3: Working Up the New Family Law File

Interviewing Guidelines

An effective interview process will not only help clarify what the client wants from the legal representation but will also collect the information needed to accomplish the client’s goals. The in-depth client interview should occur only after the client has officially hired the law office by signing a fee agreement and paying any required up-front fee. Typically, at this point, the client has stated what they want/need the lawyer to do.

Although your primary purpose in conducting the interview is to obtain needed information from the client, an equally important purpose is to gain the client’s trust and confidence in you as a professional, to assure the client that their legal matter is important, and to demonstrate acute sensitivity toward the client’s feelings and experiences which may be embarrassing, frustrating, or anger-provoking. You’ll also want to make sure you schedule plenty of time (usually an hour or more) for the interview. Here are some things to keep in mind when conducting that interview:

1. Prepare an appropriate space. Make sure the interview takes place in a private space so that all information remains confidential. For a web-conference interview, make sure both you and the client are in private spaces, and use a secure network (not public wi-fi) and a secure web-conferencing platform. If the client is coming in person, reserve a private conference room at the office supplied with writing materials, water (or coffee, juice, or soda), and a box of facial tissues; make sure the client is comfortable. Turn on “do not disturb” for electronics and other devices and take other steps to prevent interruptions. Make sure there are no other files or papers lying open in the interview space.
2. Formulate responses to client questions to which you cannot respond. It’s practically guaranteed that clients will ask questions you are ethically not allowed to answer. Having prepared responses will give you confidence to respond without feeling awkward. For example,
   • “As a paralegal, I don’t have as much knowledge and skill as the attorney, so I can’t answer that question as it involves legal advice. I’ll be sure to refer that question to the supervising attorney.”
   • “Every case is different, so I can’t predict how long the case will take, what it will cost, or what the outcome will be. Rest assured that our office will use its skills and expertise to seek the best outcome in the most efficient way possible.”
3. Prepare yourself for the interview. Review the information from the client’s initial intake form and legal consultation. Make sure you have the appropriate interview checklist and other documentation ready before the interview begins. If you will need the client to sign releases, complete those documents and have them ready for the client’s signature.
4. Begin with required disclosures. Make sure the client understands the following:
   • As a paralegal, you cannot give legal advice. You will be working closely with the attorney handling the client’s legal matter.
   • Although you can provide general information about procedures, you cannot predict costs, time required, or results for their legal matter.
   • You need to take detailed notes during the interview to ensure you have complete and accurate information.
   • Complete and honest answers are critical to the successful representation of the client’s interests; remind the client that all information will remain confidential.
5. Obtain permission before recording the interview.
   • Before recording the interview, get permission to do so from both the supervising attorney and the client.
   • Once you receive permission to record the interview, start the recording with the following information:
     • Name of the client and any other relevant information about the client (for example, mention that the client hired the law office to obtain a divorce)
     • State your name and the names of any other persons who are present
     • Identify the date, time, and place of the interview
     • Ask the client for permission to record the interview. Wait to begin asking your questions until after you have received permission
   • Keep in mind that while there are benefits to recording an interview, the downside is that sometimes clients feel uncomfortable or may be less open and forthcoming when they know they are being recorded. Many times, the downsides of recording outweigh the benefits.
   • Even if you don’t plan to record the interview, let the client know you will be taking notes to share with your supervising attorney
6. Use empathetic and active listening techniques.
   • Maintain eye contact as much as possible (unless doing so would make the client especially uncomfortable).
   • Encourage the client to speak freely and explain answers beyond one or two words (tell me about that; help me understand …)
   • Repeat back portions of what the client has just told you to demonstrate listening and understanding (this may also encourage more details from the client)
   • Refer back to previous information as the basis for follow-up questions
   • Use language the client understands, and check for understanding if you are using legal terms (such as spousal support, maintenance, etc.)
   • Acknowledge the client’s emotions and experiences before redirecting, if necessary (“I can understand why that would make you feel angry …). Take breaks when necessary to help diffuse strong emotional responses.
   • Be aware of how your tone of voice, verbal language, body language, and mannerisms may be impacting the client, particularly if the client has been a victim of abuse or domestic violence.
   • Do not “talk down to” or disparage the client.
   • Notice the client’s body language and other verbal and non-verbal reactions to your questions and be prepared to adjust your interview techniques.
   • Wait for the client to finish answering the question and pay attention to all details of what the client has said.
   • Be prepared to ask follow-up questions to obtain more specific details. Refer back to previous information as the basis for follow-up questions
   • Expect the client to skip around topics, or to not tell the story in chronological order. Make sure you understand the order in which events occurred.
   • Clarify when necessary. If the client uses pronouns (he, she, they) instead of names, you may need to ask the client to confirm/use proper names rather than pronouns to refer to people.
   • Pay attention to the client's body language and mannerisms. Sometimes changes in posture, facial expression, or even tone of voice can signal the need for additional follow-up questions. If the client seems uncomfortable, it’s okay to take a break.
7. Make mental notes on the client’s personality. During the initial legal consultation, the attorney is primarily concerned with determining whether the office can help with the client's legal matter. The follow-up interview is also an assessment of the client’s demeanor and to discern potential red flags. Ask yourself whether the client
   • Appears emotionally distraught or volatile, overly angry, or vengeful
   • Has unrealistic objectives or expectations, or appears to want to tell the office “how to run” the case
   • Answers questions inconsistently or avoids directly answering questions
   • Frequently rambles, wanders off topic, constantly interrupts you, or appears otherwise unable to focus
   • Seems to be compromised by a mental health condition, or is under the influence of alcohol, drugs, or medications
   • Is flirtatious or otherwise makes you feel uncomfortable
8. Plan for needed follow-up. Know how you will end the interview.
   • Give the client an opportunity to voice concerns or questions.
   • Let the client know it is often necessary to meet with the client more than once.
   • Compile a list of documents still needed from the client. A pre-prepared checklist that allows you to use checkboxes to let the client know which additional documentation is needed is beneficial.
   • Determine how to access any necessary electronic data you may need for the client’s legal matter, for example, what does the client/client’s family use for
     • computers/devices/phones?
     • email providers/addresses?
     • social media platforms/accounts?
     • cloud-based applications, such as Microsoft Office 365, Google Drive, etc.?
   • Provide contact information for you and the supervising attorney

The Interview/Family History Checklist

Most law offices will have multiple interview checklists to be used depending on the legal matter involved. Below are the topics typically covered in checklists for various family law matters. Obviously, not all information is pertinent to every family law matter; similarly, this is not an exhaustive list of topics that may apply in each situation.

Client Basic Information

• Name (current and previous), mailing address, personal email address, personal phone number, and other contact information
• Length of time at current address (if less than 5 years, previous addresses)
• Social Security number,
• Date and place (City, State, Country) of birth
• Business/employer name, mailing address, email address, phone number, and webpage address
• Education (highest degree completed) and employment history
• Marital status
• Military status
• Race and ethnicity
• Religious affiliation
• Citizenship/immigration status

Client’s Spouse/Spouse to be/Ex-spouse Basic Information

This information includes legal matters relating to Marital Contracts, Divorce/Separation/Annulment pre-and post-judgment Actions, Adoption Actions, and Paternity Actions.

• Same as Client Basic Information, above

Cases Involving Formation of Marriage

• Basic information for Client and Spouse, above
• Date and location (City, State, Country) of current and prior marriage (if applicable) of both parties
• Names, current contact information (address and phone), and other contact information of the person who performed the ceremony for the current marriage and persons named as witnesses to the ceremony
• Date, location (City, State, Country), and means (annulment, divorce, death) of termination of previous marriage(s) (if applicable)
• Age of both parties when they married
• Compliance with marital laws of the State in which the marriage was performed (marriage license, blood tests, or other formalities)
• Did both parties participate in the marriage ceremony with free and full intention to become legally married spouses?
• Did either party lie about or misrepresent important facts that would have resulted in the cancellation of the ceremony if those facts had been known?
• Documents needed:
  • Marriage license
  • Documentation of termination of previous marriages (if applicable), such as final divorce judgment, annulment decree, or death certificate

Cases Involving Marital Contracts (Prenuptial, Post-Nuptial, Separation)

• Basic information for Client and Spouse, above
• Do the parties have any current contracts or agreements?
• Names and current contact information (address and phone) of other professionals consulted (attorneys, accountants, financial planners, etc.)
• Information regarding both parties’ financial assets and worth, including income, investments, personal property, real property, business property, and intellectual property
• Information regarding both parties’ existing debts, loan obligations, and financial liabilities
• For previous agreements:
  • Date and location (City, State, Country) the agreement was signed by each party
  • Describe the nature and extent of financial disclosures prior to signing the agreement, including waiver of disclosure
  • Did each party have the opportunity to consult with independent legal counsel and other financial professionals prior to signing the agreement?
• Documents needed:
  • Previous marital contracts (if applicable)
  • Documents demonstrating ownership or other interests in personal property, real property, business property, intellectual property, or businesses (deeds, titles, operating agreements, certificates of ownership, etc.)
  • Financial records, such as bank statements, investment statements, tax records, and retirement accounts

Cases Involving Termination of Marriage (Pre- and Post-Judgment)

• Basic information for Client and Spouse, above
• Date and location (City, State, Country) of current marriage
• Date, location (City, State, Country) and means (annulment, divorce, death) of termination of previous marriage(s) for both parties (if applicable)
• Information regarding marital contracts, above (if applicable)
• If the parties are currently living separately, the date of physical separation from the spouse
• Dates, length of time, and circumstances of previous physical separations, if any
• Is there a realistic chance of reconciliation? Why or why not?
• Does the client want a divorce or a legal separation?
• Current health of client and client’s spouse, including physical and mental health history
• Financial information for both parties, including
  • All financial information/documents listed in Marital Contracts, above
  • Current income and tax information
  • Did either spouse contribute to the other spouse’s career enhancement (for example, took a job to allow the other to attend school, agreed to assume all child-raising and household management responsibilities; postponed education or other career enhancement so the other’s education/career could be enhanced)
  • Description of all monthly expenses (including mortgage, rent, food, transportation, etc.)
  • Does the client or the spouse have individual or joint credit cards?
  • Health and life insurance information
  • Wills, trusts, powers of attorney or other estate planning documents
  • Has the client or the client’s spouse declared bankruptcy?
  • Is either the client or the client’s spouse currently involved in litigation with third parties, or does either spouse have a potential claim that could be litigated (for example, personal injury, wrongful termination, breach of contract)?
  • Are there concerns that the spouse will give away, destroy, conceal, or spend marital assets?
• Asset information for the client and the client’s spouse (see Marital Contracts, above) including
  • Date and method property was obtained (gift, purchase, inheritance)
  • If purchased, the source of funds used to purchase (for example, marital funds or funds traceable to individual property or funds)
• Is the client or the client’s spouse currently pregnant?
• Information regarding minor or dependent children born to the marriage or adopted into the marriage
  • Names, ages, dates of birth, Social Security numbers, and current contact information (address and phone)
  • Length of time at current address (if less than 5 years, previous addresses)
  • Names and current contact information (address and phone) for adults other than the client or client’s spouse with whom the children have lived during the past 5 years
  • Health information, including physical/mental health conditions, special needs, names, and contact information for health care providers
  • Assets owned by children (including Education Savings, Trusts, etc.)
  • Income sources (other than the client and the client’s spouse) for children
  • Strengths and weaknesses of both parties as parents
  • Relatives and other adults with ongoing relationships with children or with the client or spouse; include grandparents, coaches, teachers, caregivers, leaders of extracurricular and other organizations in which the children are involved, etc.
  • Current and future childcare/elementary education plans
  • Are there concerns that the spouse may remove the children out of state?
• Is there a history of spousal or child abuse/neglect in the current marriage?
  • Describe dates, locations, and nature of incidents, as well as police involvement
  • Provide documentation of police or Court involvement (including citations, judgments, etc.)
• Documents needed:
  • Previous marital contracts (if applicable)
  • Documents demonstrating ownership or other interests in personal property, real property, business property, intellectual property, or businesses (deeds, titles, operating agreements, certificates of ownership, etc.)
  • Financial records, such as bank statements, investment statements, tax records, retirement accounts, loan contracts/agreements/statements
  • Income information, such as pay stubs, W-2s, and Federal and State tax returns for the past five years
  • Documentation of disability of client, spouse, or children, if applicable
  • Court documents related to bankruptcy or other past, current, or pending litigation

Cases Involving Paternity of Children

• Basic information for the Client, above
• Basic information for the other parent or “alleged other parent,” same as for the client
  • For alleged fathers, may want to have a physical description (height, weight, etc.), especially if assistance is needed in locating them
• Basic information for the child, same as for the client (not all information will apply
• Date(s) and location(s) (city, state) of sexual intercourse between the mother and alleged father of the child
  • Was contraception used? If so, describe
  • Does the alleged father claim to be sterile or impotent?
• Health and income information for mother and alleged father (similar to Termination of Marriage, above)
• Information regarding the child (see Termination of Marriage, above)
• Was the alleged father aware of or informed of the pregnancy? If so, describe the circumstances and communication(s)
• Has there been an acknowledgment of paternity?
• Did the father agree to have his name entered onto the child’s birth certificate?
• Have there been other paternity proceedings regarding the child?
• Have any other men had sexual intercourse with the mother during the conceptive period?
• Is the mother currently married? Or was the mother married when the mother became pregnant?
  • If so, contact information for the spouse
• With whom was the mother cohabitating (if anyone) when she became pregnant?
• Date of mother’s last menstrual period before this pregnancy
• Does either the mother or the alleged father have existing child support orders for other children?
• Have DNA tests been performed? If so, describe the circumstances, by whom performed, and the results
• Describe in detail the relationship between the child and the alleged father, including
  • Living arrangements
  • Contact with the child (details regarding nature, frequency, etc.)
  • Financial contributions
  • Financial or other agreements with the child’s mother
  • Involvement of the alleged father’s relatives in the child’s life
  • Involvement of the mother’s relatives in the child’s life
• Documents needed:
  • Previous contracts/agreements between the child’s mother and alleged father (if applicable)
  • Correspondence, text messages, etc., between the mother and alleged father regarding the pregnancy, the child, etc.
  • Documentation relating to the date/place of sexual intercourse (for example, hotel receipts)
  • DNA test results
  • Income information, such as pay stubs, W-2s, and Federal and State tax returns for the past five years
  • Birth certificate for the child
  • Documentation of disability of client, alleged father, or child, if applicable
  • Court documents related to other paternity proceedings relating to the child

Cases Involving Adoption of Minor Children

• Basic information for Client(s), above
• Client health (including mental health, prescriptions, over the counter (OTC), and other drug use), financial, and income information (similar to Termination of Marriage, above)
• Information about other persons living in the client’s household, including other children, same as for the client (as applicable)
• Basic information for the birth parents (if parental rights have not been terminated), same as for the client
• Has the paternity of the child been established? (If not, see cases involving paternity, above)
• Is the client related to one of the child’s birth parents?
  • If so, describe how related
  • If not, is the client currently licensed for foster care?
  • If not, is the child or at least one birth parent a registered member of a Native American Tribe, or claimed to be of Native American descent?
• Is a licensed adoption agency currently involved? If so, provide contact information
• Has the client completed adoption training?
• Is either birth parent currently represented by an attorney? If so, provide contact information
• Are there any current or past agreements between the client and either or both of the child’s birth parents with respect to
  • Adoption
  • Financial/payment of expenses arrangements between the client and the birth parent(s)
  • Medical arrangements between the client and the birth parent(s)
  • Legal arrangements between the client and the birth parent(s)
  • Exchange of information
  • Contact between the child and the birth parent(s) after finalization of the adoption
• Is anyone being pressured or influenced to go along with the adoption and/or termination of parental rights? Describe, if possible, the circumstances surrounding the decisions that were made. Describe any promises or threats (financial, physical, emotional, mental) that were communicated in any way to any party
• If there has been no termination of parental rights for one or both birth parent(s)
  • Will there be a voluntary termination of parental rights?
  • Has the client been informed that grounds exist for the involuntary termination of parental rights?
  • Have the birth parent(s) received counseling regarding the termination of parental rights?

The remaining chapters of this textbook will focus on the requirements of marriage, contracts impacting marriage, termination of marriage, and establishment of parent-child relationships.