NC DWI Guy #14: How to Conduct a DWI Consultation

Hello fellow freedom fighters, and welcome to another episode of the NC DWI Guy Podcast. Today, we are talking about something that is near and dear to my heart, something I get very passionate and excited about, and that is the initial consultation. Maybe that sounds kind of boring, but it’s actually something that I think is an incredible piece of your legal practice, an incredible piece of your business. And doing an effective consultation on a DWI case requires that you know what the goals of the consultation are. What are the goals of your interaction, your initial meeting with the client? It’s important to think through those and make sure that your messaging, your conversation, aligns with those goals.

So for me, there are four goals of the initial consultation. The first is to ease the anxiety of the client by providing clear answers. Ease the anxiety. Second, explain the consequences. The courtroom consequences, the driving consequences. Third, we give the client a game plan. What we call an action plan, which is both orally presented in the consultation, but then we follow up with an actual written plan of how the client can move forward in their case and what the path towards success looks like. And then finally, the goal is to restore the client’s dignity. To help the client feel human and worthwhile again.

And I think one thing that is important when a client comes into the office is the tone. Whether it’s on the phone or when they actually walk into the office, the tone of greeting is extremely important because if you ask the client, how are you doing? They’re going to look at you sideways. They’re going to think, “Well, you must not know much about why I’m here because I just got a DWI. I’m not doing well. I’m not here because my life is sunshine and roses. I’m in big trouble.” And you think that on your calendar or somewhere, that would be reflected, so how is it that you don’t know to some extent how I’m doing? So that’s a bad question. It’s a bad initial conversation starter. Your body language from every moment of the client interaction in that initial meeting. Again, whether it’s through your receptionist’s tonal voice, the words that you’re using, the way that you are communicating to them as you walk to conference room or to your office, all of these things communicate your level of understanding about the situation.

We begin by wanting to ease the anxiety of the client. It is the fear of the unknown that causes most people charged with driving while impaired to freak out. They don’t know what’s going to happen to them. I might go to jail for 10 years in their mind is what they’re thinking. I don’t know what the consequences of a DWI are. I might lose my license, I don’t know. Our job is to provide the client with answers. Candid, not sugarcoated answers. Sugar-coating does not help anybody.

Similarly, fear tactics do not help the client nor do they help your longterm credibility. Do not sugarcoat, do not use scare or fear tactics. Use truth in your conversation. That’s how you have integrity with the client is telling them what you expect is going to happen no matter how bad or how good that might be. In terms of what they’re thinking, the truth is what is going to help them best prepare their life moving forward. Once the client has the answers, then they have the ability to make the preparations and adjustments that they need to make to handle their case appropriately. So don’t sugarcoat and don’t use fear tactics.

Being able to ease the client’s anxiety requires that you have empathy. It requires that you have empathy. Now, on a recent episode of the podcast with Jonathan Dichter, episode nine, he talked about remembering that when a client walks into your office, they are having a worse day than you are. I think this is the right mindset to have in terms of having an empathetic view towards the client. No matter how bad your day has been, no matter how many things you have going on in your life, the client that is walking into your office and sitting on the other side of the desk is having a worse day than you. If you have that mindset, then you will have an attitude of how can I help this person? How can I be of service to this person?

So somebody that comes into the office is feeling anxious, fearful, ridiculous, right? How did I get myself into this situation? This is insane. Like I was screaming at a police officer 15 hours ago, right? I made a fool of myself in front of all of my friends, whatever it might be. Ridiculous, childish, morally culpable. They might be sad or depressed. They might be feeling overwhelmed by an addiction. A client charged with a DWI often feels like they have just made the worst mistake in their life, right? This was a choice to get behind the wheel. And they feel the effects of that. They feel the effects of the situation that they’re in.

I often hear during that initial conversation from the client, “And I never do this. I don’t know what I was thinking.” Or, “I didn’t think I had consumed that much alcohol.” They realize after the fact that they have jeopardized their entire future in a single moment. And as we’ll talk about today, they have not jeopardized their entire future, but that’s the way that they feel. They feel that their entire future is in limbo because of this bad choice. Think of the worst choice that you’ve ever made in your life and how that made you feel. That’s what your client is feeling. That’s what your client is feeling when they walk into your office.

Some people are addicts when they walk into your office, whether it’s their first DWI or their fifth. And some people will readily admit that they have a drinking problem while others deny it completely. No matter what the cause of a client receiving a DWI, whether it’s a true onetime bad decision or a longterm dependency on alcohol, this is a moment in life for positive change. You have the ability to help the clients have a life evaluation. And there is an opportunity for change. That change can start in your office during that initial consultation, during that initial phone call. You are the catalyst that can potentially be the reason for a better future for your client. Don’t waste this initial consultation.

I often tell clients it’s easy to replay the events of the night of your arrest over and over in your head and beat yourself up about what caused the situation, right? To just constantly play that night over and over in your mind. That’s not mentally healthy. And you’ve got to tell your clients the same thing. That’s not mentally healthy. The focus should be on how you can best address this situation and move forward in a positive direction. Help them to move from that past decision making and not to ignore it, not to pretend like it didn’t happen, but now, what am I going to do about it? Instead of being frozen in anxiety and frozen in fear and frozen in depression, how can I move out of this situation and take positive steps to better my life, small though they may be? This is an opportunity for positive change. Do not waste this opportunity. Do not waste the opportunity to be the positive change in this person’s life sitting across the desk from you. Whether they hire you or not, don’t waste that opportunity for positive change.

Clients often also explain their past and the good things they have done to tell you, to tell me, this isn’t who I am, right? You hear that so often. Like, “This is not who I am. This is not my character.” And I always remind people of this simple truth, a DWI is not what defines you as a person. A DWI is not what defines you as a person. One bad decision in your life does not equate to who you are. People need to know that. They need to hear that. It doesn’t mean to not take ownership of it. It doesn’t mean to completely downplay what has just happened, but a person should not leave your office feeling like their one bad decision is the defining moment in their life.

In fact, I will tell them, “You’re going to face much worse things in your life than a DWI. A loved one that dies is going to be a more difficult thing to face in your life than a DWI charge.” People get so enwrapped in the present moment in the most recent thing that has happened, and a DWI is a big thing that has happened in this person’s life, but don’t let them overemphasize the importance of that DWI. Remind them that this is one small piece of their life. This is a challenge, but it is not something that is going to wreck this person’s future. You get to remind your client of that.

So in terms of actual conversation, kicking it off with the client, that’s the mindset that we just went through to have when you have this initial consultation. You have to have that mindset, that mindset of empathy, that mindset of knowing what this person has been through and how they are feeling about themselves. If you don’t know that, your conversation can not match their feeling.

But in terms of kicking it off, for me, I kick it off basically with this intro, “Mr. Smith, in order for me to give you helpful information, helpful advice, the best thing for me is going to be if we can just talk for a few minutes about what happened the night of the charge. Where you were driving to and from, what happened earlier in the day, what happened at the time of the arrest, what was going on in terms of the officer’s investigation.” And now, once we talk through the situation, I can then give you the game plan for how we should move forward with your case, as well as tell you about the consequences of what to expect. Tell you about what potentially we are facing. So let’s spend just a few minutes talking about what was going on at the time of the charge.”

So that’s how I kick it off. And remember, this conversation about what happened at the road side is a conversation, not an interrogation. This is a conversation, not an interrogation. It is a lot of questions on your end. So in that small way, it is an interrogation because you’re asking the questions and the client has the answers, but it should not feel that way. It should feel like a conversation. In terms of learning about what happened that night, ask lots of questions. Ask lots of questions. Information is what allows you to give good advice and develop an action plan for your client to move forward with. You cannot give good advice and you cannot give a good plan for moving forward with the client’s case if you don’t know what happened. Asking a lot of questions allows you to distinguish yourself from many other attorneys that this person may be talking to. Ask lots of questions to show that you have a lot of knowledge about DWI law. A lot of knowledge about how things are going to move in terms of procedures with the case.
By asking a lot of questions, you also show that you care. So it allows you to provide good information moving forward, it allows yourself to distinguish your services from other attorneys, and asking lots of questions shows that you care. If you ask a lot of questions and take the time with the client, they see that you are concerned about their best interests and that you have the adequate information to get to a point of being able to help them. So many times, clients come into my office and they are just trying to spill their guts as fast as humanly possible about what happened, because they don’t think you’re going to take the time to listen to them. Whether they’ve seen something on TV, they’ve talked to an attorney in the past, they think that they’re not going to have time to talk with you about their case. So they are just spewing information.

And the faster that you can get them to calm down and let them know I’m here as long as I need to be. As long as this consultation, this conversation takes, I can answer all your questions. I can hear what it is that you’re trying to tell me about the situation, there is an immediate level of calm that comes from that. They don’t feel pressure cooked about getting their side of the story and who they are as a person out to you. They know they’re going to have the time to do that. Learn how to make them feel and know from the get go that you’re going to be able to listen to them.

I tell clients, “As soon as we start this conversation, I’m going to follow up with you and I’m going to give you a plan at the end of the day that allows you to understand exactly what we’ve talked about and how you should move forward. Now, if you want to take notes, you’re welcome to take notes, but I’m going to give you a plan of everything that we talk about. So don’t feel obligated to take notes. Listen. Listen about how our conversation is going.” Allow them that relief of knowing that there is no rush. Asking lots of questions helps you learn about the circumstances of the charge, what attack points are going to be available, determining what sentencing factors aggravating or mitigating exist and what the major points of concern are about the impact of the DWI on your client’s life.

If you want to separate yourself from the competition, distinguish yourself from other attorneys. Spend a lot of time with the client in that initial consultation or conversation. There are some firms, I don’t think a lot, but some firms that will not even talk to a client before their receptionist is quoting a fee, including on a DWI case. For some attorneys, the fee therefore, appears to be the first and most important point of discussion in the consultation. By starting with the fee, that’s what you’re communicating to the client is this is the most important thing that I have to do. So I have to make sure that you can pay me before I can talk to you. That’s what that says when you start with that quote. Even if the client asks, what do you charge for this? End the discussion with the client with fees. Don’t start there. Never start there.

Our staff are trained not to quote fees to a potential DWI caller, but to defer that discussion to the attorney. Do not lead with fees. This goes back to the idea that we are not competing on price, but on value. Don’t compete on price, compete on value. If you start with a conversation about your fees before you’ve asked all these questions, before you’ve gathered information, you’re basically just saying, “Here’s what my worth is.” You haven’t shown your worth. You show your value by spending time learning about the details of the client’s case, and then exploring all angles of attack and of court preparation with the client.
You show your value by time, by information, how much you’re willing to listen. Let me tell you that I spend an hour on the phone with many clients and then I’ll spend a lot more time sending followup emails and information to clients that never hire me. Talking multiple hours of time for a client that never hires me. And that’s okay. It’s okay because there are plenty of clients that do hire me because of the attention to detail and value that I provided during those initial phone calls and follow up emails. It’s not a waste for the people that didn’t hire me because it is the reason that many people see the value that I can provide. Spend the time in that initial consultation and in the initial followup.

Again, remember, as we said at the beginning of this podcast, the client is coming to you at a moment of trauma and one of the most important and significant problems that they’ve ever had to face in their life. Asking a lot of questions shows that you care. If your consults are not going to last 30 minutes to an hour, then you’re simply not asking enough questions. On a DWI case, you’re simply not asking enough questions, not getting enough info if it’s not a 30 minute to hour conversation.
So in terms of then transitioning from what happened at the time of the charge and we ask, again, a lot of questions about what was going on at each stage of the investigation, if they got back to the jail, so that we can start to determine what attack points might there be on this case. Once we get all of that information, now it’s time for a discussion of consequences. You cannot talk about the consequences of a DWI until you’ve listened to what happened at the time of the charge and ask the right questions to determine what other aggravating and mitigating factors for sentencing there might be.

So I will follow up by, again, telling them, “Okay, now that we’ve talked about your case, let’s spend some time talking about what the consequences of a DWI look like in North Carolina in terms of the courtroom consequences, the driving consequences. And just so that you know, I am going to give you a lot of information. We’re going to talk through a lot of information. I’m going to give you a detailed action plan, a detailed follow up. So if you want to write things down, that’s fine, but don’t feel obligated because I’m going to communicate what we’re about to talk about in writing.” That’s telling the client, you have the freedom to listen to me without worrying about forgetting what I’m going to say. So, now, you have grabbed the client’s full attention. And that’s important because you are now saving yourself significant time down the road. When they’ve heard you clearly and they’re focused clearly during the initial consultation with you, then now they can focus on what you are saying. And they know that they’re going to get this in writing, they’re not worried about forgetting something.

So my consequences intro in terms of the courtroom starts like this, “In North Carolina, a DWI is a misdemeanor traffic charge. It’s not a felony offense, it’s a misdemeanor charge. And it’s one of the few misdemeanor charges that has its own sentencing structure. So in North Carolina, there are six sentence levels for misdemeanor sentencing purposes. There’s a level A1, which is the most serious sentence level, and then there are levels one through five with level five being the most mitigated punishment. So as counterintuitive as it sounds, level five is the best sentence level to be at.” So that’s my consequences intro. I explain that’s a misdemeanor, it’s not a felony, has its own sentencing structure, what the sentence levels are. I want to communicate as much information as possible to the client. They’ve potentially looked at some of this online. So they’re starting to hear some of this maybe for the second time. I want to make sure that we are on the same page.

After you get as much detail about the circumstances of the client’s DWI arrest, the client’s relevant driving history and prior DWI history if any, that’s when you can begin to explain which particular sentence level that they fall at. This is a big deal for clients. They want to know what they’re looking at, where they’re going to fall. And so, being very good about explaining the overall structure is going to help the client better understand what they are facing.

So in terms of the criminal consequences, you want to identify the likely sentence level, you want to explain the maximum jail time, explain the likelihood of any jail time. And that is something that I try to do right from the outset. If you have a person that is a level five, blew a 0.08, didn’t get into an accident, and you know that if they are convicted in your district in your county, that there is a very little likelihood that they’re going to receive any jail time, tell them that at the outset. This person doesn’t have any clue if they’re going to go to jail or not. They don’t have any clue, or at least they’re not certain about that, and that causes a ton of anxiety for many of my clients. And as soon as you tell them that there is almost zero chance that they are looking at jail, they will hear everything else that you’re going to say with much more clarity.

Now, if they are facing jail time, you certainly don’t want to mislead them and tell them not to expect that. But, again, if you know that jail time is not likely, tell your client that at the beginning of the consequence discussion. They’re going to hear everything else a lot better as soon as that anxiety of am I going to have to tell my kid that I’m going to be in jail? Am I going to have to plan on my job for being away at jail for three weeks? They’re going to feel better if you can communicate early there is almost zero realistic possibility that you face jail time. Even when there is not the likelihood of jail time, I will still explain to my client, here’s the maximum jail time that you’re facing. So I’ll still tell them that, but at the same time, if they’re not likely to go to jail, tell them that from the outset.

For level 1 (A1) and (A2), I explain the minimum jail time and what means by which a judge can replace that minimum jail time. So we’ll talk about continuous alcohol monitoring and we’ll talk about inpatient treatment. I will explain alcohol assessment and the recommended course of treatment. And then I’ll also explain whether we’re anticipating supervised or unsupervised probation and the difference between the two. Explaining as much as you can explain in terms of the realistic outcome is helpful because having answers gives clients power. Knowing what they’re facing gives clients power. This is what allows them to start planning for the future to move forward.

So after I’m done talking about the criminal consequences, next, I will talk about the driving consequences of the charge. So in terms of the driving consequences, we’ll talk about the pretrial driving consequences, what is a civil revocation if that applies, what does that look like? When could you get your license back? Are you eligible for a pretrial limited privilege? What’s the process? We’ll talk about that. If there was a refusal, we’ll talk about the implications of the refusal privilege and the fact that they will not be able to get a driving privilege for six months if that refusal revocation goes into effect. We’ll talk about the post-conviction revocation if there is a conviction, we’ll talk about the length of the suspension, what type of privilege they are able to get if they’re able to get one and the timeline at which point they could get a limited privilege. Giving the client all that information allows them to plan for the future. So spend the time talking about those consequences.
The more information you can get on this front to the client at the earliest possible opportunity, the better they will be able to plan their life. Driving is a big deal. It’s a big deal. And in fact, for most DWIs, even level two and level one, it is often the driving consequences that greatly outweigh the courtroom consequences, and I’ll tell people that. I’ll say, “As we go from criminal consequences to driving, this is where you’re likely to face the biggest problems, the biggest challenges.”

In terms of other consequences that we’ll talk about, we’ll talk about criminal record, the impact that this would have on creating a criminal record and what that looks like, the fact that if there’s a conviction, they can’t get it expunged. We’ll talk about insurance and what that looks like. We’ll talk about commercial driver if that’s a part of the equation, we’ll talk about the employment consequences. I’ll give some advice on how to communicate this to employers, especially if there’s questions about that. A lot of people’s jobs are the center of their concern related to the charge itself. So again, asking the right questions and knowing, hey, what are your frustration points related to this charge? What are your concern points? That’s going to let you know what type of consequences that you need to talk about. And the effect of probation on professional licenses, if that’s in play. So, it’s important to gather information about what clients think is important.

Clients will tell me that they have ruined their career because of the DWI. They’ve ruined their life, their professional life, whether that’s in terms of future education, future employment. Don’t let your client think this. This is crazy. You know this from how many people that you’ve represented on DWIs. I’ve represented doctors, nurses, lawyers, accountants, engineers, teachers, bankers, military, traveling salespeople, and many of my clients see zero impact on their job. Encourage your client not to forego an application to school or employment simply because of a DWI charge or a conviction. I always tell my clients, whether it’s in the initial consultation or down the road, don’t screen yourself out of a job. Don’t eliminate yourself from the job by not turning in the application. That’s the employer’s responsibility. You may be the only person that actually submits an application for a job. Don’t screen yourself out of a job because of the fact that you’re embarrassed about a DWI. Don’t let people think that they’ve ruined their life because of this charge. Don’t let them live in that lie.

So then we will talk about the next steps and my fee structure. So I’ll explain to them that the first step for us if we get involved is getting limited privileges if that’s applicable. If there’s a civil revocation, I’ll talk about getting them back on the road so they can get to work and take care of their families. Second step for us is to get information from the officer. To get the officer’s report video, if that exists, so that we can start to evaluate what strengths and weaknesses exist with the case. Once we get that information back, the third step is to evaluate the case with you the client. That’s step number three. And then finally, final step is we have to then decide whether we are going to enter a plea or to try the case. Once I have that information back from the officer, we can make that final evaluation.

Now, for some clients that walk in the office, they know day one there’s really no circumstances under which I would want to try this case, or they know from day one there’s no circumstances that I could see myself pleading guilty to the charge. But this is the normal step by step process. Now, no matter how we proceed, whether it is for plea or for trial, we always want to be prepared for worst case scenario. And I tell my clients this. While even if we think from the outset that there are tribal issues and the client wants to push the case to trial if there is any possibility that the case could be dismissed or result in a not guilty, I always tell the client, “Look, I’m going to fight as hard as I can to keep a conviction from happening.” You need to prepare for worst case scenario. You always want the client to prepare for worst case scenario.

After you’ve laid out this step by step process and maybe the likely timeline of how long it’s going to take to get from now here at the initial consultation to final resolution, whether that’s plea or whether that’s trial, what that timeframe looks like, as much information as you can give to the client. Once you have done that and explained that to them, that’s when you talk about fees. That’s when you communicate about that. So our initial conversation is coming to a close. I asked the client if they have any other questions, I tell them I’m going to send them an action plan detailing what we’ve talked about, giving them a to-do list of things to be working on, reexplaining everything that we’ve talked about, I’m going to tell the client that I’m going to send them a copy of our client engagement agreement, our client contract. And then once we get off the phone, that’s what I’m going to do. I’m going to send the follow-up email to the client with the action plan and the contract.

When you end that conversation with them, you have just provided a ton of information, probably an overwhelming amount of information. And if the client doesn’t have any questions, then I’ll typically say, “I know this is a lot of information, but as questions come up, that’s what we’re here for.” I don’t say this, but you’ve got to realize that you’re in the business of providing information. That’s why a person should be hiring you is because you have the answers. You have the game plan. So I’ll tell them, “As questions come up, that’s what we’re here for. We’re here to answer your questions. That’s the main value that we’re providing.” I’ll tell them to email me, call me, text me. Whatever the best form of communication is on your end, that works for me.

And then as those follow-up questions come in, you’ve got to answer those follow-up questions. It’s as simple as that. You’re in the business of providing information and you need to let the client know that from the outset. You don’t have to feel like you needed to ask every question while you were here, we’re ready to help. My team is ready to help you. They’re going to be able to help you find the right answers. Tell the client that you’re going to be able to help them find the right answers.

So I hope that you’ve found this overview of what we do during the initial consultation helpful, and I look forward to talking with you next time. Hope you enjoyed today’s episode of the podcast. If you did, please share the podcast with another freedom fighter in the criminal defense community and be sure to leave us a rating on iTunes. See you next time.