Accurate, legible file notes play a vital role in ongoing client representation. The lawyer, unless endowed with the superpower of enhanced memory, must be able to create and maintain a record of each client meeting. In this article, this overall skill is referred to as “note-taking.”
Although a crucial part of lawyering, note-taking is not included in standard lists of lawyering skills. Note-taking, if mentioned in practice skills materials at all, is a subset of “client interviewing and counseling.” Client interviewing treatises may mention note-taking but usually as only a minor part of the discussion about creating and fostering rapport with the client.
When examined critically, most of these writings rely on a mental health model of client interaction, emphasizing rapport building and communication skills in a “helping” context and referring to mental health counseling literature. Of course, therapists rarely take extensive notes because they focus less on facts or events and more on the effect of those events on the client.
Not surprisingly, using a therapy model, almost any kind of note-taking is labeled negatively, variously described as distracting; interfering with maintaining appropriate eye contact; intimidating to a reticent client; contributing to the client tailoring the information to suit the note-taker, because when the lawyer takes notes the client keeps talking, but when the lawyer stops taking notes, the client quits talking; hijacking the pace of the interview to accommodate the lawyer’s needs over the needs of the client; and so on through a litany of why taking notes interferes dramatically with client communication. Because “effective communication” is a goal of good lawyering (see Clark D. Cunningham, What Do Clients Want from Their Lawyers, 2013 Journal of Dispute Resolution), anything that interferes with that communication is negative.
Lawyers Must Memorialize Factual Information
As a practical matter, the mental health model simply does not work well in the legal field, in which lawyers must memorialize factual information and generally attend to “who, what, when, where, and how.” Those are the catchwords for journalists, of course, but journalism literature focuses almost exclusively on obtaining the story quickly, finding good quotations, and moving rapidly toward publication. Again, these techniques do not translate easily into the legal field.
edu gretchen.viney wisc Gretchen Viney, U.W. 1978, is a distinguished clinical professor at the U.W. Law School, Madison, where she is the director of the Lawyering Skills Program. She previously practiced law in Baraboo.
What little is written in legal client interviewing and counseling texts or treatises about how to take notes as a skill, in light of the negativity surrounding the very idea, is basically a rehash of the same information that has been passed down by authors year after year, largely without any persuasive attribution. One bizarre attribution is in Thomas L. Shaffer and James R. Elkins, Legal Interviewing & Counseling in a Nutshell (Thomson West). The discussion there, which actually supports the notion of lawyers taking notes, relies in large part on Alfred C. Kinsey’s observations about the efficacy of note-taking when gathering field data for the controversial 1948 Kinsey Report (Sexual Behavior in the Human Male).
And so we are left with reading a broad swath of literature, drawing on experience, and comparing techniques to come up with how to memorialize lawyer-client communications while establishing and maintaining excellent client rapport and communication. At the most basic, a lawyer must consider, “How do I maintain good eye contact and a receptive attitude while taking good-enough notes?” At the next level, the lawyer must consider, “Who else will read these notes?” and “What do I want the notes to reflect about the file and the client?” and “How will I find these notes in the future?” Bleakly, the lawyer might well ask, “If I die tomorrow, could the next lawyer read my notes in this file and understand its status?”
Potential Ways to Memorialize Client Meetings
Most suggested methods for memorializing client meetings that appear in current client interviewing treatises and texts seem impractical and unworkable. Remember that most treatises and articles lean toward “no notes” because of the mental health model upon which they are built.
Suggestions 3, 4, and 5 below include digitally recording the meetings (in the old days, we would have said “tape recording”), and state-specific laws control whether the client must consent to the recording. However, even if state law does not require consent, I can think of few more likely ways to destroy client rapport than for the client to find out, after the fact, that a private meeting was recorded. For that reason alone, if the lawyer plans to record a meeting, the client should know, and give consent, ahead of time.
For any of the suggestions below that require someone to spend time after the meeting creating a record of the meeting, the lawyer and the firm should have a policy about how (or whether) to bill that time and how to communicate that policy to the client. Here, then, is a summary of the note-taking permutations:
Take no notes during the meeting. Immediately after the meeting, based on mental notes alone, the lawyer creates a memo about the meeting. A few texts predicted that this would take approximately 10 minutes, which is proof that the authors never actually practiced law.
Take no notes during the meeting. A staff member or associate in the room takes notes while the lawyer concentrates on the client.
Digitally record the meeting and take no notes during the meeting. Immediately after the meeting, the lawyer creates a memo of the meeting from memory, using the recording if necessary to confirm the lawyer’s memory of the meeting. A variation on this is that the lawyer listens to the recording in full and takes notes while doing so.
Digitally record the meeting, take no notes during the meeting, and have the recording transcribed (by a person or a computer program) after the meeting. Of course, this is a monumental task and potentially an impossible one depending on the clarity of the recording and whether the participants in the meeting took care to speak one at a time. The lawyer would need to review the transcript and add or subtract whatever is appropriate for the situation.
Digitally record the meeting, take only an occasional keyword note during the meeting, and then follow the post-meeting steps in either item 3 or item 4. The keyword notes would help either to organize the lawyer’s subsequent memo or to guide the lawyer to those portions of the transcript that are most salient.
Take only keyword notes during the meeting. Immediately following the meeting, create a memo based on those notes.
Initially take no notes (or very minimal keyword notes) while the client tells the story the first time. Then, ask the client to go back through the story again while the lawyer probes for details and takes notes during this second time through.
Take notes! Afterward, review the notes for completeness and include them in the client file in hard copy or electronically.
Most lawyers fall comfortably into the last suggestion: They take notes and their clients expect them to take notes. In fact, if the lawyer is not taking notes, the client may well be suspicious of the lawyer’s investment in the client’s legal matter.
Given the centrality of note-taking, what techniques might help us take better, more effective notes? Suggestions abound about how students – at all levels – should, could, or might take notes. Those suggestions are only minimally helpful to a lawyer sitting not in a large classroom with a lecturing professor but in an office with a client who needs assistance. Some techniques may overlap; others do not.
How do you take notes?
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Guidelines for Better Note-taking
The balance of this article suggests ways to improve lawyer note-taking while, perhaps, not sacrificing client rapport. In whatever format, the best client meeting notes:
Are legible and can be easily reviewed;
Fill any gaps between the prior client meeting and this client meeting;
Contain the lawyer’s impressions of the current situation, keeping in mind that the client, or subsequent counsel, may read those impressions; and
Contain a notation about tasks arising from the meeting and deadlines for those tasks.
In addition, the best notes reflect a meeting in which the client was satisfied with the process of the representation, including the lawyer’s interest, competence, responsiveness (including listening), and diligence. (See the Cunningham article, cited above.)
A threshold question for note-takers is whether to use paper and pen, a computer, or a tablet. Historically, the screen on a computer, even a compact laptop, was thought to be a physical and psychological obstacle to open communication. Whether this is still true in our computerized society may be worth revisiting. An imperfectly analogous situation might be the current use of electronic note-taking by medical professionals during patient visits. A cursory review of various studies measuring patient satisfaction shows mixed results over time, which may reflect that patients are becoming accustomed to computers in a professional setting or may simply reflect the new reality that electronic medical records are here to stay and everyone is expected to adjust.
A threshold question for note-takers is whether to use paper and pen, a computer, or a tablet.
The advantages of typewriting over handwriting may eventually overtake the need for traditionally defined eye contact and open body language in client interviewing. Computerized notes are easily taken, stored, indexed, and retrieved. They also have the advantage of being legible. However, another troubling aspect of using a computer for note-taking relates not to the physicality of the computer and its effect on the client but to the thought-processing effect on the lawyer. Shallower mental processing may occur when notes are taken via laptop instead of by hand, particularly if the note-taking on the laptop is nearly verbatim. Pam A. Mueller & Daniel M. Oppenheimer, The Pen is Mightier Than the Keyboard: Advantages of Longhand Over Laptop Note Taking.
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Many lawyers are experimenting with taking “handwritten” notes with a stylus (or finger) on tablets. This preserves the benefits of handwritten notes (good eye contact, no physical barrier, better mental processing) while also allowing those notes to be scanned and computerized by appropriate software. Depending on the legibility of the notes, they might also be converted to text and rendered searchable, like their computer-typed counterparts.
Of course, many (probably most) lawyers continue to take handwritten notes with pen and paper. Some lawyers prefer the format of the Cornell Notes system, developed in the 1940s by Professor Walter Pauk. Originally designed for students, the Cornell system became a popular note-taking rubric for trial lawyers, distinctive because of its extra-wide left margin that forms the “cue” or “keyword” column next to the wider “notes” column on the right. The original Cornell method also includes a “summary” wide row at the bottom of each page. See Lisa Needham, Cornell Method of Note-Taking, The Lawyerist (Sept. 2016).
Content of Client Meeting Notes
Once the lawyer decides to take notes and chooses a format, the focus shifts to the content of those notes. If the lawyer adopts a keyword strategy, or a “minimal notes” strategy, then the lawyer jots down only memory-jogging words during the meeting. Immediately after the meeting, the lawyer creates a memo that fills in the chasms between those words. If the lawyer chooses this way to take notes, then the lawyer must always, without fail, reserve time after the meeting to create the full memo. Failure to do so results in notes that have no efficacy within days or even hours. As mentioned previously, the lawyer must also make a decision about how, if at all, to bill the client for this post-meeting time.
If the lawyer chooses to take more extensive notes during the client meeting, then the lawyer must create an idiosyncratic note-taking style that is reasonably consistent across files and provides sufficient information for appropriate representation. The days of Gregg shorthand are past, but most lawyers use their own note-taking mental-macro codes. These are probably similar to the codes we developed as students, now refined for more specific law practice.
Some shortcuts are letters: LMTCB (left message to call back); b/c (because); b/f (before); dnk (do not know). Others are symbols: ¶ for plaintiff; r for defendant; for “everything”; W for “nothing” or “none”; ≠ for “is not” or “does not equal.” Googling “abbreviations for note-taking” provides more examples than one person would ever need. Lawyers develop and expand their own codes over time, tailored to their particular styles and areas of law. The lawyer should ensure that these shortcuts are decipherable by colleagues who may review the notes in the future. If the handwritten notes are on paper but intended to be scanned and turned into searchable text, then the shortcuts and abbreviations used in those notes may need to be standardized across the office.
Mind mapping moves away from linear, list-based notes into a visual depiction of the meeting, incorporating shapes, text, color, and lines.
Mind mapping is another technique for taking notes. Mind mapping moves away from linear, list-based notes into a visual depiction of the meeting, incorporating shapes, text, color, and lines. The simplest mind map shows a main concept, enclosed in a shape, with lines radiating out to subordinate concepts, enclosed in their own shapes. Lawyers may create their own mind maps from scratch or can purchase any number of mind-mapping programs. See Nerino J. Petro Jr., Hate Taking Notes? Try Mind Mapping, GPSolo, Vol. 27, No. 4 (June 2010). If the lawyer wants to preserve the notes electronically, the resulting mind maps can be scanned (if on paper), saved, and made searchable.
One terrible way to avoid the conundrum of whether, when, and how to take notes is to rely on fill-in-the-blank forms for law practice. As we move into an age when law practice is increasingly standardized and efficiency-driven, rubrics and checklists for gathering client information are becoming increasingly popular. Checklists of all kinds are excellent tools for case management, but they are not excellent tools for client interviews.
Filling out a form as a matter of course, in a rapport-building way, at the beginning or end of a client interview is one way to obtain compact, demographic information quickly. Using it to structure an entire interview is a sure way to interfere with lawyer-client rapport. If using a checklist or rubric is absolutely necessary because of firm policy or time limitations, then the least-bad solution is either to use the checklist for initial information and use the bulk of the interview (with note-taking) to expand the conversation, or to conduct the interview as usual and then at the end, fill in the form using the information already obtained, gathering any additional information that may be necessary.
As important as note-taking is for lawyers, I wonder why we have not shared our tips and techniques more widely. Academics who write practice treatises have practiced law sparingly, if at all, and have little to teach lawyers of any age when it comes to note-taking. Lawyers would do well to talk with each other about how they structure in-person client interviews and how they memorialize these meetings. Sharing usable information, instead of perpetuating impractical advice, would be a small but meaningful contribution to the practicing bar.
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What is your favorite summer activity in your hometown?
Although I work at the law school in Madison, I live in Baraboo. Our area attractions host thousands of tourists each year. Three state parks – Devil’s Lake, Mirror Lake, and Natural Bridge – are within a few miles. We also have more hidden natural attractions nearby, including Parfrey’s Glen, Pewits Nest, Ferry Bluff, and Baxter’s Hollow, and many others that are even more difficult to find. Circus World Museum is in town.
Currently, though, my favorite local activity is stopping in at Driftless Glen Distillery, located along the banks of the Baraboo River. The tour is worth the trip, although now we usually just enjoy a legendary cocktail at the bar and a fabulous meal at the restaurant. My younger son is sous chef, so I am definitely biased!
edu gretchen.viney wisc Gretchen Viney, U.W. Law School, Madison.
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