lawyer knows to be dishonest (usties disbarment of an attorney. 1;. *awyers are admonished not to commence litigations that
for sheer lack of merit do not deserve the attention of the courts. 1. / lawyer should present every remedy or defense authori+ed law in support of his client’s cause, regardless of his own personal vies. 1G. /ny lawyer who assumes responsibility for a client’s cause has the duty to know h entire history of the case. 1H. / lawyer must serve his client with competence and diligence and failure to do so violates anon 1G of the ode of "rofessional Eesponsibility. 2K. / man of the law should never use his legal e'pertise and inDuence in order to frighten or coerce anyone especially the ordinary man who looks up to him for (ustice.
Stereot(pes an& role &es%riptions o a legal %o#nselor= 1. Bladiator or a hired gun $ classic lawyer role 2. Figh priest !. )usiness person ;. "rofessional 9in&s o Legal Co#nseling 1. irective ounseling 2. Non%directive ounseling !. 0emi%directive ounseling Approa%hes to Legal Co#nselling 1. 4ormal ounselling
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. nformal ounselling The )orm o A&vi%e /. Beneral statement of relevant law ). /pplying the law and (urisprudence directly to the client’s case . "resent other alternatives to the client . "roblems in Biving /dvice 1. 6se of (argon 2. "roblems for clients in receiving and understanding advice !. Eehearsal and the lawyer’s part ;. Eemembering
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