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. 

Listening to internal and external clients

A friend recently sent me a nice compliment about the blog. She works in sales and marketing (not within the legal industry) and said she’s finding the listening skills discussed here very useful for communicating with both “internal and external customers.”

Courtesy Flickr/Elliott Brown

Courtesy Flickr/Elliott Brown

The focus on “internal and external customers” (or clients) caught my particular attention. Of course lawyers are going to want to listen intently to their external clients. One way to keep a client is to listen; conversely, a great way to lose a client — especially a senior business executive — is not to listen, such as by checking your smart phone during a meeting.

For lawyers, the idea of internal clients may be more subtle but still should be a given, especially for in-house lawyers and anyone who works in a place where client-service teams are chosen partly based on who the senior team leaders want to work with. Here’s a good post by Timothy Corcoran on better understanding your internal client. And here’s a good post with advice to associates on impressing partners — such as by treating them as an internal client.

But is effective listening different for lawyers’ internal and external clients, or should it be? Apart from what listening practices are most effective, as a descriptive matter might lawyers subconsciously listen differently in internal and external situations?

Active listening provides a focal point for exploring this question. Active listening has been defined by law professor John Barkai as “the lawyer’s verbal response that reflects back to the client, in different words, what the client has just said.”

Barkai suggests that we can evaluate active listening on at least three metrics:

  • accuracy: did the lawyer understand the speaker’s informational content and emotions?
  • intensity: did the lawyer understand the intensity of the speaker’s emotions?
  • form: did the lawyer respond with clean, simple paraphrasing — or did the lawyer use what Barkai views as potentially patronizing and unhelpful introductory phrases such as “I understand” and “What I’m hearing you say is . . .”? 

So with these metrics in mind, we can reflect on whether lawyers listen with different degrees of accuracy, attunement, and form when they are dealing with external versus internal clients. Here are two brief hypothetical case studies:

Lawyer #1 believes in the importance of listening and attempts to be a particularly strong listener with external clients. He focuses on their information and their content, and he accurately perceives the strength of their feelings. But he wants to show them how carefully he listens, and thus habitually and intentionally uses phrases such as “I understand” and “As I see it.”  Sometimes these phrases lead clients to feel a bit patronized, and as a result they may hold back. 

Lawyer #2 is at a stage of her career where she wants to show her technical lawyering skills to senior lawyers. She listens with a strong focus on the information they are sharing, and she concisely reiterates information and tasks to ensure everyone is on the same page. She is not quite as accurate at judging the emotional state of senior lawyers. Sometimes Lawyer #2 asks task-related follow-up questions too quickly. Slowing down the conversation by reiterating general instructions could allow her to glean more global, contextual information about how the senior lawyer feels about the representation and wants to approach it.

Ultimately, whatever the context, effective listening demonstrates strength at each step of the listening process — roughly attention, perception, memory, understanding, analysis, and response. (This outline is drawn very generally from listening frameworks such as Brownell’s HURIER model and Worthington and Fitch-Hauser’s MATERRS model.)

Also regardless of context, effective listeners are “uniform” in their ability to choose and tailor their approach for the particular situation. The best communicators will take the internal/external factor into account — of course. But that’s just one of many other factors such as the length of the relationship; the other person’s stress level; the complexity of the content; the time of day; and the other person’s preferred style of communication such as informal or formal, just to brainstorm a few.

In this sense listening is just like all the other communication tasks a lawyer performs: there is a very broad common framework for effectively performing each task, and the most effective listeners/speakers/writers tailor their approach within the framework to meet the needs of the client — whether internal or external.

*Thanks to Lou Spelios for comments on an earlier version of this post.

Summer reading

Listen Like a Lawyer now has two candidates for a (hypothetical) Very Challenging Book Club: Wolf Hall by Hilary Mantel, previously discussed here; and Zia Haider Rahman‘s In the Light of What We Know (2014). I chose Rahman’s novel for a reading challenge this summer and have not been disappointed — although I’m not quite finished with it.

The main characters are a former lawyer and a soon-to-be-former investment banker who is looking like the fall guy, perhaps deservedly, for his firm’s involvement with bad derivatives trading. This is a gross oversimplification, but as the New York Times book review stated, the book is so big in length and scope that it defies summary. The rewards, however, are great, such as this passage — and here we finally come to the topic of listening.

It’s page 268. The narrator has just told his father, an Oxford-educated Princeton physicist, about the narrator’s likely fall from grace in investment banking:

When I got to telling him that I thought the firm was about to let me go and would possibly even try to hang me out to dry, my father did not make reassuring sounds, did not contradict me with the groundless optimism of someone reassuring himself as much as another–that was never his way. He simply listened. (Some years ago, he explained to me his belief that that kind of hollow consolation was disrespectful because it presumed that the person being consoled wouldn’t see or care about the absence of reason. The thing to first and foremost, he believed, was not to talk but to listen, and listening, like anything difficult, is easier said than done.) I talked for some time, finding more and more details to tell him. Even things I hadn’t consciously thought much about I brought up, understanding then how much they had actually been weighing on my mind.

The scene goes on to weave in a few more listening lessons, such as the father’s perception of what has not been said — namely anything about the narrator’s wife. “My omission must have been as obvious to him as it now was to me.”

At a turning point in the conversation, the father also moves his chair to sit at a right angle to the narrator: “It was how my mother liked to sit. There was something less confrontational this way, she’d said. This way you see the person’s good side.”

So this scene occurs about halfway through the book. I have more than 200 pages to go, in which some kind of big betrayal is apparently going to be revealed, along with a disenchanting look (already foreshadowed) at NGO activities in Afghanistan.

At times I have been tempted to take a break from this book. It is amazing, but it is also taxing my focus and persistence. And now I can say it was a success because it produced a blog post. Yet something I read in the Chronicle of Higher Education is motivating me to persevere. Erik Shonstrom is a rhetoric professor grappling with the idea that reading ambitious novels teaches critical thinking. His essay is great for any readers of this blog who may be encouraging their children to read by telling the children how good it is for their brains, something like an intellectual green smoothie. Shonstrom says yes, fine, tell yourself that big novels help with critical thinking, but that’s actually not the payoff:

The payoff for me — and what I secretly hope for my students — is something else. Yes, I want them to develop critical faculties for decoding the world, but what I’m really after in teaching the novel is the insight to develop meaning through their experiences. I want them to notice what they notice, both in the word and — more important — within themselves. Reading novels, I believe, acutely calibrates these internal receptors. Readers are able to hear the voice in their head more clearly. . . . When reading a long novel, we start to pay attention to that running line of commentary in our heads because we’re hopelessly bored. For me, the situation is similar to long hikes in the mountains. There’s no structure or “entertainment,” and we’re left with nothing but our own thoughts, which get amplified by the lack of distraction.

So I will finish In the Light of What We Know. There probably won’t be another lesson in listening dynamics, but there is sure to be more on mathematics, physics, cognitive science, South Asian history, and international relations, not to mention some painful romantic breakups. If analysis and contemplation stand in opposition to one another as Shonstrom writes (quoting Sven Birkerts in The American Scholar) then we can ask another question: where does listening stand, closer to analysis or closer to contemplation? For this we could fall back on our legal education: It depends.

Listening 101 for law students

New law students file into their first law school class, take a seat, and mentally prepare themselves. The reading has been long and difficult. Now it’s time for class, where everyone can sit back and soak in the professor’s brilliance while all the confusion is clarified.

Uh, no.

The first reading assignments in law school are certainly difficult. The first listening experiences — i.e. what happens during the first few classes — are often at least as hard.

Courtesy Flickr/Stuart Six

Courtesy Flickr/Stuart Six

The actual, real solution to this problem is not what students want to hear: Over time, you will become a better listener. The jargon from learning theory is that you need to build cognitive schemas (i.e. mental frameworks) for understanding the details of law school. (An earlier post touches on this point.)

The good news is that even if your cognitive schemas are as unfinished as the Empire’s Second Death Star, there are steps that can help with more effective listening.

1. Prime yourself to hear the key concepts.

Try to get a sense of the basic concepts and vocabulary of the day, before class. Using the resources that work best for you, make a note of the key concepts you expect to hear the professor talk about. By anticipating the key vocabulary of the day, you will be able to listen better when the professor talks about it. Essentially, you are “priming” yourself to listen to what is important and to learn.

Obviously, the assigned reading is the most important source to consult. But keep in mind that the reading will often be extremely detailed or may illustrate the opposite of what the professor ends up emphasizing. Thus you may want to consult a study guide alongside the reading. The casebook’s table of contents is also an invaluable guide to key words and the course’s overall structure.

(Priming works in other ways you may want to think about as well. If your classmate always complains “Professor X really hides the ball,” then that comment may prime your brain to think class will be confusing. Or it may help you calm down and listen by accepting you’re not the only one who feels confused.)

2. Think about how you are going to take notes.

A lot of people were talking this summer about how taking notes by hand is better than taking notes on a laptops. You should weigh the pros and cons and decide for yourself. Criteria you might want to consider include:

  • What helps you focus on class?
  • What helps you recognize and write down important terms and concepts?
  • How do you show relationships among ideas?
  • What helps you differentiate what the professor says as a definitive statement versus a proposition to examine and perhaps destroy?
  • How will you record the main point of Socratic dialogue between the professor and the student?
  • What worked best for you in previous situations where you needed a mix of detailed and highly conceptual notes?
  • (This one is speculative for 1Ls who have never taken an exam, but still important to think about.) What will help you later when you need to review and consolidate the ideas of the class in studying for the final exam?

The notes themselves ultimately are the key evidence of that student’s listening, according to Moji Olaniyan, the Assistant Dean for the Academic Enhancement Program at the University of Wisconsin. Dean Olaniyan said that when she works with a law student on listening issues, the notes are the place she starts.

It bears noting here, law students should take advantage of offerings from academic support and enhancement programs. And seek personalized advice and help from academic support experts sooner rather than later if you have a concern about reading, listening, or other academic functions.

3. Consider a time-tested note-taking technique.

You don’t have to go to Cornell to use “the Cornell method” for taking notes. Lawyerist, a legal blog, recommended this method for lawyers. 

It has a lot to recommend it for law students as well:

  • It encourages organizing your notes by broad topics and important questions.
  • It creates a place for recording details.
  • It requires a summary for consolidating your knowledge after a listening event.

Whatever note-taking platform and technique you use, these three goals — (1) broad topics; (2) details; (3) summary — are an excellent way to think about how to take notes  in a law-school classroom.

Once you get comfortable with basic note-taking in the law school classroom, consider supplementing with more nuanced approaches. One example is what I call the #ProfessorSays method, which means marking particular points the professor went out of the way to emphasize by labeling them “Professor Says: . . . ” or something similar. Then you can go back to the notes and refresh your memory on what the professor really focused on.

4. Consolidate your knowledge.

After class, take a few minutes to reflect on “what just happened?”  Write down the main points you heard. Write down questions and words to look up. Can you think of hypothetical fact patterns that relate to what was just discussed? Return to the reading and highlight any key passages discussed, if it wasn’t already highlighted.  A more organized approach is the “minute paper” method.

Keep in mind also that writing more notes and summaries after class could be a form of busy work you assign to yourself. The entire purpose of this step is to help your brain learn. If you feel like you’re writing and writing but not sure what exactly what all that writing is doing, try something different. Perhaps explain to a study partner — out loud, and without looking at your notes — “what just happened.” (Listen to yourself: can you actually explain it, or at least explain what it is you need to explain?)

However you do it, try after each class to consolidate what you just learned. Even knowing what you are still confused about is a valuable form of knowledge.

5. Compare notes.

Many students find study groups invaluable; others, not so much. They have benefits but aren’t a panacea, as this pragmatic post from Lee Burgess at Law School Toolbox points out. If you are a more social learner, consider literally comparing notes with a classmate. Ultimately, your listening, reflected in your knowledge and your note-taking, should help you learn and prepare for exams. But looking at how someone else does it may help you to adjust your own method to what best suits your needs.

6. Don’t forget other kinds of listening.

Sitting in a law school classroom, taking in the professor’s brilliance and making your own brilliant inner model of the law is, at its best, really great.

But that’s not what lawyers do every day. They work in small groups or one-on-one with people. They interview clients and negotiate with other parties and depose hostile witnesses. They listen to emotional situations and get lied to and hear their own inner voices reacting to whatever they are hearing from the people around them.

As a brand-new law student, you may or may not have the opportunity to model this kind of listening. If you do, count yourself lucky. If you do not, keep in mind that even the most powerful, effective, excellent listening in the 1L classroom is not in itself sufficient to make a great lawyer. Highly analytical listening is just one skill that lawyers need. Many incoming law students will find this thought consoling.

Thanks to Professor Anne Ralph of Ohio State’s Moritz College of Law for prompting this post. 

“Listening” to the legal job market

“Listening” on social media is not really listening (which requires spoken or nonverbal input) — but it’s an essential skill for lawyers and law students nonetheless.

Practicing lawyers can use social media to understand more about their clients and competition, as legal marketing and social media expert Nancy Myrland discusses here. Listening to social media is valuable to legal scholars as well; Professor Randy Picker of the University of Chicago uses Twitter in part as a “listening medium” and “curated news feed” on topics of interest. Along with several practicing lawyers, Picker describes his experiences with social media in this informative panel discussion on “Social Media and Your Law Practice,” sponsored by the ABA Antitrust Division.

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Courtesy Flickr/bspusf

And law students seeking jobs can listen on social media for a variety of reasons:

  • to better understand a practice area
  • to prepare for interviews by learning about potential employers
  • to explore opportunities for contributing to a potential employer’s social-media presence

Listening to the hot topics and background language in a practice area

Listening to social media can build your knowledge base about the field you’re interested in. For anyone — job seeker or not — social media is a fantastic resource for identifying emerging and recurring legal issues. Emory Law School 3L Anna Saraie uses law firm blogs to learn more about the area she hopes to practice in, labor and employment: “I have bookmarked several blogs run by firms that specialize in labor and employment. The information on these blogs came in handy especially during my interviews because it allowed me to engage in interesting conversations about current issues in the field.”

Social media provides a window not just into “hot topics,” but on a subtler level, into the way experts think and talk in a particular field. The kind of vocabulary and conversational patterns you use in a law school classroom are sometimes not the same as the vocabulary and conversational patterns in a lawyer’s day-to-day life. While social media is not a replacement for real conversation (at least we hope not), it can provide helpful background in hot topics, baseline knowledge, and the specialized vocabulary in a field of law.

Preparing for interviews and networking

Social media can also educate about individual firms. A law student interested in a real-estate firm, for example, could learn more about whether the firm generally represents developers or lenders. A student interested in patent law could understand whether the firm’s practice leans toward a scientific or engineering specialty.

Recent Virginia Law graduate Michelle Carmon used social media extensively in her job search, including studying law offices’ blog comments and retweets. Carmon also used LinkedIn to search for personal connections: “When an interviewer has a public LinkedIn profile, it can provide valuable information that you can use to help establish a connection during the interview. It’s helpful to know in advance if you and an interviewer went to the same college or share an interest in a particular practice area.”

Some of this advice may sound obvious, but it also addresses perennial complaints by employers about receiving overly general and uninformed cover letters, or networking requests indicating a lack of preparation.

Listen for what they’re not saying

If you are trying to listen to what a firm is saying on social media but hearing only crickets, you may have an opportunity right there: If you are interested in working for a firm or lawyer who has no social media presence, your own social media skills could be an asset to that employer.

Legal job applicants with a careful, skillful social media presence may distinguish themselves in the job hunt, as Happy Go Legal points out. New lawyers can contribute content as well as broader policies for maintaining an ethical, effective social media presence. “Lawyers unfamiliar with the tools should enlist new associates fresh out of law school to provide practical tutorials—they’ve always swum in this sea, and naturally have a different mindset,” writes Jared Correia in the ABA’s Law Practice magazine.

Carefully craft your own social media presence

Whether you hope to help a lawyer with maintaining social media or simply want a job practicing law, it is important to have an effective social media presence in your own right. This means actually having a “presence.” At this point, we (the legal industry) should be past the era of trying to shut down all signs of social media life. For example with so many lawyers and law firms on LinkedIn, signing up is a “no brainer.” (This quote is from Kevin O’Keefe, one of the web’s biggest proponents of — well, just read his blog title: Real Lawyers Have Blogs.)

Using social media is valuable, but should be just one part of a mix of job-seeking efforts. Effectively listening to social media could lead to opportunities in real life — where a different kind of effective listening can make all the difference.

Not thinking like a lawyer

I went to meet the listening professors (Debra Worthington and Margaret Fitch-Hauser) expecting deep theory. And they did give some, using words like “psychometric” and reflecting on the history of the listening field.

Debra Worthington, Jennifer Romig, and Margaret Fitch-Hauser

Debra Worthington, Jennifer Romig, and Margaret Fitch-Hauser

But their practical work in trial consulting was where our experiences and vocabularies overlapped a lot more, and where our most interesting conversations took place. Professor Worthington worked for 15 years in courtroom communications before she delved more deeply into listening theory and research. Professor Fitch-Hauser, now celebrating her retirement from Auburn, also works as a consultant and is the person who drew Worthington into the listening field. Their work together culminated in the listening textbook Listening: Processes, Functions and Competency.

The combination of their theoretical strength with their practical experience in the legal field made me doubly grateful for the opportunity to meet and talk with them over a long lunch in Auburn.

Worthington recounted her work with a difficult witness whose arrogance had damaged his case, both on the substance and his refusal to heed his lawyers’ guidance on demeanor. Worthington studied his testimony to understand his view of the case. She talked with him to find out what “really made him tick.” And then she used his underlying motivation to explain the case to him in a different way, and to motivate him to adopt good witness practices not because his lawyers told him too but for his own reasons as well.

As I thought about this anecdote, I became even more intrigued with the role trial consultants may play as listeners. For example, intuition may affect one’s listening. A lawyer’s intuition on dealing with a horrible witness may overlap — but not completely — with a trial consultant’s own intuition. And thus the lawyer and trial consultant would bring complementary methods to the table not just in generating themes and telling the story, but in listening to the people who in turn will be listened to by the jury.

Along these lines, Worthington shared that at an early juncture in her career, after she had already been working in legal communications, she considered whether to continue with graduate education or go to law school. Her mentor advised the former. “Debra,” he said, “your greatest strength is that you don’t think like a lawyer.”

Fitch-Hauser echoed the value of stepping outside the lawyer’s perspective: “It is crucial for attorneys not to expect the client to think as they think, and to make adjustments, and to not expect the jury to think as they think. They need to adjust their strategy and the way they tell their story to meet the jury’s needs.”

Both Worthington and Fitch-Hauser have been interested in questions about how listening intersects with personality, and how listening can be measured. One question I wanted to ask both of them relates to measurement and self-assessment: “How can an attorney know if he or she is a bad listener?”

Fitch-Hauser jumped to take this question:

There are some things anyone — attorney, or any other profession — can do, if they are willing to be objective. Ask yourself: When someone asks a question, do you always know the answer before the answer is given? If your own answer is yes, you may be listening to yourself rather than the other person. This is “selective listening,” which by one definition means “listening for the information that reinforces your own attitudes, ideas, and feelings.”

Worthington added the terms “assimiliation” and “constrasting” to the discussion at this point. Assimilation means taking in information that fits your pre-existing beliefs. Essentially, if you believe someone is similar to you, then you may perceive information from that person as closer to your existing beliefs than it really is. And the opposite is contrasting. If you go into a situation thinking someone has different beliefs, you may tend to perceive that person’s information as more different from your own beliefs than it really is. (Assimilation and contrasting seem generally related to the cognitive phenomenon of confirmation bias. Some general thoughts on listening and various cognitive biases including confirmation bias have been explored on Listen Like a Lawyer here and here and here.)

Fitch-Hauser embodies thoughtful listening in her own conversational style, and reinforced that with some advice: “Don’t be afraid to use silence.” Sometimes clients come to lawyers with a “story” that may or may not match the facts. By talking with them and learning how they feel about the case, and at times remaining silent, an attorney can find out more about the real story behind what the client presents as the “official story.”

Worthington and Fitch-Hauser also touched on the power of nonverbal communication as an aspect of listening. “Look at the client as the client is talking,” Fitch-Hauser advised. “You can hear the pause and see them glance away. And then you can say, ‘It seems like there’s something else you want to add.'”

Ultimately, being a bad listener is somewhat part of the human condition, Worthington said. We all have moments of effective and ineffective listening. Lawyers, and anyone else who cares about communication, can seek an honest self-assessment of when they listen well and not so well. By keeping a communications journal, lawyers can start to recognize the situations when their listening is strong and weak. Reinforcing a theme from their textbook, Worthington noted that the answer to good listening versus bad often lies in the motivation to listen. “Motivation is finding some reason inside ourselves to expend the energy and get in there and listen.”

Fitch-Hauser sharpened the edge a bit: “Pretending to listen isn’t listening. Many people go through the motions. They put on the face, they lean forward, they nod, and they turn on a light. But they truly need to be home.”

Listening to the listening professors

This week I am excited for the opportunity to meet with two big names in the listening field, Debra L. Worthington and Margaret Fitch-Hauser. They are communication professors at Auburn University and, among many other papers, are co-authors of a 2012 textbook, Listening: Processes, Functions, and Competency.

0132288540Professor Worthington has studied persuasion and juror decision-making and, more broadly, the effects of different listening styles. One of her papers addresses whether verbal aggression corresponds with any particular listening style. Not surprisingly. verbal aggression is inversely correlated with a people-focused listening style. But it’s not strongly correlated with the other classic listening styles:

  • action listening (tendency to focus on errors and inconsistencies in a message, and how it relates to a task)
  • content listening (tendency to focus on claims and support)
  • time listening (tendency to focus on how much time a communication event takes, and to prefer hurried interactions)

(These listening styles were first identified by listening scholars Kittie Watson, Larry Barker, and James Weaver and have been explored in a variety of papers. How lawyers may use these different listening styles is an interesting topic for future blog posts.)

Professor Fitch-Hauser studies listening fidelity and other measures of listening. Listening fidelity is a useful concept for any professional: when a listener listens to a speaker/source, how similar are their perceptions of the “communication event” they both experienced? Listening fidelity means their perceptions are more congruent. Her work also has touched on listening styles and personality, such as her paper with Stephanie Lee Sargent and James B. Weaver III on “A Listening Styles Profile of the Type A Personality.”

In their textbook, Worthington and Fitch-Hauser survey the listening literature and acknowledge the difficulties of studying listening. It is so difficult to study because it is inherently a “hypothetical construct, something you know exists but you can’t physically see.” Models of listening provide insight into what is really happening in this hypothetical construct. Thus listening models help with identifying where listening success and failure may occur.

The Worthington Fitch-Hauser model of listening is “MATERRS”:

  • Mental stimulus – intentionally attending to a noise or stimulus
  • Awareness – beginning the mental sorting process, which can be adversely impacted by a high cognitive load such as multitasking
  • Translation – processing the message rationally, emotionally, or both
  • Evaluation – using existing frameworks for understanding to connect the message to one’s existing knowledge
  • Recall – storing the message in working memory and possibly long-term memory as well
  • Response – deciding how to respond
  • Staying connected & motivated – building relationships, evaluating and perhaps changing one’s own frameworks for understanding future listening events, maintaining motivation to listen, and challenging one’s own personal biases

The last aspect of the WFH listening model — staying connected and motivated — was particularly interesting to me. It represents listening as not just a one-time event but an overall life competency. That’s just one of many reasons I am excited to meet and learn from Professors Worthington and Fitch-Hauser.