Listening on TV: What Sitcom Clips Can Teach Lawyers

Thanks to unnamedTami K. Lefko for this fun and informative guest post.

I often use clips from television shows and movies in class, and there are a few related to active listening that I especially like. Here are three of my favorites, from three popular sitcoms:

1. Everybody Loves Raymond, “Father Knows Least”

This early episode of Everybody Loves Raymond largely focused on active listening. In the first part of the episode (“Part I” below), Debra forced Ray to attend a parenting class with her after their daughter Ally began misbehaving. Ray did not take the class seriously and did poorly when he was asked to role play with the instructor and demonstrate how he listens to their daughter.

(Part I – Ray demonstrates ineffective listening skills in parenting class)

But later in the episode (“Part 2”), he has a little more success using active listening techniques with his own parents. The most relevant part begins about 50 seconds into the “Part 2” clip and continues for about two minutes.

(Part II – Ray does better with his own parents)

One tangential aspect of this episode that I find interesting is that it also illustrates (and debunks) a common misperception about skills like writing and listening: that they can’t be taught. Those of us who teach legal writing and related skills have probably all heard, at one time or another, the objection that these skills cannot be taught: either you are a talented writer (or good listener) or not. In this episode, Ray initially objects to attending the parenting class. He agrees to attend, however, when he catches himself saying that his parents never took a class and they did a fine job — not exactly how he usually describes their parenting. Similarly, his parents tease him about taking a parenting class, but the techniques he learned in class are shown to work well to diffuse one of their arguments.

Credit: Season 2, Episode 2/Original Airdate: September 29, 1997

2. The Big Bang Theory, “The Extract Obliteration”

For a more recent example, I like this one from The Big Bang Theory. In the clip below, Sheldon and Leonard realize they are talking past each other rather than having a real conversation, so they try using a chess timer to give each other a chance to speak in turn.

The brief non-conversation that prompted Leonard to suggest using the chess timer is included in this longer clip, but it is of lesser quality than the clip above:

Although the use of the chess timer is played for laughs here, a chess timer or something similar could be used effectively in class for listening practice. Clients often complain that their lawyers do not truly listen to them, and law students can also find it difficult to listen, uninterrupted, to another’s story. Using a chess timer or similar device could make students aware if they tend to interrupt or pressure a speaker rather than listening patiently.

Credit: Season 6, Episode 6/Original Airdate: November 1, 2012

3. The Office, “The Whale”

In the episode linked below, Pam tries to teach Dwight how to appear interested in what other people have to say so that he can sell to female clients more effectively, without much success.

https://www.youtube.com/watch?v=Qg8PIK74KO4

Credit: Season 9, Episode 7/Original Airdate: November 15, 2012

All three of these episodes can be viewed in their entirety on Amazon Instant Video and similar services. If you have any favorites of your own on the listening topic, please mention them in the comments! I’d love to expand my repertoire of listening videos that are both entertaining and informative.

Listening at Trial

United States District Judge Mark Bennett (N.D. Iowa) has published a great article on the “Eight Traits of Great Trial Lawyers: A Federal Judge’s View on How to Shed the Moniker ‘I Am a Litigator.'”

Studying the entire article would be an excellent use of time for any litigator trial lawyer. Judge Bennett’s coverage of being a great listener — Roman numeral VII in the article — is centered around a pretty strong criticism: “In my view, listening skills are incredibly underdeveloped in most lawyers I have observed in the courtroom.”

Judge Bennett outlines how listening is essential to core competencies of a trial lawyer such as understanding the other side’s case, being responsive to the judge hearing the case, and effectively examining friendly and hostile witnesses. It’s particularly helpful that he gives a specific example — in transcript form — of how a good lawyer can listen effectively at trial. Judge Bennett further points out that listening is rather helpful to building trust with clients, an important skill for any type of lawyer.

Hat tip to the Legal Skills Prof Blog, which shared this article earlier in the week.

Review of Stone and Heen’s Thanks for the Feedback

Doug Stone and Sheila Heen co-wrote what is now a business classic, Difficult Conversations: How to Discuss What Matters Most (2010). Their new book explores the challenges of one of the most difficult kinds of conversation — feedback. The title and subtitle of Thanks for the Feedback: The Science and Art of Receiving Feedback Well (2014) signal their thesis: in these conversations, “the key player is not the giver, but the receiver.” 

Lawyers may benefit particularly from this book’s wisdom, given situations in law practice involving the lack of feedback, poorly delivered feedback, and the dire consequences of certain feedback. One difficulty was summed up by Dennis Kennedy’s advice for new lawyers in the ABA’s Law Practice Today:

Many attorneys will say nothing about your work and continue to give you more and more work. To you, this can be frustrating. In their minds, they have given you the highest form of feedback. “If I didn’t like the work, I wouldn’t give them more.” They don’t realize that most of us need to hear the words.

And likewise, Kennedy points out, some generic feedback may hide quite negative thoughts:

A hearty “great job” and no specific comments may disguise the fact someone can’t believe what a poor job you did and just wants to get you moved on to someone else.

So, for the feedback receiver, the first key to getting more out of feedback is recognizing it is everywhere; Stone and Heen define it to include “any information you get about yourself.” And since feedback is everywhere, we can guarantee that not every source of feedback will be skilled or thoughtful. People who want to be more effective can do so by focusing on the part of the feedback transaction they can control: how they receive it and what they do with it. I love this point for lawyers.

Several frameworks can help feedback receivers to do more with what they are receiving. The first is to understand the types of feedback:

  • appreciation: knowing that others are noticing what you’re doing, and grateful for it
  • coaching: understanding direction to grow and change in an area of skill or in a relationship
  • evaluation: being rated or ranked, perhaps comparatively, and learning about future decisions based on rank

Some of the problems with feedback arise when the receiver just wants appreciation but receives detailed coaching, or wants a clear evaluation but receives vague appreciation (and so on). That’s what Dennis Kennedy was talking about with the “hearty great job” that disguises real dissatisfaction. I have also seen a confusion with coaching and evaluation, when an attorney receives a draft motion and marks it up extensively. For some attorneys, they aren’t criticizing the drafter but just using the first draft as a tool to recognize what they really want to do. This is coaching. But for other attorneys, having to mark up anything carries with an implicit judgment/evaluation of the drafter’s skills. Understanding the differences in types of feedback and clarifying expectations in a feedback situation can make conversations more productive.

The second important framework Stone and Heen outline is three categories of “triggers” — as in emotional triggers — that block feedback:

  • Truth triggers arise when the feedback receiver thinks “that’s wrong”; “that’s not helpful”; or “that’s not me.”
  • Relationship triggers arise when the feedback receiver feels unappreciated, does not respect the feedback giver, or blames the giver.
  • Identity triggers arise when the feedback receiver takes the feedback personally, feels helpless, and starts to question everything.

And with these frameworks in mind, Stone and Heen then suggest various process-based approaches for effectively receiving feedback. There is really too much good material to describe here even at a very high level.

One point important point is the “mindset” work led by Carol Dweck at Stanford. If you believe people’s skills are fundamentally fixed and feedback merely reveals what their skills are, then you have a fixed mindset. If you believe people can develop their skills over time and feedback can help with that, you have a growth mindset. This is an incredibly important distinction for professional growth, such that the ABA’s Commission on Women in the Profession has an entire “GRIT Project” devoted to this concept. Professor William Henderson also wrote a great article about whether great lawyers are born or made. (For in-depth articles focusing on legal education, see articles by Sarah Adams-Schoen and Carrie Sperling. These are just two examples of a lot of great work in this area.)

At times Stone and Heen’s book focuses on listening specifically:

Advice about listening is white noise. It’s so common and so boring that we no longer even hearing. But if you’re drifting off, this would be a good time to wake up. Listening may be the most challenging skill involved in receiving feedback, but it also has the biggest payoff.

Part of the challenge with listening is the competing “inner voice” that drowns out external information. Stone and Heen advise listening for specific information and cultivating a sense of curiosity that can help to tamp down some of the inner voice’s resistance.

Another challenge with listening is the difficulty of doing it really well. Stone and Heen point out that great listeners are able to recognize not just what is being said substantively but also what is happening with the process of the conversation. Here’s one of their examples of managing process within a team:

Okay, we’re deadlocked. We both need to agree on this, and we don’t. Your solution is that I should give in. As a process, that doesn’t feel fair to me. On the other hand, I don’t know how to break this deadlock, so we’ve got to figure it out. What’s a fair and efficient way to decide when we don’t agree?

There is a whole lot more really valuable information in Thanks for the Feedback. Much of it is general information useful for any professional or personal setting. But among their many gigs, Stone and Heen teach negotiations at Harvard Law School; thus, they include several good law-related examples in the book. For anyone who gives or gets feedback, I really recommend this book.

Empathy and communications with clients, spouses, and partners

This week has seen several great posts on major issues for lawyers involving listening.

The first one was Jordan Furlong’s post “Don’t Think Like a Lawyer.” He argues that thinking like a lawyer is “easy and fun,” and also a dangerous replacement for thinking like a person. He argues that feeling like a client is totally lacking from legal education, and law students should be required to visit lawyers’ offices and experience what clients experience. “Legal education is a powerful drug; but if you’re not careful, it can drown out your instincts, stifle your emotions, and numb your heart.” To be great, lawyers must be more than “tacticians”; they must be “instinctive, heartfelt, caring, and real.”

These themes were addressed as well in Mark Perlmutter’s post on “6 Things We Learned in Law School that Shouldn’t Be Tried at Home” on Trebuchet Legal. Perlmutter recalls his shift from lawyer to counselor including his own experience in counseling: “I’ve come to realize how much my lawyer competencies had helped to make me an utterly incompetent husband.” Perlmutter explains some good therapy concepts boiled down to the idea that responding with opposition is not effective. Paraphrasing and building on the conversation may work a lot better. (That sounds a lot like active listening.)

These effect of these posts was encouraging for the project here at Listen Like a Lawyer. Upcoming content will explore some brass-tacks listening topics such as listening at deposition and listening at trial. If you’re a hard-core litigator and want to share some thoughts on listening, please let me know. On that note, here’s a nice article on listening at trial.

But this blog will continue to explore the soft skill of listening on its own terms — including its essential role in empathy, relationships, and human connections.

“I listen to what you say, but I hear what you mean” — and more Free CLE.

Jennifer Romig:

Who can resist a good Hercule Poirot line, especially when it comes to listening?

Here’s another good one in the spirit of brutal honesty: “Mr. Ratchett, I have made enough money to satisfy both my needs and my caprices. I take only such cases now as interest me, and to be frank, my interest in your case is, uh… dwindling.”

Originally posted on The Irreverent Lawyer:

And so I found myself pondering the quote, “I listen to what you say, but I hear what you mean.” It was attributed to Agatha Christie’s famed Belgian detective Hercule Poirot, as played by actor David Suchet.

But it wasn’t until late last night that I came across the thought-provoker. Monday had caught up with me before I was ready to let go of Sunday.

That’s why I hadn’t yet finished reading Sunday’s NY TimesMagazine and particularly Hope Reeves’ interview with Suchet, Part of Me Died With Him containing the quote. Suchet, who played Poirot in the BBCshow, says Poirot made him “a better listener.”

Were it only so that we listened with Poirot’s discernment. More often’s the case that people don’t listen to what you say — and hear only what they mean. Or as the late Steven Covey perceptively proclaimed, “Most people…

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The music of advocacy

As a legal-writing professor for 14 years, I’ve attended countless conference workshops on various aspects of legal writing. The ones with music always stand out. There’s just something extra cool about a law professor who plays an instrument. Music speaks to the human ear in a way no law-school lecture ever can. Concert-trained pianist Allison Kort is also a legal-writing professor at UMKC. Today she shares this guest post on the piano sonata and oral advocacy.

IMG_5052“The Court below should be reversed for the following three reasons . . .”

The piano sonata form, particularly the Beethoven sonata (he wrote only 32), usually starts off with a bang. He gets the listener’s attention. The second movement—the slow movement—will bring in a second musical theme, weaving in finer, lighter musical points. The third sonata movement (or fourth) ends by tying together and resolving the development of the pieces, showing the listener how they must come together to a logical conclusion.

In college I sat in a square room in a row of square rooms in the Mosse building in Madison, Wisconsin, cursing the Waldstein, (No. 21, Op. 53). I continued learning the intricate patterns and movements, the difficult runs in the right hand, don’t rush it, don’t slow it, too much crescendo, not enough pedal. My father, who had been a music professor before he went to law school, said it was too technically difficult, just not worth the effort. Maybe, but I will not give it up. I have been practicing the Waldstein and its three movements, on and off, since 1993. It is 2014. Fortunately, during that time, I found something else to do. Like becoming a lawyer and a law professor.

In appellate advocacy, we encourage students to provide the listener with a theme. A theme may be unspoken—a general sense conveyed of why the judge should hold in the advocate’s favor—or it may be directly stated. Regardless, it will pervade the entire argument, be referred to in some way over and over again during the argument, interjected throughout the advocate’s answers to the judge’s questions, and appeal to the judge’s sense of fairness and morality.

Some of us coach advocacy as legal storytelling. Advocates begin the story with a protagonist, and then explain the relationship between the parties, the conflict brought about by that relationship, and the appropriate outcome that should result with the court’s assistance. While oral argument is often described as a “conversation with the court,” certain rules apply. Don’t speak too fast; don’t speak too slowly; never interrupt a judge, but stop talking when a judge interrupts you. Answer a question and always the question asked, but do not ask the court a question. (Since when does a conversation involve only one party asking the questions?)

Is advocacy more music than writing? An expected logical conclusion arrives only after the conflict is introduced, followed by the boldest arguments, the details, and the triumphant conclusion. The practiced storyteller anticipates the judge’s questions, moves at the correct pace, guides the judge effortlessly through the affirmative arguments and through the opposing drama. It may look like a novel, but to the classical pianist, “May it please the Court . . .” sounds like Ludwig.

Coaching listening

One way to become a better listener is to work with a coach. Just Google “listening coach” and you may be surprised by how many resources there are.

One coach who reached out to me is Laurie Schloff, Senior Coaching Partner with the Speech Improvement Company. She has worked with professionals including attorneys for more than 25 years, and (not surprisingly) believes that communication competence is essential to attorneys’ professional success. In one-on-one work, she uses this coaching framework:

  1. Assessing goals and developing a plan
  2. Individual or group sessions devoted to communication techniques and practice
  3. Application of skills in business situations, for example, running an important meeting or coaching a new associate
  4. Assessment of progress and future goals

Laurie provides various types of feedback, including her own personal feedback and video feedback. She also encourages attorneys to seek feedback from peers and to reflect and learn how to become their own coach (the concept of self-coaching).

Laurie coaches on all of the communication skills, but has some specific methods for helping attorneys improve their listening. She promotes the idea of “persuasive listening.” According to Laurie, persuasive listening means “conscious use of listening skills as a tool to build positive rapport, engagement and influence with others in your ‘communication world.’”

She encourages attorneys to think about listening in terms of the acronym “E.A.R.”:

  • Engage
  • Attend
  • Respond

For engaging, attorneys can do something they may feel very competent at, which is asking questions:

Attorneys can become stronger listeners by asking different types of questions depending on the situation. Laurie identified three particular types of questions to consider: “open,” “structured,” and “short reply.” An example of an open question is, What are your thoughts about the training lawyers receive in listening skills?” An example of a structured question is, “What are some ways legal training could include listening skills practice?” An example of a short-reply question is, “Do you think lawyers are good listeners in general?”

For attending, the key issue is attention:

Attorneys can demonstrate attention to clients and colleagues by controlling distractions and multitasking. Employing positive behaviors are easy ways to convey attention, including occasional head nods and encouragers such as “uh huh” or “mhm.”  Laurie pointed out that verbal encouragers are especially necessary during phone conferences. In person, even when taking notes, attention should be on the client’s face as much as possible.

And for responding, again Laurie encourages attorneys to think of different types of responses:

The attorney may be responding to Information, for example by paraphrasing or summarizing before offering a fresh perspective: “So you’re looking to settle this by November.” The attorney may be responding to feeling. This means identifying the undercurrent of emotion if appropriate: “I sense a lot of stress around this last minute change in deadline.” The attorney may be responding to a goal. By this, Laurie means moving the client or colleague in a positive direction: “So you’d ideally like to look at possibilities for a national seminar in 2015.”

Laurie intertwines her coaching with hypothetical examples and anecdotes from her experience. On the value of listening, she shared a few words of wisdom from some of her contacts in the legal world:

  • Esther Dezube, a private practice attorney who specializes in personal injury:  “I listen to what is said and how it is said, starting from when the client walks in the door. If you don’t listen, you won’t be an effective trial lawyer.”
  • Tony Garcia Rivas, senior patent attorney at Ironwood Pharmaceuticals: “Attorneys may assume they know the problem and tune out. When I’m talking, I’m not learning.”

Cognitive diversity and listening skills

This article, “How Cognitive Diversity Affects Your Work” from the ABA Law Practice Today is one of the best things I have read in quite some time about how lawyers and clients interact. The author, Anne Collier, explores a hypothetical legal team’s relationship with its client, where the CEO and general counsel have different cognitive styles and the lawyers on the legal team have different cognitive styles as well — not to mention the huge differences among the CEO and one of the lawyers on the team. These differences emerge from different approaches to the “paradox of structure” in solving problems: “The paradox of structure is the seemingly incongruous fact that structure both enables and limits one’s ability to solve a problem.” A group of professionals can all be operating at a very high level but still have different preferences for structure and innovation. Their differing preferences can lead to clashes in cognitive style. 

The article focuses on some (fascinating) metrics for problem-solving styles and never uses the word “listening.” Yet listening is part of the “bridging” and “coping” strategies it recommends for handling clashes of cognitive styles. My favorite line in the article, other than the one about the paradox of structure, is this example of a nonverbal bridging strategy: “Oscar agrees to give Madison ‘the look’ in meetings when she needs to be more concrete.”

Have you investigated your own cognitive style, or gotten informal or formal feedback on it? How do you use listening skills — including nonverbal signals — to perceive and anticipate problems stemming from cognitive diversity?

Too Early to Say that the Pen is Mightier than the Keyboard

Jennifer Romig:

Here’s a thoughtful post urging caution in the debate over laptop vs. handwritten notes. Note-taking provides important (although not perfect) evidence of listening, and thus this discussion is pretty important to Listen Like a Lawyer.

Originally posted on eddoctorinhouse:

Recently there was an article that captured the attention of the popular press and those who teach. A few months ago, The Atlantic trumpeted, “To Remember a Lecture Better Take Notes by Hand .” Scientific American also got into the act with the article “A Learning Secret: Don’t Take Notes with Your Laptop”.  Even the research article upon which these news reports were based had a catchy title, “The Pen is Mightier than the Keyboard: The Advantages of Longhand over Laptop Notetaking.”   Soon education listserves began to advocate banning the laptop from the classroom. What’s not to like about this finding that fits into our sneaking suspicions about the digital devices?  There is much to admire about the Mueller and Oppenheimer (23 April 2014) study that found handwritten notes were superior to laptop notes; it’s a tightly constructed study. Based on the Mueller article, should educators be telling…

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Just another balancing test?

What does it mean to think like a lawyer? On Simple Justice, criminal-defense lawyer Scott Greenfield took on this question for the benefit of a curious software engineer who asked. I recommend this post to new law students who also want to know, and to lawyers who are willing to reflect on what they do.

In the post, Greenfield talks a lot about logic, but it’s all wrapped up in and inseparable from the real-world experience of interacting in a complex situation with complex person, i.e. the client:

When someone walks into a lawyer’s office, they will tell their story. It’s usually a long story, convoluted and filled with extraneous details, all of which matter enormously to the story-teller because they suffered the details. It’s the lawyer’s job to focus, to sift through the details and figure out which are relevant (tends to make a fact more or less probable) and material (bears a logical connection to a fact in issue), and which are simply there, background noise of no consequence to whatever the core issue may be.

In this interaction, there will be conflicts in how the client sees the case and how the lawyer sees it: “To the lawyer, only the facts that affect the outcome matter. To the client, every detail matters.” Indeed, “[t]he client demands that the lawyer care about what matters to him.”  Different lawyers manage the conflict in different ways, some more effective than others:

Some lawyers prefer to handhold clients, catering to their sensitivities at the expense of addressing the relevant legal issues. Others prefer to guide clients to understand why some things matter and others, deeply important perhaps on an emotional level, are of no relevance at all on a legal level.

Greenfield ended the post by pointing out how lawyers must set aside the issues that interest them personally and focus on the client’s needs.  Recognizing and analyzing those issues comprise the “the hard work of a lawyer.”

After reading this post, I recognized how much it intertwined listening with the essential act of lawyering. From Listen Like a Lawyer’s Twitter account, I quickly tweeted the following:

 

And then the rest of the day, something kept bothering me.

Is it really a balance? (Just one more balancing test among so very many in legal doctrine and the lawyering-skills literature.)

Yes, it is a balance. Of course. In listening to a client and asking questions, most lawyers are going to show a mix — a balance — of empathy and analysis. Project too much empathy and the client will gain false hope and/or try to use the lawyer as a tool for “tangential beefs.” Project too much logic and the client will turn away.

This is an important point and one that some lawyers struggle with. For those who repeatedly gets entangled with unrealistic client expectations and, on the other hand, for those whose clients repeatedly become distant and wary, working on the balance may be worthwhile.

But it strikes me that Greenfield’s post was saying something more profound and difficult. He is not a fan of superficial thinking, and the idea of a simple balance isn’t exactly true to his point. 

What the post said is that lawyers shouldn’t be unempathetic. That’s a lot different than saying lawyers need to balance their logic with their empathy. Actually, he writes, “[t]hinking like a lawyer demands a dedication to harsh logic.” At the core of what we do, the law and its logic reign supreme. So really we are using empathy — and all our other communication tools — to help our clients understand the logic. 

We might need to listen more to do this. We might need to listen differently, or less (if the client is fixated on an irrelevant fact, as the post suggests). But we need to listen with discernment. By hearing their words, watching their faces and body language, using our experience and intelligence to notice what they aren’t saying, deftly steering the conversation to relevance, and generally bringing all of our listening skills to bear, we can be faithful to the law’s logic — while also performing the difficult task, articulated in Greenfield’s post, of guiding clients to understand.

Please share comments, particularly on this view of empathy and lawyering. It’s a conversation I hope to continue.