A Winning Approach to Negotiations: Self-Awareness, Flexibility, and Practice

lee-headshot-2-1Guest post by Katrina June Lee, Associate Clinical Professor, The Ohio State University Moritz College of Law

On September 21, the Moritz College of Law hosted the incomparable Marya Cody Kolman as its 2016 Lawrence Lecturer, named in honor of lawyer and law school educator James K. L. Lawrence (Moritz ‘65).

A Yale Law grad, Kolman is a long-time adjunct professor of negotiations and coach for The Ohio State University’s ABA mediation advocacy team. For more than 30 years, Kolman has helped train OSU law students to be, in her words, “high-quality ethical representatives.” Kolman’s full-time day job, since 1999, is Director of Mediation Services at Franklin County Domestic Relations Court in Columbus, Ohio.

In giving this year’s Lawrence Lecture, Kolman drew from her deep negotiations experience. The Lecture took place in the law school’s large auditorium and was attended by students, professors, and practitioners.

Kolman’s main theme for aspiring effective negotiators could be summed up as follows: reflect on and identify your own negotiating tendencies, build into your repertoire styles that do not come naturally to you, and practice so that you can adapt to any type of negotiating situation.

She started the lecture with a very telling story that revealed her main theme.  Over the years, as a coach for OSU’s ABA mediation advocacy student team, Kolman noticed that OSU’s team regularly beat teams that had practiced for months and months (sometimes years). Yes, OSU law students were (in Kolman’s words) “simply amazing” and benefited from education in an outstanding law school dispute resolution program. Still, Kolman wondered if there was something about their competition preparation that made OSU law students especially effective.

A winning approach

After some reflection and investigation, Kolman discovered that the OSU teams benefited from not being scripted and not being coached to follow a fixed protocol. Kolman learned that some law schools tried to script the roles for their students or require that they negotiate in a certain way. This approach to preparation differed significantly from Kolman’s approach.

Kolman described the OSU team approach, which emphasized self-awareness and flexibility. Coaches first watched the students and observed their negotiation styles. The coaches noted the students’ strengths and challenges as negotiators. They then helped the students build on their own style and be more effective negotiators using existing strengths. This approach proved to be much more effective than giving students a script or a fixed protocol on how to negotiate.

OSU team coaches had identified a winning approach. The approach focused on developing self-awareness about students’ “natural” negotiation styles and tendencies, and helping students build on their strengths and develop the ability to use other styles when situations called for them.

Raw talent is not enough. Be prepared.

Kolman emphasized that “raw talent” is not enough to be a successful negotiator. Lawyers need to learn about different styles and skills and practice them. Only through that exploration and practice can a lawyer learn what works best for him or her. Kolman coached the audience: Develop strengths and expand on them. Avoid “forcing yourself into a style that does not work for you.”

Even though everyone has negotiated before law school, whether at the grocery store or with family members at home, Kolman cautioned, lawyers should not enter negotiations without training, forethought, and preparation. As I tell my negotiations students, preparation is key.

When Kolman practiced law as a domestic relations attorney, she negotiated with opposing counsel on a daily basis, with 95 percent of cases settling before trial. Most opposing counsel were well-prepared, but some were not. Those who were not would come into the negotiation and start flipping through their files trying to figure out what was going on in the case. Not surprisingly, in those instances, Kolman was usually able to negotiate a very favorable settlement for her client.

Steps to effective negotiating

Kolman offered these steps for any law student or lawyer to become a better negotiator:

Analyze your personal negotiation style and preferences.

One place to start is the Thomas-Kilmann Conflict Mode instrument. For a price, a person can assess which conflict-handling modes he or she is overusing or underusing. The five conflict-handling modes are competing, accommodating, avoiding, compromising, and collaborating. Kolman noted that, without paying for the T-K Conflict Mode Instrument, you can still assess your conflict-mode tendencies through honest hard reflection.

“Think about what’s you” and work on styles that are “not you.”

Once a person has identified personal preferences and tendencies, Kolman urged audience members to “think about what’s you,” maximize your own tendencies, and work on other styles that may not come naturally. Bringing together the strengths of “natural tendencies” and an ability to use other styles as needed will help a lawyer become a well-rounded negotiator. For example, the lawyer who naturally tends to use an accommodating style will find it helpful to learn how to use a competing style so he or she can use it when needed.

Learn about different negotiation styles and practice.

Training and practice help build effective negotiation skills. Kolman commented that “the beauty of a negotiation class” is that “you can try things out.”

Always be willing to learn the interests of your client and the other party.

Kolman emphasized the importance of learning the interests of a client and the other side. This can help with problem-solving and collaborating to find a solution that all parties are happy with. In our negotiations courses at OSU Moritz College of Law, students learn skills that help with exploring interests, including active listening, asking helpful questions, and achieving an optimal balance of empathy and assertiveness in a negotiation.

Kolman encouraged all aspiring negotiators to work on being more self-aware about personal tendencies, understand that raw talent is usually not enough to be an effective negotiator, and to practice styles that do not come naturally.

After reading this post, consider what your personal style is in handling conflict, and try a different one.


Sources cited in the 2016 Lawrence Lecture (arranged alphabetically here):

Roger Fisher, William Ury & Bruce Patton, Getting to Yes, 2nd Ed. (Penguin Books 1991).

Gary Goodpaster, A Primer on Competitive Bargaining, 1996 J. Disp. Resol. 325.

Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA Law Review 754 (1984).

Robert H. Mnookin, et al., Beyond Winning: Negotiating to Create Value in Deals and Disputes (Belknap Press 2000).

Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style, 7 Harv. Negot. L. Rev. 143 (2002).

Richard Shell, Bargaining Styles and Negotiation, 17 Neg. J. 155 (2001).

Listen Like a Lawyer is grateful for this post by Katrina June Lee, Associate Clinical Professor and a member of the Dispute Resolution faculty at The Ohio State University Moritz College of Law, where she teaches Legal Negotiations and Settlements. Moritz’s DR program is No. 1 in the 2017 U.S. News & World Reports ranking of law school DR programs. Professor Lee notes her thanks to Marya Kolman for her insightful Lecture and for sharing her notes and slides for use as background for this post, and to Professor Ellen Deason for her review and comments on this post.


Best Practices for Law Schools and Student Organizations when Inviting Guest Speakers

This post is formatted as a draft policy on best practices for law schools and law-student organizations when they invite guests to speak to or interact with their law school community. This policy errs on the side of formality and specificity, attempting to spell out specific steps for inviting guests and planning events. Feedback is welcome, particularly from members of the bench and bar who may want to share their thoughts on having a good (or bad) experience guest-speaking at a law school.


The purpose of these best practices is to articulate norms of civility and courtesy for events sponsored by law schools and law-school student organizations in which guests—such as members of the bench and bar—are invited.

The norms are based on the idea of thoughtful reflection before planning an event, open communication while planning the event, respectful attention and engagement during the event, and appropriate expressions of gratitude after the event.

Observing these norms make the experience of hosting a guest more likely to be a positive experience for the guest. Observing these norms may also make the experience more meaningful for event attendees. Observing these norms may, in the broadest sense, encourage legal professionals to accept future offers from other organizations to future events. Thereby, these norms serve to encourage positive interactions between the bench and bar and students and faculty at law schools.


These best practices are offered for consideration by any law school or law-student organization that invites guests to campus to speak and interact with students and faculty.

Before the Event

The organization will confer with law school administrators and event planners to ensure that inviting the desired guest is appropriate in light of other law-school communications with that guest, the overall relationship with that guest, and the law school’s other commitments and events during the proposed time for the event.

The organization will make a reasonable estimate of how many attendees it can expect at the event. The organization will communicate with potential guests when making invitations and share the estimated attendance. Guests should have this information when deciding whether to accept the invitation.

For example, a legal professional may be willing to donate his or her time to speak to 30 law students, but not 3.

The organization will take reasonable steps to schedule the event at a time when attendance will meet the initial estimate. This includes checking with calendars and event planners for scheduling conflicts. After reasonable steps have been taken, the organization will assess whether to pursue the event should a conflict arise.

If the organization later learns of a scheduling conflict that would materially change the conditions that guest experiences in the event, the organization will contact guest and describe the new conditions, giving the guest the opportunity to revisit and change the commitment to attend the event.

The organization will set a schedule for the event that provides an appropriate time and setting for the guest to speak or lead a discussion. This includes confirming and communicating the amount of time available for the guest to speak. It also includes organizing any lunch, cocktails, or other refreshments so as not to interfere with the time and setting of the guest’s presentation.

One or more designated representatives of the organization will provide coordinated communication to any guests the organization may invite for the event.

Communication will be coordinated, meaning everyone within the organization with some responsibility for the event will stay in communication with others within that organization. Thus the organization will provide consistent, timely information to guests. The organization will facilitate directions and parking and any other logistical details, and will share this with the guest as soon as reasonably possible.

Ideally, the organization will share logistical details with the guest before the guest feels the need to contact the organization and ask for those details.

The organization will delegate to one or more individuals the task of preparing an introduction for the guest. This includes verifying in advance and then using the proper pronunciation of the guest’s name. It also includes the task of asking for a resume or C.V. or other biographical details, or collecting them from research.

Students who may be unsure of what an appropriate introduction is or how to deliver it should ask experienced professionals at their law school.

Digital Etiquette During Events

As a general practice, the organization will notify its members and others invited to the event, in advance of the event, about its policy for encouraging, permitting, discouraging, or prohibiting digital distractions including phones, tablets, and laptops.

Having no policy and leaving digital etiquette up to attendees is a possible option, but it surrenders the organization’s role in creating the appropriate environment at the event.

Prior to the event at an appropriate location near the entrance of the space where the event is taking place, members of the organization will post prominent signs stating the event’s policy on phones, laptops, and other digital devices.

If the organization believes the guest may wish to permit or encourage event-related digital activity during the event, such as tweeting and other social-media sharing, the organization should check with the guest before the event and adjust event policies accordingly.

For example, some guests may strongly desire that their presentation be shared on social media, and others may wish to discourage such sharing.

At the beginning of the event, a designated representative of the organization will announce the event’s policy for laptops, tablets, phones and other potential digital distractions.

This can be done in a friendly manner such as before theater productions.

Members of the organization will set the standard of respectfully focusing on the guest during the session.

If the event draws both members and non-members, attentive focus by members can create a respectful and positive environment for the guest.

If appropriate, attendees who are seen committing distracting behavior inconsistent with the norms announce for the event may be discretely asked by a member of the organization to stop.

After the Event

A representative of the organization will personally thank the guest and attend to any needs the guest may have in connection with the event, such as parking vouchers.

A representative will offer to accompany the guest to their next destination in the law school (or the building exit).

The organization’s leadership will thank the guest in writing after the event. Whether to email, type, or hand-write the note is a decision to be discussed among the organization and with others at the law school as needed.

The organization will contact the law school administration if appropriate to confer whether additional thank-you notes should be sent from administrators.

The organization will seek to build institutional knowledge about the relationship with this guest. Event organizers will create notes to disseminate to future leaders of the organization. This process allows relevant information to be handed down to future leaders within the organization responsible for planning new events.

“Vocal fry” discussion October 18

You are invited to join the first Facebook chat sponsored by the peer-edited journal Legal Communication & Rhetoric: JALWD. This chat will feature live chat-based discussion of Professor Michael Higdon’s forthcoming article, Oral Advocacy and Vocal Fry: The Unseemly, Sexist Side of Nonverbal Persuasion. Professor Susie Salmon of Arizona Law will moderate the discussion featuring Professor Higdon. His forthcoming article is currently posted as a preview on Law360 here: https://www.law360.com/…/841771/oral-advocacy-and-vocal-fry-

The discussion will take place on Tuesday, October 18, at 3pm Eastern time. To join the discussion, please log into Facebook and request to join the LC&R Discussion Group here: http://bit.ly/LCRJALWD. You may join the Group at any time in advance of the discussion.

The best way to participate is to start by reading Professor Higdon’s article. (An early draft was covered in a Listen Like a Lawyer post here.)

Then submit your questions and be prepared to discuss the article with Professors Higdon and Salmon and others during the discussion. Professor Salmon will guide the questions and Professor Higdon will be on hand to share his thoughts and interact with other participants. You can submit your questions for the discussion to Professor Salmon and Abigail Patthoff at salmon@email.arizona.edu and patthoff@chapman.edu before the end of the day on October 14, 2016.

The Group invites participation by lawyers, law professors, professors from communications and other fields, legal professionals, law students, and anyone with an interest in law and legal communication. It is a forum for the free exchange of ideas with civility and mutual respect.

We look forward to kicking off these discussions October 18.


Abigail Patthoff


Jennifer Romig

LC&R Social Media Editors

Inclusive Listening: Pushing Through Bias and Assumptions

kellyGuest post by Katherine Silver Kelly, Associate Clinical Professor of Law and Director of Academic Support at the Moritz College of Law, Ohio State University

Lawyers like to think we are excellent listeners. We do it all the time; it’s at the core of our profession. As with any skill, good listening requires ongoing practice and development. But before you say you’re a good listener, determining this is not up to you, it’s up to the recipient of your listening.

I’ll illustrate this with an example: At a professional event not too long ago I was having a conversation with a group of attorneys. The talk turned to college sports and I mentioned I’m from Kentucky. One of the attorneys said to me,

“Huh, you don’t sound like you’re from Kentucky. Where in Kentucky are you from?”

I answered the question and politely moved on with the conversation. What I wanted to say was:

“Really?! How do you know what someone from Kentucky sounds like? How is that relevant to what I’m saying? ”

Yes, it was a casual conversation and maybe the attorney would not have said it to me had we been in a courtroom or meeting but she would have thought it. And it definitely affected how she listened to me going forward. It also distracted me as I couldn’t help but wonder what assumptions she was making about me because I’m from Kentucky and whether her perception of my competency had diminished. All it all, it diminished the authenticity of our communication.


Courtesy Flickr/Sciencesque/CC BY-SA-NC 2.0


 All of my life, I have been judged based on where I am from. You cannot see my ethnicity on my skin, but you can hear it. I carry it on my tongue, and I can no more get rid of it than anyone can change their skin color. 

The only way a person can open their mind and their heart is by opening their eyes and seeing that these differences make us stronger and that we are not as different as we might imagine. Only by serving others do we serve ourselves. Only by realizing the beauty of those different from ourselves are we able to realize our own beauty.

-Author Silas House, speech at Berea College (2013)

Truth be told, I’m not “from Kentucky” because I was born in Philadelphia, Pennsylvania. My family moved to rural, southeastern Kentucky when I was 14 and it’s my home.

I never thought I had a Kentucky (or other) accent until a few years ago when I moved to Ohio. People would cut me off mid-sentence to remark on it and how cute it was that I said, “y’all.”

Regardless of whether people are actually biased listeners, pointing out that someone has an accent basically says that the speaker is different and this difference matters. It certainly made me self-conscious of how I spoke and what I said. People have a natural affinity for others like themselves, and pointing out a difference reflects an implicit bias.

Like it or not, we all have subconscious stereotypes that affect our unconscious beliefs and perceptions. Denying this only perpetuates the bias. Instead, by acknowledging that we make assumptions, we can challenge and start to change them. This is especially important for lawyers as effective communication is a basic tenet of our profession. While the type of communication may vary, one overarching fundamental legal skill is the ability to effectively assess and respond to the perspective of the recipient of the communication. This requires inclusive listening.

Inclusive listening makes other people feel valued and understood. When listening to others most of us tend to assume we understand and we reach conclusions based on our point of view and our implicit biases. Inclusive listening doesn’t make assumptions. It requires one to actively engage in critical thinking: notice and question our assumptions, and recognize that assumptions are not truths.

This is not easy to do. I know because writing this post made me quite aware of my habits as a listener. This past week I’ve made it a point to recognize that I have unconscious biases and started to challenge my assumptions (ex: don’t negatively categorize everyone under the age of 30 as a “millennial.”). I’ve made sure my non-verbal cues show respect for the speaker and I’ve worked on better engaging as a listener by affirming the speaker’s contributions and asking clarifying questions.

Consciously engaging in inclusive listening has helped me realize that I’ve expected (maybe even demanded) it from others but wasn’t doing such a great job myself. For so long I’ve been on the other side and this helped me switch my point of view. If I want to be listened to, I’ve got to be an inclusive listener. On a broader level, for lawyers to be truly effective communicators, they must fully understand all aspects of a situation. The only way to gain this understanding is through inclusive and engaged listening.


Categories of listening

Katrina Lee from Ohio State tweeted earlier this week:

The article referred to in her tweet is by  Jim Lovelace, Director of Talent Development at Pillsbury Winthrop Shaw Pittman LLP, and was published in the ABA Law Practice Today.

As Katrina said, it is a quick read. And it’s a pretty powerful read, too. The essential premise is that to be effective, a listener must move beyond “self-focused listening.” What does that mean?

In my 25 years of experience as a practicing lawyer and legal career development professional, I have observed that lawyers spend the vast majority of their work time—when they are not talking, that is—as self-focused listeners. When they hear others’ stories, their minds are occupied with: What are the flaws and where are the potential liabilities? Where is the “good stuff” on which I can build a case? They dig for facts, often asking for more information to construct their narratives and theories. This is not surprising. This is what lawyers have been taught, from law school onward, to do.

But there’s more to listening than this self-focused approach. Lovelace introduces empathic listening and comprehensive listening, two other categories of listening that may not be right for a contentious deposition but are very, very right for interpersonal situations at work. Lovelace uses a hypothetical in which a trusted senior associate blindsides the senior partner by announcing he’s leaving the firm. Different listening methods can affect not just the tone but the outcome of such conversations.

Lawyers love categories, and somebody this blog will have a pull-down menu listing the many categories of listening that communications experts have identified. When it comes to (1) self-focused listening, (2) empathetic listening, and (3) comprehensive listening, Lovelace’s article is an excellent introductory resource. It doesn’t take long to read, and it’s really good. Thanks for the tweet recommending the article, Katrina!

Cognitive bias and listening

Cognitive biases—such as believing information that confirms what you already believe—present a major challenge to the idea of the “rational actor.” Cognitive biases are being being studied in practically every field, including law. Bringing the research to a popular audience, Daniel Kahneman’s book Thinking, Fast and Slow, is a challenging but accessible read. And I was happy to learn that Kahneman’s Nobel-Prize winning partnership with Amos Tversky will be the subject of Michael Lewis’s next book.

Also providing an accessible take on cognitive bias, here’s a “Cognitive bias cheat sheet” by Buster Benson. In addition to the concise and helpful text, the visual “Codex” of cognitive biases at the bottom is a brilliant piece of visual storytelling. (This “cheat sheet” was shared by Adam Grant, Wharton professor and author of Originals plus a forthcoming book with Sheryl Sandburg. His Granted newsletter would be useful to anyone who puts thought into their communications.)

Listen Like a Lawyer has covered cognitive bias before, here and here and here. Reading Benson’s post reminded me of why it’s so important to continue revisiting and emphasizing this topic.

How can cognitive bias affect (or should it be infect) the listening process? I’ll quote a few of Benson’s summaries from the cheat sheet.

For example:

“Bizarre/funny/visually-striking/anthropomorphic things stick out more than non-bizarre/unfunny things.”

Have you ever talked to someone with food stuck between their teeth? It’s so bizarre and distracting you may not have been able to concentrate on what they were saying. That’s the example of a listening problem that came to my mind, anyway.


“We notice flaws in others more easily than flaws in ourselves.”

When listening to someone face to face, the flaw-finding intuition may kick on, whether the person has food between her teeth or not. This is actually even more true in writing. An interesting study found that people consistently give higher ratings to spoken material than if the exact same words are written down:

“[W]ritten passages lack critical paralinguistic cues that provide critical information about a speaker’s intelligence and thoughtfulness. Your voice is a tool that has been honed over the course of human evolution to communicate what’s on your mind to others. Without even thinking about it, you naturally flood your listener with cues to your thinking through subtle modulations in tone, pace, volume, and pitch. The listener, attuned to those modulations, naturally decodes these cues. That’s why if you claim to be passionate about your prospective job, for example, hearing your passion may be more convincing than reading your passion.”

So perhaps listening creates a bias toward the human connection in face-to-face communication. But what if some of this human connection is distorted in our memories?

“We edit and reinforce some memories after the fact.”

An important part of listening is remembering what has been said in order to form an appropriate response. This is a short-term memory function. In the longer term, as Benson writes, details can be “swapped” or even “injected” into a memory. Remembering what you were thinking during a conversation might in some ways overshadow your memory of the conversation itself.

Such distortions can cause other communication problems:

“We think we know what others are thinking.”

Benson writes that we may be “modeling their mind after our own” in how we think about what they are thinking. This presents an impediment to properly gauging another person’s level of understanding.

Another issue:

“We find stories and patterns even in sparse data.”

Legal listeners may make the most out of the data available such as the paralinguistic cues indicating the speaker’s emotions. Or they may turn their mind inward, hearing a few facts and then instantly connect this client’s situation to a past experience or archetypal story like David v. Goliath.

Some of this gap-filling may happen partly because people think faster than others can talk. This creates the well-known “thought-speech differential”. The excess brain capacity to think, compared with the relatively slow rate of speech, creates mental opportunities to spin stories around the “sparse data.”

And could this differential cause problems? Yes, in several ways.

One issue is a simple intolerance for listening, especially when speakers aren’t perceived to be concise. We’ve all felt that frustration as listeners:

Just get to the point!  

And that frustration can lead to simple “self-help solutions” such as checking one’s phone for more pressing info. Benson writes about how many cognitive biases come from the fundamental human need to act fast. Listening is slower than thought, so it may simply stand in conflict with the brain’s drive to take in information quickly and make a decision. Our collective acclimation to faster and faster pace of receiving information has been written about elsewhere in wonderful sources such as Nicholas Carr’s The Shallows and the work of Sherry Turkle. That topic is too broad for this one post. But it’s connected to the preference for texting over seemingly inefficient phone conversations and voicemails.

The drive to make a decision quickly can also lead the mind to rely on cognitive biases for gap-filling information, sometimes in troubling ways:

“We fill in characteristics from stereotypes, generalities, and prior histories whenever there are new specific instances or gaps in information. “

To put it in even more troubling terms, again quoting Benson:

“We imagine things and people we’re familiar with or fond of as better than things and people we aren’t familiar with or fond of.”

Legal professionals should be able to work with people from different backgrounds using an open, unbiased approach. Cultural biases can infect the communication processes with numerous distortions, omissions, and other bad effects. As an example of legal work being done to combat those problems, here’s Professor Susan Bryant’s foundational article on the “habits” that build cultural competence. Professor Andrea Curcio has some excellent work in this area as well such as here and here. There are many, many others. On a positive note, Curcio’s work suggests that simply taking a carefully crafted survey can itself have beneficial effects on survey participants. She cites studies involving medical students in the U.S. and U.K. with similar outcomes.

More generally, with all of these cognitive biases around everywhere—just take a look again at that visual Codex of Cognitive Biases to understand how many there are—can anything be done to mitigate their pervasive effects?  Benson suggests studying a simple four-part outline of the problems causing cognitive biases as well as four corresponding consequences of unmitigated cognitive bias. The idea is that by keeping these ideas fresh in your brain, perhaps the “availability bias” privileging this countervailing information will cross over into other assessments our brains are constantly working on.

A Day of Listening      

Thursday, September 15, 2016, will mark the International Day of Listening, an event envisioned and promoted by the International Listening Association. This Day of Listening has its own website with some excellent listening resources and ideas.


For lawyers, law students, law professors, and legal professionals, I will highlight a few ideas for what to do on the International Day of Listening. Or any day, really. The big idea is that listening is helpful on any given day.

Invite someone to a conversation.

The website provides a template form for inviting someone to a conversation. The template looks a little bit like a subpoena or affidavit, so lawyers wishing to make a personal connection with someone may want to avoid or modify the actual form and focus on the concept. The form envisions providing a topic for the conversation; this isn’t randomly generated small talk but a purposeful conversation. Even more important, the person initiating the conversation makes a commitment: “I promise to give my undivided attention and to do the best job of listening I can.” This is a one-way promise offering something valuable without expecting or demanding something in return.

Invite a group to a conversation.

The website also provides a template form for initiating a group conversation also centered on a stated topic. Here the group makes a pledge to one another: “We will all pledge to give our best efforts to listen well to one another.”

The phrase “best efforts” stuck out at me as an interesting term for lawyers. Ken Adams has analyzed the history and meaning of this phrase in contracts. Interpreting “best efforts,” various courts have imposed a good faith standard, something more than a good faith standard, a reasonableness standard, and a diligence standard. Because the idea of “best efforts” can be vague in a legal sense, it helps to compare efforts against a benchmark, Adams points out. Benchmarks can include explicit promises made during negotiations, industry standards, the same party’s practices in similar situations, and how the parties would act toward one another if they were united in the same enterprise.

Fortuitously, the website for the International Day of Listening does offer a nice benchmark-type resource. They don’t call it a benchmark or a bookmark but actually a “ListenMark.” It’s available both here and here in the Professional Activities section of the website. I think the intent is for people to use the “ListenMark” as a bookmark or other tangible reminder. Although the name is kind of corny, the content is excellent. From putting electronic devices away and giving undivided attention to giving nonverbal signals and being familiar with others’ expectations about how to show respect, it’s a solid overview of good listening practices. It could be a good review to glance over just before key meetings.

The Professional Activities section of the website is structured around lideas for professional activities to try on September 15:

·          Tech-Free Meetings
·          What Happens When You Tune Out
·          Free Listening
·          Listening to Opposing Viewpoints
·          Listening to a Life Story
·          Listening Café
·          Discussing Issues
·          Listening to TED
·          “When am I listening or being listened to”
·          Successful Listening Strategies
·          First Hit the Pause Button

One of my favorites on this list is “Listening to a Life Story.” Carole Grau submitted this idea, and it’s a good way to learn more about a longtime coworker—perhaps someone you see every day but don’t know that much about. The core of the activity is this:

Have the listener identify a significant company employee or a long­time employee/member that they (the interviewer) can interview about that person’s (the interviewee’s) life story and their experience within the organization. What have been significant events in the company/organization or in the person’s life while they have been employed or a member?

Bar associations encourage activities such as “take opposing counsel to lunch.” What about dedicating some listening time to a longtime contributor within your own firm or organization? The longtime courthouse runner at my old law firm recently passed away; he was a consummate legal professional with so many great litigation stories. He would have been an incredible interview along the lines Grau suggests.

The outline for listening to a life story gives more details on conducting such a conversation and listening effectively. It recommends resources such as an app offered by  StoryCorps, which itself promotes a National Day of Listening the day after Thanksgiving every year. (In a world of so much talking past one another, we really can’t have enough listening days.)

These are just a few of the ideas and resources available on the website supporting the International Day of Listening. The purpose of this post is to encourage lawyers, law students, law professors, and all legal professionals to recognize and practice listening on September 15, 2016, and other days too.

Do men and women listen differently?

A friend asked whether Listen Like a Lawyer has ever blogged on this:

Do men and women listen differently?

That’s an interesting—and fraught—question.

Some websites and popular books on communication skills propound appallingly simplistic statements with no research support. And the research on gender and listening that does exist has been described as “scarce and inconsistent.” (This is Laura Janusik surveying the literature up to 2007.) Still, the research is based not on speculation or stereotypes, but on a variety of actual studies with real participants (often college students, more on that later). And the results of this research serve to challenge overly simplistic beliefs about sex and gender.

FYI, the articles cited in this blog post are listed at the end. The information in this post focuses on listening generally or in professional settings, not in personal relationships. This is a very long post but it’s intentionally combined into one post so that the “nature” and “nurture” points can be taken together in context rather than in isolation. And the post tries to maintain the terminology of sex for biological differences and gender for psychological/self-identified/cultural roles.

Here is a simple takeaway if you don’t want to go through the rest, from a 2003 article by Virginia Tech professors Stephanie Sargeant and James Weaver:

Despite the popular reception of gender asymmetry in the way we talk with, listen to, and interact with one another, considerable research suggests that sex differences may actually play only a minimal role. Canary and Hause efficiently summarize the literature when they conclude, after considering hundreds of studies represented in meta-analyses, “sex differences in social interaction are small and inconsistent; that is, about 1% of the variance is accounted for and these effects are moderated by other variables.”

(Intrusive citations have been omitted from this quote.)

If that’s all you need to hear, now’s a good time to stop reading. The rest of the post goes into some various more specific gender-related findings on hearing and listening.


The first step in listening is hearing. And this is where the strongest sex-related difference actually has been found. Audiology research in 2008 reported men are 5.5-times more likely to suffer hearing loss than women. After controlling for factors such as noise exposure, smoking, and cardiovascular condition, the study still found men had a higher rate of bilateral and high-frequency hearing loss (i.e both ears and higher sounds). An earlier study found “hearing sensitivity declines more than twice as fast in men as in women at most ages and frequencies.” That study also that hearing decline generally begins for men at age 30, whereas the age varies for women, and age-related hearing loss occurs regardless of low-noise or high-noise work environment.

Regardless of sex or gender, Listen Like a Lawyer previously blogged about lawyers and hearing loss here and here, and recommends to readers to have their hearing tested and get a hearing aid if recommended.


Beyond hearing, generally accepted definitions of listening involve some form of mental processing and responding. The International Listening Association has adopted a definition of listening that centers on process:

the process of receiving, constructing meaning from, and responding to spoken and/or nonverbal messages.

Detailed research findings on whether the broader listening process differs by gender are summed up by Kittie Watson and Larry Barker in their 2000 book for popular audiences, Listen Up:

Although the literature on cognitive processing suggests there are innate gender differences, most behavioral scientists believe gender differences in listening are more influenced by our cultural socialization than by a biological predisposition.

It seems there are two parts to unpacking that:

  1. possible innate gender differences in cognitive processing, and
  2. the behavioral view based on cultural socialization.

The innate differences have to do with brain activity while listening:

Brain research studying hemispheric processing discovered that when men listen they process language using the left hemisphere while women process language through both the right and left hemispheres.

If true, this study suggests implications for how men and women listen:

Since emotions are processed primarily in the right hemisphere, and language in the left, men may not be able to connect words to feelings as easily or effectively as women may.

Watson and Barker go on to summarize further research that because of this left-brain processing, men may be less distracted as listeners because they essentially receive only one message rather than multiple messages. This contradicts some popular psychology claiming men are more distracted listeners—reinforcing the point that overbroad answers to this question are too simplistic. In terms of brain processing and listening, another study cited in Watson and Barker found that men tend to remember the “gist” of the conversation, whereas women tend to recall precise words and phrases.

But the left-brain/right-brain finding is itself subject to dispute. These sex-based processing differences were found in an Indiana University study in 2001 by Phillips et al. But a larger study from two years earlier did not reach the same findings:

[A] larger scale MRI study (50 men, 50 women) concluded that men and women actually do not have substantive differences in lateralization of brain activity or brain activation patterns during a listening task.

This is from Andrew Wolvin’s overview of research in Listening and Human Communication in the 21st Century (2010), citing a 1999 study by Frost et al. (On a  related side note, the reliability of pretty much all fMRI research has recently been questioned.)

Listening comprehension

It’s also unclear whether any such processing differences make a difference in actual listening comprehension. Auburn professor Margaret Fitch-Hauser and colleagues did a study of actual listening comprehension—they called it “Listening Fidelity”—where participants were exposed to spoken words and then were tested on their listening comprehension. This study found no difference in listening comprehension among men and women (college students in this case). They also found listening comprehension did not significantly relate to the participant’s self-described listening style. In other words, listeners with a more “people-oriented” preferred style did not perform significantly differently from those whose preferred listening style leans towards information or tasks (more on this in a moment).

The listening process overlaps with working memory, as remembering the message (or not) relates to the listener’s response. A 2016 study of concentration and listening (as well as reading) comprehension reiterated past studies finding no gender differences in working memory. That study by Wolfgramm and colleagues, surveying a group of sixth graders in Switzerland, reached somewhat complex findings on gender. The overall finding was that concentration is a significant factor in listening comprehension, although not so much in reading comprehension. Along the way, the study reached findings that contradicted a perceived gender gap (favoring girls) in reading and listening:

Boys . . . outperformed girls in one of the listening comprehension tests. However, girls scored higher when tested for their ability to concentrate and for working memory but not when tested for vocabulary. This indicates that boys seem to have more problems with bottom-up processing than girls do. Nevertheless, problems with bottom-up processes do not affect boys’ performance in listening and reading. It would seem that boys compensate for their underperformance in concentration and working memory: We presume academic self-concept to be a possible factor accounting for that compensation.

Listening, self-concept, and social status

And this raises the strongly conflating issues of nurture and culture. “Academic self-concept” refers to confidence or anxiety at the task. In the Wolfgramm study, boys had a higher academic self-concept than the girls, and their self-concept compensated for whatever processing differences might exist. This is just one example of how socialization by gender could play a significant role in the question of sex, gender, and listening.

One paper reviewing various studies on gender and stereotypes pointed out that experimental participants listened more carefully when they occupied “low status” roles and were assigned to listen to “high status” individuals. The paper, by Michael Purdy and Nancy Newman, pointed out the connection between status and gender:

There are compelling reasons, according to LaFrance and Henley (1994), why women are usually better at “performing” the nonverbal affective display of listening than men. They link this motivation to men’s “greater social power relative to women in everyday social interactions.”

Listening preferences

As children grow into adult learners, they develop listening preferences which also correlate with gender. Dr. Kittie Watson created a questionnaire that has been used extensively, with survey questions revealing one of the following four listening styles:

  • The people-oriented listening style has an external focus on other people.
  • The action-oriented listening style prefers an organized approach focusing on the facts and results.
  • The time-oriented listening style prefers short and to-the-point statements that do not interfere with other scheduled activities.
  • The content-oriented listening style focuses on facts, evidence, and support, and less on who is speaking.

A 2007 study by William Villaume and Graham Bodie found a “rather small relationship” between gender and listening styles. They set out to study the connection between personality (including gender perceptions as one factor) and listening styles by administering a series of questionnaires to college students. Students completed the Listening Styles Profile as well as a questionnaire on their gender role exploring “gender role self-perception” resulting in a “masculinity” or “femininity” score. They also completed a battery of other surveys regarding personality traits, communication style, communication competence, apprehensiveness at communicating and receiving communication, verbal aggressiveness, argumentativeness, and “interaction involvement” such as attentiveness, perceptiveness, and responsiveness.

Villaume and Bodie did find that having an action, time, or content orientation was slightly affiliated with self-reported masculinity score. But people who strongly identified with “feminine” or “masculine” traits both scored higher in terms of people-oriented listening styles. In other words, “people-oriented listening is associated with both high femininity and high masculinity.”

And overall, the gender effect was small, explaining about 5 percent of their study results in light of the other personality-driven factors they included. For example the “Big Three personality traits” measure extraversion (sociability); neuroticism (anxiety); and psychoticism (deviation from social norms). Their study found that Big Three personality differences explained about 9 percent of their study results. The much broader list of personality traits did much more of the work in explaining their study results.

Villaume and Bodie ended the paper with some caveats including the inherent limitation of studying college students. Their comments were not about gender but I think it’s very much about the realities of working as a legal professional:

More importantly, the fact that all participants in this study were university students may affect the nature and strength of the canonical functions derived. These students have not held professional-level jobs with real pressures to get work done efficiently and effectively. It is possible that the listening preferences of these students may change with the added pressures and complexity of professional life after university. This study should be replicated with a sample of adults holding jobs in the working world. It is possible that people-oriented listening may no longer be characterized with all the positive associations reported in this study. Content-, action-, and time-orientations in listening may become more positively evaluated.

Listening skills in the workplace

Other research does look at how working professionals listen and communicate in the workplace. A 2013 paper on working professionals surveyed staff and managers in medium and large organizational environments. In this study, Welch and Mickelson used a “Revised Listening Competency Scale” (developed by Andrew Wolvin and Carolyn Coakley) to evaluate their survey participants on the following types of listening:

  • Discriminative listening means listening for auditory cues, attending to verbal and nonverbal signals.
  • Comprehensive listening means paying close attention to the actual message.
  • Therapeutic listening is emotional listening and letting a speaker “vent.”
  • Critical listening evaluates the message to support a decision of accepting or rejecting it.
  • Appreciative listening is listening for enjoyment.

Using these dimensions of listening, Welch and Mickelson studied working professionals focusing on two key variables: (1) level of employment (staff, line or middle manager, or senior manager) and (2) gender.  Were staff and managers different at listening? At the same level of employment, did men and women show differences?

Their findings are fairly complex. Here are a few takeaways:

  • For discriminative listening, the study did not find gender differences among employees at the same level (staff, line and middle managers, and senior managers).
  • For comprehensive listening, there were “very large gender differences” for line and middle managers, with women scoring higher. The study found: “Comprehensive listening is a core skill that differentiates managers from staff, and that also differentiates female managers from male managers.”
  • There was a moderate difference in genders on therapeutic listening, with women scoring higher.
  • There were apparently no significant differences among genders in critical listening at the same level of seniority.

Just an individual’s perception of gender role impacts listening style, Welch and Mickelson pointed out the possibility that male and female managers might relate to their organizational culture differently, explaining some of the differences they found. “Male and female managers might approach their organizational culture with different beliefs about different types of listening,” they hypothesized.

But their more significant findings centered on the listening progression:

[I]ncreased listening competency is associated with more responsibility.

This possibility led them to recommend more study of how listening quality develops over time.


To conclude this tour of the gender research on listening, here is an insight from Melissa Beall’s overview of intercultural listening. She’s quoting an earlier study by Purdy and Newman in 1999, which they presented at the International Listening Association. That study looked at “good and poor listener differences according to gender.” The study reached a finding that resonated:

[T]here were several characteristics that respondents identified as characteristics of good listeners, no matter which gender: eye contact; willingness to listen; shows interest; asks for clarity; gives feedback, and offers advice when wanted.

Thanks to Professors Margaret Fitch-Hauser and Debra Worthington for reading an earlier version of this post.

Sources and links (for non-paywalled sources)

Yuri Agrawal et al., Prevalance of Hearing Loss and Differences by Demographic Characteristics Among US Adults: Data from the National Health and Nutrition Examination Survey 1999-2004, Arch Intern Med. vol. 168 (July 28, 2008).

Larry Barker and Kittie Watson, Listen Up: At Home, At Work, In Relationships: How to Harness the Power of Effective Listening (2000).

Melissa Beall, “Perspectives on Intercultural Listening,” in Andrew Wolvin, ed., Listening and Human Communication in the 21st Century (2010).

Margaret Fitch-Hauser, William G. Powers , Kelley O’Brien & Scott Hanson, Extending the Conceptualization of Listening Fidelity, 21 Int’l Journal of Listening 81 (2007).

Laura Janusik, “Listening Pedagogy: Where Do We Go From Here?” in Andrew Wolvin, ed., Listening and Human Communication in the 21st Century (2010).

Michael Purdy and Nancy Newman, “Listening and Gender: Stereotypes and Explanations,” Paper presented to the International Listening Association (2000).

Stephanie Lee Sargent & James B. Weaver III, Listening Styles: Sex Differences in Perceptions of Self and Others, 17 Int’l Journal of Listening 5 (2003).

William Villaume and Graham Bodie, Discovering the Listener Within Us: The Impact of Trait-Like Personality Variables and Communicator Styles on Preferences for Listening Style, 21 Int’l J. Listening 102 (2007).

A. Welch & William T. Mickelson, A Listening Competence Comparison of Working Professionals, 27 Int’l Journal of Listening 85 (2013).

Christine Wolfgramm, Nicole Suter & Eva Göksel, Examining the Role of Concentration, Vocabulary and Self-concept in Listening and Reading Comprehension, 30 Int’l J. Listening 25 (2016).

Andrew Wolvin, “Listening Engagement: Intersection Theoretical Perspectives,” in Andrew Wolvin, ed., Listening and Human Communication in the 21st Century (2010).



Yesterday I attended the memorial service for a beloved family member. An activist in his church and community, he was remembered with love everywhere he shared his talents. The eulogy featured one line I wanted to share:

“He had a booming voice . . . but he was a good listener.”

Rest in peace, Lee.

Tomorrow’s lawyers

What do lawyers need to be good lawyers? A project in Denver is investing a lot of time, energy, and resources into answering that question. It’s the Foundations for Practice study, generated by Educating Tomorrow’s Lawyers, an initiative of the Institute for the Advancement of the American Legal System.

The background on Foundations for Practice is this:

In late 2014, we launched Foundations for Practice (“FFP”), a national, multi-year project designed to:

1. Identify the foundations entry-level lawyers need to launch successful careers in the legal profession;

2. Develop measurable models of legal education that support those foundations; and

3. Align market needs with hiring practices to incentivize positive improvements in legal education.

And since then, they have managed to start and finish a huge survey, reaching 24,000 lawyers nationwide. Their survey covered a breadth of law-related topics:

We asked respondents to rate the necessity of 147 foundations (plus two questions that allowed write-in responses); we asked fourteen questions to identify respondent demographics and practice information; we asked about the value of specialization in law school and in early practice; and we asked the respondents to identify the helpfulness of employment criteria (like law school attended, class rank, clinical experience, externships, and letters of recommendation).

One of their key goals was to survey what skills need to be in place when lawyers start their careers, as contrasted with skills that can and should be learned over time on the job. What’s important for new lawyers? Questions on the survey about what new lawyers need probed respondents’ thoughts in three categories:

  • “Legal skills” are those traditionally understood to be required for the specific discipline of law (such as preparing a case on appeal).
  • “Professional competencies” are skills seen as useful across vocations (such as managing meetings effectively).
  • “Characteristics” are foundations capturing features or qualities (such as sociability).

The overall payoff of the Foundations for Practice study is that respondents ranked these categories in the following order of importance:

1. Character

2. Professional competencies

3. Legal skills

So this is a pretty big finding: statistically, aspects of good character were reported to be the most necessary for new lawyers right out of law school. The study got to this number by finding that 76 percent of character items in their survey (items such as “integrity and trustworthiness, conscientiousness, and common sense”) were ranked by half or more of the respondents as necessary.

The next most important category was professional competencies “such as listening attentively, speaking and writing, and arriving on time.” 46 percent of these competences were identified by half or more respondents as being necessary for new lawyers.

And the final category was legal skills “such as use of dispute resolution techniques to prevent or handle conflicts, drafting policies, preparing a case for trial, and conducting and defending depositions.” For these items, 40 percent were ranked by half or more of respondents as being necessary for new lawyers.

The section of the report titled Foundations for Practice contains an overall summary of the 77 characteristics, competencies, and skills that more than half of the respondents deemed necessary for new lawyers right away. Some of the most highly rated items involve communication:

  • 91.9 percent of respondents said it is important for new lawyers to treat others with courtesy and respect
  • 91.5 percent of respondents said it is important for new lawyers to listen attentively and respectfully
  • 80.4 percent said it is important for new lawyers to regulate emotions and demonstrate self-control
  • 77.7 percent said it is important for new lawyers to demonstrate tact and diplomacy
  • 72.9 percent said it is important for new lawyers to be able to work cooperatively and collaboratively in a team
  • 71.7 percent said it is important for new lawyers to seek and be responsive to feedback
  • 69.2 percent said it is important for new lawyers to demonstrate tolerance, sensitivity, and compassion
  • 60.8 percent said it is important for new lawyers to react calmly and steadily in challenging or critical situations

Happily, the survey reveals a broad attitude that many skills can be learned on the job as lawyers. A new lawyer can learn to draft a document or take a deposition. But the study also suggests the belief by respondents that new lawyers either cannot learn character on the job or shouldn’t need to; they should already have it.

Educating Tomorrow’s Lawyers will hold its 5th Annual Conference next month. I won’t be able to attend but would welcome tweets and guest blog posts focused on communication skills from those who do attend.

Here’s another overview of the study from Keith Lee of Associate’s Mind, who also serves on the study’s advisory group. His post shows how the study’s data can be mined for more specific information.