Teaching Success > Analyzing Failure

Why blog about listening? It drew me in because it’s different than legal writing—which I honestly love, and love to teach, but sometimes tire of, with its skirmishes in broader linguistic debates about two spaces after a period, commas outside quotation marks, and the indefinite singular pronoun, as well as the temptation to go negative.

Courtesy Flickr/Martin Fisch/CC BY-SA 2.0
Courtesy Flickr/Martin Fisch/CC BY-SA 2.0

Listening is among the softest of the soft skills, so soft it’s hard to perceive and even harder to measure. It’s not talked about as much as writing or speaking—or even the other “receptive” communication channel, reading—but I believe it has a huge impact on every aspect of law students’ and lawyers’ effectiveness, both real and perceived. If a law student gets every relevant fact from an externship client including important gaps in the client’s knowledge and then produces excellent notes for the supervising attorney, but the client does not feel heard, is that a successful interaction? How can law students and lawyers enhance their listening skills?

I hoped to mainly focus the blog on constructive ideas, as opposed to the “what not to do” method so prevalent in some conversations about legal writing. Yet soon as I launched the blog, the most common reaction was to parade out the listening failures:

“Your blog is called Listen Like a Lawyer? Oh, so you mean poorly and with preconceived ideas?”

Thus the temptation. It can be fun to write about bad examples of anything, whether listening or writing or any other skill. I had a little too much fun writing a Halloween post about “scary” listening here. And here’s a more serious post focusing on terrible listening. The attraction—and impact—of talking about failure is based on a larger disturbing reality:

[N]egative information, experiences, and people have far deeper impacts than positive ones.

This is from an article in the Harvard Business Review explaining Roy Baumeister’s paper “Bad Is Stronger than Good.”

Prevention is better than failure

The temptation to talk about any skill in terms of failure came immediately to mind when I read Ken Grady’s latest post at the Seyfarth Shaw Lean Consulting blog SeytLines, “On Teaching Lawyers to Succeed Rather than Fail.” His post focuses on critiquing the case method of law school, in which almost every fact pattern by definition represents a failure of the parties and lawyers to find a mutually beneficial solution and settle the case.

His critique is not unreasonable: why is that a good way to teach lawyers to solve problems? Actually Grady is less interested even in solving problems than in anticipating and preventing them. And he doesn’t think the case method is very good at this at all:

“[T]aken to an extreme and when used as the primary method of teaching students, [the case method] becomes a vicious circle keeping us trapped in a cycle of failure.”

Re-thinking the model to teach law students how to proactively work with clients to prevent legal problems turns out to be very difficult. Prevention is a lot harder to see than failure:

“Much of the best lawyering ever done was not recorded in case books or articles. It went unrecorded because that work prevented failure from happening. The lawyers who provided those services kept their clients out of trouble, kept costs down, and avoided burdens on society.”

Role-playing real situations is one way to get at preventative lawyering, as in the following example from Grady:

“A general counsel is faced with a new business model. She investigates the obvious legal risks of the model and does not find anything at odds with existing law. As far as she can tell the proposed business model is perfectly legal. But still, something does not seem right to her. She pushes further into the model. As she studies it, she realizes how it may conflict with evolving concepts in the law and societal trends. Today the model is perfectly legal, but in three to five years, it most likely will be problematic. Our general counsel could do nothing and leave any problem to the future. She could follow the maxim of make money today and let tomorrow bring whatever it may. Or, she could look for something to mitigate the risk.”

Problem-solving and leadership

Grady’s post “On Teaching Lawyers to Succeed Rather than Fail” reminds me a lot of Emory Law Professor Dorothy Brown’s recent article Law School Without Borders (PDF). In the article, she outlines an alternative approach to teaching law. She gives a case study problem solving and problem prevention for a hypothetical client who happens to be a “nationally known Southern-style celebrity chef” sued for race and sex discrimination. In the article, Brown walks through the possibilities for achieving success through proactive, interdisciplinary, collaborative lawyering. More broadly, she suggests what law schools can and should do to broaden their focus:

“A law school that incorporates more than just teaching students how to think like lawyers, but how to also solve problems and take a leadership role will graduate students better equipped to add value to their firms and clients on the first day. Emotional intelligence should not be underestimated. By emotional intelligence, I mean empathy, exercising good judgment, maturity, wisdom, common sense, and last, but not least, the ability to have difficult conversations successfully.”

Hear, Hear! to the idea of teaching leadership, emotional intelligence, and difficult conversations. The “law school without borders” Professor Brown describes is consistent with Ken Grady’s interest in teaching problem prevention through anticipatory lawyering. Their ideas both fit within and challenge the ongoing conversation about experiential learning in legal education, such as here.

Better listening by analyzing listening successes

This is a huge topic, but what we can do here is to bring the focus back to listening. From time to time, we can turn away from “10 Ways to Be Awful at Listening.” We can instead talk about “10 Ways Great Listening Helped Lawyers Serve Their Clients By Understanding and Avoiding Potential Disputes.” Here are some questions:

  • How have you seen lawyers use listening to successfully prevent and solve problems?
  • What did they do, specifically, that showed their listening?
  • How can proactive, preventative, powerful listening be a tool for lawyering success?
  • What are some ways to teach that kind of listening?

Listening and legal marketing

This blog is a place where not only lawyers but all legal professionals can come together around the topic of listening. Listening helps to bind us together in productive work—or hold us apart, when we listen poorly. Legal marketing professionals have a huge contribution to make here, as they really know deep in their bones the importance of listening to the client (and the potential client) in a variety of ways. I didn’t attend last week’s annual conference of the Legal Marketing Association, but the meeting produced an excessive and interesting number of live tweets, so I decided to point out some themes of interest here on the blog.

The keynote was by Daniel Pink, and he kicked it off by invoking Alec Baldwin’s ABC moment—”Always Be Closing”—from Glengarry Glen Ross to set the stage. (I thought about linking that clip here but it is quite NSFW.)

Dan Pink suggests a new set of ABC’s for a world where the seller no longer has superior information to the buyer. Instead, the key principles to successful sales, or marketing, or whatever term makes you comfortable when it comes to finding potential clients and convincing them to use your services—which this blog fundamentally assumes to be activities of interest to most lawyers and legal professionals—are attunement, buoyancy, and clarity. If attendees got one thing from Pink’s keynote, it would be these three principles:

Each of these principles has something to do with listening, I think, with attunement at the top of the list.

A. Attunement and listening mutually reinforce each other

Attunement means being able to understand the client’s point of view. Being open to the other person’s perspective is crucial:

But it’s not the same thing as emotional intelligence:

To stress the point, what the other side is thinking is at least as crucial and probably more so than what they are feeling:

Tweets from other sessions, not the keynote, touched on attunement in different ways such as handling the pitch meeting and maintaining the relationship:

Attunement remains crucial throughout the relationship, when things are going well . . .

. . . and especially when the relationship may be going south:

One tweet pointed out the importance of attunement for legal marketers in their role as facilitators of business delivered by others:

This was an intriguing point with several interpretations. Maybe it’s necessary to understand “the service” and the providers of that service, and the strengths and weaknesses of both. As a witness in one of my first IP cases said, “My job is to make sure the sales team only sells what the engineering team can actually deliver.” Or maybe it’s necessary in the sense of how the legal marketer adds value to a law firm: legal marketers who are superior at attunement to client needs add irreplaceable value to the law firm’s team of professionals.

And this point about attunement in a three-point relationship (legal client/legal marketer/lawyer) may be expanded to the cover lawyers. Being attuned to the knowledge and expertise of the legal marketers who specialize in understanding clients and potential clients can help lawyers better understand their clients as well.

B. Buoyancy means dealing with rejection

The value of buoyancy apparently came wrapped in some generalities about lawyers’ perhaps non-buoyant personalities:

But relationships can help:

The tweets don’t say this, but isn’t it clear that listening is a great tool for anybody to build relationships with mentors and sponsors?

I’ll have to read Pink’s book To Sell Is Human to get a fuller picture of what he says on buoyancy. He also wrote the book (literally) on motivation, which leads me to expect words of wisdom on self-talk, or internal dialogue. What do lawyers and legal professionals hear when they listen to their own self-talk? To be buoyant, we need healthy ways of handling self-talk. And if our self-talk is overwhelmingly negative, we probably can’t listen effectively to others for problem-solving and relationship-building.

C. Clarity is about finding problems and curating information to help solve them

The clarity principle seems to focus on finding problems and sharing information in productive ways. Pink spoke about helping clients find problems:

The part about not being a problem solver is interesting. “Solving” problems too quickly can itself cause problems, such as not fully understanding the actual problem and not forging the relationship necessary to address it. And jumping in to answer a question, rather than fully hearing someone out, is a hallmark of bad listening.

So finding problems is part of clarity, and the most advanced way to do this is to find the problems that are hard to perceive:

The theme of information saturation plays a continuing role throughout these new ABC’s. For example, clarity is a huge part of content strategy, basically selecting and sharing what clients and potential clients really need to know:

And that brings us full circle to the role of the legal marketing professional. Revealing more about who the clients are and what they need helps everyone:

“Personas” and “key client types” may be a bit jargon-y, but lawyers and legal marketing professionals can work together to understand each other’s language and the ideas behind that language. Listening to one another in this way helps with the broader common goal of listening to the client. Listening helps with all of the new ABC’s of selling, which in turn lead to getting business, forming relationships, and ultimately serving clients in effective ways.

Pink’s keynote at LMA drew extensive on his book To Sell Is Human. For those interested in seeing him present the ideas, here’s a webinar hosted at the Harvard Business Review. And Nancy Myrland has collected all of the blog posts from the LMA15 meeting here.

“Develop-in-place” for listening

This post is for people who don’t mind reading a bit of jargon from the world of training and professional development. It’s all about how we define effective listening and how lawyers can develop it on the job, with some implications for legal education as well.

The term “competency” is a term of art in educational and professional parlance. I like this definition: “measurable or observable knowledge, skills, abilities, and behaviors [that are] critical to successful job performance.” 

Listening is very difficult to observe and to measure. Listening is hard even to define. Professor Neil Hamilton recognized these difficulties in his foundational law-review article on listening, Effectiveness Requires Listening: How to Assess and Improve Listening Skills:

One challenge in integrating a focus on improving listening

skills into the traditional law school curriculum, particularly the required

curriculum, is that it can be difficult to ascertain what “listening

skills” are. A failure to break down competence in a skill into component

parts can create confusion both for teachers, who need clear objectives

and assessment tools, and students, who need clear direction, thus

making it more difficult to integrate the skills into a curriculum.

Listening has received a variety of definitions from communication scholars, culminating in this from the International Listening Association: “the process of receiving, constructing meaning from and responding to spoken and/or nonverbal messages”

This definition underscores the problem with measuring listening. How do you measure whether a person is “receiving” messages, much less “constructing meaning” from them? Responding is much easier to observe and assess. (Yet another reason “active listening” gets so much love; you really can know it when you see it because by definition it involves an observable behavior.)

But just because measuring listening—all its aspects—is difficult doesn’t mean it’s not worthwhile. An example worth studying comes from the Microsoft in Education program, which has undertaken the task of stating a broad range of Education Competencies for Teachers and School Leaders, including Listening Competences. (Also here are some on interpersonal skills.) The rest of this post focuses on these particular “Listening Competencies” and what lawyers might draw from some of their substance as well as the framework used to present them.

Tiers of listening from basic to expert

The Listening Competencies document begins with a rubric classifying listening skills into four tiers:

  • basic
  • intermediate
  • advanced
  • expert

An example of a basic listening skill is being attentive, and an expert listening skill is “making solid eye contact, intuitively absorbing the gist of the message.” A basic listening skill is being considerate of the opinions of others, and an expert skill is being able to accurately restate the opinions of others even when you disagree with them.

So this type of rubric is far from revolutionary but harder than it looks to develop. In the legal field, what do we consider basic and expert listening, and gradations of intermediate and advanced listening in between? The educators’ competencies do not adequately speak to the complex and contested situations lawyers find themselves dealing with; they would need to be developed and tailored significantly to describe the skills required by lawyers functioning in the real world and law students doing real-world experiential work.

There is a growing body of work in the area of articulating lawyering competencies, intensified by many factors such as the push for law schools to produce practice-ready graduates. The new book Building on Best Practices: Transforming Legal Education in a Changing World by Lisa Bliss et al. is an example of a very recent contribution. Listen Like a Lawyer will keep exploring the research, as well as talking to a variety of lawyers and law professors in order to revisit this question over the summer.

Develop-in-place assignments

In addition to the skill tiers, the Listening Competencies document also raised the idea of “part-time develop-in-place assignments.” This was not a term I had heard before, but the idea of a “develop-in-place assignment” seemed intriguing. Lawyers may prefer training opportunities that are more customized and active, with less loss of productivity than something like attending an all-day CLE.

So what does “develop-in-place” mean? From context, we know it is more than remedial training. For remedial needs, the Listening Competencies document has a separate section for “self-development remedies.” They include gems such as “keep your mouth closed” and “eliminate . . . . pencil drumming.” (There are more difficult items on the remediation list as well, such as “[l]isten to those who waste a lot of time, but try to help them.” How is that remedial?)

After the remedial section, the Listening Competencies document goes on to list ideas for “develop-in-place assignments.” The common thread is practical, hand-on training opportunities. They exist somewhere in between remedial and highly advanced. A few examples in the list include finding and learning from an expert; going to campus as a recruiter; and becoming someone’s mentor. The list also suggested making peace with an enemy or other person “you have disappointed, had trouble with, or don’t get along with.” The list also suggested going on a trip to a foreign country. (Yes, that would be a pretty awesome way to develop competencies! Sign me up for that one, please.)

The term “develop-in-place” appears not to be widely used beyond the Microsoft in Education competencies, but its basic meaning is confirmed by some excellent training materials from the Korn/Ferry training organization:

Develop-in-Place Assignments are job tasks that require application of certain competencies. Research shows that 70% of development happens on the job, and jobs differ in development power and in the competencies they address. You can’t always change jobs for development reasons alone, but there is almost always a develop-in-place assignment that you can select in your current job to address your development need.

This definition should appeal to lawyers in that it’s about doing an actual job task that also happens to develop skills or competencies—in other words, learning by doing. The idea that “there is almost always a develop-in-place assignment . . . in your current job” may ring true for many practicing lawyers. For example, new lawyers doing a lot of writing and research may seek out pro bono opportunities to work with clients more personally. (This isn’t a simple matter, and pro-bono work should be more than an opportunistic skill grab. But done correctly, it is a way to serve clients and the public and apply lawyering competencies.) Similarly, lawyers who work on a lot of individual, fact-intensive matters may seek time to write an article taking a broader perspective.

Expert lawyering requires so many different competencies, with listening being just one aspect of a broad picture combining intellectual, interpersonal, more broadly social, and practical skill sets. Marjorie Shultz and Sheldon Zedeck may have the definitive set in their list of 26 lawyering effectiveness factors. Given this eclectic mix and the value of learning by doing, this concept of “develop-in-place assignments” seems like a pretty good idea for professional development.

Please share your thoughts on listening competencies for lawyers, and ways that lawyers could use “develop-in-place” assignments to practice and improve their listening skills.

Listening is part of emotional intelligence

Daniel Goleman is the father of the emotional-intelligence movement. He recently shared a checklist of “EQ” competencies with the New York Times. EQ has four overarching categories:

1. self-awareness

2. self-management

3. empathy

4. relationship skills

Not surprisingly, listening was included as a skill related to empathy:
You pay full attention to the other person and take time to understand what they are saying, without talking over them or hijacking the agenda.
In the context of ever-present smartphones, this is much harder than it used to be. The presence of a phone decreases the actual empathy the person feels, according to several psychology experiments: “[B]ecause of the many social, instrumental, and entertainment options phones afford us, they often divert our attention from our current environment, whether we are speeding down a highway or sitting through a meeting,” reported the Scientific American. “[C]ell phones may serve as a reminder of the wider network to which we could connect, inhibiting our ability to connect with the people right next to us.”
There are a lot of directions I would like to take this post—for example reflections by practicing lawyers on what EI means to them in their work. Also the pragmatic benefits of emotional intelligence such as better negotiation.  But thinking about the instrumental benefits of emotional intelligence leads me to think of Machiavellianism and the “dark side of emotional intelligence.” Without getting too side-tracked into those areas at least at this time, I’ll stop. Listening is part of empathy, and empathy is part of emotional intelligence.
Note this post has been corrected to reflect “EQ” as the commonly used acronym for Emotional Intelligence, rather than “EI.”

A tale of two sales

A 40-something lawyer attempting a triathlon is apparently so common as to be a cliché, but I’d rather be a healthy, fit cliché than wither away uniquely.

Courtesy Flickr/CC by-SA 2.0
Courtesy Flickr/CC by-SA 2.0

Two recent experiences shopping for triathlon gear prompted this post about listening and sales. Listening is a crucial part of one-on-one marketing, and a few aspects of my experience may help lawyers as well.

Store #1

I happened to visit this store while picking up a race number for a small running event. It’s a place I’ve always driven by and been interested to visit, but never actually gone into until now. While I was picking up the number, the store owner stood by. He took the first step by asking if I wanted to look at some shoes. I actually am very interested in the new super-cushioned shoes I’ve been reading about, which this store does carry. But I didn’t say that just yet. I gave a noncommital but friendly “maybe, when my current shoes wear out.” I then told him the model of my current shoes.

The response was immediate and vociferous, “Oh, we’ve got to get you out of those.” He then critiqued their design and suggested they are actually weakening my feet. He asked me if I saw a television news report with an orthopedist’s endorsement of a certain brand featured in this store.

The store owner didn’t find out that my existing brand of shoes has helped me recover my running career. He didn’t find out that I have a long history of orthopedic issues. He didn’t find out what I like in a pair or shoes, or that I was actually highly interested in a different brand of shoes that he actually does carry in the store. It appeared he had a featured brand he was selling to every runner that came in the store. I got the strong impression his initial conversation with almost any potential customer would lead to the same solution no matter what the potential customer said.

Store #2

This was a bicycle store, so potentially a much more expensive purchase. A salesperson approached me as I browsed and asked how he could help. He said he had only been working there for a few weeks and brought in a more senior sales person. She asked a series of questions. First and foremost: “What is your goal?”

After I told her, she asked some follow-up questions about my commitment to triathlons. She said she would recommend a very different bike for someone attempting a triathlon once as a bucket-list item as compared to someone who was going to ride more frequently and compete throughout the summer and beyond. It was understood I wouldn’t be walking out right then and there with a bike, but she offered to e-mail me some “eye candy” and specs on the bike she suggested. Her follow-up e-mail began with “It was a blast talking with you about bikes today” and continued with detailed information about the bike.

Lessons for lawyers

What do sales tactics in specialty sports stores have to do with marketing legal services? I saw a few potentially relevant points:

Marketing to someone you just met

I had never seen the shoe guy or the bike lady before in my life. To be fair to the shoe guy, I went into the store for a different reason (to pick up a race number), whereas the bike lady knew there’s no reason for me to be in that store other than interest in bicycles.

Either way, establishing rapport seems like a fundamental sales tactic. Others have suggested an 80-20 rule: get the other person talking 80 percent of the time. In his excellent and fun book Ditch the Pitch, marketing expert Steve Yastrow recommends a higher burden: keep the conversation on the customer 95 percent of the time.

The shoe guy didn’t ask me a question other than “while you’re here, do you want to look at some new shoes?” Once he got a quasi-positive answer, he was off and running with his pitch about the benefits of the shoes and the recommendation of an orthopedic specialist in a news report.

In that sense, he fell into a trap lawyers may face as well: the desire to show what you know. It does seem intuitive that one can sell by impressing them with your subject matter expertise. This seems especially true for discerning buyers with competitive goals and a willingness to innnovate for better results. And it is especially true when you have developed an expertise in a new and exciting approach or idea or product. But he gave the impression of being wound up like a child’s toy to release his spiel.

The bike lady asked a series of questions and didn’t talk about bikes at all until she learned more about me and my goals. After building a rapport with these questions—the equivalent of intake questions for lawyers?—she moved toward a solution that addressed the questions. At that point she selected and described a solution, i.e., a particular recommended bike. She pointed to its features and compared and contrasted it with other solutions, i.e., other bikes higher and lower in the spectrum of features and price.

Marketing to someone who has already made purchases in that same market

The shoe guy heard what brand and model of shoe I wear and immediately said, “We’ve got to get you out of those.” The message and the phrasing set a bad tone in a couple of ways.

First of all, there was no “we” at that point, since I had been in the store all of five minutes. Second, I am actually really quite happy with my shoes. It almost made me feel bad about the shoes I’m wearing. Instead I resolved the dissonance by shifting into a feeling of dislike toward the sales person.

Despite the good experiences with my existing shoes, I actually would experiment with another pair of shoes that are similar to these because I have read about great results other runners have gotten from the new super-cushioned shoes. But I’m just not going to go in a totally different direction, given the good experience I’ve had to this point. And that guy would never know this because of how he approached the entire conversation.

So, if a lawyer is talking to a potential client who has a history with a different lawyer or firm, it would seem rather arrogant to lead with “We’ve got to get you away from that [lawyer or firm]!”

Rather, the lawyer could find out more about what the potential client needs in terms of business services. What does the potential client want from a lawyer? There’s no need to trash the status quo if you can—subtly—offer an improvement on it.

Marketing what you believe to be the superior product or service in the field

The bike lady selected a model to show me and talked about its great features including how light it is, its hidden cables, its smooth gears. She pointed out how the pedals can be customized to preferred feel and functionality. She offered to let me ride it in the neighborhood. She then talked about models one step down and one step up from that model. And she mentioned that adjustments to the bike are free in the store for the life of the bike—potentially 10 years or more.

In this way a lawyer can present a client or potential client with options: the one that seems the most effective to the lawyer, even if it’s not the cheapest approach, as well as the higher-end and lower-end ways to deal with the issue, including their advantages and disadvantages.

Creating a longer-term relationship with the customer/client

Some kinds of businesses are better able to form a relationship than others. A bike needs adjustments and can benefit from various add-ons any time during its useful life. The bike lady made sure to mention the free adjustments for life that come along with any bike purchase.

Still, even a one-off sale can form a relationship. For running shoes, the chance to try on the shoes in the store could be a powerful incentive to buy because now you’ve spent the sales person’s valuable time working with you. Or the store could provide ongoing support with smaller items like running gloves, water bottles, special compression socks, and so on.

It may be disturbing to discuss similarities between marketing legal services and selling special socks. But if those socks are a reasonably inexpensive way to prevent years of injury and expensive physical therapy, then they are pretty awesome. And similarly with legal services, an ounce of prevention may be worth a pound of cure, creating a grateful client. Walking out of the running store with a $40 pair of compression socks and a positive experience would have made me more likely to stay interested in buying shoes and other gear there over the long term.

Standing by the product/service while also providing flexibility

The bike lady acknowledged that the bikes she is selling are a fairly major purchase. But, she said, if you buy it and get it home and within 30 days decide you just don’t like cycling and aren’t going to use it, bring it back. We’ll give you a refund. Or, she said, if you get it home and within 30 days decide you actually love cycling and want to get an even better bike, we’ll let you trade up into something nicer.

Legal services may offer similar flexibility given the many decision points along the way in handling a legal matter. For example, a client may be able to work with counsel to test out a particular strategy and then adjust upward or downward. By explaining some of the time frames and decision points for adopting a different strategy, the lawyer can help the client understand she is not locking herself in to one decision forever.

Conclusion

Listening seems to be a key part of all of the above. The person who took time to listen to my goals and to tease out some of my experiences with biking made a far better impression than the person who reacted to my status quo by criticizing it and trying to force his favorite off-the-shelf solution.

Of course lawyering is different than selling shoes and bikes. But the universal principles of persuasion are at work for all kinds of customers and clients in all kinds of selling environments.

Innovating the 2L and 3L years

How is listening taught in law school—if it is taught at all? Some wonderful work is being done, especially in the clinics. But even the strongest and most effective approach to listening typically found in legal education today seems to be based in individual courses. It seems possible that a given law student could graduate from a typical U.S. law school without working on listening skills at all.

That’s not the case in an innovative program at the University of New Hampshire School of Law that re-envisions the 2L and 3L years. A new report by Educating Tomorrow’s Lawyers, an initiative of the Institute for the Advancement of the American Legal System, describes the Daniel Webster Scholar Honors Program. Twenty-four students are selected at the end of their first year of law school to participate over the next two years. These students attend a careful sequence of subject-matter and skills classes. They receive frequent feedback (formative assessment) and must assess their own progress through a variety of reflection assignments. Upon successful completion of the program, students are admitted to the New Hampshire Bar without taking the regular bar exam, a fact touted in the New York Times’ recent article on bar-exam critics.

Listening plays an explicit role at the beginning, middle, and end of the Webster program.

The beginning: Getting admitted to the program

First, students are actually selected for the Webster program in part based on their communication skills. The report notes that during the program’s first year in 2005, student selection was based in large part on prior academic achievement. Now, selection is based on personal interviews with the selection committee and the committee’s assessment of a broader set of criteria. The criteria are grouped into four main categories: professional relationships, professional development, personal responsibility, and academic competence. A number of criteria in the professional relationships category relate to listening:

  • Have integrity and engage in honest discourse
  • Treat themselves and others with respect
  • Work well with others, acknowledging their own and others’ strengths and weaknesses
  • Show empathy and kindness to others
  • Listen attentively—know when to listen and when to contribute
  • Have humility—admit to mistakes and make apologies

And several criteria related to professional responsibility relate to listening as well:

  • Seek—and learn from—feedback
  • Are open to new ideas, seeing things from others’ perspectives, and sharing their views

The middle: Sequence of classes

Students in the Webster program proceed through a preset sequence of classes. Working with simulated clients appears to be required every semester. For example the first semester of the 2L year requires pretrial advocacy. The report provides benchmarks for that course. Some benchmarks address listening in the classroom: whether the student “actively and respectfully listens to peers and professor” and makes relevant comments that reflect, inter alia, insight about other students’ previous comments. Other benchmarks address performance on the skills such as taking a deposition (whether the student asks clear questions and uses effective body language and eye contact) and giving an oral argument (whether the student gives responsive answers to the judge’s questions and again uses effective body language and eye contact).

The end: Capstone class and standardized client interview

The Educating Tomorrow’s Lawyers Report is so enthusiastic about this program because graduating students in the program outperform new lawyers at least as measured on their client interviewing skills. The capstone class involves a “standardized client interview” in which students are assessed by the trained actor who plays the client. The assessment has two parts: (1) interpersonal and professional interaction such as whether the student listened to the client; and (2) skill at asking questions to glean specific facts necessary for the client representation. Appendix B to the Report contains the assessment form filled out by the trained actors/standardized client. It contains a number of questions regarding the lawyer’s demeanor and ability to gain trust and glean the correct information.

Question 2 on that assessment hits listening about as hard as you can hit it, with 1 representing “strongly disagree” and 5 representing “strongly agree”:

I felt the lawyer listened to me.

1            2           3           4           5

The students who completed this program, regardless of their LSAT scores and other entering credentials, outperformed lawyers with 1-2 years of experience who also completed a standardized client interview. They received higher scores (statistically significantly higher) on the criteria of their professional communication skills such as listening and building trust. They received significantly higher scores on their ability to glean the relevant information from the client.

The Educating Tomorrow’s Lawyers Report proclaims that these students are more ready to “hit the ground running” as a result of the program. The Report does, however, acknowledge obstacles to implementing such a program on a broader scale outside the context of the close-knit New Hampshire legal community. The Report suggests that the Webster program’s innovations could be unbundled and implemented in a more modular fashion, on a smaller scale. The key elements to preserve would be “the combination of formative and reflective assessment in a practice-based context and a focus on collaboration between the academy and the profession.”


A previous post about another initiative of Educating Tomorrow’s Lawyers can be found here.

Where competence and character come together

The nice thing about Twitter is you can learn from events you can’t actually attend. Today Stephen M.R. Covey (son of the 7 Habits guy) spoke at the “DEXIO” conference in Canada: Developing Excellence in Others. This slide from Covey’s talk caught my eye:

(HT to @ITCatherine for the slide.)

Covey’s list of 13 leadership behaviors wasn’t specifically aimed at lawyers as leaders, but it might as well have been. The behaviors were organized into three major categories — competence, character, and the convergence of the two.

Competence was an interesting category and one that will feel good to many lawyers because we are generally very smart and good at the tasks of lawyering. But being competent isn’t enough to succeed in a collaborative work environment. UC-Hastings Dean Frank Wu wrote about this in his Huffington Post column on Why Law Firms Fail. Likewise, while character is essential, it’s also not enough by itself to make a good lawyer.

The convergence category was the payoff of this slide. While competence and character are obviously indispensable to the work of a legal professional, each on its own is not enough. On the slide, Covey lists three behaviors where competence and character come together:

  • listening first
  • keeping commitments
  • extending trust

Obviously I was excited to see listening on that list. Good listeners are highly competent, and good listeners also show great character. Or we could state the opposite: Poor listening can lead to incompetence, such as by not being able to get results because crucial facts or motives were not perceived. (Ouch.) And poor listening may be perceived as disrespectful and therefore a sign of poor character. (Double ouch.)

But the deeper point here is about what it means to be a “high-trust leader” (the title of Covey’s slide) and to develop excellence in others (the theme of the conference). For lawyers responsible for developing excellence in others, what behaviors do they use to do so? Some may take a bit of a muscular attitude toward developing excellence: “I’m going to model it and you can watch and learn.”

Or a senior lawyer may effectively “teach” excellent swimming by throwing juniors into the pool. This approach was apparent in a training video from Hogan Lovells shown at the 2016 American Association of Law Schools’ Annual meeting (video at minutes 8:30-16:10) :

In that video, a senior lawyer was faced with a potential conflict over work allocation among two juniors on his team. To get excellence from this team, he was going to have to go beyond being a good lawyer and nice guy. His response to the conflict? Something along the lines of: “They’re adults; they’re going to have to work this out. I don’t have time for it.” So this guy was clearly not what Hogan Lovells was offering up as a great example of leadership. Maybe he could have used a little more listening, a little more trust-building. He seemed like a good lawyer — very competent and unassailable character. But something was lacking in the way he approached the situation. Maybe it was those behaviors at the intersection of competence and character.

Writing this post made me want to read Deborah Rhode’s book Lawyers as Leaders. For those who have, what would Rhode say about the behavioral categories in Covey’s slide above? How would she approach the hands-off lawyer attempting to lead a team in the Hogan Lovells video?

Thanks to Jennifer Kahnweiler for correcting an earlier version that misidentified Stephen M.R. Covey as his father, Stephen Covey.

Defining success for new lawyers

The state bar where I am licensed just blast e-mailed a survey for the Educating Tomorrow’s Lawyers project of the Institute for the Advancement of the American Legal System. According to the survey e-mail, this project has three goals:

  • finding out “what law graduates need to launch successful careers in the legal profession”
  • creating “models of legal education to better fulfill those needs”
  • identifying “tools legal employers can use to make better hiring decisions”

The point of the survey is to clarify what “skills, characteristics, and competencies” are necessary for new lawyers in their first year of practice. The survey addresses a myriad of potential competencies from legal research to finance and accounting to personal resilience. Survey participants are asked to rank each item on a four-part scale from immediately necessary for new lawyers to not relevant (as in not relevant ever, in the survey participant’s area of practice).

The list of potential competencies is fascinating; just taking the survey should be a thought-provoking experience. Legal employers who have set objectives for new attorneys’ professional development — or who want to set such objectives— should be following this survey very closely. Lawyers who want to reflect on their own individual strengths, weaknesses, and possibilities should find it informative as well.

The survey questions were arranged by category, and several questions hit on listening either directly or indirectly. In the communications category, the survey asked about the skill of listening “attentively and respectfully.” In the category for emotional intelligence, the survey asked about reading and understanding others’ subtle cues as well as exhibiting tact and diplomacy.

If you have the opportunity to fill out this important survey, I urge you to do so. Educating Tomorrow’s Lawyers is making a major constructive effort to address the challenges “we” — defined broadly by me to include law students, law schools, lawyers, legal employers, and the clients eventually served by all of the above — together are facing.

Here is more information about the Foundations for Practice initiative. 

Mindfulness and mental chatter

Listen Like a Lawyer is headed into that time of year when it’s going to be difficult to maintain weekly posts. Being too busy has a detrimental effect not only on one’s blogging goals; it can also interfere with communication. And since lawyers fall into from the “busy” trap at least as much as the average person and probably a lot more, this is a good moment to think about what that does to us and how to respond.

Seeking some wisdom on this topic, I started to check out Scott Eblin’s new book Overworked and Overwhelmed: The Mindfulness Alternative. This book seems kind of like the “7 Habits” equivalent for the mindfulness movement.

After digging into the book, I was going to start by exploring the concept of “mental chatter.” Mental chatter is also known as “monkey mind” or (less memorably) “discursive thoughts.” Basically it means random disorganized thoughts running through your head. Should we listen to them? Or ignore them? (Is that even possible?) These random thoughts are obstacles to mindfulness—defined as “the awareness that arises by paying attention on purpose in the present moment and nonjudgmentally” (Eblin quoting mindfulness pioneer Jon Kabat-Zinn). Also from Eblin:

Mindfulness is about “putting yourself in a position to be more aware and intentional about what’s really going on inside and what, if anything, you want to do about it.”

And then I had two back-to-back days that were busier than any in recent memory. They reminded me of the days back in law practice when I had three filings due in three different courts at 5 p.m. on the same day. There was no time to be mindful! Or so it seemed. The day was actually too busy for random mental chatter because there was too much to do requiring full focus. I tip my cap to the legions of practicing lawyers who handle these types of days year in and year out.

What is the solution? It’s not “finding balance.” On this, I like what Eblin has to say:

[I]f you’re an executive, manager, or professional with a demanding job, you’re about as likely to find balance as you are to be a purple unicorn. The reason is that the world and life are both fast moving and ever changing. In that environment, balance, at best, is a temporary and fleeting state. Instead of seeking balance, try to find a rhythm instead. By focusing on rhythm, you acknowledge there are times when your pace is going to be much more oriented to work, home, or community and there are times when the counterpoints of other aspects of your life come to the fore.

It’s also not about using mindfulness as a Band-Aid. Techniques such as deep breathing can help with reducing stress in specific situations, but mindfulness really means something broader. For example, having consistent routines—like sleeping and exercising—provides resilience on days that swing to the painfully hectic side of the pendulum.

And if mindfulness is about awareness, then we need to think about it when we think about listening. Eblin has some interesting thoughts on different styles of listening, and Listen Like a Lawyer will delve into those on another day.


Here are some additional resources on mindfulness:

The Berkeley Institute for Mindfulness in Law

Becky Beaupre Gillespie, Mindfulness in Legal Practice is Going Mainstream, ABA Journal (Feb. 1, 2013)

Susan Moon, Moonlighting: Mindfulness for Lawyers and the Jedi Master, Above the Law (August 12, 2014) (featuring Jeena Cho)

Robert Zeglovitch, The Mindful Lawyer, ABA GP Solo Magazine (October/November 2006)

Scott Rogers, The Mindful Lawyer: Practicing Law with Presence

Chris Bradley, Jeena Cho on Zen Lawyering, Lawyerist (June 24, 2013)

Jeena Cho, The Anxious Lawyer (ABA forthcoming 2015)

Shalini Jandial George, The Cure for the Distracted Mind Why Law Schools Should Teach Mindfulness, 53 Duq. L. Rev. (forthcoming, winter 2015).

A myth about listening and learning

Listening is a loser, at least according to the widely circulated Pyramid of Learning:

Slide1

I’ve been hearing about the Pyramid of Learning — also known Dale’s Cone of Learning — since I was a child. Yet it has a problem. Specifically, a lot of credible people believe it to be “zombie learning theory that refuses to die.”

Digging through the evidence to find out exactly what is true turns out to be difficult, partly because there are just so many sources that repeat these numbers. One of the best I have seen is by Candice Benjes-Small and Alyssa Archer on the Association of College & Research Libraries blog (these are the folks that called the learning pyramid a “zombie learning theory”). They gather sources and trace how this idea started as a conceptual model about conveying information at various levels of abstraction. There were no numbers making any retention claim. At some point, most likely during World War II, the graphic of the pyramid emerged with numbers attached to it representing retention percentages.

The graphic of the pyramid and numbers makes it feel irresistible. Matching the strength of their appeal with a strident attack, Will Thalheimer has described the pyramid as “dangerous” and a “fraud” on his blog Will at Work Learning. A fairly comprehensive timeline of debunking sources can be found at the Institute for Learning Professionals. The American Society of Engineers published a conference paper with a detailed, balanced refutation including graphical representations of where these numbers appear to come from.

In her textbook Designing Information Literacy Instruction: The Teaching Tripod Approach (2014), Joan Kaplowitz commits the debunking to print:

As appealing as that notion [of the learning pyramid] might be, an exploration of the literature shows there is no solid, research-based data to support it. 1

Kaplowitz goes on to suggest the numbers themselves contain the seeds of their own destruction:

Even the numbers themselves should make us raise an eyebrow and question the so-called data. The percentages are just too perfectly distributed with each number being a multiple of 10 and the spacing of categories somewhat even to have arisen from any real-world experimentation.

That’s a lot of debunking, but is it enough? The appeal of the learning pyramid creates a pedagogical Scylla and Charybdis: If you tout these numbers, many teaching faculty will discount your credibility. But if you doubt the numbers, you may lose your connection with other faculty who embrace them. Benjes-Small and Archer advise “treading carefully.”

What does this mean for lawyers and law professors?

We are experts in being precise with words as well as being skeptical about claims. So we can avoid broad assertions of the pyramid’s scientific truth.

We can be careful in how we present information, testing it on audiences when possible and relying on our own experience as a guide. For example, showing a text-heavy Power Point while simultaneously reading the words is terrible. it doesn’t reinforce the information; it creates competing streams of information and, in a broad sense, is just plain annoying.

We can rely on more recent and more specific research into information retention. Not surprisingly, studies support the use of images: “Humans can remember pictures with 90% accuracy in recognition test over several days, even when the images are presented for only a short time during learning.” This is from Doug Linder and Nancy Levit’s The Good Lawyer: Seeking Quality in the Practice of Law, citing a study that is about 1000 percent more scientific than the cone of learning (as well as 1000 percent more difficult to read and understand). The science confirms the art of lawyering, as recounted by Linder and Levit:

Images are so effective to effective communication that David Ball contends a “trial attorney without images is like an art book without pictures.”

The fundamental truth behind Dale’s original concept is that information can be presented in many forms ranging from the concrete to the abstract. Whether teaching a class, making a presentation to clients, or arguing to a jury, we can “mix it up.” That’s not scientific, and there are fancier ways to say it, like Benjes-Small and Archer’s recommendation: “Think multimodal.” However it is phrased, this broad recommendation is more reliable than a neat set of mythical percentages.


  1. Kaplowitz cites Char Booth, Effective Teaching, Effective Learning (2011); James P. Lalley and Robert H. Miller, “The Learning Pyramid: Does It Point Teachers in the Right Direction?” published in volume 128 of Education (pages 64-79) in 2007; and Michael Molenda, “On the Origin of the Retention Chart” in volume 44 of Educational Technology in 2004.