Giving advice is the foremost job of the advice worker. It can take many forms, from the practical to the complex legal. It needs to be accurate, helpful and relevant to the client’s situation, and above all, it needs to be clearly understood by the client so that they can act on it.
It can be offered in a number of situations, and it should be offered as part of the interview process. Preparation can be done even prior to an interview as to the type of advice likely to be given and how positive that advice might be, although this will inevitably need to be consolidated or revised as a result of more information being received from the client.
Advising during the interview
A client may ask at the outset of the interview how they will fare; will they win the case, recover the money, obtain asylum or get out of debt? Even though such advice may not be able to be provided at that early stage, it will need to be given. It cannot be avoided by simply repeating the facts of the case and agreeing to the next steps. The client needs to know why the next steps are to be taken and why they are appropriate in the circumstances.
The advice that the client is seeking is whether, on the facts they present to their legal adviser, they will achieve their desired outcome and/ or one which provides a legal solution to their problem. It is nevertheless quite common for the adviser to indicate that any advice they do provide in a client interview on such issues as these may be subject to review or consolidation once they have read over any documents supplied to them by the client during the interview or have carried out further enquiries or research. During the course of the interview, the process of advising is likely to be arrived at by the adviser being satisfied that they have dealt with each of the matters outlined in the following ten questions:
1. What law is relevant to the client’s situation?
2. How does that law in general, operate and has the adviser made sure the client has understood this?
3. What is the impact of the law on their story, the facts they present to the adviser?
4. How does that impact translate into a possible resolution of their legal problem?
5. Is that resolution likely to be favourable – if so, how favourable?
6. Are there any unfavourable aspects of how the law impacts their legal problem?
7. Can the unfavourable aspects be overcome, and if so by what methods or tactics?
8. What are the financial implications of any advice provided, including any financial risk or outlay for the client?
9. What advice is being offered to them on this particular occasion as to likely success and possible outcomes?
10. Will further advice be necessary depending on what actions are agreed between the adviser and the client as the next steps?
Questions 1– 4: The law and its impact on the facts of the client’s case – how that might translate into a possible resolution of the client’s case
1. What law/requirement is relevant to the client’s situation?
2. How does that law/requirement in general, operate and has the adviser made sure the client has understood this?
3. What is the impact of the law/requirement on their story, and the facts they present to the adviser?
4. How does that impact translate into a possible resolution of their legal problem or non-conformance?
Looking at these first four questions, the worked example below will hopefully illustrate how, as the interview progresses and the client’s story unfolds, the adviser will begin to pinpoint the relevant facts apply the law to those facts and determine its impact on the client’s situation. How do they establish that the decision was not reasonable? ‘Reasonable’ is a word which comes up rather frequently in a legal context. It appears in statutes and other written laws and in cases where guidance has been offered by senior judges as to what is an appropriate yardstick for making future decisions arising out of similar circumstances.
When advising on how well a client’s case may go the adviser will invariably also use the word ‘reasonable’ in terms of the client’s prospects. But they will exercise caution in this respect for a number of reasons:
More facts may emerge at a later stage which will have a bearing on the success of the case.
Even where decisions or actions appear to be wholly unreasonable, the courts or tribunals will still need to hear evidence from all relevant parties which will factor into their view as to what was or was not reasonable.
Where there are two parties in opposition seeking the decision of a judge to settle their dispute they are inevitably allowing the judge to be the final arbiter which in itself carries an element of risk for both parties.
So even though some advice and indeed some promising advice has been outlined in relation to the employment dispute, the adviser will nevertheless be aware that the law will not necessarily come to the client’s aid due to some or all of the above factors impacting the progress of their case.
Questions 5– 7: The law and its impact on resolutions, favourable or unfavorable
5. Is that resolution likely to be favourable – if so, how favourable?
6. Are there any unfavourable aspects of how the law impacts their legal problem?
7. Can the unfavourable aspects be overcome, and if so by what methods or tactics?
The adviser’s role will be to highlight both the favourable and unfavourable aspects of the client’s case in the light of how the relevant law impacts their case. So, the adviser will next embark on the process of looking at these positive and negative aspects and weighing up how the case might be resolved in light of these. Following on from the imagined facts above, the adviser may note the following information also supplied by the client and consider its helpfulness or otherwise in terms of a favorable outcome.
Favorable
The client had a good work record and no history of any disciplinary problems in the past.
The client that day returned to work from being off sick with a heavy cold.
The client was fully aware of the rule about not coming to work with a bad cold but had been issued a fit note by the doctor the previous day.
The client had an internal disciplinary hearing where she explained all this.
She had moved away from the food and turned her back when she realized she was going to sneeze.
Unfavorable
The client was told at a disciplinary hearing that the decision to dismiss had been made not because she might still be recovering from her cold but because her employer had formed the belief that she had sneezed in the vicinity of food.
The client had also been observed sneezing earlier in the day and had carried on working.
Question 8: Factoring in financial implications
8. What are the financial implications of any advice provided, including any financial risk or outlay for the client?
The adviser will need to advise the client also what the financial implications are for the client in pursuing a claim or case. The costs of paying for a case to go into the employment tribunal system will vary according to the type of claim and the size of the case. Fees are payable to start off an employment tribunal claim and also at various stages in preparation for a hearing, including a fee for the hearing itself. Costs also are imposed by a tribunal on a losing party. The adviser’s own fees, if there are any to be paid, will also need to be factored in as part of the whole financial picture. All these figures as outlined will form a part of the advice offered to the client on their likely prospects of success in pursuing a tribunal claim as they relate to the advice as to the risks associated with pursuing a claim.
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