Soft rock didn’t work

It’s that time of year when I spend hour upon hour upon hour reading and commenting on law students’ draft briefs. To do this, it’s necessary to have a personal “culture of commenting.”

I’m borrowing that phrase from a wonderful writing book, Hilton Obenzinger’s How We Write: The Varieties of Writing Experiences (2015). In the chapter on writing “costumes, cultures, rituals, metabolisms, and places,” he shares delightful stories from a variety of writers on how they create their own personal “culture of writing.”

He credits historian Mary Lou Roberts for the phrase. And Roberts’s own culture of writing apparently includes listening to soft rock. Here’s Obenzinger sharing his interview with Roberts:

[I]t comes as “a shock to some of my students” that she listens to a radio station that features “really bad soft rock.” The fact is that she is no fan of soft rock, but “I can’t listen to good music, because I get distracted.” She can listen to good music when she does something tedious and somewhat mindless, like footnotes; but when writing original material, she needs to be irritated by music that bothers her. “I find as a writer I am best off when I am a little bit distracted. Because if I get too focused, I get stuck; I am thinking too hard about it. I need to either go away from it and come back, which works really well, or I need to be slightly distracted. So the soft rock station “is perfect because the music is listenable at a certain level, but I’m not totally distracted by it.”

Well, I tried it. It may create a culture of writing for one person, but it did not create a culture of commenting for this person. “If You’re Gone” by Matchbox Twenty and its ilk on Pandora Soft Rocks channel did not help me find my grove. Too many words conflicting with the words in my head of what I’m reading and what I might like to share with the student as a comment. My students do not need to hear any voices inspired by Rob Thomas. (“I wonder what it’s like to be the rainmaker” just does not work; legal writing is about the stuff you have to do before making the rain. And “little yellow tags” aren’t really involved in the paperless Real World as much as they used to be.)

I’ve tried the Ambient Radio channel as well, but it just reminds me of the movie Gladiator, which doesn’t help either. The songs are “Elysium” and “Now we are free.” For me to create a culture of commenting, plow through the work, and be free, ambient music turned out to be a fail as well. I do put on the giant ugly headphones from time to time. But I listen to . . . nothing.

 

 

 

 

Lawyers as heroes

Some clients are heroes—or plausibly can be portrayed as heroes in legal briefs. The lawyers remain in the background, telling the story without inserting themselves into it.

Another type of legal writing I study and teach is legal blogging. What I’ve noticed in reading lots and lots of legal blogs is that some lawyers portray themselves as heroes. More than scattering in a few personal pronouns for personal interest, sometimes I see lawyers telling a story with themselves as protagonist, fighting a particular battle or war for years.

This type of blogging narrative tends to crop up in areas where the lawyer represents individuals against the government or large well-organized business sectors. Two areas that come immediately to mind are criminal defense and immigration.

My practice background was in commercial litigation and intellectual property. It was certainly nice to help clients solve problems and navigate disputes. I did help small businesses fend off David-v-Goliath-like situations. I did work with people who cared very much about what happened to them. But at the end of the day, it was business litigation. All of these clients had other things they could do if their very worst outcome happened in whatever lawsuit they faced.

That background made it hard for me to truly get it when lawyers blogged as though they were heroes in an epic struggle. It seemed like there was a lot more lawyer than client in some of these blogs. Why is their own battle and their own story so important that they could explicitly put themselves at the center of it? I suspected a power imbalance, letting the lawyer subordinate the client’s story to the lawyer’s. I suspected ego.

The events of this weekend with the Executive Order on immigration helped me understand.

Lawyers swarmed the airports with their laptops, drafting habeas motions:

Stories of the clients were told, but only those we could actually see:

Many were literally locked in the so-called green room at Customs. Unable to communicate. Prevented from seeing a lawyer. Prevented from knowing that lawyers were outside trying to represent them. Told that the person to talk to about what was happening was President T.

The lawyers doing the work didn’t stop and tweet #habeasselfie or whatever. But someone took their picture. They were portrayed on Twitter and elsewhere as heroes.

And that helped me understand how such a lawyer would, eventually, in reflecting on their work, naturally tell a story in which they are the hero.

The clients are certainly heroic and bear the real burden of all of this. But they’re locked away and unseen, perhaps un-seeable. The lawyer works basically alone. (Maybe lawyers got such a reputation boost from this weekend not only because of the actual exigency and work, but because the photos showed them working so openly in teams bound by ethics and purpose.)

If the lawyer’s work is successful, the client emerges from the maws of the state. At that point, the client resumes their own heroic journey. But the lawyer has a story to tell too.

With this weekend’s airport images of lawyers at their laptops, holding signs offering legal help, and standing up to agents claiming “orders” prevented lawyers from seeing detainees, we got a glimpse of how a lawyer’s day-to-day experience may lead to a heroic narrative—and how that narrative can in fact be justified.

For more on telling the client’s story as a heroic journey, see Ruth Anne Robbins, Harry Potter, Ruby Slippers, and Merlin: Telling the Client’s Story Using the Characters and Paradigm of the Archetypal Hero’s Journey (Seattle U. L. Rev. 2006).

Listening to punctuation

Thanks to Julie Schrager, counsel and legal writing coach at Schiff Hardin, for this guest post. 

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I have been desperately trying to find a way to write about exclamation points. I grew up in a time when they were reserved for exclamations:

“Congratulations on winning that game!”

or

“That’s the reason he got that promotion!”

Lynne Truss, the author of Eats, Shoots, and Leaves, calls those uses the “Yes!”  and “Ah!” meanings of exclamation points.

And I was taught—starting in high school, then in college, law school, and in my first 20+ years of legal practice—that exclamation points had no role in business communications. Nothing we wrote was considered exciting or emotional, and exclamation points were viewed as showing too much emotion.

My teachers were in good company in disliking the exclamation point.  Fiction writers for centuries had condemned the use of exclamation points in fiction-writing. Both Mark Twain and F. Scott Fitzgerald are credited with saying that using an exclamation point is like laughing at your own joke.

But then I started sending and receiving texts. The old exclamation point rules didn’t apply there. And now I would say the rules—at least for certain legal correspondence—have changed.

This blog is about listening like a lawyer. Lawyers listen to things judges, clients, and other lawyers say out loud. But they also “listen” to writing:  opinions from judges, emails from opposing counsel and clients, and notes from colleagues. Some people read written communications out loud, but even if we don’t, we read and “hear” them in our head.

And I don’t “hear” exclamation points as exclamations anymore. I’ve started to listen to what I read from law students and new law grads and my college-age daughter. I’ve learned that exclamation points don’t say “Yes!” or “Ah!” anymore. Instead, they say, “I hear you” or “I’m not angry” or “We are in this together” or “Our relationship is on solid ground.”

Let me explain. My job involves regular email correspondence with associates at my law firm. It’s a unique position. I work as Schiff Hardin’s legal writing coach and read and comment on written work—memos, briefs, articles, web content, blog posts, and anything else summer associates or associates write. My interactions are almost exclusively with people under 35, and most are with people between 25 and 30. Sometimes associates reach out to me to ask me to review a piece of work—and sometimes I reach out to them.

This is how it goes: at the start of every week, I send around an email to all of the associates at the firm reminding them of my existence and asking if anyone would like to work together during the week. I ask them to fight against the idea that they should be able to figure out their jobs by themselves and do not need to ask anyone for help. I ask that they embrace a “growth mindset,” which holds that abilities are not fixed in space but can be developed with perseverance and hard work.

Exclamation points play an important role in our correspondence. They help young associates and summer associates win the fight against going it alone. Sometimes I’ll get a return email letting me know that the associate is writing a blog post and would like to send it my way. Often the email either starts with “Hi Julie!” or ends with “Thanks in advance!” The message is clear:  I am putting myself out there and am interested in working together.

Listening like a lawyer means matching the tone of the person speaking to you. So I respond with exclamation points of my own: “Thanks for reaching out!” or “Sounds good!” or “My pleasure!”

And I submit that the exclamation point has a new meaning and a legitimate role in business correspondence.

Future trial lawyers, take heart

Listen Like a Lawyer will be delving into communication and writing in the next few posts. One reason this blog is generally dedicated to listening is that there are already many excellent legal-writing blogs available for the legal community. (For example: Forma Legalis, Lady Legal Writer, Law Prose, Legible,  and Ziff Blog, just to cite a few.) The writing-related posts here will connect to broad communication themes such as voice, empathy, and the relationship between senior and junior lawyers emerging from a lot of writing and talking as well as reading and listening.

Law professor Philip N. Meyer once did an unusual thing: he spent thirteen weeks observing a federal jury trial on a daily basis. Day after day throughout an entire summer, Meyer sat as a watcher and listener, taking in the spectacle of the trial and everything it entailed—from the painful moments to the surprisingly lighthearted. Leaving court late at night, he spied the lead defense lawyer sitting alone in a car in a remote parking lot with the windows rolled up, practicing his closing argument. This experience is just one of many inspirations for his book Storytelling for Lawyers (Oxford 2014).

Storytelling for Lawyers has neither a chapter on listening nor an index entry on listening. The book is about talking and writing—in other words, producing—narratives, much more than listening as such.  But Meyer mentions listening on page 2, talking about his work as a trial lawyer:

I learned to watch and listen to how my audience listened to me, and I would respond to their concerns, reshaping my stories to fit the shape of their imagining.

The book is about crafting stories that will resonate with audiences, whether at trial or in motions practice. So I recommend it.

But now let me get to the point of this post and why I titled it “Future trial lawyers, take heart.” Meyer teaches a variety of classes including doctrinal classes in criminal law and torts. In his chapter on voice and style, he begins with a reflection on what it’s like to grade law-school examinations:

As I grade these examinations, as best I can articulate it, the singular difference between the mediocre examination answers (C and below) and the middling to good examination answers (B-range grade) is primarily in the “substance”—whether students can identify the relevant issues and accurately articulate the relevant legal rules necessary to analyze the problem.

The distinction between the B exams and the A exams is, however, primarily in the “voice” and “style” of presentation. Voice and style, however, mean something much different in the context of law school examination taking than in the artful trial and appellate narratives that litigation attorneys construct in a factually far more complex and indeterminate world. (This, I think, speaks to why excellent litigation attorneys were often poor law school test takers.)

Meyer goes on to explain that the voice and style of top law school examinations “clamp[] down” on the facts, use clean organization, and employ the King’s English.  The student’s voice must be neutral and must not call attention to itself. “A” exams certainly don’t use colloquialism or humor. And they don’t explore the story embedded within the exam hypothetical in any depth. Meyer quotes a former student describing the events in an exam as “floating factoids.”

This is just one professor’s reflection on his experience grading exams, and he prefaces all of this by saying he grades holistically rather than with a detailed objective checklist. Still, it’s refreshingly transparent and I think every law student should read this—especially those just receiving their first round of law-school grades.

Law students who want to get into the courtroom and try cases may be disappointed that the skills distinguishing great trial lawyers maybe aren’t really tested in this (very popular and prevalent) type of law-school exam. That disconnect is the subject of discussion, critique, and reform, and more discussion, critique, and reform. The positive side here is that Meyer’s reflection invites law students to understand their grades as only loosely related (if there is much of any relationship) to how they might expect to perform in court.

Meyer’s reflection on the emasculated role of facts in many law school exams reminded me of an attorney’s recent #PracticeTuesday tweet. Bryan Gividen was responding to a call to bust law students’ myths of what it means to be a lawyer:

 

Working with the facts, crafting the story, developing a voice, testing whether the voice and the story resonate with an audience, all of these tasks are deeply connected with what it means to be a trial lawyer. The best appellate lawyers experiment with all of these things as well, but there are limits: the idea of “clamping down on the facts” by rigorously adhering to the record, and controlling one’s voice for the genre of the appellate brief and the audience of the appellate panel. Gividen draws this line when he identifies competitive appellate work as an exception to “practicing the facts.”

Any law student or lawyer who wants to develop their skills practicing the facts should benefit from studying Storytelling for Lawyers. Meyers concludes the book with a reflection on why law stories are different from stories told by journalists, filmmakers, and artists:

A final characteristic of law stories, especially the stories told in litigation practice, is that these stories are typically open or unfinished stories—their endings are strongly implied but not ordered or prescribed. It is up to a decision maker to write the ending, provide the closure and the coda that gives the story its meaning, and determine the outcome.

Legal storytelling has a rich literature, and anyone intrigued by this brief exploration of Meyer’s book would enjoy delving into the legal storytelling/applied legal storytelling scholarship. One gem is  Ruth Anne Robbins’ Harry Potter, Ruby Slippers, and Merlin: Telling the Client’s Story Using the Characters and Paradigm of the Archetypal Hero’s Journey, 29 Seattle L. Rev. 767 (2006). She argues that the client should not look to the judge as the hero and savior; the client should show how they are traversing a series of challenges and need the judge’s help in a mentoring role. The client is the real hero, a flawed hero but a hero nonetheless, seeking to carry on with their larger, bigger, more meaningful challenge. So the judge is not supposed to save the client; the client can save themself if they can just get through this lawsuit and carry on with their larger quest. Thus the opposing party is not the true antagonist but merely a “threshold guardian” impeding the client’s real quest.

Law students can take heart in this advice as well, in understanding their own personal story and quest. Law-school exams are basically a “threshold guardian.” They are a gatekeeping challenge the law student must face in the larger quest for something more meaningful.

 

 

 

New semester, better listening skills

For law students starting a new semester, here is a roundup of past Listen Like a Lawyer posts that may be helpful:

Listening at your externship

Listening to children (if you work in a children’s clinic)

Preparing for a negotiations class

A technique for taking notes

Organizing guest-speaker appearances for a law-school organization

There is no evidence to support distinct “learning styles”

Working in groups and balancing introverts and extroverts

Laptops in class

Observing your first oral argument

Next steps in oral-argument preparation (trying some improvisation)

 

 

 

Silence and group work in legal education

I wasn’t able to attend the AALS (Association of American Law Schools) meeting this year—an annual gathering of thousands of law professors. As a sort of substitute, I’ve been saving an article to read from the Journal of Legal Education, the AALS’s journal on legal education, the legal profession, legal theory, and legal scholarship.

The article is A. Rachel Camp, Creating Space for Silence in Law School Collaborations (volume 65, 2016). Professor Camp co-directs the Domestic Violence Clinic at Georgetown. Here’s an informal outline of the article:

  • the importance of collaboration to lawyers
  • the relative dearth of collaborations and (especially) thoughtfully managed collaborations in legal education
  • the problems students experience with an overly individualistic and competitive culture in law school
  • countervailing forces encouraging more collaborative work in law school
  • the difficulty of collaboration in a somewhat dichotomous world of introverts and extroverts
  • why a seemingly easy solution for collaborative work—brainstorming—produces surprisingly bad results
  • several teaching methods for effective collaboration and group work, avoiding the weakness of brainstorming and capitalizing on ideas from both extroverts and introverts
  • a clinical model of thoughtful collaboration in the Domestic Violence Clinic

Collaboration is intertwined with the skill of listening, which is what drew me to this article. And it turns out that listening can actually be part of the problem with group work as it is often practiced.

For the following scenarios (thought up by me and inspired by the article), assume the following: Professor X has just told the class, “Break into groups of three and critique this draft paragraph. Then come back to share your group’s suggested improvements.”

Scenario 1: 

Student A, B, and C start reading the paragraph. Student A reads quickly and begins to share critique before B and C have looked up from the paragraph. All three eventually share some thoughts. When it’s time to pick a group speaker, Students B and C defer to A, who paraphrases the ideas that A previously stated.

Scenario 2:

Students A, B, and C start reading the paragraph. Students A and B begin to bounce ideas off one another. Student C does not attempt to speak. When it’s time to pick a group leader, A and B decide that B can speak for the group and ask C if C is okay with that. C nods.

Scenario 3:

Students A, B, and C start reading the paragraph. Student A suggests that all three of them brainstorm as many ideas as they can, not criticizing anyone else’s idea but just adding. The group quickly agrees to this method, and Student C goes first. Students A and B then add a few follow-up ideas. When it’s time to pick a group leader, B agrees to sum up their ideas.

So which of these scenarios left students feeling the most satisfied with their brainstorming? In order from most to least satisfied, it would go like this:

Scenario 3

Scenario 2

Scenario 1

And which of these scenarios created the best ideas? In order from best to worst ideas, it would go more like this:

Scenario 1 or 2

Scenario 2 or 1

Scenario 3

Why is this? Classic brainstorming feels satisfying but produces the worst ideas. That can’t be. Actually, Camp’s article reviews the surprising results of research:

[N]early all studies have found that group brainstorming leads to lower productivity when compared with the combined productivity of . . .  individuals brainstorming in isolation.

Group brainstorming is ineffective for several reasons suggested by the scenarios above, both in the experience it creates and the results it delivers. Not that Scenario 1 or 2 above is much better. In Scenario 1, Student A might have had the best ideas but would be unlikely to get another invitation to work with Students B and C. And in Scenario 2, Student C may have had the best idea of all, but never spoke to share it.

Differences in personality and communication styles are at the core of many group problems, particularly differences in extroverts and introverts. These differences may cause conflict and even resentment of domineering group members and others considered “social loafers.” In fact, dominant group members may be working in their preferred style, and “loafers” may need time to process.

Thus the interpersonal dynamics in a group can lead to worse results from that group. The biggest weakness is “production blocking,” which means that some ideas are never generated at all or are generated but then lost:

The idea is forgotten and/or replaced while a group member is listening to others, waiting her turn to speak. . . . Listening to ideas shared by others may be distracting and interfere with the member’s independent thinking [or] determining that his idea is not relevant or original . . . .

More subtly, a person waiting her turn to speak may delay fully forming her idea until her turn arrives, by which time the idea may not be as good.

Listening contributes to another problem as well, “pluralistic ignorance.” This happens when “a vocal minority expresses an opinion or idea and the majority group members fail to speak up based on an overestimation of support for that opinion by the other group members.” Basically, someone listens to another opinion, overestimates its support, and therefore does not engage in further constructive discussion.

Camp describes how this problem is related to the “illusion of transparency” (not really a listening problem, more of a speaking and writing problem). People labor under “an erroneous perception [they] are better communicators than they actually are.”  For example, a relatively introverted member of a group may speak up, but that person’s intentions may not in fact be clear to the rest of the group, causing further frustration.

So these are a lot of problems with misunderstandings and inefficiencies in brainstorming and other group work done in intuitive yet ineffective ways. What’s the remedy?

In the law-school classroom, part of the remedy is creating a space for silence.

Camp summarizes some teaching techniques that void early blocking of ideas, and bring out a wide variety of views. Law professors reading this blog post should consult section IV of her article for detailed teaching notes on “brainwriting,” “chalk talks” “the Nominal Group Technique” and alternative brainstorming by email. They will definitely bring out the quiet students and generate a plethora of thoughtful ideas and responses.

As I was reading these ideas, I was thinking they are great for the law-school environment, but there’s not a lot of intentional silence in groups in law-practice. An introvert won’t be assigned to do any brainwriting in a team when practicing law, ensuring that his or her ideas are formed and shared. Partners and supervisors do not carefully construct chalk talks to elicit broad participation from their teams. But even if these techniques don’t translate to practice at all, creating a more inclusive environment for both introverts and extroverts can improve the isolating effects of traditional Socratic and competitive legal education. Professor Heidi K. Brown is another leading voice in this area.

And Camp acknowledges the end goal of preparing future lawyers. She argues that law schools should be teaching collaboration itself as an essential lawyering skill. For example, Camp teaches an in-class seminar on collaboration. She treats it as a skill that can be learned just like fact investigation and client counseling. Camp recounts how this seminar helps students “move past the pervasive assumption—often based on their own past, negative experiences—that collaborative relationships simply ‘are what they are,’” and, if not going well, must simply be endured. Breaking through this assumption means giving tools for better communication. Students assigned as partners examine their communication styles and discuss the results; they also anticipate conflicts in the partnership and make plans ahead of time to anticipate challenges. These seem to me like pretty good practices for any team of professionals preparing to work together.

Collaboration is certainly not a recent phenomenon for some in legal education, particularly in clinical legal education. (Camp cites a 1993 by Sue Bryant as foundational: Sue Bryant, Collaboration in Law Practice: A Satisfying and Productive Process for a Diverse Profession, 17 Vt. L. Rev. 459 (1993)). And lots of people are doing lots of active work in this area. I’ve recently read and benefited from Anne Mullins, Team-Based Learning: Innovative Pedagogy in Legal Writing, 49 U.S.F. L. Rev. Forum 53 (2015). Camp points out that collaboration is not a mandatory part of any law school curriculum. But it’s now one of the options identified by the ABA for law schools to consider when implementing the ABA’s mandate to teach the “professional skills needed for competent and ethical participation as a member of the legal profession.”

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As further non-legal reading on the topic of effective teamwork at work, see Charles Duhigg, What Google Learned from Its Quest to Build the Perfect Team, New York Times (Feb. 25, 2016). I’ve heard of professors assigning this article to their collaborative teams, and I’ve encouraged some teams I work with to read it as well.

 

 

Is attention personal or professional?

A law professor’s New York Times op-ed, “Leave Your Laptops at the Door to My Classroom,” prompted lots of discussion on blogs and Twitter. Should law students be told and required to close their screens and (to the extent this is even possible) pay attention in class?  Or should they have the freedom to decide whether to engage in behavior that may (or may not) hurt their learning, disrespect classmates, and create a distraction?

I think a hard question here is this:

Is attention personal or professional?

 

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Flickr/UTC Library/CC by 2.0

 

If attention is personal, then the student should have the freedom to decide whether and how to use a laptop. It’s the culture of American education to wax nostalgic about daydreaming, note-writing, talking to one’s neighbor.  The teacher takes countermeasures, seizing notes and flashing the light switch on and off. But there’s something heroic about the student’s personal quest for autonomy and freedom to think and stage whisper about . . . whatever. And even more so in law school, which is a professional school for grownups who (opponents to Rosenblum’s position argue) should be able to make the decision when and how to pay attention, and when and how to take notes.

If attention is professional, then law professors have a better argument on laptops. What is a law school? I googled this question and came up with a law review conveniently titled the same, by Prof. Stephen Wizner of Yale. Granted it’s from 1989, but this still seems like a decent answer for today:

What is a law school? That is a question that ought to have a fairly straightforward answer: a law school is a professional school for the education and training of lawyers. If we know what lawyers do – or ought to do – we should be able to design a curriculum that will prepare law students to carry out that professional role in a competent, ethical, socially responsible manner.

Paying attention is part of being competent and ethical. And, I would argue, seeming to pay attention is also part of being competent—or at least part of being able to attract and retain jobs and clients. Judicial ethics rules officially sanction “the appearance of impropriety.” On a far more unofficial level and a far more pervasive scale, potential employers and clients sanction “the appearance of inattention.” They don’t give jobs to candidates who don’t seem to be listening and paying attention in an interview. They don’t return more work to an associate who doesn’t seem to be listening and paying attention when meeting with a partner. And they don’t give their legal business to lawyers and law firms who don’t seem to be listening and paying attention in a “dog and pony” show to demonstrate their desire and ability to take on a new case.

This connection of the law school classroom to what lawyers actually do is part of Professor Rosenblum’s argument for banning laptops:

Students need two skills to succeed as lawyers and as professionals: listening and communicating. We must listen with care, which requires patience, focus, eye contact and managing moments of ennui productively — perhaps by double-checking one’s notes instead of a friend’s latest Instagram. Multitasking and the mediation of screens kill empathy.

Likewise, we must communicate — in writing or in speech — with clarity and precision. The student who speaks in class learns to convey his or her points effectively because everyone else is listening. Classmates will respond with their accord or dissent. Lawyers can acquire hallmark precision only through repeated exercises of concentration. It does happen on occasion that a client loses millions of dollars over a misplaced comma or period.

The importance of these skills leads him to the following conclusion:

My students need to learn how to be lawyers and professionals. To succeed they must internalize an ethos of caution, care and respect. To instill these values and skills in my students, I have no choice but to limit laptop use in the classroom.

The reaction of the legal and broader education communities varied quite a bit, from cheers to jeers. Personally I haven’t banned laptops. I like being able to ask people to quickly look something up as part of their interaction with my writing class, and I share materials on my course site that students can download and take notes on. This is a writing class—not a pretrial lit class with interviewing skills—so listening and paying attention are an implied but not explicit part of the class goals. If I were teaching an interviewing class, listening and paying attention and not looking at a screen would be very open and transparent parts of the evaluation and grade. But I’m not, and neither is Prof. Rosenblum as best I can understand. (He mentions a stilted, unproductive discussion in his class on sexuality and the law as the catalyst for his decision to ban laptops.)

So one way to ask the question is, how much does a professor assume the responsibility of teaching and valuing soft skills relevant to students’ professional success? This is both a question of traditional professorial autonomy and preference (how much does each professor actually want to do so) and of institutional decisions (should soft skills be pervasively taught and modeled; or cabined within certain dedicated classes and domains)? For example, a career services adviser should certainly be giving a student feedback on focus and perceived attention level during a mock interview. And any student who gets distracted by a smartphone in the midst of interviewing a simulated client—or heaven forbid, a real client—should be given a bad grade.

It’s perhaps ironic for a listening blogger that my decision arguably diminishes the value of listening in my own classroom. I don’t think—I know—that paying attention and listening will help students get jobs, get better assignments, and get clients. And paying attention and listening will help them do their jobs, exceed expectations on individual assignments, and lead clients to want to give them more work. I guess I want them to have the freedom to take notes and encounter the world of information necessary for my class using their laptops—while also developing the mental agility and personal willpower to appropriately switch back and forth from computer use to personal listening. Those who can do this are more likely to thrive professionally, and those who cannot are more likely to . . . not thrive.

So there is no clean answer and thus no single approach. Attention is both personal and professional. How law professors teach and train new lawyers will continue to hover delicately over that line.

Kairos in 2017

Killing time has never been easier, with smartphone settings that feed constant data and the average smartphone user checking it 85 times a day. But what exactly is being killed? How do we describe these moments lost?

One of the first books I read for this blog introduced me to the concepts of chronos and kairos timing. The book was Talk and Social Theory: Ecologies of Speaking and Listening in Everyday Life by Frederick Erickson. Yes, it is an academic work, but with some charmingly concrete moments. Anyone who’s seen a gunner in a law-school classroom will understand a term coined by the conversational turn-taking analysts: “turn shark.”

Erickson also explored the concept of chronos and kairos timing in communication study. Chronos (or kronos) is basically clock or calendar time. Chronos time is measured in equal bits and sequenced perfectly and inexorably one after the other. In contrast kairos timing is about “the opportune time” or “the moment of opportunity.”

Kairos is important to conversation study because mutual timing is what allows people to make sense together in conversations. Kairos moments in conversations are those where the conversation shifts, someone begins to contribute, a person speaking notices someone else shifting their gaze and notices the need for a conversation pause, and so on. Because conversations aren’t defined by automated turn-taking and timed exchanges, communications scholars find multiple kairos moments in conversational analysis:

Kairos is the time of tactical appropriateness, of shifting priorities and objects of attention from one qualitatitvely differing moment to the next….It is a brief strip of right time, marked at its beginning and ending by turning points.

Or, more poetically:

In kairos time there are kinds of time that are apples and others that are oranges. There is a time when rain will fall from a cloud, a time to attack the enemy in battle, a time to negotiate a truce, a point that is qualitatively different in time from the time in kronos just before.

Kairos can be a blessing or a weapon, according to Erickson, who summarizes meticulous moment-by-moment studies of various conversational settings, finding kairos moments of opportunity and of subtle and not-so-subtle power exchanges. A teacher tries to manage a group of students where a shy student continually loses her turn to a “turn shark” who incessantly interrupts. A medical intern and senior supervisor talk about an overdosed patient, with the supervisor offers a smile while implying the intern (who is African-American) might know something about buying illegal drugs. Using “hyperformality,” the intern refocuses the conversation with clinical language about the patient. These conversational studies were done years ago in the era of gas shortages and the Vietnam draft, but connections to today’s topics of gender-based “manterruptions,” cultural competenceimplicit bias, and microaggressions cannot be missed.

And for those kairos moments that are not a weapon but a potential blessing, the fact is they can be squandered. In Reclaiming Conversation: The Power of Talk in a Digital Age, Sherry Turkle details the effects of smartphones on in-person conversations:

The mere presence of a phone signals that your attention is divided, even if you don’t intend it to be. It will limit the conversation in many ways: how you’ll listen, what will be discussed, the degree of connection you’ll feel.

Urban Dictionary now includes a definition of the common, meme-friendly phrase “Wait, what?”:

“[a] phrase used to back the conversation up when you realize you weren’t listening.”

(See Resolve to Use Your Device as a Tool—and to Resist Being Tooled by It, Jack Pringle’s guest post here last week.)

Kairos is a useful idea not just for individual conversations, but also for effective storytelling and understanding broader social situations. In his book Point Made: How to Write Like the Nation’s Top Advocates, legal writing expert Ross Guberman implicitly criticizes chronos timing as a storytelling method:

Few things are duller than a paragraph stuffed with dates.

Instead, he shares a variety of techniques for connecting factual details into a series of meaningful moments. Although not using the terms chronos and kairos, Guberman shows how to play upon a reader’s conception of kairos, in the sense of “the right moment.” His examples show how a fact statement can suggest that certain events happened too slowly or too quickly—or that they shouldn’t have happened at all.

Explicitly applying the kairos idea to advocacy and litigation strategy, Professor Linda Berger explored kairos in Creating Kairos at the Supreme Court: Shelby County, Citizens United, Hobby Lobby, and the Judicial Construction of Right Moments. Berger uses her deep knowledge of rhetorical theory to provide context:

Through their use of two words for time, chronos and kairos, the Greeks were able to view history as a grid of connected events spread across a landscape punctuated by hills and valleys. In chronos, the timekeeper-observer constructs a linear, measurable, quantitative accounting of what happened. In kairos, the participant-teller forms a more qualitative history by shaping individual moments into crises and turning points. From a rhetorical perspective, chronos is more closely allied with the narrative accounting for—how long? what next?—while kairos is the more metaphorical imagining as—at what point? in what space?

The end of any year is an opportunity to make a kairos moment—and the end of this particular year brings to mind thoughts of a crisis or turning point. Berger shows that kairos moments are not passively experienced as one watches a ticking stopwatch measuring off equal seconds and minutes. Kairos moments are sensed and recognized, but they are also shaped. In rhetorical terms, Berger tells us, “kairos presumes that the author will intervene in history’s causal chain.”

So it’s the end of a year. It’s the end of 2016 specifically. It’s a moment of kairos time, or at least it could be—personally, professionally, socially, politically. For 2017, I propose a resolution: let’s not kill time.

 

 

 

 

 

 

 

 

Resolve to Use Your Device as a Tool—and to Resist Being Tooled by It

2016-9-jack-pringle-croppedListen Like a Lawyer is grateful to share this post by Jack Pringle, a partner at Adams & Reese in Columbia, SC. Jack is a litigator, appellate advocate, and information technology attorney. He publishes on Medium and LinkedIn.

Introduction

It’s that time of year: reflection and some soul-searching about what to do differently when we turn over a new leaf on January 1st. Let me offer a modest proposal.

The New Body Part

Everyone reading this post has a smartphone. (Ok, Jared Correia does not have a smartphone, but the rest of you do). And chances are you are not going back to a flip phone, a bag phone, or a rotary dial phone hanging on the wall in your kitchen.

These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. — Chief Justice Roberts, Riley v. California.

And I know you have some legitimate uses for your device: very convenient to get things done at any time and wherever you are. Ridiculous amounts of computing power and broadband internet speeds and video and pictures and those GIF memes, emojis, etc., etc. I get it.

giphy

But I am pretty sure that none of us planned to be on our devices constantly, at least not in the way we actually use them. Be honest: when you are on your smartphone, how often are you doing productive things? And how often are you doing “unproductive” things intentionally?

I am not being a scold here. No one enjoys playing as much as I do. The question is whether you decided to play, or whether your device just happened to be there and you started swiping and typing.

Are You Using the Device, or Is it Using You?

Bright, shiny devices that are so easily accessible and so full of bells and whistles tend to hijack self-control. And left to our own devices (thanks, I will be here all week), we are likely to create our own little Skinner Boxes—with games, social media sites, and constant checking of all our information streams—all the while not knowing that we’re doing it.

Your attention is being sought and used relentlessly by those doing business in the online world.

If you’re not paying for something, you’re not the customer; you’re the product being sold”. — Andrew Lewis.

Technology as a Servant, Not as a Master

And when computer tools are using us, we don’t get a chance to determine the ways in which we can use these technologies as part of our “extended mind”- allowing computers to perform tasks that free up our minds to do higher-level thinking. That higher-level thinking is what is going to enable work and workplaces to continue to evolve as automation advances.

In other words, if you are going to have your device as another appendage, then put it to work for you.

Train Your Mind-Try Meditation.

Headspace is just so easy to use. And you can use it anywhere. At anytime. Carving out those quiet moments may create the space for you to see the way your minds works, and how these technologies have commandeered your attention and created the idea that you are so “busy” all the time.

And I certainly am a proponent of getting quiet—whether through meditation, getting outside, exercising, or undertaking other pursuits—and away from devices altogether. But I don’t think it is an all-or-nothing proposition. The key is to have the space and frame of mind to discern what tools to use and when. And to realize who or what is being used.

Give Your Mind a Rest.

See above. In addition, stop keeping all these ideas in your head. Use Evernote or a similar program to memorialize and organize things for later use. If the device is going to be with you at all times, at least take advantage of that fact. As the late great Mitch Hedberg remarked:

I sit at my hotel at night, I think of something that’s funny, then I go get a pen and I write it down. Or if the pen’s too far away, I have to convince myself that what I thought of ain’t funny.

Free Up Your Attention

Quit complaining that you don’t have time unless you have gotten smarter about the way you use your time. Try Boxed. Or Amazon Prime. The idea is to use your time and attention up to do meaningful things. An afternoon of shopping and hauling things around is not meaningful in my world when there are available alternatives.

Feed Your Mind

There has never been a better time to learn new things. And these devices make myriad information sources available to you at any time. Below are just two examples.

Listen to Books. It has never been so easy to have great content literally at your fingertips. Consider a subscription to Audible, and listen while you drive, work out, walk, or otherwise have downtime. If you are looking for recommendations, click here.

Listen to Podcasts. See above. Long-form discussion. Topics directly related to your profession, interests, or entertainment choices. Always available. Pushed directly to your device. You don’t have to do anything but click and listen. Podcasts for lawyers? Click here.

Conclusion

The age of machines (artificial intelligence, machine learning, autonomous vehicles, the blockchain) is only just getting started. The changes in the way we live and work are going to be significant (and arguably have already been significant). In order for humans to figure out where we fit in, we have to have lots of attention and figure out where to spend (pay) it. That means understanding these tools—their benefits and risks—and making sure we use them wisely and effectively.

GIF courtesy of GIPHY via Huffington Post

See Andy McDonald, 11 Ways Smartphones Are Not Making Us Any Smarter, Huffington Post (March 24, 2014)

LLL’s articles of the year

Here’s a list of the best articles and blog posts Listen Like a Lawyer came across this year on listening, teamwork, and communication generally. The year 2016 has certainly been a challenging one for listening. And there have been quite a plethora of good articles. (Or is it “has been quite a plethora”? Never mind; this is not a legal writing blog.)

If you know of an excellent recent article or post that didn’t make this list, please let me know or recommend it in the comments.

 

Law-related

Jim Lovelace, Learning to Listen, ABA Law Practice Today

Eduardo Capalong, Client as Subject: Humanizing the Legal Curriculum, Clinical Law Review

Educating Tomorrow’s Lawyers, The Whole Lawyer and the Character Quotient (lead report from the Foundations for Practice survey)

Ann Sinsheimer & David Herring, Lawyers at Work: A Study of the Reading, Writing, and Communication Practices of Legal Professionals, Journal of the Legal Writing Institute

Michael Downey, A Customer Service Crash Course, National Law Journal 

Jen Reynolds, Two Quick Takes on Cohen: Open-Minded Listening, Indisputably Dispute Resolution Blog (reviewing Jonathan Cohen, Open-Minded Listening, Charlotte Law Review)

John Balestreire, Connect with your Colleagues in Person, Above the Law

The Lawyer Whisperer, The Degradation of Our Professional Environment . . . and How to Win It Back 

Pam Woldow & Doug Richardson, To Law Firms with Love: How to Fail at Collaboration in Four Acts, At the Intersection Blog

James Runde, Why Young Bankers, Lawyers, and Consultants Need Emotional Intelligence, Harvard Business Review Blog

General interest

Charles Duhigg, What Google Learned from Its Quest to Build the Perfect Team, New York Times

Southern Poverty Law Center, Speak Up: Responding to Everyday Bigotry

Harvard Program on Negotiation, Negotiation Tips: Listening Skills for Dealing with Difficult People 

Jonathan Mahler, I Muted the TV During the Debates. I Still Knew the Score., New York Times

Melissa Dahl, Empathy Is Nice, But It’s Not Exactly Necessary, New York Magazine

Rachel Feingtzieg, Before You Hit Send, Read This, Wall Street Journal; see also Rob Asghar, The Art of the Effective Business Email, Forbes

Jennifer Breheny Wallace, The Benefits of a Little Small Talk, Wall Street Journal

Kasia Wezowski, The Key to Negotiation is Reading People’s Faces, Harvard Business Review Blog

Jeff Haden, How to Be Truly Generous: 9 Things Genuinely Kind People Always Do, Medium 

Drake Baer, The Personality Trait that Leads to Having Friends that Don’t Look Like You, New York Magazine

Core Jr., How to Recognize a Great Client, Core 77

Francesca Gino, Research: We Drop People Who Give Us Negative Feedback, Harvard Business Review Blog