Fordham Law Review

Volume 67 | Issue 5 Article 13

1999

Evaluating Effective Lawyer-Client Communication: An International Project Moving from Research to Reform
Clark D. Cunningham

Recommended Citation
Clark D. Cunningham, Evaluating Effective Lawyer-Client Communication: An International Project Moving from Research to Reform, 67 Fordham L. Rev. 1959 (1999). Available at: [Link]

This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized administrator of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@[Link].

EVALUATING EFFECTIVE LAWYER-CLIENT COMMUNICATION: AN INTERNATIONAL PROJECT MOVING FROM RESEARCH

TO REFORM
Clark D. Cunningham*
An internationalgroup of legal educatorsand social scientists has begun work to develop a standardmethod for evaluating the effectiveness of lawyer-client communications by combining sociolinguistic analysis of recorded interviews with client satisfaction surveying, an approach that has won widespread acceptance in the medical field.'

INTRODUCTION

HE Park Nicollet Clinic in Minneapolis measures patient satisfaction on an annual basis for all of its first-year physicians.2 A onepage questionnaire is mailed to one hundred randomly selected patients who have received health care from the physician during the previous four-to-six-week period.' Nineteen questions ask for disagreement or agreement (on a scale of one to five) with statements including "[this doctor] spends enough time with me," "answers my questions,.... listens to what I'm saying," "explains my condition or diagnosis to my satisfaction," "provides information so that I can

make decisions in my own care," "is concerned for me as a person as

well as a patient," "is sensitive to my needs," as well as "I am generally satisfied with the care I have received from this doctor" and "I would recommend this doctor to a friend." 4 The patient is also asked

to rate the doctor's overall quality of care from "Poor [1]" to "Excellent [5]" and is invited to note any additional comments (continuing on the back of the form if necessary). 5
* Professor of Law, Washington University (St. Louis). The author may be reached at the following e-mail address: [Link]. 1. For more information about the project described in this Article, see Washington University School of Law, Effective Lawyer Client Communication: An International Project to Move Fron Research to Reform (visited Feb. 16, 1999) <http:/ls. [Link]/Communication/>. The bibliography attached in the appendix to this Article at 1973 will be continuously updated on this Web Site. Valuable comments and suggestions on this Article have been received from Bryna Bogoch, Nigel Duncan, Diana Eades, Melvin Hall, John Holtaway, Alan Houseman, Christopher Roper, and Avrom Sherr. 2. See Jeanne McGee et al., Collecting Information from Health Care Consumers: A Resource Manual of Tested Questionnaires and Practical Advice 11:29-11:45 (1997). 3. See id. at 11:29. Response rates average 48%. See id. at 11:31. 4. Id. at 11:35. 5. See id. A sample of this questionnaire is attached in the appendix to this Article at 1971.

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The questionnaire was originally developed in 1986 to evaluate new physicians and has been used since then.6 As of 1997, the clinic had a first-year physician data base for 160 physicians representing twentyfive specialty areas.7 Individual physicians receive the survey results in a report that compares them with other physicians in the same department.' The clinic's medical director and each department chair also receive the report which they review with each new first-year physician as part of a comprehensive assessment process.9 According to a 1995 survey, virtually all hospitals in the United States have some kind of patient satisfaction measurement system in place.' 0 In 1994, the United States Joint Commission on Accreditation of Healthcare Organizations ("Joint Commission") included in its standards a requirement to ensure that an organization "gathers, assesses, and takes appropriate action on information that relates to the patient's satisfaction with the services provided."" In 1995, the National Committee for Quality Assurance completed a one-year pilot project among twenty-one health insurers to test its standardized Health Plan Employer Data and Information Set ("HEDIS"), which includes measures of patient satisfaction.'" A substantial private industry has developed to conduct patient satisfaction surveys for health care providers; some firms have more than 300 physician groups as clients.' 3 Doctor-patient communication is treated as an important subject for both pedagogy and empirical research in medical education. One recent review of the literature on doctor-patient communication cited 112 publications.14 According to a 1993 survey of the 142 allopathic medical schools in the United States and Canada, 111 schools teach and evaluate communication skills through the use of lay persons, called "standardized patients," trained to simulate realistic clinical presentations. Thirty-nine schools actually require students to pass an

6. See id. at 11:30.

7. See id. at 11:29. The clinic previously experimented with patient telephone interviews. The initial form developed in 1986 was three pages long with three openended questions. See id. at 11:30. 8. See id. at 11:33.
9. See id.

10. See William J. Krowinski & Steven R. Steiber, Measuring and Managing Patient Satisfaction 25 (2d ed. 1996). 11. Id. at 23. 1997, at 141, 148, 150; see also, e.g., Press, Ganey Associates, Inc., About Press, Ganey (1994) [hereinafter About Press, Ganey] (on file with author) (outlining the services of one company specializing in patient satisfaction surveys). ture, 40 Soc. Sci. & Med. 903 (1995).
14. See L.M.L. Ong et al., Doctor-PatientCommunication: A Review of the Litera12. See id. 13. See Neil Chesanow, Hire a Pro to Survey Your Patients, Med. Econ., Oct. 13,

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5 The examination using standardized patients before graduation." growing use of standardized patients follows extensive research showing that neither supervising medical faculty nor examining students can reliably assess whether patients are satisfied.16 In contrast, standardized patient tests generally do reliably predict the degree of patient satisfaction a student will generate with real patients. 7 Evaluation of the quality of lawyer-client relations in general, and communications in particular, is at a far less developed stage than the comparable work in the medical field. Among the notable developments in the medical field are: (1) the insights of sociolinguistic analysis are used to design survey methodology and, in turn, survey results are used to validate or critique the work of sociolinguists; (2) standardized methods are widely used for both sociolinguistic analysis and survey methodology; (3) the insights and methods of this combined research has penetrated deeply into both education and professional practice; (4) empirical measurement of satisfaction is valued and often required by regulators and funders; and (5) databases are formed that permit comparing performance with other professionals. Although the legal field has made some recent progress, to date the various elements that have come together in the medical field have generally remained separate in the legal field. The body of literature using sociolinguistics and other social science approaches to study lawyer-client communications is growing, but that research is almost never correlated with survey data from clients. Client satisfaction surveys, largely conducted by the organized bar and agencies rather than by academics, are not designed using insights from the sociolinguistic research. The topic of lawyer-client communication is increasingly addressed in a proliferation of legal education texts, but the pedagogy is not informed by the social science research.' Where ac-

15. See M. Brownell Anderson et al., Growing Use of Standardized Patients in

Teaching and Evaluation in Medical Education, 6 Teaching & Learning Med. 15, 16

(1994).
16. See Robyn Tamblyn et al., Can StandardizedPatientsPredictReal-PatientSatis-

faction with the Doctor-Patient Relationship?, 6 Teaching & Learning Med. 36, 36 (1994). The authors of one of these landmark studies observed that faculty ratings were strongly influenced by the student's competence in technical aspects of care and
that interview styles conducive to thorough data collection are different from those Humanistic Attributes of Internal Medicine Residents, 4 J. Gen. Internal Med. 514

associated with patient satisfaction. See id. at 36-37 (citing J. Klessig et al., Evaluating (1989)).
17. See id- at 37. The standardized patient score, however, did not reliably predict which students would receive the lowest real patient satisfaction evaluations. See id. at

42.
18. A notable exception is Avrom Sherr's text on interviewing, which draws heavily from both the work in the medical field and his own research. Avrom Sherr, Client

Interviewing for Lawyers: An Analysis and Guide (1986). For recent use of social
science research in clinical education see Gay Gellhorn, Laws, and Language. An Empirically-BasedModel for the Opening Moments in Client Interviews,4 Clinical L Rev. 321 (1998); Gay Gellhorn et al., Law and Language: An InterdisciplinaryStudy of

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tual client representation takes place by students, clients are not systematically surveyed to provide guidance for students or teachers.1 9 Neither the world of professional practice nor the public funders of legal services rely to any significant degree on either social science analysis or client surveying to train and evaluate attorneys. The time is now ripe for leaders of the legal profession, legal educators, and social scientists to combine forces to develop a shared ap20 proach to evaluating and improving lawyer-client communications. William Felstiner, former director of the American Bar Foundation and a leading researcher on attorney-client relations, has recently published a very useful summary of what he describes as the "vast" and largely critical literature on lawyer-client relations. 2 ' One source he cites is extensive survey research indicating that "interpersonally the lawyer-client relationship is deeply troubled. All too often lawyers are thought to be inattentive, unresponsive, insensitive, non-empathetic, uncooperative, and arrogant. '22 Felstiner also refers to interviews with lawyers and analyses of observed lawyer-client meetings by socio-legal researchers,' statements by leaders of the bar, reClient Interviews, 1 Clinical L. Rev. 245 (1994) [hereinafter Gellhorn ct al., Client Interviews]; and Linda Smith, Medical Paradigmsfor Counseling: Giving Clients Bad

News, 4 Clinical L. Rev. 391 (1998). 19. It is common for client interviews by law clinic students to be recorded and analyzed, but the analysis is almost always conducted by lawyers based on their own values and experience, not by social scientists. For a notable exception, see Gellhorn Law. 159, 163 (1997) (recommending client surveys and noting that while "[l]awyers

et al., Client Interviews, supra note 18, at 256-57. 20. See Ward Bower, Implementing Quality Management in a Law Firm, 8 Prof. tend to view quality in terms of the product ... clients are judging quality more on service factors .... "); Project for the Future of Equal Justice, Comprehensive, Inte-

grated Statewide System for the Provision of Civil Legal Assistance to Low Income Persons to Secure Equal Justice for All 23 (Discussion Draft 1998) (on file with author) (calling for the statewide collection of data measuring client satisfaction). The Human Face of Law 121, 124 (Keith Hawkins ed., 1997). Another excellent review of the literature, both in the United States and Britain, is found in 1 Avrom Sherr et al., Lawyers-The Quality Agenda 5, 5-12 (1994). 22. Felstiner, supra note 21, at 122 (citations omitted). It is not clear, however, that what client survey data exists actually support these dire conclusions. 23. See id. at 128-31. The most extensive analysis of observed lawyer-client meetings has been produced by Felstiner himself in collaboration with Austin Sarat. In the early 1980s they recorded 115 lawyer-client conversations in 40 divorce cases using two sites, one on the east coast and the other on the west coast. They have since produced an impressive and influential set of articles analyzing this data. See Austin Sarat & William L.F. Felstiner, Divorce Lawyers and Their Clients: Power and Meaning in the Legal Process (1995); William L.F. Felstiner & Austin Sarat, Enactments of
Power: Negotiating Reality and Responsibility in Lawyer-Client Interactions,77 Cor21. See W.L.F. Felstiner, Professional Inattention: Origins and Consequences, in

nell L. Rev. 1447 (1992); Austin Sarat & William L.F. Felstiner, Law and Social Relayer's Office, 20 L. & Soc'y Rev. 93 (1986); Austin Sarat & William L.F. Felstiner,
Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office, 98 Yale tions: Vocabularies of Motive in Lawyer/Client Interaction, 22 L. & Soc'y Rev. 737 (1988); Austin Sarat & William L.F. Felstiner, Law and Strategy in the Divorce Law-

L.J. 1663 (1989); Austin Sarat & William L.F. Felstiner, Legal Realism in Lawyer-

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ports of lawyer disciplinary bodies, client focus groups, and academic articles. 24 He gathers from these sources the conclusion that lawyers frequently fail to treat clients with respect, do not consider the nature of interpersonal relations with clients to be an important aspect of law practice, are motivated more by financial returns than by professional values, are inaccessible and unresponsive, are poor communicators, do not know how to deal with clients effectively, are indifferent to clients' feelings, and are indifferent to the pace of clients' legal affairs. 2 According to Felstiner, until recently the organized American bar treated evidence of low public regard for the profession as a public relations issue rather than a substantive problem. ' Even though he believes that there has been a "total switch of attitude" within the bar, such that bar leaders are now frequently blaming lawyers for the public's low esteem, Felstiner still finds the bar's response misguided and simplistic.27 Simply urging lawyers to be more "self-aware," he claims, will have little effect: "lawyer behavior has complicated structural origins and.., any change in that behavior is likely to be slow, uncertain, and grudging."' He attributes much of the structural cause to legal education.29 A central problem may be a prevailing attitude among client satisfaction is overwhelmingly dependant on lawyers that 30 outcomes. I believe that one of the most promising ways to move forward, from research to reform, is to develop a simple, standardized method of obtaining feedback from clients about their experience of communications with their lawyers. Client evaluations ought to become as standard for law school clinical teaching as student evaluations are for classroom teaching. The same evaluation methods could then extend to practice settings, most likely beginning with publicly funded legal services programs-both because funders would be in a position to
Client Communication, in Language in the Judicial Process 133 (Judith N. Levi &

Anne Graffam Walker eds., 1990).

24. See Felstiner, supra note 21, at 128-31.

25. See id
26. See id. at rectly because it can legal system 27. Id. 28. Id 29. See id at 122. "[The bar assumed that the] public did not value lawyers cormisunderstood their role in the adversary dimensions of the Amerirather than because lawyers behaved inappropriately." Id. 131-37. Felstiner also plausibly suggests that socialization in the first

years of practice is a powerful influence. See id. at 137-38.

30. See Lynn Mather et al., "The PassengerDecides on the Destination and I Decide on the Route". Are Divorce Lawyers "Expensive Cab Drivers?".9 Int'l J.L Fain. 286, 294-97 (1995). There is an impressive body of social science research indicating

that clients judge whether outcomes are "fair" in large part in terms of the procedures by which the outcomes are reached, including the way lawyers communicate with

them. See generally E. Allan Lind & Tom R. Tyler, The Social Psychology of Procedural Justice (1988) (discussing in depth people's interest in issues of process and

examining the importance of social process in determining reactions to legal

experiences).

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encourage their use and because such clients lack the ability of paying clients to "vote with their feet" if dissatisfied with their lawyers. Ideally, law firms would, like the Park Nicollet Clinic, decide it was in their own interest to obtain more objective and complete information about their clients' views, particularly when training and evaluating new attorneys. Legal scholars constantly call for lawyers to hear the
voices of their clients; client evaluations would give reality to this

rhetoric.
I.
BACKGROUND OF THE INTERNATIONAL PROJECT

In 1995, Bonnie McElhinny, a sociolinguist, and I published a "work

in progress" article in the Clinical Law Review titled Taking It to the Streets.31 The article describes the design for a research project to analyze and improve the way lawyers interview clients.3" The following year I had the good fortune to read a number of papers based on research outside of the United States on lawyer-client communications. One paper written by Avrom Sherr, a leading English law professor in the field of clinical education, reported on extensive analysis of more than 100 client interviews. 3 3 A second, written by Livingston Armytage, a consultant on law firm management, was based on a survey of clients of accredited specialist lawyers in Australia.34 The third article, by a noted Australian sociolinguist, Diana Eades, reported on a highly publicized court case in which a murder conviction was reversed based in part on social science evidence of inadequate lawyerclient communications. 35 Finding these papers to be thought-provok31. Clark D. Cunningham & Bonnie S. McElhinny, Taking It to the Streets: Putting Discourse Analysis to the Service of a Public Defender's Office, 2 Clinical L. Rev. 285 (1995). 32. See id. at 286-87. 33. See Avrom Sherr, The Value of Experience in Legal Competence, in 1 Skills Development for Tomorrow's Lawyers: Needs and Strategies 133, 140 (1996). 34. See Livingston Armytage, Client Satisfaction with Specialists' Services: Lessons for Legal Educators, in 1 Skills Development for Tomorrow's Lawyers: Needs and Strategies 355, 357-65 (1996). 35. See Diana Eades, Legal Recognition of Cultural Differences in Communication: The Case of Robyn Kina, 16 Language & Comm. 215 (1996). I obtained the Sherr and Armytage papers by attending an international conference on professional legal education in September 1996. The conference was sponsored by the Australasian Professional Legal Education Council and held at the College of Law in Sydney, Australia. For a summary of the Sherr, Armytage, and Eades papers, see Clark D. Cunningham, A Modest Proposal: Cross-National Empirical Research on LawyerClient Communications (Sept. 17, 1997) (unpublished manuscript, on file with author). Other papers presented at that conference relevant to empirical study of the legal profession and lawyer-client communication include Gay Crebert, Bridging the Gap or Leaping the Chasm? A Study of How Six New Law GraduatesDealt with the Different Learning Contexts of University and ProfessionalPractice,in 1 Skills Development for Tomorrow's Lawyers: Needs and Strategies 515 (1996); John K. de Groot, A Comparison of the Relative Effectiveness of Articles of Clerkship and Legal Practice Courses in Producing a Competent Lawyer, in 1 Skills Development for Tomorrow's Lawyers: Needs and Strategies 389 (1996); Ainslie Lamb, Cross-CulturalAwareness

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ing, especially on the troubling question of receiving feedback from clients, I proposed that a model be developed for empirical research on client interviewing that could be applied internationally. Looking beyond national boundaries not only suggests new ideas and approaches, but also can prompt reconsideration of attitudes so dominant in one's own culture that they seem self-evidently true.
II.
THE CURRENT RESEARCH PROJECT

The proposal for cross-national empirical research on lawyer-client communication, which for a time existed only as a working paper and a conference presentation, is now on the verge of being implemented. The Centre for Legal Education in Sydney, Australia has agreed to sponsor the project. The Centre's director, Christopher Roper, and I are serving as the project's co-directors. An international Advisory Board consisting of legal educators and social scientists has also been formed.36 In July 1998, Roper and I met with a number of Advisory Board members during the World Wide Advocacy Conference in London, sponsored by the Inns of Court School of Law. As a result of those meetings, we developed the following initial research questions focused on the initial interview: 1. What specific sociolinguistic features of lawyer discourse correlate with client satisfaction as measured by a client questionnaire at the completion of the interview? 2. Can a lawyer consistently increase client satisfaction by altering specific sociolinguistic features of the lawyer's discourse? Examples of sociolinguistic features that will be studied are: (1) the use of open-ended versus closed-ended questions; (2) "framing" questions (i.e., explaining why the question is being asked);37 and (3) forms
in Legal Issues Involving Aboriginal and Torres Strait IslanderPeople, in 1 Skills De-

velopment for Tomorrow's Lawyers: Needs and Strategies 25 (1996); and Rosemary
Samwell-Smith, Skills, Myths and Videotapes: (Effective Client Communication: The

English Perspective), in 2 Skills Development for Tomorrow's Lawyers: Needs and Strategies 923 (1996). For recent work by Australian scholars on lawyer-client communication, see Allan Chay & Judith Smith, Legal Interviewing in Practice (1996); Diana Eades, Aboriginal English and the Law (1992); Diana Eades, Language In Evidence: Issues Confronting Aboriginal and Multicultural Australia (1995); and Kay A.

Lauchland & Marlene J. LeBrun, Legal Interviewing, Theory, Tactics and Techniques (1996). I became acquainted with Eades and her work thanks to Judith Levi, former chair of the linguistics department at Northwestern University, who has been, for myself and many others in law, an invaluable resource for becoming acquainted with
linguists working in the legal field.

36. See infra app. at 1981-86. For further information about Advisory Board members, see Washington University School of Law, Effective Lawyer Client CommuProjectto Move From Research to Reform (visited Feb. 16, nication: An International

1999) <[Link] 37. Lawyers frequently do not explain why they are asking questions and even refuse client requests for such explanations. See, e.g., Robert Traver, Anatomy of a Murder 24 (1958) ("Lawyer: '[Is this] your first marriage?' Client: 'No.' Lawyer. 'Suppose you tell me the matrimonial score and save time. Like Sergeant Friday, all I

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of address (for example, referring to the client as "Ms. Smith" or "Jane"). As discussed below, we believe that this research topic is itself of considerable interest and importance. Our goals, however, go well beyond answering these questions. Our hope is that this project will prompt the creation and testing of valuable new tools for evaluating attorney-client relations in general. In particular, we want this initial project to be the setting for developing "new laboratory equipment" for analyzing the research issues discussed below. A. Research Issues with Sociolinguistic Analysis A major obstacle that lies at the threshold of any effort to record and analyze lawyer-client interviews, at least in the United States, is the problem of preserving the attorney-client privilege.38 In most (if not all) jurisdictions, if the client consents to having a third person present at a meeting, then the client waives any claim of confidentiality.39 Thus, if an opposing party discovered that a social scientist had observed the meeting, then the attorney-client privilege would not be available to prevent the opponent from compelling either the client or the client's attorney to disclose the contents of the meeting in discovery or at trial. Authorizing a third party not physically present to listen to a recording of the meeting would probably have the same
n effect."

The handful of social scientists who have somehow suc-

ceeded in persuading attorneys and their clients to permit them to observe and/or record interviews have generally not explained how this problem was addressed.4 ' One exception is the Gellhorn, Robins, and Roth study42 in which Gellhorn and Roth were the supervising attorneys. They decided to authorize Robins, an anthropologist, and her students to review the recorded interviews with their clients without seeking client consent on the rationale that the risks created by 3 loss of the privilege were minimal due to the type of cases studied. In Taking It to the Streets, McElhinny and I concluded that sociolinguistic research could be designed to preserve the privilege.44
want are the facts, ma'am.' Client: 'Is all this necessary?' Lawyer: 'Suppose you let me be the judge.' Client: 'It's my second.'). 38. See Legal Services Corp., The Delivery Systems Study: A Policy Report to the Congress and the President of the United States 106 (1980) [hereinafter Delivery SysThe Biography of a Failure, 14 L. & Soc'y Rev. 905, 908-10 (1980). 39. See Cunningham & McElhinny, supra note 31, at 292-96.

tems Study]; Brenda Danet et al., Obstacles to the Study of Lawyer-Client Interaction: 40. See id.
41. See id. at 292 n.12. 42. See Gellhorn et al., Client Interviews, supra note 18. 43. See id. at 272-74. The cases involved disability claims in an administrative tri-

bunal where there was no opposing party or opposing counsel. See id. at 272 n.83. For
a critique of their rationale, see Nina W. Tarr, Clients' and Students' Stories: Avoiding Exploitation and Complying with the Law to Produce Scholarship with Integrity, 5 Clinical L. Rev. 271, 289-305 (1998). 44. Cunningham & McElhinny, supra note 31, at 295-96.

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Where the researcher agrees to serve as a consultant to the attorney to assist in effective representation of that client and to be bound by the privilege-and thus not to use or disclose the contents of the interview without the attorney's approval-the privilege is maintained.4 The attorney would obtain the client's consent before authorizing use, typically after the conclusion of the case.46 One particular benefit of conducting this proposed project cross-nationally is that, in other countries, the privilege is not waived by the researcher's presence.47 In addition to preserving the lawyer-client privilege, obtaining informed client consent requires careful consideration. For researchers in the United States who are university-based or are receiving federal funding, standards and procedures for research involving human subjects may be applicable.' Although social scientists would probably prefer a method that gave them maximum information-such as personal observation plus video recording-such an approach raises substantial cost and pragmatic problems, particularly coordinating the observer's schedule with the time of the interview. We are also concerned about the distorting and intimidating effect of having the researcher physically present. Therefore, we plan to use audio recording in most cases. The cooperating attorney will operate the tape recorder and send the tape to the sociolinguist for analysis.4 9 It is critical to develop a standardized list of features to analyze, with particular emphasis on features capable of objective measurement-for example, the number of interruptions coded by the identity of the speaker and the form of the speaker's address. Discourse analysis in general, and the study of professional discourse in particular, is a sufficiently developed field sharing wide consensus about terminol5 0 We selected our initial research questions in part ogy and methods. so that we could draw upon this work. B. Research Issues with Surveying In 1980, the Legal Services Corporation reported to the United States Congress that it was unable to conduct a satisfactory client sat45. See id. 46. See id. at 294-96. For a sample consulting agreement and client disclosure, see id. at 312-13. 47. In my conversations with Avrom Sherr, he has stated that English law does preserve the privilege despite recording and analysis by researchers. This explains why Sherr has been able to conduct his extensive research. We are researching this issue for other Commonwealth countries. 48. See Cunningham & McElhinny, supra note 31, at 296-303 (discussing other ethical obligations of social scientists); Tarr, supra note 43, at 287-92 (discussing informed consent requirements against the background of research involving human subjects). 49. Many law school clinics routinely videotape interviews, and if such a clinic is a research site, then videotaping would be practical and impose no additional costs. 50. See Cunningham & McElhinny, supra note 31, at 288-90.

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isfaction survey (designed to compare private attorney to staff attorney models for service delivery) because of low response rates.5 The method used was a thirty-minute interview by a research contractor, 52 conducted primarily by telephone, after the case was complete. Legal service providers gave the contractor a list of clients intended to be representative and then mailed the clients information about the project and a postcard to be sent to the contractor if the client wished to participate.53 Only twenty percent of these clients returned postcards, making the overall response rate against the original sample only seventeen percent.54 This response rate was considered too low for reliability by the Legal Services Corporation, which was also concerned about a selection effect from the use of the postcard system.-5 According to Alan Houseman, director of research at the Legal Services Corporation during the time of this study, the study was the most comprehensive examination to date of any legal services delivery system and yet could not complete the client satisfaction measure. 56 Indeed, he concludes that despite years of efforts by a variety of agencies, there has never emerged an assessment model that worked 57 well and was supported by the government funding source. Houseman's conclusion makes for an interesting contrast to what has taken place in the medical field. We hope to revisit the feasibility of surveying client satisfaction by learning from the experience in the medical field. At this point, we would propose to administer a short, one-page questionnaire to be completed privately by the client, immediately after the initial interview, preferably before the client left the office.58 We think the simplicity and brevity of this procedure, combined with the current relevance of representation to the client, will significantly increase response rates. We are also willing to provide clients with a financial incentive for completing the survey, a standard practice in social science research.
51. See Delivery Systems Study, supra note 38, at 105. 52. See id. at 106. 53. See id. at 108. 54. See id. Nevertheless, 84% of those clients returning postcards were successfully interviewed. See id. 55. See id. at 109-12. 56. See Letter from Alan Houseman, Director of Research, Legal Services Corporation (January 27, 1998) (on file with author). 57. See id. 58. The Legal Services Corporation elected to wait until the case was completed to "ensure that the survey did not interfere with the attorney-client relationship." Delivery Systems Study, supra note 38, at 106. Although this is a concern, we do not think this is an insurmountable problem, particularly if clients are reliably assured that their responses will be coded for anonymity. Having the clients fill out the questionnaire themselves rather than speak to an interviewer has been shown to increase confidence of confidentiality in the medical field. See Melvin F. Hall, Patient Satisfaction or Acquiescence? Comparing Mail and Telephone Survey Results, 15 J. Health Care Marketing 54, 55 (1995).

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Questionnaire design is critical. General questions about "are you satisfied" are much less helpful than more specific questions. One major firm in the medical field has a general principle that a question on a satisfaction survey should almost always address a specific, concrete issue or practice that the provider could take action about based 5 9 Of course, we would want the survey questions upon the response. to correlate, using lay language, with the sociolinguistic features being analyzed. Equally important is a standard list of questions so that results can be compared between attorneys and across programs. In academic medicine, one standardized set has been widely used' and, as discussed above, major funders of health care are in the process of developing their own standard forms.61 One of our Advisory Board members, Diana Eades, has pointed out that completing a written satisfaction survey may be an unfamiliar and uncomfortable activity for many cultural groups, citing her research on legal representation of Aborigines in Australia as an example.62 We intend to look for such problems and to experiment with alternative, culturally appropriate methods for obtaining client feedback.
CONCLUSION

We continue to gather more information about empirical methods used for assessing professional communication with plans to begin one or more pilot projects in 1999. I hope that any readers of this paper who have used methods for determining client satisfaction or objectively assessing videotaped interviews will share them with me. We also plan to post queries on the Internet.63 We particularly plan to
59. See About Press, Ganey, supra note 13, at 8 (claiming that The Press, Ganey data collected from surveys are valid because hospitals can and do use the data to make concrete improvements in health care delivery). 60. See John E. Ware et al., Development and Validation of Scales to Measure Patient Satisfaction with Health Care Services (1976). 61. See supra note 12 and accompanying text. 62. This information was obtained from my communication with Diana Eades. For a further discussion of this issue, see Diana Eades, Aboriginal English and The Law (Communicating with Aboriginal English Speaking Clients: A Handbook for Legal Practitioners) (1992); Diana Eades, Language In Evidence: Issues Confronting Aboriginal And Multicultural Australia (1995); and Diana Eades, Legal Recognition of CulturalDifferences in Communication: The Case of Robyn Kina, 16 Language & Comm. 215 (1996). 63. For access to United States clinical law teachers, LAWCLINIC@[Link]. edu is proving to be a very powerful communication medium. A new "bulletin board" (or "listserve") that connects clinical law teachers around the world has been set up. This international discussion group is sponsored by the Global Alliance for Justice Education ("GAJE"). Membership information for GAJE is available from Robin Palmer, University of Natal, South Africa via email at <[Link]. [Link]>; the listserve itself is maintained by Gary Blasi at UCLA via email at <blasi@ [Link]>.

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look closely at research on the medical profession on this subject, which is, as discussed above, far more advanced. 64 If a variety of schools and professional settings began to use a standard client survey form and methodology for assessing recorded interviews, then one would want the model to be as good as possible before implementation. Even an imperfect approach, however, would
not only begin to develop a rich body of data, but it could also create a

common vocabulary to enable law teachers and practitioners around the world to talk to each other about our common goal of representing clients well.

64. For examples of research on the medical profession on this subject, see The Social Organization Of Doctor-Patient Communication (Sue Fisher & Alexandra Dundas Todd eds., 1983); David Zimmerman et al., The Healthcare Customer Service Revolution: The Growing Impact of Managed Care on Patient Satisfaction (1996); Lynda A. Anderson & Marc A. Zimmerman, Patient and Physician Perceptions of Their Relationship and PatientSatisfaction: A Study of Chronic Disease Management, 20 Patient Educ. & Counseling 27 (1993); Howard Beckman, Communication and Malpractice: Why Patients Sue Their Physicians, 62 Clev. Clinic J. Med. 84 (1995); Christina G. Blanchard et al., Physician Behaviors, Patient Perceptions,and Patient Characteristicsas Predictors of Satisfaction of HospitalizedAdult Cancer Patients, 65 Cancer 186 (1990); Rita Charon et al., Multi-DimensionalInteraction Analysis: A CollaborativeApproach to the Study of Medical Discourse, 39 Soc. Sci. & Med. 955 (1994); Loretto M. Comstock et al., Physician Behaviors that Correlate with Patient Satisfaction, 57 J. Med. Educ. 105 (1982); Ronald M. Epstein et al., Perspectives on Patient-Doctor Communication, 37 J. Fam. Prac. 377 (1993); Judith A. Hall et al., Older Patients' Health Status and Satisfaction with Medical Care in an HMO Population, 28 Med. Care 261 (1990); Hall, supra note 58; Christian Heath, The Delivery and Reception of Diagnosisin the General-Practice Consultation,in Talk at Work: Interaction in Institutional Settings 235 (Paul Drew & John Heritage eds., 1992); John Heritage & Sue Sefi, Dilemmas of Advice: Aspects of the Delivery and Reception of Advice in Interactions Between Health Visitors and First-Time Mothers, in Talk at Work: Interaction in Institutional Settings, supra, at 359; William T. Merkel, Physician Perception of Patient Satisfaction: Do Doctors Know Which Patients Are Satisfied?, 22 Med. Care 453 (1984); Cassie L. Murphy-Cullen & Lars C. Larsen, Interaction Between the Socio-Demographic Variables of Physicians and Their Patients: Its Impact upon PatientSatisfaction, 19 Soc. Sci. & Med. 163 (1984); Ong et al., supra note 14; Albert B. Robillard et al., Between Doctor and Patient: Informed Consent in ConversationalInteraction,in The Social Organization of Doctor-Patient Communication, supra, at 107; Lynne S. Robins & Fredric M. Wolf, Confrontation and Politeness Strategies in Physician-PatientInteractions,27 Soc. Sci. & Med. 217 (1988); Lynne S. Robins & Fredric M. Wolf, The Effect of Training on Medical Students' Responses to GeriatricPatientConcerns: Results of a Linguistic Analysis, 29 The Gerontologist 341 (1989); Debra Roter & Richard Frankel, Quantitative and Qualitative Approaches to the Evaluation of the Medical Dialogue, 34 Soc. Sci. & Med. 1097 (1992); Special Section: Annex to the Proceedings of the AAMC Consensus Conference on the Use of Standardized Patients in the Teaching and Evaluation of Clinical Skills, 6 Teaching & Learning Med. (1994); Paula L. Stillman et al., Use of Client Instructors to Teach Interviewing Skills to Law Students, 32 J. Legal Educ. 395 (1982).

1999]

LAWYER-CLIENT COMMUNICATION APPENDIX

1971

PATIENTIPHYSICAN COMMUNICATION PROFILE

Please, complete this form regarding the care you have received from Dr. In the D epueet=

1. How long have you been a patient of Dr. ? (C .eck o.e box) in Less than 6 months 20 6tol2months 30 MorethnIyc r 2. Approximatey how many times have you son Dr. 10 1time 20 2to4times for cae? (Cl-k oe bar) 30 a to7ti=s

40

8ererme m:=

3. How long do you usually [Link] before you ere so by Dr. ... i 00tolSminutes 20 16to 30 miniu

_7 (Check.-.e bo ) 30 Movethan30mmui.

(7'Ionre 0cc ore boxaraciem) Strongly

Dtsagree DIsagree Uncertain Agree

[Link]
Agree

Not
Aplfab!e

DR.

4. Makes me feel comfotable

01
0! 01 0' at at 0' 0'1 0t 0' 0t

02 02 02 02 02 C32 02 02 02 02 02

03 03 03 03 03 03 03 03 03 03 03

0' 0' 0' 0' 04 04 0' 0' 04 04 04

Os OS Os 05 cis 05 OS 05 03 05 OS

08

6. Sits down while talking to me

08 08 08
08

7. Asoer MY qsertIon
8. Listens to what I'm saying

9. xplinsmycediienor diagnosis to my satisfaction

10. Explains lab tests or x-rays

08
08 08 08 038 08

C1.'Povdes ma-wEtth results of lab tests or

12. Explains medication to my satisfaction

13, Provides iaformation so that I can male

decisions in my own care 14. Is concerned for me as a person as well as a patient 15. Refers me to other consultants as I think they oreneeded 16. Is sensitive to my needs 17. I am generally sadslied with the caeI have received from this doctor 18. I would recommend this doctor to a friend 19. Overall, how would you raie Dr. 1 O Poor 2 n Fair 3 O Good

0t 0t

02 02

03 03

0' 0'

05 OS

08 08

0! 0!

02 02

03 03

0' 0'

O 05

08
08

'a quality of care? ([Link] ore bar) 4 0 Very Good 30 Excellent (Ccrjt :c=bad. (eca%:ry)

Please note anyadditional comments about thequality of careyou hav*e received from Dr.

1972

FORDHAM LAW REVIEW

[Vol. 67

SAMPLE SURVEY COVER LETTER

Park Nicollet Medical Center s

A HealthSystem Minnesota ' member

5000 West 39th Street Minneapolis, MN 55416-2699 612/927/3123

<<date>> Dear Patient: Will you help? Your opinion is extremely important to us. By responding candidlyto the enclosed survey, you will help assure that we provide the best possible care and service to our patients. The questionnaire focuses on the Importance of good communication between patient and physician. Your name was selected at random from the appointment sheets of Dr. <<fname>> <<naine>> In the <<dept>> department. To be surethat all information Is both confidential and anonymous, questionnaires will never be Identified by name. Your comments will be combined with responses from other patients In a summarized report. Thank you for your time and attention. We look forward to reviewing your comments as we learn from your experiences. Please return your survey in the postage-paid envelope by <<date2>>. If you have any questions, please call Cheryl Craft, R.N. at 993-3525. Sincerely, Theresa Ryan, M.D. Medical Director, Clinical Operations

adltcov 2//s5
Co Ml of PukcNicolet Modial F-,Inion. Min-Wi&Mmo J

1999]

LAWYER-CLIENT COMMUNICATION
BIBLIOGRAPHY

1973

Niyi Akinnaso & Cheryl Seabrook Ajirotutu, Performance and Ethnic Style in Job Interviews, in Language and Social Identity (John J. Gumperz ed., 1982). Tony Alfieri, Reconciling Poverty Law Practice: Learning Lessons of Client Narrative, 100 Yale L.J. 2107 (1991). William W. Allen et al., Satisfaction with Care Received from Family Physicians: A Comparison of Medicaid Enrollees and Other Patients, 28 Fam. Med. 429 (1996). Lynda A. Anderson & Marc A. Zimmerman, Patient and Physician Perceptionsof Their Relationship and PatientSatisfaction: A Study of Chronic Disease Management, 20 Patient Educ. & Counseling 27 (1993). Livingston Armytage, Client Satisfaction with Specialists' Services: Lessons for Legal Educators, in 1 Skills Development for Tomorrow's Lawyers: Needs and Strategies 355 (1996). Livingston Armytage, A Review of Aspects of the Specialist Accreditation Program of the Law Society of New South Wales (1996). Lawrence Becker, Subjects Are Not Patients, 13 Language & Comm. 95 (1993). Howard Beckman, Communication and Malpractice: Why Patients Sue Their Physicians, 62 Clev. Clinic J. Med. 84 (1995). Christina Blanchard et al., The Impact of Oncologists' Behavior on Patient Satisfaction with Morning Rounds, 58 Cancer 387 (1986). Christina Blanchard et al., Interactions Between Oncologists and Patients During Rounds, 99 Annals Internal Med. 694 (1983). Christina G. Blanchard et al., Physician Behaviors, Patient Perceptions, and PatientCharacteristics as Predictorsof Satisfactionof Hospitalized Adult Cancer Patients, 65 Cancer 186 (1990). Bryna Bogoch, Gendered Lawyering: Difference and Dominance in Lawyer-Client Interaction,31 L. & Soc'y Rev. 677 (1997). Bryna Bogoch, Power, Distance and Solidarity: Models of Professional-ClientInteraction in an Israeli Legal Aid Setting, 5 Discourse & Soc'y 65 (1994). Bryna Bogoch & Brenda Danet, Challenge and Control in LawyerClient Interaction: A Case Study in an Israeli Legal Aid Office, 4 Text 249 (1984). Ward Bower, Implementing Quality Management in a Law Firm, 8 Prof. Law. 159 (1997). Samuel J. Brakel, Free Legal Services for the Poor: Staffed Office vs. Judicare: The Client's Evaluation, 2 Wis. L. Rev. 532 (1973).

1974

FORDHAM LAW REVIEW

[Vol. 67

Samuel J. Brakel, Judicare: Public Funds, Private Lawyers, and Poor People (1974). Deborah Cameron et al., Ethics, Advocacy and Empowerment: Issues of Method in Researching Language, 13 Language & Comm. 81 (1993). Deborah Cameron et al., Researching Language: Issues of Power and Method (1992). Christopher N. Candlin et al., The Language of Lawyer-Client Conferencing (1994). Jonathan D. Casper et al., ProceduralJustice in Felony Cases, 22 L. & Soc'y Rev. 483 (1988). Rita Charon et al., Multi-DimensionalInteractionAnalysis: A Collaborative Approach to the Study of Medical Discourse, 39 Soc. Sci. & Med. 955 (1994). Allan Chay & Judith Smith, Legal Interviewing in Practice (1996). Aaron V. Cicourel, Hearing Is Not Believing: Language and the Structure of Belief in Medical Communication (1983). Loretto M. Comstock et al., Physician Behaviors that Correlate with Patient Satisfaction, 57 J. Med. Educ. 105 (1982). Consortium on Legal Services and the Public, Legal Needs and Civil Justice: A Survey of Americans (1994). Gay Crebert, Bridging the Gap or Leaping the Chasm? A Study of Six Law Graduatesin University and Practice,in 1 Skills Development for Tomorrow's Lawyers: Needs and Strategies 515 (1996). Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse,77 Cornell L. Rev. 1298 (1992). Clark D. Cunningham, A Tale of Two Clients: Thinking About Law as Language, 87 Mich. L. Rev. 2459 (1989). Clark D. Cunningham & Bonnie McElhinny, Taking it to the Streets: PuttingDiscourseAnalysis to the Service of a Public Defender's Office, 2 Clinical L. Rev. 285 (1995). Barbara A. Curran, The Legal Needs of the Public (1977). Brenda Danet et al., Obstacles to the Study of Lawyer-Client Interaction: The Biography of a Failure, 14 L. & Soc'y Rev. 905 (1980). Peggy C. Davis, ContextualLegal Criticism: A Demonstration Exploring Hierarchy and "Feminine" Style, 66 N.Y.U. L. Rev. 1635 (1991). John de Groot, A Comparison of the Relative Effectiveness of Articles of Clerkship and Legal Practice Courses in Producing a Competent Lawyer, in I Skills Development for Tomorrow's Lawyers: Needs and Strategies 389 (1996).

1999]

LAWYER-CLIENT COMMUNICATION

1975

Robin M. DiMatteo, The Significance of Patients' Perceptions of Physician Conduct. A Study of Patient Satisfaction in a Family Practice Center, 6 J. Community Health 18 (1980). Robert D. Dinerstein, A Mediation on the Theoretics of Practice,43 Hastings L.J. 971 (1992). Diana Eades, Aboriginal English and the Law (Communicating with Aboriginal English Speaking Clients: A Handbook for Legal Practitioners) (1992). Diana Eades, Case of Communicative Clash: Aboriginal English and the Legal System, in Language and the Law (J. Gibbons ed., 1994). Diana Eades, Language in Court: The Acceptance of Linguistic Evidence About Indigenous Australians in the CriminalJustice System, in Australian Aboriginal Studies 15 (1997). Diana Eades, Language in Evidence: Issues Confronting Aboriginal and Multicultural Australia (1995). Diana Eades, Legal Recognition of Cultural Differences in Communication: The Case of Robyn Kina, 16 Language & Comm. 215 (1996). Ronald M. Epstein et al., Perspectives on Patient-DoctorCommunication, 37 J. Faro. Prac. 377 (1993). W.L.F. Felstiner, ProfessionalInattention: Origins and Consequences, in The Human Face of Law: Essays in Honour of Donald Harris 121 (Keith Hawkins ed., 1997). Sue Fisher, Doctor Talk/Patient Talk." How Treatment Decisions Are Negotiated in Doctor-PatientCommunication, in The Social Organization of Doctor-Patient Communication (Sue Fisher & Alexandra Dundas Todd eds., 1983). Esther Figueroa, Research and Empowerment: Who's Empowerin' Who?, 13 Language & Comm. 101 (1993). Richard M. Frankel, The Laying of Hands: Aspects of the Organization of Gaze, Touch, and Talk in a Medical Encounter, in The Social Organization of Doctor-Patient Communication (Sue Fisher & Alexandra Dundas Todd eds., 1983). Gay Gellhorn, Law and Language: An Empirically-BasedModel for the Opening Moments of Client Interviews, 4 Clinical L. Rev. 321 (1998). Gay Gellhorn et al., Law and Language: An InterdisciplinaryStudy of Client Interviews, 1 Clinical L. Rev. 245 (1994). Christopher P. Gilkerson, Poverty Law Narratives: The Critical Practice and Theory of Receiving and Translating Client Stories, 43 Hastings L.J. 861 (1992).

1976

FORDHAM LAW REVIEW

[Vol. 67

Howard Giles, Empowering and "Disempowering"?, 13 Language & Comm. 105 (1993). John Daniel Goldsmith, The InitialAttorney/Client Consultation: Case History, 45 S. Speech Comm. J. 394 (1980). Judith A. Hall et al., Older Patients' Health Status and Satisfaction with Medical Care in an HMO Population,28 Med. Care 261 (1990). Melvin F. Hall, Patient Satisfaction or Acquiescence? ComparingMail and Telephone Survey Results, 15 J. Health Care Mktg. 54 (1995). Sandra Harding, Whose Science? Whose Knowledge? Thinking from Women's Lives (1991). Rom Harre, Doing Well by Doing Good: Some Methodological Consequences of Treating Subjects as if They Were People, 13 Language & Comm. 109 (1993). Christian Heath, The Delivery and Reception of Diagnosisin the General-Practice Consultation, in Talk at Work: Interaction in Institutional Settings (Paul Drew & John Heritage, eds., 1992). John Heritage & Sue Sefi, Dilemmas of Advice: Aspects of the Delivery and Reception of Advice in Interactions Between Health Visitors and First-Time Mothers, in Talk at Work: Interaction in Institutional Settings (Paul Drew & John Heritage, eds., 1992). Carl J. Hosticka, We Don't Care About What Happened, We Only Care About What Is Going to Happen: Lawyer-Client Negotiations of Reality, 26 Soc. Prob. 599 (1979). Kate Howe, Unanswered Questions, Unforeseen Dangers, 13 Language & Comm. 113 (1993). Gail Jefferson & John R. E. Lee, The Rejection of Advice: Managing the Problematic Convergence of a "Troubles-Telling" and a "Service Encounter," in Talk at Work: Interaction in Institutional Settings (Paul Drew & John Heritage, eds., 1992). William J. Krowinski & Steven R. Steiber, Measuring and Managing Patient Satisfaction (1996). William Labov, Objectivity and Commitment in Linguistic Science: The Case of the Black English Trial in Ann Arbor, 11 Language in Soc'y 164 (1982). William Labov, Sociolinguistic Patterns (1972). Ainslie Lamb, Cross-Cultural Awareness in Legal Issues Involving Aboriginaland Torres Strait Islander People, in 1 Skills Development for Tomorrow's Lawyers: Needs and Strategies 25 (1996). Donald Larmouth, The Legal and Ethical Status of Surreptitious Recording in Dialect Research: Do Human Subjects Guidelines Apply?, in Legal and Ethical Issues in Surreptitious Recording 76 (1992).

1999]

LAWYER-CLIENT COMMUNICATION

1977

Celia 0. Larson et al., The Relationship Between Meeting Patients' Information Needs and Their Satisfaction with Hospital Care and General Health Status Outcomes, 8 Int'l J. Quality Health Care 447 (1996). Kay Lauchland et al., Legal Interviewing: Who Cares About the Client? A Workshop on Training in Interviewing and Counselling Skills,

in 2 Skills Development for Tomorrow's Lawyers: Needs and Strategies 955 (1996). Kay A. Lauchland & Marlene J. Le Brun, Legal Interviewing, Theory, Tactics and Techniques (1996). Legal Services Corp., The Delivery Systems Study: A Policy Report to the Congress and the President of the United States (1980). Legal Services Corp., The Delivery Systems Study: A Research Project on the Delivery of Legal Services to the Poor (1977). E. Allan Lind & Tom R. Tyler, The Social Psychology of Procedural Justice (1988). Gerald L6pez, Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice (1992). Per Maseide, Analytical Aspects of Clinical Reasoning: A Discussion of Models for Medical Problem Solving, in The Social Organization Of Doctor-Patient Communication (Sue Fisher & Alexandra Dundas Todd eds., 1983). Lynn Mather et al., "The PassengerDecides on the Destination and I Decide on the Route": Are Divorce Lawyers "Expensive Cab Drivers?", 9 Int'l J.L. & Fam. 286. Bonnie S. McElhinny, An Economy of Affect: Objectivity, Masculinity and the Genderingof Police Work, in Dislocating Masculinities: Comparative Ethnographies (Andrea Cornwall & Nancy Lindisfame-Tapper eds., 1994). Bonnie S. McElhinny, We All Wear the Blue: Language, Gender and Police Work (1993). Bonnie S. McElhinny, You Don't Smile A Lot: Gender, Affect and the Discourse of Pittsburgh Police Officers, in Locating Power: Proceedings of the 1992 Berkeley Conference on Women and Language (Kira Hall & Birch Moonwomon eds., 1992). Jeanne McGee et al., Collecting Information from Health Care Consumers: A Resource Manual of Tested Questionnaires and Practical Advice (1997). William T. Merkel, Physician Perception of Patient Satisfaction: Do Doctors Know Which PatientsAre Satisfied?, 22 Med. Care 453 (1984). Peter Muhlhausler, Comment, 13 Language & Comm. 121 (1993).

1978

FORDHAM LAW REVIEW

[Vol. 67

Cassie L. Murphy-Cullen & Lars C. Larsen, Interaction Between the Socio-DemographicVariables of Physiciansand Their Patients: Its Impact upon Patient Satisfaction, 19 Soc. Sci. & Med. 163 (1984). L.M.L. Ong et al., Doctor-PatientCommunication: A Review of the Literature,40 Soc. Sci. & Med. 903 (1995). Marianne A. Paget, On the Work of Talk: Studies in Misunderstandings, in The Social Organization of Doctor-Patient Communication (Sue Fisher & Alexandra Dundas Todd eds., 1983). Anne Pauwels, Cross-Cultural Communication in Legal Settings (1992). Project for the Future of Equal Justice, Comprehensive, Integrated Statewide System for the Provision of Civil Legal Assistance to Low Income Persons to Secure Equal Justice for All (Discussion Draft 1998). Roy W. Reese & Carolyn A. Eldred, Legal Needs Among Low-Income and Moderate-Income Households: Summary of Findings from the Comprehensive Legal Needs Study (1994). John Rickford, Comments on "Ethics, Advocacy and Empowerment", 13 Language & Comm. 129 (1993). Albert B. Robillard et al., Between Doctor and Patient: Informed Consent in ConversationalInteraction, in The Social Organization of Doctor-Patient Communication (Sue Fisher & Alexandra Dundas Todd eds., 1983). Lynne S. Robins & Fredric M. Wolf, Confrontation and Politeness Strategies in Physician-PatientInteractions, 27 Soc. Sci. & Med. 217 (1988). Lynne S. Robins & Fredric M. Wolf, The Effects of Training on Medical Students' Responses to GeriatricPatient Concerns: Result of a Linguistic Analysis, 29 Gerontologist 341 (1989). Douglas E. Rosenthal, Comment on "Obstacles to the Study of Lawyer-Client Interaction: The Biography of a Failure", 14 L. & Soc'y Rev. 923 (1980). Douglas E. Rosenthal, Lawyer and Client: Who's in Charge? (1974). Debra Roter & Richard Frankel, Quantitative and Qualitative Approaches to the Evaluation of the Medical Dialogue, 34 Soc. Sci. & Med. 1097 (1992). Rosemary Samwell-Smith, Skills, Myths and Videotapes: Effective Client Communication, in 2 Skills Development for Tomorrow's Lawyers: Needs and Strategies 921 (1996). Austin Sarat, ". . The Law is All Over": Power, Resistance and the Legal Consciousness of the Welfare Poor, 2 Yale J.L. & Humanities 343 (1990).

1999]

LAWYER-CLIENT COMMUNICATION

1979

Austin Sarat & William L.F. Felstiner, Divorce Lawyers and Their Clients (1995). Austin Sarat & William L.F. Felstiner, Enactments of Power: Negotiating Reality and Responsibility in Lawyer-Client Interactions,77 Cornell L. Rev. 1447 (1992). Austin Sarat & William L.F. Felstiner, Law and Social Relations: Vocabulariesof Motive in Lawyer/Client Interaction, 22 L. & Soc'y Rev. 737 (1988). Austin Sarat & William L.F. Felstiner, Law and Strategy in the Divorce Lawyer's Office, 20 L. & Soc'y Rev. 93 (1986). Austin Sarat & William L.F. Felstiner, Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office, 98 Yale L.J. 1663 (1989). Austin Sarat & William L.F. Felstiner, Legal Realism in Lawyer-Client Communication, in Language in the Judicial Process (Judith N. Levi & Anne Graffam Walker eds., 1990). Deborah Schiffrin, Approaches to Discourse (1994). Deborah Schiffrin, Research Talk ON, FOR and WITH Social Subjects, 13 Language & Comm. 133 (1993). Avrom Sherr, Client Interviewing for Lawyers (1986). Avrom Sherr, Lawyers and Clients: The First Meeting, 49 Mod. L. Rev. 323 (1986). Avrom Sherr, The Value of Experience in Legal Competence, in 1 Skills Development for Tomorrow's Lawyers: Needs and Strategies 133 (1996). Avrom Sherr et al., Lawyers-The Quality Agenda (1994). Roger W. Shuy, Three Types of Interface to an Effective Exchange of Information in the Medical Interview, in The Social Organization of Doctor-Patient Communication (Sue Fisher & Alexandra Dundas Todd eds., 1983). Linda F. Smith, Interviewing Clients: A Linguistic Comparison of the "Traditional"Interview and the "Client Centered" Interview, 1 Clinical L. Rev. 541 (1995). Linda F. Smith, Medical Paradigmsfor Counseling: Giving Clients Bad News, 4 Clinical L. Rev. 391 (1998). Special Section: Annex to the Proceedings of the AAMC Consensus Conference on the Use of Standardized Patients in the Teaching and Evaluation of Clinical Skills, 6 Teaching & Learning Med. (1994). Moira Stewart & Debra Roter, Communicating with Medical Patients (1989).

1980

FORDHAM LAW REVIEW

[Vol. 67

Paula L. Stillman et al., Use of Client Instructorsto Teach Interviewing Skills to Law Students, 32 J. Leg. Educ. 395 (1982). Deborah Tannen & Cynthia Wallat, Doctor/Mother/Child Communication: Linguistic Analysis of a PediatricInteraction, in The Social Organization of Doctor-Patient Communication (Sue Fisher & Alexandra Dundas Todd eds., 1983). Nina W. Tarr, The Law, Ethics and Integrity of Using Clients' and Students' Experiences as the Basis for Scholarship, 5 Clinical L. Rev. 271 (1997). Alexandra Dundas Todd, A Diagnosis of Doctor-PatientDiscourse in the Prescriptionof Contraception,in The Social Organization of Doctor-Patient Communication (Sue Fisher & Alexandra Dundas Todd eds., 1983). Jason Townsend, Coordinated Advice and Referral Program for Legal Services: Evaluation Project (1998). Tom Tyler, Client Perceptionsof Litigation, Trial, July 1988, at 40. Rodney J. Uphoff & Peter Wood, The Allocation of Decisionmaking Between Defense Counsel and Criminal Defendant: An Empirical Study of Attorney-Client Decisionmaking (1998). John E. Ware, Jr. et al., Development and Validation of Scales to Measure Patient Satisfaction with Health Care Service (1976). Candace West, Ask Me No Questions... : An Analysis of Queries and Replies in Physician-PatientDialogues, in The Social Organization of Doctor-Patient Communication (Sue Fisher & Alexandra Dundas Todd eds., 1983). Lucie White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 Buff. L. Rev. 1 (1990). David Zimmerman et al., The Healthcare Customer Service Revolution: The Growing Impact of Managed Care on Patient Satisfaction (1996). PROJECT CO-DIRECTORS CLARK D. CUNNINGHAM. Professor of Law, Washington University, St. Louis, Missouri, U.S.A. In 1986 he was an Indo-American Fellow, doing three months of research at the Indian Law Institute, New Delhi, comparing public interest litigation in the United States and India. In 1987 he joined the faculty of the University of Michigan Law School, teaching in its general clinic. He moved to Washington University in 1989 where he teaches both clinical and non-clinical courses. His publications include articles in the Yale Law Journal, Harvard Law Review, Cornell Law Review, and Michigan Law Review on attorney-client communications, law and linguistics, and public interest practice. He has been a visiting scholar at the National

1999]

LAWYER-CLIENT COMMUNICATION

1981

Law School of India to consult on its clinical curriculum, to teach a three week course on clinical teaching methods for South Asian law professors, and to participate in a national conference on constitutional law. He has also been a visiting scholar at the University of Sichuan, China; the University of Sydney, Australia; and the University of Palermo, Argentina. He is currently the director of a Ford Foundation project to support the development of human rights clinics in Indian law schools. CHRISTOPHER J. ROPER. Director, Centre for Legal Education, Sydney, Australia. Christopher Roper is the former director of the College of Law, Sydney, and the Leo Cussen Institute for Continuing Legal Education, Melbourne. He is the chair of the Legal Education Standing Committee of LAWASIA; the Secretariat of the Committee of Australian Law Deans; the former chair of the Australasian Professional Legal Education Conference; and the founding editor of the Journal of Professional Legal Education. He has consulted on legal education in Malaysia, China, Hong Kong, Cambodia, Fiji, Singapore, the Philippines, Sri Lanka, New Zealand, Vietnam, and Papua New Guinea. He was one of the 1998 Inns of Court Fellows at the Institute for Advanced Legal Studies, University of London. ADVISORY BOARD FRANK BLOCH. Professor of Law and Director of Clinical Education, Vanderbilt Law School, Nashville, Tennessee, U.S.A. Frank Bloch was a senior Fulbright Lecturer to the University of Delhi and has played an active role in promoting international clinical education on committees of both the Association of American Law Schools and the American Bar Association. He has both a law degree from Columbia University and a Ph.D. in political science from Brandeis University. Before entering law teaching, he worked as a legal services attorney with California Rural Legal Assistance, primarily representing migrant farm workers. He is a co-editor of Clinical Anthology: Readingsfor Live-Client Clinics (1997). BRYNA BOGOCH. Lecturer, Department of Interdisciplinary Social Science Studies, Bar lan University, Israel. Bryna Bogoch received her Ph.D. from the Communications Institute at the Hebrew University. She has conducted extensive research in the area of language and law, in particular the sociolinguistic analysis of lawyer-client interviews and courtroom interaction. She has directed a Ford Foundation funded project on gender bias in the criminal and rabbinic courts in Israel and was a visiting fellow of the Centre for Socio-Legal Studies, Oxford University. ALLAN CHAY. Senior Lecturer and Assistant Dean, Law Faculty, Queensland University of Technology, Brisbane, Australia. Allan

1982

FORDHAM LAW REVIEW

[Vol. 67

Chay directs the legal practice program at the Queensland University of Technology and is co-author of Legal Interviewing in Practice (1996). NIGEL DUNCAN. Principal Lecturer, Inns of Court School of Law, London, England. Nigel Duncan received his law degree from Southampton University in 1970 and holds both a post-graduate certification in education and an LL.M. from London University. He has been a full-time teacher for over 20 years. He has held his current position since 1989; he teaches negotiation, conference skills, casework, remedies, criminal litigation, unemployment law, and co-ordinates a live client clinic. He is Editor of The Law Teacher, Vice-Chair of the Association of Law Teachers, and a founding member of both the Clinical Legal Education Organization and the Practice, Profession and Ethics section of the Society of Public Teachers of Law. He designed and established the first Access Course in Law in the U.K. and is a member of both the Executive and Advisory Committees of the Minority Access to the Legal Profession Project. DIANA EADES. Associate Professor, Department of English as a Second Language, University of Hawaii, U.S.A. Diana Eades is a sociolinguist with over 20 years experience working with Aboriginal Australians, researching Aboriginal English and Aboriginal communication styles, and as a consultant on cross-cultural communication and forensic linguistics. She was involved as an expert witness in the much-publicized cases of Kelvin Condren and Robyn Kina, and as an advisor to the Criminal Justice Commission on its project "Aboriginal witnesses in Queensland's Criminal Courts." Her handbook for lawyers, Aboriginal English and the Law, was published by the Queensland Law Society in 1992. She is the author of numerous academic publications, including Language in Evidence: Issues Confronting Aboriginaland MulticulturalAustralia (1995), and is currently the President of the International Association of Forensic Linguists. MARC GALANTER. John & Rylla Bosshard Professor of Law, University of Wisconsin-Madison, U.S.A. Marc Galanter is past president of the Law and Society Association, a former editor of Law & Society Review, and past chair of the Association of American Law Schools' Section on Law and Social Science. He is a member of the Co-ordinating Committee on Legal Education, American Bar Association; the American Law Institute; the Executive Committee, Section on Professional Responsibility, Association of American Law Schools; and the Editorial Board of the InternationalJournalof the Legal Profession. He has also served as a consultant to the American Bar Association Commission on Access to Justice 2000. His publications include Competing Equalities: Law and the Backward Classes in India (1984), Law and Society in Modern India (1989), and Tournament of

1999]

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1983

Lawyers: The Growth and Transformation of the Big Law Firm (1991) (with Thomas M. Palay). MELVIN F. HALL. Chief Operating Officer, Press Ganey Associates, South Bend, Indiana, U.S.A. Press Ganey is the leading company in the United States for measuring patient satisfaction, with over one thousand clients in the health care industry. Melvin Hall, who has a Ph.D. in sociology, designed many of the company's survey instruments and methods, having previously served as director of research for Press Ganey. MARLENE LE BRUN. Associate Professor of Law, Griffith University, Australia. Marlene Le Brun has worked as an attorney in the United States, and as a legal academic and consultant in Botswana, Papua New Guinea, and Australia. In Papua New Guinea she ran the Faculty of Law clinical legal education program and was director of the Legal Education and Assistance to the Provinces Program (LEAP). She has been active in the professionalization of law teaching since 1988. She worked for seven years as a co-ordinator and teacher for the Australasian Law Teachers Association (ALTA) Law Teaching Workshop. Her publications include Lauchland and Le Brun, Legal Interviewing: Theory, Tactics, and Techniques (1996) and Le Brun and Johnstone, The Quiet Revolttion: Improving Student Learning in Law (1994). She has published extensively on legal education, and has been invited to participate in workshops in legal education in Hong Kong, India, and Vietnam. In 1992, she introduced client interviewing into the Griffith law curriculum. LES McCRIMMON. Senior Lecturer and Director of Clinical Programs, University of Sydney Faculty of Law, Australia. Les McCrimmon received his law degree from the University of Alberta, Canada, in 1982 and practiced law in Canada and Australia from 1982-1989. In 1988 he received an LL.M. from the University of Queensland. In 1989 he joined the faculty at Bond University School of Law, Brisbane, and was promoted to Associate Professor in 1995. He was appointed to his current position on January 1, 1996; he is responsible for overseeing the implementation and development of the school's clinical legal education program and teaches in the areas of advocacy, legal education, and law. He is an instructor with the Australian Advocacy Institute, a member of the New South Wales Bar Association Practice Course sub-committee, and co-author of the Australian edition of Mauet & McCrimmon, Fundamentalsof Trial Techniques. DAVID McQUOID-MASON. Professor of Law, University of NatalDurban, South Africa. David McQuoid-Mason is the current President of the Commonwealth Legal Education Association, as well as the Society of University Teachers of Law, South Africa. The former

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Dean of the University of Natal Law School, he is the South African representative to the International Client Counselling Competition. N.R. MADHAVA MENON. Member, Law Commission of India. Madhava Menon is the former Dean of the National Law School of India, the immediate past-President of the Commonwealth Legal Education Association, and the Indian representative to the International Client Counselling Competition. He has previously been head of the Department of Law, Delhi University; Principal of the Government Law College, Pondicherry (India); a Fellow of the American Council of Learned Societies; Editor of the Indian Bar Review; and Secretary of the Bar Council of India Trust. In 1994, the International Bar Association conferred on him its Living Legend of Law Award. His publications include Handbook of Clinical Legal Education (1997), Social Justice and Legal Process (1985), The Legal Profession in India (1983), and Legal Education in India (1982). LYNNE S. ROBINS. Assistant Professor, Department of Postgraduate Medicine, University of Michigan Medical School, U.S.A. Lynne Robins received her Ph.D. in anthropology from the University of Michigan and specializes in the sociolinguistics of professional discourse. She served as the social scientist member of the Professional Discourse Project studying client interviewing at the District of Columbia School of Law and has designed curriculum and evaluation methods for doctor-patient interviewing in medical schools. AUSTIN SARAT. William Nelson Cromwell Professor of Jurisprudence & Political Science, Amherst College, U.S.A. Austin Sarat is President of the Law & Society Association and Chair of the Working Group on Law, Culture and the Humanities. He is the author or editor of more than twenty books including Divorce Lawyers and Their Clients: Power and Meaning in the Legal Process (with William Felstiner), Law's Violence, Law in Everyday Life, The Rhetoric of Law, Identities, Politics, and Rights (all co-edited with Thomas Kearns), Race, Law, and Culture: Reflections on Brown v. Board of Education, and When the State Kills: Capital Punishment in Law, Politics, and Culture. He was the co-recipient of the 1997 Harry Kalven Award given by the Law & Society Association for "distinguished research on law and society." AVROM SHERR. Woolf Professor of Legal Education, Institute of Advanced Legal Studies, University of London, England. Avrom Sherr is a member of the Lord Chancellor's Advisory Committee on Legal Education and Conduct, the Law Society Equal Opportunities Committee, and the Funding of Litigation sub-committee of the Civil Justice Council. He has also been a member of the Judicial Studies Board Ethnic Minorities Advisory Committee, the International Client Counselling Organizing Committee, and the Law Centres Federa-

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tion Executive Committee. He previously was Director of Legal Practice at the University of Warwick and Director of the Centre for Business and Professional Law at Liverpool University. He is the author of Lawyer Client Interviewing (1996), Advocacy (1994), and Lawyers-The Quality Agenda (with Richard Moorhead and Alan Patterson) (1994), as well as a number of other books and journal articles. He is the editor of the International Journal of the Legal Profession. JOHN STURROCK. Director of Training and Education, Faculty of Advocates, Scotland. John Sturrock holds a first class honours LL.B. degree from the University of Edinburgh (1980) and an LL.M. from the University of Pennsylvania (1985). He held a Harkness Fellowship to study in the United States in 1984-1985. Since 1986, he has practiced as an advocate (barrister) at the Scottish Bar. In 1994, he was appointed the first Director of Training and Education at the Faculty of Advocates in Scotland. Since then, he has designed and delivered advocacy skills and continuing education programmes for the Scottish Bar, for which the Faculty received a national award for the Best Use of Training in the legal profession in the United Kingdom. He has taught widely in the field of advocacy skills and teacher training, including in the United States, South Africa, and England. He is a trained mediator and negotiator and the only non-judge member of the Judicial Studies Committee in Scotland. He advises a number of institutions on course design and delivery. NINA W. TARR. Professor of Law and Clinical Director, University of Illinois College of Law, U.S.A. Nina Tarr is the immediate pastpresident of the Clinical Legal Education Association (U.S.A.); a former member of the Standing Committee on Clinical Education, Association of American Law Schools; and a former member of the Board of Editors, ClinicalLaw Review. She is currently conducting research on ethical issues raised by empirical research in clinical legal education and has been awarded a 1999 Inns of Court Fellowship at the Institute for Advanced Legal Studies, University of London, to conduct comparative research on legal education in England and the United States. RODNEY UPHOFF. Professor of Law and Director of Clinical Education, University of Oklahoma, U.S.A. Rodney Uphoff was the Chief Staff Attorney of the State Public Defender Office in Milwaukee, Wisconsin for five years and Director of the Legal Defense Project at the University of Wisconsin School of Law for four years. He has served as Vice Chair of the Defense Services Committee of the American Bar Association Criminal Justice Section and as Vice Chair of the Public Defender Committee of the Oklahoma Bar Association. He is on the Board of Editors of the Clinical Law Review. He has published extensively on the subject of legal ethics and criminal de-

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fense, including Ethical Problems Facingthe CriminalDefense Lawyer (American Bar Association 1995). He is currently conducting extensive empirical research on attorney-client relations in the public defender setting.