Demonstrating utility of a shadow method
Below, we present the results from our pilot study, separated by each phase (i.e., attorney survey, shadowing, and client survey). As noted above, the overall sample is too low to draw conclusions from these specific data, however, these data demonstrate how this type of innovate methodology can be used, and beneficial for researchers and practitioners.
Phase I: Attorney questionnaire
In total, 13 of 24 attorneys completed the survey (8 women, and 5 men), yielding a response rate for the firm of 54%. Among the respondents, five were 45-year old or older, 12 identified as White, 10 practiced some type of criminal law prior to being public defender, seven started work with this agency within last 10 years, six characterize their caseload as being at least 80% misdemeanors, and seven report contacting their client at least once every two weeks on average.
When asked about their perceptions of attorney–client communication, 12 attorneys indicated that they believe communication is at least somewhat important to quality representation, and 11 believe it is at least somewhat important for achieving positive outcomes in the case. Similarly, 11 respondents believe that the attorney–client relationship is at least somewhat important to quality representation, while nine believe it is at least somewhat important for achieving positive outcomes. Lastly, eight attorneys believe that the case outcome is important to achieve client satisfaction with the attorney's performance, while two noted it as not important. Those attorneys who responded that communication and the attorney–client relationship are important also tended to perceive that their clients are satisfied with their job performance.
Beyond the closed-ended questions, responding attorneys were asked questions that were designed to explore how attorneys view quality representation and communication. Specifically, we asked how they would define quality representation, and what the critical components might be. After compiling the responses, we constructed a word cloud based on how often certain words were used by attorneys to describe what they believe is quality representation.
As can be seen in this figure, some of the most prevalent words used to describe quality representation include terms like "client," "understand," and "communicate," which largely embody client-relational skills as described in prior literature. These words appear just as often, if not more, than words that are most associated with legal skills such as "law," "trial," and "result." These results suggest that attorneys think of communication as a key consideration of quality representation. Some examples of how these words were used and relate to communication, include the following (italics added for emphasis):
Establish the trust, understand the client's goals, communicate their options to them so they understand, get the best results possible in line with those goals.
Client feels represented and you know you did your best as to listening, advising, investigating, and advocating.
Advocacy, effective communication of a client's viewpoint, an ability to understand and conder all defenses available and then to communicate them to client in a way that allows them to make the best decision. Staying current on the law.
Consideration of client's needs and wishes, full disclosure to client, superior knowledge of law, legal system and unwritten county rules, well developed trial skills.
Communication both with client as well as court and state, knowledge of the subject matter, knowledge of the working of "the system."
Participating attorneys were also asked to conceptualize quality communication and its critical components. From their responses, we again made a word cloud based on the frequency of word occurrence (see Figure 2). Like the definitions provided for quality representation, responses largely centered on "client," "listening," "explain," and "understanding." These terms largely coincide with the importance of client-centered aspects of the attorney–client relationship found and used in prior research. Example responses involving these words include the following:
Willingness to listen (both attorney and client), taking the time to explain and understand a concept or position (again both attorney and client).
Listen, reflect what you hear, advise, empathize.
Number of contacts with client, time spent with client, feedback from client on whether they "heard it."
The ability to understand another person's viewpoint and truly consider it. To listen and validate.
Quantity definitely does not equal quality. Trust between attorney and client, and client being honest and attorney listening.
Frequent contact and availability, clear explanations of law and options.
Phase II-Part A: Shadowing of attorney–client interaction
In looking at the data from shadowing attorney–client interactions, nine of the eleven observed meetings were the first in-person meeting the attorney had with the client, and none had been represented by the attorney prior to this case. The other two indicated this was the second or third meeting. Among the observed meetings, the cases involved six felony charges, four charges for violent crimes, four for property crimes, and two for drug charges. Four were cases in which the attorney was planning to consult with a caseworker for the client due to a mental health disorder or chemical dependency issue. In all, the aim to capture qualitative elements of attorney–client communication was rather successful. Some variation was observed regarding the degree to which each component was present in the discussions. Overall, the observed interactions presented several elements deemed important by prior research (e.g., Moore et al. 2020), such as providing the clients with an opportunity to voice their perspective (i.e., allowing the client to tell her/his side of the incident), and the attorney defining any legal jargon used. Observations only noted a few instances where a component was not present at all. Only one component was missing just as often as it was present – whether the attorney asked the client what her/his short-term goals were for the case (e.g., out on bail, shortened detention). While our research is exploratory in nature, see Table 2 for the frequency of each item within the taxonomy of quality communication factors (Sandys and Pruss 2017) and the six themes we divided from the prior research on attorney–client communication (e.g., Campbell et al. 2015) and the medical bed-side literature (Makoul 2001; Mazor et al. 2005).
Phase II-Part B: Client survey
Two clients refused to participate in the survey, resulting in nine surveys, of which one was only partially completed. Clients ranged in age from 19- to 62-year old, five were male, six identified as White, and all but one had a high school education or more. Of the seven who answered the question regarding satisfaction with their lawyer, all seven indicated that they were very satisfied. See Table 3 for select components from the survey. For the purposes of reporting here, we dichotomized the response options into agree or disagree. Most notable is that clients largely felt as although they had a good communication with their attorney. Only a few components did not receive full or nearly full support. For instance, a few surveyed clients indicated a belief that if they had the ability to hire a private attorney, they would likely receive better representation and overall outcome. Five of the eight respondents also indicated that they did not believe their lawyer liked them as a person, however, seven noted that they liked their attorney.
Discussion and lessons learned
In 2004, the American Bar Association highlighted how the promises of Gideon were largely unmet, pointing to issues in funding, caseload pressures, and lack of training and adequate pay for attorneys. The American Bar Association called for more research on the topic of indigent defense, and pointed to the importance of attorney–client communication in reforming the indigent defense system (2004; Sandys and Pruss 2017). This work builds on that call by examining attorney communication using an innovative methodology structure – shadowing. Although the sample size was too small to examine the observations in more complex ways, the study yielded a number of other elements that are important for the goals of this project, future research, and practitioners/agencies interested in improving their attorney–client relationships. First, the goals of the study aimed to extend our knowledge base in the area of attorney–client communication by way of conceptualizing and operationalizing client-centered communication. Combined findings from our attorney and client survey, as well as findings from the literature, suggest that perhaps a way to conceptualize quality communication may be the following:
Quality attorney-client communication establishes trust, through listening to and identifying the client's needs, and translating them into viable, legal options that involve potential outcomes and are understandable for the client. Such communication involves attentive and empathic listening, while also providing realistic legal advice and an action plan for the case that involves demonstratable objectives for investigating and advocating for the client. The communication should always end with a summary of the plan, next steps for the court's process, when the next meeting will be, and how to contact one another.
In a similar vein, responses regarding overall quality representation reverberated common traits found in the literature. Again, using our survey findings coupled with the literature, our process seemed to suggest that a way to conceptualize quality representation may be the following:
Quality representation involves the ability of the attorney to provide the best legal advice possible, given (first) the confines of the client's short- and long-term goals and needs, and (second) the contextual aspects of the case, law, and possible options. Quality representation inherently relies on developing rapport through trust, honesty, and fostering adequate frequency of quality attorney-client communication.
Together, effective, quality communication provide the basis from which we can begin to determine the factors that contribute to quality representation. The factors important to effective communication are those that foster attorneys' abilities to listen, allow room for client participation and voice, provide ample and contextual advice, and empathize with client positions and perspectives. This research is supportive of other research focusing on communication and client satisfaction (Sandys and Pruss 2017; Moore et al. 2020). While attorneys have unique communication styles, appropriate resources (time and reasonable work/caseloads) and specialized training (e.g., in holistic defense, and procedural and social justice best practices), can pave the way toward institutionalizing stronger attorney–client relationships.
Second, this project aimed to operationalize approaches and devise a method to better capture quality communication. Since Sudnow's 1965 study, few studies have involved direct observation of attorney–client interactions (Goldsmith 1980; Sarat and Felstiner 1989; Gonzalez Van Cleve 2017; Clair 2020), and the majority involved civil cases, or made no mention of the ethics involved in observational research. Nonetheless, these studies reveal important details about attorney–client communication that would have been unknown without observational methodologies (Moore, Yaroshefsky, and Davies 2018), underscoring the need for shadowing-type approaches. For example, attorney interruptions shut down conversations, while open-ended questions are more effective (Goldsmith 1980 as cited in Moore, Yaroshefsky, and Davies 2018). Some studies have addressed the concern of third parties and forced disclosure (Neustadter 1986; Cunningham and McElhinny 1995), with the best suggestion being to include the researcher as part of the defense team, which maintains confidentiality and communication privilege. As such, this method was used in the current study, to allow for direct observation between clients and public defenders, in addition to capturing their perspectives through targeted surveys. Work involving direct observations should consider including the researcher as a member of the defense team (recommended by Cunningham and McElhinny 1995), focus on low-level cases, and even include a signed agreement from the prosecution that prohibits access to information collected for the purposes of the study (recommended by Moore, Yaroshefsky, and Davies 2018). This also places a responsibility on the judicial bench to protect and promote such research (Moore, Yaroshefsky, and Davies 2018).
In this article, we hope to have provided researchers and practitioners with an additional mechanism of measuring the effectiveness of attorney–client communication—shadowing meetings using literature-driven, systematic observation. This type of observation comes with challenges and concerns, and should be undertaken in conjunction with necessary partners (e.g., university ethics office, university lawyers). That said, this type of observation allows researchers and perhaps third-year law students to examine the interaction between client and attorney in a more objective manner, rather than only relying on attorney or client perspective recall of the interactions.