What lawyers say, and what they actually do

How do lawyers transfer their knowledge? Lawyering scholars have been talking about “tacit knowledge” since the early 1990s. A recent ABA publication encouraged law students to use their externships and other practical experiences to interact with lawyers and try to glean some of that tacit knowledge via “extensive personal contact, regular interaction, and trust.” I touched on tacit knowledge in an early-summer blog post encouraging summer associates to talk with experienced lawyers about their work and to closely observe their nonverbal signals during these conversations.

This advice suggested perhaps the slightest hint of the idea that there might be dissonance in what lawyers say they do and what they actually do. An article by one of my law-professor heroes, Richard Neumann, Jr. explores this concept in depth.  The article is Donald Schön, The Reflective Practitioner, and the Comparative Failures of Legal Education, 6 Clinical L. Rev. 401 (2000). It attacks superficial notions of lawyering and legal education at multiple levels.

What is the difference between what lawyers say they do and what they actually do? The real tacit knowledge is in what they actually do—which they may not be willing to describe or even fully aware of.

This insight is from the work of Donald Schön, a now-deceased professor of architecture at MIT. Schon’s ideas and Neumann’s exploration of them aren’t new, but the insights remain relevant and helpful.

Schön sought a deeper understand of tacit knowledge, questioning its foundations:

[T]acit knowledge is not necessarily accurate knowledge. Because it is tacit, it is also unexamined.

And because it is unexamined, it may be worthy of the term “knowledge” only in sarcastic quote marks:

The tacit ‘knowledge’ of an ineffective professional might be nothing more than superstition—and correspondingly dangerous to clients.

Schön questioned professionals’ capacity to understand and describe their own work. What professionals think they do and what they actually do are often entirely different. Here he used two terms to categorize false and real tacit knowledge. (Neumann, while clearly a fan of Schön’s work, didn’t really like his terminology, and here you may feel a particularly strong urge to close this browser window. But consider plowing on.) Schön’s terms distinguish what a professional says about the work from how the professional actually does the work:

  • A “theory of action” is how a person describes the work they do.
  • A “theory-in-use” is what actually governs the person’s actions.

As a result, we can only learn a person’s true “theory-in-use” by observing their behavior. More broadly, this discrepancy “makes it harder to improve how professionals work.” A lawyer might resist making a change out of the mistaken belief about what she is actually doing. “Because our theory of action seems satisfactory to us, we do not see any reason to change.”

And willingness to change isn’t necessarily sufficient to make a real change. “[E]ven if we can be persuaded to change, we might be satisfied” just by changing our theory of action. This is a change in name only if “we continue what we were doing before because our theory-in-use remains unexamined and controls our actions.”

I’ve thought about this concept with legal writing, and writing generally. It’s much easier to change one’s nominal theory of action, especially if that means adopting new writing software or formats or labels about what one is doing. In an article titled Fighting “Tippism,” Stephen Armstrong and Timothy Terrell wrote about how superficial writing “tips” are no substitute for the real work of learning and using the lessons of rhetoric, logic, and cognitive psychology.

In the realm of listening, the problems equally difficult if not more so because listening is so difficult to observe and measure. One may have a theory of action that they are in fact a great listener and an active listener. They are totally on board with the value of listening.

But their theory-in-use could be quite different. How well someone listens can be described in three major categories, according to Melissa Daimler, Head of Learning and Organizational Development at Twitter, writing for the Harvard Business Review Blog:

Internal listening is focused on your own thoughts, worries, and priorities, even as you pretend you’re focusing on the other person.

Focused listening is being able to focus on the other person, but you’re still not connecting fully to them. The phone may be down and you may be nodding in agreement, but you may not be picking up on the small nuances the person is sharing. 

360 listening.  You’re not only listening to what the person is saying, but how they’re saying it — and, even better, what they’re not saying, like when they get energized about certain topics or when they pause and talk around others.

A lawyer may believe he is a 360 listener, when in fact he is an obstinately internal listener. This mismatch of belief means the lawyer does not feel any need to work on listening because how can you improve upon something already pretty terrific?

And if such a lawyer does read a blog post or attend a training on listening, she might pick up a new term of art for listening, such as “I’m a 360 listener,” while remaining rather poor at it.  This obviously connects to the Dunning-Kruger effect of being so bad at something that you don’t even know you’re bad.

Schön and a collaborator apparently tried to address this difficulty through seminars and training that guided participants to confront the differences between their theories of action and theories-in-use. They sought to help professionals recognize two major approaches to going about professional work:

  • Model I exhibits “highly developed rationality and a commitment to goals and winning.”
  • Model II “develops the largest amount of valid and relevant information and generates the largest number of options from which to choose.”

Model I sounds a lot like a stereotypical lawyer personality. That’s not good news. Model I—also known by Robert Condlin’s term “persuasion mode”—has a lot of problems. Persuasion mode is sometimes useful and beneficial, but as a default personality it has some significant pitfalls, as described in Neumann’s article:

[A] person in persuasion mode tends to act on hidden agendas and strategies; “to minimize self-analysis and to reserve it for private moments when it will not weaken instrumental effectiveness”; and to argue in ways that are subtle but “needlessly stylized and hyperbolic.” Persuasion-mode behavior is profitable in situations where the struggle is for control rather than insight, and where the “self-sealing properties of persuasion mode habits” minimize tentativeness and perplexity. “Persuasion-mode habits predispose lawyers to take evaluative stands automatically” so that they “make statements that, on reflection, they know to be false.” “It causes one to impute rather than explore others’ ends, shut off rather than encourage legitimate objection, . . . and accumulate rather than share decision-making authority.

The other possibility is the learning mode, also known as the inquiring mode. Neumann’s essay on Schön explores how the inquiring mode is more consistent with curiosity, open-ended thinking, and exploration of ideas regardless of consequences. A number of benefits accrue to clients and lawyers, with more meaningful and effective collaboration at the top of the list. The collaboration is better in at least two ways: First, the lawyer does not have to maintain a “professional façade” of being the expert. “The ‘expert’ will want “deference and status in the client’s response to [the] professional persona,” while the reflective practitioner will prefer a ‘sense of freedom and of real connection to the client.’”  At the same time, a client may feel more comfortable with a lawyer in persuading mode because the client can sit back and rely on the assumption the lawyer is the expert and will do everything right. A more reflective lawyer can create a more reflective relationship with the client. In these relationships, lawyer and client “join” in making sense of the case. The client gains “a sense of increased involvement and action.”

With the inquiring mode, lawyer-client collaboration is better in at least two ways: First, the lawyer does not have to maintain a “professional façade” of being the expert. “The ‘expert’ will want “deference and status in the client’s response to [the] professional persona,” while the reflective practitioner will prefer a ‘sense of freedom and of real connection to the client.’” At the same time, a client may feel more comfortable with an “expert” lawyer in persuading mode because the client desires the comfort of passive reliance. A more reflective lawyer can in turn create a more reflective relationship with the client in which lawyer and client “join . . . in making sense of the case.” The client gains “a sense of increased involvement and action.”

Neumann’s review of Schön’s work ends on an extended exploration of how difficult it is to teach any of this in a formal curriculum—especially the curricula of medical and law school as distinct from the arts and architecture. Teaching reflection and modeling it in experiential classes are crucial. One way to start is simply by sharing with law students and lawyers Schön’s essential and upsetting insight that the way we intuitively explain what we do may not be very accurate.

 

 

 

 

 

 

More on flow and listening

Feeling “flow” means being fully immersed in a challenging task, with a sense of energy and enjoyment. Lawyers might find flow when they have enough skilled experience to know what they’re doing and encounter a new challenge using their skills, as previously mentioned in this post. The founder of flow theory, Mihaly Csikszentmihalyi, created a visual model of flow:

Screen Shot 2016-06-14 at 5.20.20 PM
Credit: Wikipedia (citing Csikszentmihaly, Finding Flow (1997))

As you can see the states inferior to “flow” reflect a mismatch between skill and challenge:

  • Apathy
  • Boredom
  • Worry
  • Anxiety

States with a closer match can be found closer to the upper-right:

  • Control (but the skill slightly outweighs the challenge)
  • Arousal (but the challenge slightly outweighs the skill)

In the far upper right area, where a high skill level meets a high challenge level, you find flow.

The model below is a variation on Csikszentmihalyi’s general model, tailored for lawyers and legal professionals. The examples here all focus on listening.

image

Please use the comments or social media to suggest other examples and share thoughts on lawyers and flow. What types of listening experiences prompt apathy or boredom? What types of experiences prompt worry or anxiety?  And what experiences may lead to flow?

Q&A with Peg Cheng, the Prelaw Guru

ChengPeg Cheng has worked in prelaw advising for more than twelve years, six and a half with the University of Washington (UW) and another six as the founder of her law school admissions consulting company, Prelaw Guru, which helps aspiring law students prepare their applications. Before that she worked in career counseling as well, bringing her grand total in higher education student services to 18 years.

And she says:

“I’m done.”

Peg is moving into full-time work as a writer. She is in the process of wrapping up Prelaw Guru as of July 2016. Listen Like a Lawyer is grateful to Peg for sharing some of her insights from her years of experience working with aspiring law students.

What has your work in prelaw advising taught you about listening?

What really is an advisor? The advisor has two jobs: One, listen. Two, tell the truth. That’s it.

All the work I’ve done with college students has taught me to be a better listener and a better writer. I couldn’t have done it without the students. Some people think advising is about talking. But if you don’t listen first, your advice is not effective.

How have you used listening with the students you advised and your clients in prelaw consulting?

Clients always tell me they appreciate the opportunity to think about their own stories. That’s what I’ve done: listen to their stories in person, on the phone or Skype, and in their prewriting on the writing prompts I’ve given them.

I was spending so much time with the interviewing and listening that I developed an exercise called “49 Stories.” They are writing prompts to help law-school applicants brainstorm what they might talk about in their personal statements. The process is for the student to set a timer for 3-5 minutes and write as fast as they can. What I’ve noticed is that the internal editor starts to turn off.

The 49 Stories are organized to begin with “softballs”—that is, easier prompts. As the student progresses, deeper prompts are sprinkled in. Completing the exercises allows the person to first sit back and appreciate the ideas they’ve come up with—and also to start to see themes from their life.

So this was a way of saving my own time spent on all those interviews. But the writing itself helps. The more they write, the less they fear the whole process of writing a personal statement. Dyslexic students are an exception. They’re allowed to write less and then tell me more over the phone or Skype.

I read their stuff and tell them what stories I heard. They are in the middle of it and couldn’t see the stories that are valuable to tell. They would spill their guts and then didn’t know what to do after that. So, I would give them permission to write about their lives. They would say “Oh, I can write about that? I never thought of that.”  I help them see how the story is a good representation of them. 99 percent of the time, they say “You’re right, I’ve got to tell that story.” And then they crank it out.

Law school admissions officers are always telling applicants that personal statements need to be personal and about you, even if inspired by another person. Generally there’s going to be one with stronger and more personal elements. It’s almost always the most personal story. Not necessarily the most tragic, but the most personal. It’s about finding the personal in your past and ascribing meaning to it.

Some professors have said personal statements are so trite and formulaic. But I push back against that. If you’re tired of reading something formulaic, that means you’re tired of reading stories. Stories are formulaic! The subject matter changes, but the formula is the same.

The best story to tell almost always has to do with making a change. Stories are about change. And stories are really about human survival.

Law school applicants have the opportunity to meet with admissions officers at law school fairs and forums.  What’s your advice to applicants for managing those conversations?

Students go in thinking, “I’m going to apply these particular schools.” And they are listening to anything that backs up their plan. If they hear something that doesn’t back it up, they’ll stop listening.

When you are really listening, it sparks more questions. Some students are thinking so much about how they present themselves that they ask questions but don’t really listen. And honestly when I was 20 or 21, I was like that too. So let’s clarify some of the reasons this happens: Nerves get in the way. Ego gets in the way.

Students think they will impress the admissions officers by speaking—by what they say. But listening can help them create a better impression. Someone once shared with me some advice I’ll never forget:

Instead of trying to be interesting, try to be interested in.

Whenever I follow this advice, the people I’m talking with and listening to develop a higher opinion of me than if I had tried to impress by talking and being interesting.

Asking questions is a great opportunity to listen and learn. What are some of your favorite questions for law school applicants to ask?

I tell students to ask questions that most people don’t ask. For example, how frequently does the Dean meet with students? How easy is it for students to meet with the Dean? Some admissions people know this right off the bat. Others give vague answers with nothing set up institutionally. Be suspicious of that. The Dean sets the culture and attitude of the law school. Having a regular time to meet with students shows a level of care for the students.

I also ask about faculty culture. I watch how the admission person acts when answering the question. They may not have a great relationship with the faculty. Do they smile instantly? Do they look away and hesitate? For me, how they answer is as important as what they say.

What do you see in prelaw students today?

For me, prelaw students seem to fall into two major camps. They are all achievers—because the people I’ve worked with at Prelaw Guru are by definition achievers in some way—but they generally fall into two groups.

There’s a small group who are good listeners and also very humble and very skilled. They often have something like a 3.9 GPA and a good LSAT score. They aren’t perfect. They are very neurotic and worried about their future. But there’s a relationship between their humbleness, their skill, and their dedication. This is a very small group and they always amaze me. I’m always heartened to find that the most achieving students are also the most humble and the most worried.

The other group is much larger. They’ve struggled too, but I don’t know if they realized how hard law school is going to be. They’re not as worried. They tend to think they will continue doing what they’ve been doing. They may not have been challenged enough in college. They’re not arrogant, but they haven’t experienced enough to know how hard it’s really going to be. They may not have ever failed.

You mentioned a certain profile of some law students as humble but also worried. How do you think law students can cultivate their mental health throughout this process?

One of the biggest problems I see with prelaw students is they depend too much on external markers of success. They get depressed when they don’t receive those external markers, like the grade they wanted to get in a certain class. The focus on external markers leads to anxiety, drinking, and depression.

Those who are more mature realize it’s about internal markers of success. Even if they don’t get the grade they wanted, they can focus on what they learned from the class and the professor. I worked with one law student who was 10 years older than the typical law student. He grew up in a low-income area with a single mom. He said he had been lawyering ever since he was 12 years old, standing on the street corner listening to people, giving them advice, and helping them advocate for themselves. And this is the advice he gave me to pass on:

You have to rage against the machine.

The machine wants you to believe if you get high grades, you’ll be a good lawyer. If you get a big law job, you’ll be a good lawyer.

But you have to realize the machine is not you. You have to find your own version of success.

This student knew he wanted to be a public defender. He would constantly ask for help and get to know everyone both in and out of the law school who could help him toward that goal. And by his third year, he had his job offer in the public defender’s office before graduation and was ready to go.

In terms of listening, how can prelaw students get ready to be better listeners in law school and as practicing attorneys?  

Any type of work experience or internship or volunteer work where they have to listen will help them later. It doesn’t have to be legally oriented. One of my clients did customer service for a pharmaceutical company that helped her develop great listening skills. Many students I’ve met have done  intake work as an intern or volunteer where they have to interview people and then write up those interviews in a report. They benefit from understanding what it means to be of service by listening rather than by speaking. Journalism is also great.

I’m not a fan of lectures where students take a lot of notes then take a test. Sadly, many classes are taught this way. It may be necessary to impart content and a certain way of thinking to students, but I think schools with more hands-on learning in classes will have more successful students.

Students should think about how they learn best. Some can read and absorb what they’ve read. Others need to read and then reiterate out loud what they’ve read. Others learn best by hearing the material spoken out loud. There are lots of different ways of learning and the students who do the best have found ways to support or supplement their learning style.

How have you worked on your own listening skills?

The more I listen and take risks at telling the truth about what I’m hearing, the better results I get. I did a lot of own experimentation with advising during my years at the UW. Also I had several years of personal and business coach training prior to working at the UW that helped me a lot. As I kept experimenting with my students, I realized that’s what people are really looking for—for someone to listen to them and tell them the truth—even if they don’t seem to know that’s what they want initially.

What I have learned is to listen to clients and ask questions that help the client come up with their own solutions. And I tell the truth about what I heard. I try to ask questions that lead the person to the truth, for them. It’s important to understand as well that what’s the truth means different things for different people.

You are working on a career transition yourself.

I’ve always been writing on the side. Last year I wrote a middle-grade novel. I’m working on an adult suspense novel now and I’m also writing a personal finance book for college students.

This month, I’m wrapping up my consulting business and my online personal statement class. My last clients for this admission cycle have all got back to me and let me know their plans, so I feel good about that. It’s been great to help so many people, but I’m one of those people who likes more variety. And I think you should get out of something when you still like what you’re doing. So I will be a full-time writer this whole year, and then see where I’m at next January.

What’s funny is that being a full-time writer has really helped me relate more to my clients and the fears they had about writing their personal statements. They would tell me, “I don’t know if I can do it. But I keep telling myself, this is so important. This is going to decide my future.” I can totally relate to that! This is my year for writing; it’s not a year about procrastinating about writing. That means every single day, I go through the fear and the self-doubt, and just do it.

Listening flow

Watching the NBA finals—and seeing Stephen Curry score 38 points in Game 4—makes this a good time to talk about “flow.” Flow is “the mental state of operation in which a person performing an activity is fully immersed in a feeling of energized focus, full involvement, and enjoyment in the process of the activity.” Curry echoed these words in analyzing game 4: “I think we just got back to enjoying the process . . . .”

Flow comes up in an older basketball story from Bill Russell, recounted by business author Jeff Walker:

He described a playoff game where, for five minutes, the court “opened up” to him: somehow he knew where every player was (including those who were behind his back) and exactly what moves he needed to make. Even more mysterious, all of Russell’s teammates felt exactly the same. They scored more points during those five minutes than ever before. Leaving the court in victory, they turned to one another and said, “We have to figure out how to do that again!”

Psychology professor Mihaly Csikszentmihalyi has been writing about flow since the 1970s and founded the field of “flow research.” (Here’s his TED Talk.) In a chapter on “The Concept of Flow” co-written with Jeanne Nakamura, he itemized the characteristics of being in flow:

  • Intense and focused concentration on what one is doing in the present moment
  • Merging of action and awareness
  • Loss of reflective self-consciousness (i.e., loss of awareness of oneself as a social actor)
  • A sense that one can control one’s actions; that is, a sense that one can in principle deal with the situation because one knows how to respond to whatever happens next
  • Distortion of temporal experience (typically, a sense that time has passed faster than normal)
  • Experience of the activity as intrinsically rewarding, such that often the end goal is just an excuse for the process

The conditions for achieving this state include having a clear goal, immediate feedback, and a good match between the person’s skill level and the difficulty of the task. Flow is most associated with creative activities and sports (thus the connection to basketball). Flow is not so much associated with passive activities. As the studies point out, watching TV is not the same thing as achieving flow.

What about practicing law? Much has been written about lawyers’ achieving flow as part of career satisfaction, such as here and here and here. And in particular, what about lawyering and listening? Listening is a “receptive” communication channel along with reading, unlike the productive channels of writing and talking. (I take it as a given we all know lawyers who enter some kind of personal “zone” when they are talking.)

The most direct approach to listening and flow is to look at listening as part of a larger project with a goal. For example, taking a deposition. A deposition is an intense listening experience aimed at producing something very specific, namely a useful written record to use in the litigation. While working toward that goal during the deposition experience, lawyers may find it comes pretty naturally to focus and enter a flow state on what the witness is saying and what questions to ask. The adrenaline certainly helps. And if a real-time digital transcript is available, that’s instant feedback as well. On the other hand, achieving flow supposedly means getting past worry and fear of failure. I’m not sure most lawyers taking depositions would say they completely let go of fear and worry in the experience.

Also the idea of flow is that you lose the awareness of yourself as a social actor. But contentious depositions mean maintaining several layers of social awareness—not just the question being asked, but also the potential leverage for various motions and other interventions if the lawyers and witnesses do not cooperate. So it does seem possible for a lawyer taking a deposition to experience aspects of flow such as intense focus and distorted perception of time, I’m not sure many would claim they truly felt flow in a situation like this. Thoughts and feedback are certainly welcome in the comments here as well as on social media (Twitter: @ListenLikeaLwyr).

What about listening when there is not necessarily a clear external goal such as making the record? The best conversationalists seem to be motivated by the goal of just focusing on the other person—having a conversation because the other person is just so interesting. One of the scholarly models of listening has a final step of “staying connected and motivated.” (This is the Worthington/Fitch-Hauser model.) Great conversationalists seem to be intensely focusing on the conversation, easily able to contribute without effort, and intrinsically rewarded by the experience of having it. And whether or not they are actually experiencing flow, they create the perception of flow for the other person in the conversation.

Beyond listening for a project (such as making a record) and listening one-on-one, collaborating with others in a group has at least the possibility of some sort of flow. Csikszentmihalyi and Nakamura refer to “shared flow.” Business author Jeff Walker (who recounted the Bill Russell story above) calls it a “collective flow state.” Not a lot has been written about this idea of shared or collective flow; Csikszentmihalyi and Nakamura suggest it needs more academic study.

Some articles on lawyering and legal education do raise the possibility of creating flow within collaborative groups of lawyers and law students. Csikszentmihalyi’s flow concept is cited in this article on the experience of team lawyering doing clinical work for Haitian refugees with HIV-positive status, by Albany Law School’s Raymond Brescia:

The team nature of the effort, and the affirming trust members of the team gave one another, meant that as we developed different strengths and skills, we were able to achieve benchmark milestones, receiving constant feedback along the way which gave us information that allowed us to develop our expertise.

Likewise Stephen Krieger and Serge Martinez describe the experience of flow in their article A Tale of Election Day 2008: Teaching Storytelling through Repeated Experiences, 16 Legal Writing 116 (2010). These professors led a team of students in advocating for individuals seeking to vote on November 4, 2008, and they noticed a marked and somewhat unexpected improvement in these students’ storytelling skills through the course of that single day. They concluded that flow conditions were a partial cause:

Apparently—and without any conscious intent on our part— the surroundings on that date contributed to the experience of flow. There was easy access to information; Steve, an Election Law expert, was present. There was stimulation from other students and attorneys handling similar cases. And there was an overall sense of community of purpose. As Dan implied, it felt like a neighborhood law office, not like a classroom.

These articles may actually be suggesting individual flow experienced by the students and professors in a group setting, rather than shared flow within a group performing together (such as an NBA team). When the team functions as a unit with interdependent parts—when each team member knows when to speak and when to sit back, when the lead lawyer looks down the table to ask a question only to receive the answer on a post-it already en route—that’s shared flow.

Please share your thoughts on individual and shared flow, and the experience of listening as part of flow.

In a later post, I will explore some counter-points to flow such as this post from Cal Newport suggesting that seeking flow is not the same as engaging in deliberate practice. I’ve often thought that for legal writers, seeking a feeling of flow may not produce high-quality work, especially for very new legal writers. The article about the Election Day clinic appeared to be describing an upper-level clinic where students had a base of knowledge to deploy that day. I want to think more about how this point could apply to communication and listening.

In the meantime, here’s a link to an ABA Journal article on flow for lawyers, by Steven Keeva, a prolific and kind ABA writer who was gone too soon:

https://books.google.com/books?id=UbXRppru0BYC&lpg=PT159&ots=AH6z2v7lsn&dq=lawyers%20and%20flow%20state&pg=PT159&output=embed

 

 

 

 

 

 

 

Listening for summer associates

A successful summer-associate experience means doing good work and creating good social impressions. Listening skills can help with both.

The assignment and the work

The most obvious place to talk about listening and work product is in the incredibly important meeting where the senior lawyer communicates the assignment.Here’s a checklist for listening while taking an assignment. One theory of checklists is that they shouldn’t include the obvious things everybody already knows and does. If you read Atul Gawande’s Checklist Manifesto, you will learn that effective checklists should not be overloaded with obvious items no one actually forgets to do. But in case it’s not obvious, let me quote one to-do item (thrice repeated) in The Vault’s advice piece on “Acing Your Law Firm Summer”:

Bring a pad and pen to this meeting. Bring a pad and pen to this meeting. Bring a pad and pen to this meeting. 

The advanced skill is to take notes while still asking good questions and maintaining a conversational tone. And an even more advanced skill is perceiving what isn’t there. Legal writing guru Ross Guberman has suggested that “in this iPhone age, supervisors often forget to relay key information.” Reviewing a checklist before the meeting can help prompt good questions during the meeting to bring out valuable information.

Confirming the assignment in writing after the meeting can prompt the attorney to share further crucial information: “Attorneys are text people, so seeing your write-up might help your supervisor steer you onto the right track before it’s too late.” And this type of confirmation can showcase listening and writing skills as well. But I’ve also heard attorneys express annoyance at receiving e-mail back confirmations of every assignment-related conversation. The more formal and significant the assignment, the more appropriate it is to confirm the facts and assignment in writing.

Listening can play a broader role even before the assigning conference.  It has to do with picking up underlying knowledge and context for doing the job well. The most effective legal work product is effective partly because it is grounded in the lawyer’s understanding of that area of law and how it works in practice. Lawyers with experience in a particular practice area are more effective than beginners at what they do partly because they have “tacit” knowledge—that is, knowledge that is not written down and is difficult to share.

The ABA’s Before the Bar publication highlighted the role of tacit knowledge and why it’s so important to aspiring lawyers:

Your goal should be to gain tacit knowledge in order to build your practical skill set. To do this, attorneys need to transfer their tacit knowledge to you and the most effective way to do this is through extensive personal contact, regular interaction and trust. In other words, tacit knowledge is transferred through practice.

Summer associates cannot be expected to have the tacit knowledge that veteran lawyers in a practice area do. But summer associates who show they can pick up tacit knowledge quickly and apply it in their work are likely to stand out. For example a patent lawyer needs different ways of communicating with engineering clients and generalist judges. That’s maybe not a great example of tacit knowledge because it’s not so difficult to share.

Perhaps a better example is what it’s like to work with clients who don’t necessarily feel a great deal of affection and affinity for the law or lawyers in general. To take this social example a bit further, what is it like to work with clients who have a strong in-group identity? Let’s take doctors or more specifically surgeons, for example. Clients with a strong in-group identity may or not be willing to trust lawyers hovering at the edges of the in-group, and the most effective lawyers are highly perceptive about how to work with such clients. (Highly successful sports and entertainment lawyers come to mind here as well.)

Tacit knowledge about how a lawyer and a law firm go about working with such clients can help not just in a general social sense but with performing the substance of the work. The way a lawyer would communicate with such clients is very different from communicating with a legal writing professor or a senior lawyer. The substance of how to be successful in these settings goes beyond broad statements like “think of your audience” and easily transferable points like “don’t use legal jargon with non-lawyers.” In the ABA article, author Max Rosenthal went on to assert that all practical legal skills are rooted in tacit knowledge—not only writing and communication, but analysis itself.

Listening can help a summer associate begin to access some of this tacit knowledge. Through “shadow” programs and being invited along on a deposition or other legal event, summer associates can  just watch, listen, and learn. As with good law-school externships, these opportunities may be some of the most inclusive and rare opportunities to listen and learn, relatively free as they are of the pressure to bill time.

Tacit knowledge is, by definition, difficult to access directly. But conversations with lawyers in a practice area may be a start. Good conversations before any particular assignment can yield information about how lawyers do their job well in a particular practice area with particular types of clients. Show curiosity. Ask them about their experiences, successes, and challenges in that practice. What do they wish they had known when they started? Listen carefully to their words, and watch their nonverbal communication as they share their experiences. What are they telling with their nonverbal communication, as well as showing with their words? All of this information is valuable toward understanding this person and this person’s experience in this area of law. For good listeners who are curious, every piece of information they collect helps them do their work more effectively.

Social skills

Summer associates need to show that not only can they do the work, but they are also a “good fit” at the firm internally and can be trusted to interact with clients. These concerns mean summer associates should work on all kinds of social skills such as dressing appropriately and monitoring alcohol intake.

Listening helps across the entire spectrum of social skills. Here are just a few examples:

  • Showing curiosity by asking good questions and responding appropriately to the answers to continue the conversation
  • Knowing when to sit back and observe, such as when a senior lawyer is interacting with the client and the summer associate has the good fortune to be there
  • Maintaining focus on the situation even when not playing a direct role
  • Being able to converse informally (such as at a happy hour) by starting a conversation, bringing other people into the conversation, and leaving a conversation
  • Demonstrating recollection of earlier details and bringing them into later conversations appropriately

Evaluating listening

There don’t seem to be any published summer associate evaluation forms, but it is a certainty that they include criteria for effective communication skills. Communication involves four distinct channels: reading, writing, speaking, and listening. Listening may not be mentioned explicitly to the same extent as effective oral and written communication, but it is part of effective communication.

Listening can be subtle and hard to measure. It’s so difficult to say  whether another person is a good listener or a great listener. But when it comes to human perception and evaluation of others, “bad is stronger than good.” That means a hiring committee’s evaluation discussions may focus on problems or concerns, rather than subtle gradations of what went well. Some aspects of poor listening may be hidden—for example, not catching the subtleties of an assignment and therefore writing an acceptable memo that misses an opportunity to add value. (More on adding value below.) But some bad listening is very easy to spot. Looking at one’s smartphone while in the presence of a Very Important Person would be one example of what not to do.

Adding value and building professional identity

Listening can help a summer associate achieve the most nebulous and most important goal of all—“adding value” to the legal work of the firm. It’s a buzzword and maybe even a cliche, but there are ways for summer associates to add value by listening. Observing a deposition could provide an opportunity to watch the witness’s body language and suggest a follow-up question after a break. Shadowing a corporate lawyer could open up conversations about different ways to handle a type of transaction depending on the client’s goals. Asking questions that demonstrate understanding and curiosity about the profession suggests a greater long-term potential for adding value.

And listening can also help the summer associate directly with an more individual goal (one that is also nebulous but also important): building that summer associate’s own professional identity as a lawyer. One definition of professional identity is “the way a lawyer understands his or her role relative to all of the stakeholders in the legal system, including clients, courts, opposing parties and counsel, the firm, and even the legal system itself (or society as a whole).” (This is from Scott Fruehwald’s book Developing Your Professional Identity: Creating Your Inner Lawyer, quoting an article by Martin Katz on teaching professional identity in law schools.)

Certainly law school is a place where professional identity starts to form; taking those skills out into the almost-real-world of being a summer associate should be an even more meaningful opportunity to do so. However the summer turns out, it will have been some kind of step on the way towards a more fully formed professional identity.

This post was updated from its original form to include the ABA article recommending practical experience as the method for law students to acquire tacit knowledge.

For more reading on listening and summer associates: Listening as a hard skill and a soft skill

For more on checklists and legal writing: The Legal Writer’s Checklist Manifesto

Commencement

While it may be cost prohibitive to see Hamilton, you can take in Lin-Manuel Miranda’s commencement address at the University of Pennsylvania for free:

As with Hamilton, Miranda’s address uses an old genre in deep and deeply entertaining ways. A few points about listening:

Listening to what’s not there

Miranda begins by apologizing for the fact there is one and only one allusive reference to Philadelphia in all the 22,000 words of Hamilton. “Every story you choose to tell by necessity omits others from the larger narrative.”

Listening to your body

While writing his first Broadway play, In the Heights, Miranda developed a “blinding pain” in his right shoulder. Miranda found himself constantly cracking the shoulder until a back specialist helped him really listen to what his body was telling him. The life story of opera composer Giuseppe Verdi was also involved.

Listening—or not—to feedback

While developing an early version of In the Heights, Miranda and director Thomas Kail got some advice from a “big-deal veteran theater producer.” The advice would have helped them get the play produced right away. The advice was also worse than clichéd. Rejecting this advice and the opportunity to work with this person meant they had to “wait for it”  quite a while longer. “The story they fought to tell” survives.

Scorecard of practical readiness       

Chicago-Kent College of Law recently announced its concept for a practice-ready approach to law school. This program, named “Praxis,” is for students who want to “fully embrace” an experienced-based course of study.

The feature of the Praxis program most fascinating to me is the “scorecard” students must complete each semester of the program. It’s a list of 12 practice competencies grouped into four major categories:

  1. initial case development
  2. written and oral communication
  3. case and project management
  4. practice management and professionalism

You can see the scorecard here.

The idea is that students have to reflect on their progress toward gaining these 12 competencies as they move forward in the program, completing various classes and a mandatory live-client clinic.

Listening comes up directly and indirectly throughout the scorecard:

  • Initial case development requires a professional and thorough client interview. The law student needs to “[u]nderstand the client’s perceived problems, objectives, resources, and limitations.”
  • Initial case development also requires collecting evidence including testimony from others.
  • Problem-solving requires identifying the client’s legal and practical problems.
  • Trial work requires examining witnesses effectively.
  • Negotiation skills require empathy and active listening to understand the parties’ objective goals and try to find solutions that will meet them.
  • Effective collaboration and teamwork requires seeking clarification when needed. It also requires treating all co-workers with respect.
  • Client service requires “[r]esponsive, effective, prompt, and respectful oral and written communications” with clients. It also requires the law student to be able to “[p]rovide advice and predictions where appropriate, but avoid imposing [the law student’s] own values.”
  • Client development requires meeting new people and making connections.

The items on this list aren’t surprising, but it’s nice to see them collected in this way and used directly with students to help them track their own learning and development.

Hat tip to Scott Fruehwald, who described the Praxis Program here on the Legal Skills Prof Blog.

Listening and legal tech

I have followed Mike Whelan, Jr., on Twitter for a while now but only recently discovered his blog, Lawyer Forward. Mike is a Texas family lawyer and law-practice coach for lawyers who founded a CLE conference, also called Lawyer Forward. Whelan says his “ninja thing” is “teaching and cultivating relationships.” It’s therefore not surprising his blog has touched on both practical and personal aspects of listening, such as his appreciation for legal tech vendors who actually listen to lawyers speaking about their needs.

Mike’s most recent posts were inspired by social-media chatter about the Canadian legal tech conference, LexTech16. He wrote about it here and here. In his first post “It’s Not That We Hate Tech, It’s That We Hate Your Tech,” he  describes a simple method for deciding whether to spend on tech:

[T]ransactions happen under fairly simple dynamics: you give me something that I want more than the money in my pocket. If you don’t, there’s no sale.

Thinking about the payoff of legal tech brought up similar questions about the potential value to lawyers of time spent working on their listening. Also: does legal tech itself hold any promise for helping lawyers with listening and communication more broadly?

As far as the value of working on listening, I started writing this post with the idea of claiming there is no opportunity cost to better listening. There is no tradeoff! Effective listening should enhance any other choices a lawyer might make, whether the lawyer’s niche is in virtual drone lawyering with alternative fee arrangements based on social-media marketing or trusts-and-estates lawyering in a brick-and-mortar setting with retainers and billable hours based on marketing at the Rotary Club.

But that idea is not really right. There is an opportunity cost to the effort of improving the skill, even if the skill itself has no downside.

To use the most obvious opportunity cost I could think of, what about going to mediation training for 40 hours? Mediation and listening aren’t exactly the same thing, but any good mediation training should be spending a good chunk of time on effective listening.

So, to use Whelan’s value question in a broader hypothetical sense, would abandoning all other activities for 40 hours of mediation/listening training be worth it for a lawyer? This assumes the lawyer isn’t seeking an official mediation credential but rather thinking of investing in better listening more generally. Competing lawyers may be winning and keeping clients (as well as prevailing in negotiations and cases, etc. etc.) because they have better listening skills. But it’s very hard to prove that’s actually happening. So how should a lawyer or firm invest for effectiveness over the long term?

Here, additional parallels with legal tech emerge. Assuming a lawyer has decided in principle to work on listening via mediation training, how does that lawyer go about selecting the most effective training? One article from Mediate.com on how to select mediation training notes several challenges:

  • Potential participants don’t know the right questions to ask to select appropriate mediation training.
  • There’s no uniform regulation (nationally) over mediation training, although many states do regulate mediation training.
  • There are different theories within the field about what mediation even is and how it should work.
  • “Although the majority of organizations that provide mediation training are legitimate and are staffed by qualified trainers, there do exist mediation trainings that fall far short of accepted standards . . . .”

I’ll note that Georgia is strict in regulating mediation training. And I had a wonderful experience with 28 hours of mediation training towards a Georgia certification. It was fast-paced, well-supported, both practical and theoretical, and—most of all—immediately useful.

But beyond the challenge of selecting quality training, another challenge (threat?) is the idea that investing in listening training just wouldn’t help. In essence, a lawyer might think it would be harmless but probably also be a waste of time and resources. This attitude is likely to overlap with a “fixed mindset” about listening—the (mistaken) belief people’s listening skills are fundamentally set and cannot be appreciably improved with effort. When I started this blog, someone told me, “I’m a bad listener and always will be. People who work with me get used to it.” Just as some lawyers may resist even good legal tech because it doesn’t seem to them like it would really make a difference, lawyers might resist good methods for improving their communication skills for the same reason.

This resistance leads back to legal tech itself, on the merits. Whether you think listening is a fixed or learnable skill, is it possible that legal tech somehow revolutionize, disrupt, or at least modestly improve communication among people in the legal field?

Some tech startups—particularly those that facilitate online negotiation or online lawyer-matching—actually seem designed to replace face-to-face contact and perhaps thus diminish the importance of listening. The classic definition of listening requires the presence of “spoken and/or nonverbal messages,” both of which online communication excise from the interaction—perhaps for good reason in some situations. This roundup post on LexTech16 mentioned online dispute resolution for resolving family disputes in England. Likewise, the coparently app helps separating and divorcing parents “have less conversations with your ex and reduce conflict.” (Coparently and a number of other legal tech startups are listed on Bob Ambrogi’s recent, updated list of legal tech startups on LawSites. Click the link in his post to see the list.)

Other startups hint at the idea they could free up a lawyer’s time for other tasks. “Ross,” the AI-driven research startup based on IBM’s Watson, suggests it “lets you get back to being a lawyer.” So, to take a positive view, improved efficiency through excellent legal technology should mean less time spent manually reviewing bills or doing legal research, etc. etc. In turn, legal tech could mean more time for other professional or personal activities. And at least one possibility for what to do with such freed-up time has to do with listening—namely, more face-to-face contact and other human interaction.

Legal tech has potential to help lawyers (and others) with their communication more directly. For example, when we will see a commercial “sociometric device” that would report social metrics—such as a lawyer’s rate of listening versus talking? Kenneth Grady talked about these devices on the Seytlines blog:

Alex “Sandy” Pentland, who directs MIT’s Human Dynamics Laboratory and the MIT Media Lab Entrepreneurship Program, is one of the leaders in the people analytics field. His team developed sociometric devices—smartphones using special software—that teams of employees would wear during the day. The devices measured proximity to other employees, who was talking, engagement levels, and other data points. They did not capture what was being said. But, from this data Pentland’s team could determine which group dynamics led to more creativity or productivity. By altering the work situation, such as aligning work breaks rather than staggering them, Pentland’s team drove performance improvement along many metrics.

We’ve all heard “if you can’t measure it, you can’t manage it.” The idea of these sociometric devices opens new possibilities for measuring listening, generating data previously available only to communication scholars with extensive research support. Commercializing a device like that would be quite the marriage of listening and legal tech.


Post script: I mentioned above that Whelan’s blog talks about listening from several angles. One of those angles is pretty personal. Whelan has done readers a service with a series of open and honest posts on his wife’s ongoing struggle  with chronic illness, and how he manages his practice while supporting his wife and maintaining their relationship. As he says, it’s a story of “pushing through difficulty.” Here’s part 5 of that blog series; check out Lawyer Forward to see the earlier posts.

The outro

Still thinking about Prince . . .

Like so many, I downloaded some Prince and revisited the music of my youth. Purple Rain, of course. And in listening to it, I did something that I may never have done in the 80s: listening to all of Purple Rain, all 8:42 of it. That includes the final atmospheric two minutes of the song. There’s no more chorus, no big guitar, no more purple rain. There’s some trilling piano, a few of Prince’s vocalizations, and some echoing violins.  A friend who’s a musical expert told me that section has a name. It’s an “outro.”

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Flickr/bnilsen/Purple Rain 3/CC by SA-2.0

“Outro” is a music term for “the end of the road for your song.” It can be an instrumental solo, repeated chorus, or something else like that. There’s no real formula, but I think the most accurate description of Purple Rain’s outro is a meditation in strings (i.e. violins).

As a young person I honestly thought the end of the song was boring. It seemed like fluff after the huge vocals and massive guitars. The average song length has been on the rise since the 70s, leveling off in the 1990s at about 4 minutes. In fact the radio version of Purple Rain was shortened to 4:05, but I always listened to the album (on tape). Maybe my teenage attention span maxed out at 4 minutes. I would rewind the tape back to the beginning, craving the organ chord and unforgettable opening of the album:

“Dearly beloved, we are gathered here today to get through this thing called life . . .”

That did not feel like fluff.

Sadly now, every moment of Prince’s work seems more precious. Spending that extra two minutes finishing out the outro is a way to honor him. It’s a way of appreciating what the artist—in this case, The Artist—was doing. The whole song, including the outro, is what he was really trying to say.

Beyond that, this outro reminded me of a broader theme with communication. Conciseness is highly valued, both in writing and speaking. On this blog I sometimes pull data and anecdotes from a book called Brief: Make a Bigger Impact by Saying Less. One of its arguments for brevity is the thought-speech gap: listeners can process information at a rate of 600 more words per minute than speakers can actually speak. This gap creates “spare mental bandwidth” that can lead to distraction, boredom, and judgment. Conversely, speaking in a concise, message-heavy way maximizes efficiency and attentiveness.

Brevity is a virtue in pop music as well. A tight 3- or 4-minute pop song reduces the likelihood the listener will flip or click or tap to another song. But Prince (a) was too good to be limited to a formula and (b) probably didn’t care anyway. Those who are attentive enough to hang in through the whole 8:42 get a gift—the gift of a gentle orchestral landing to this booming ballad. Everyone else misses it.

Likewise with conversations, the informal, meandering end of a conversation—when the official conversation itself is over—can be extremely valuable. The “outro” of a meeting is a place for checking in and observing nonverbal communication to understand the real reaction. People may be creating their own outro. Are they still repeating the same chorus over and over? Are they calming down and echoing what was said? Using friendly, open body language can encourage people to tell you things they were thinking about the whole time but just not comfortable saying. Checking one’s phone at the earliest reasonably polite opportunity misses the chance to learn more from the conversational “outro.”

Connections between music and conversation are pretty fascinating; see this post on communications theorists who transcribe conversations with music notation. But ultimately my point here is a simple one about music appreciation. Purple Rain is a great song, and I recommend listening to it again. All of it.

Listening to Prince

I grew up listening to Prince’s music. Maybe I didn’t understand some of the nuances at first, which is probably a good thing since I was 11 when 1999 came out.

Later when I took on competitive cross-country and track, Prince was one of my go-to artists for training and race-day music. My Sony Walkman was my constant companion, with songs like 1999, Let’s Go Crazy, U Got the Look, and Kiss fueling many runs and races.

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Flickr/Ocean Yamaha/CC by 2.0 

Prince’s work was pretty much perfect for training and racing. It had a great beat and put me in a great mood, among the many ways music can enhance sports performance according to various studies such as this one.  Music helps athletes stay “in the zone” and makes the workout itself seem easier.

Moving from sports performance to office productivity, I’m not sure Prince’s songs would be great background music for lawyering. Music with lyrics is known to be bad for language-intensive work, and Prince’s lyrics are part of what makes his music so fun. But maybe if you find yourself doing “something close to nothing,” Raspberry Beret might give you a boost.

I listened to the compilation The Very Best of Prince today during my run, in Prince’s memory. And it definitely helped. Like all of his fans expressing disbelief and sadness today, I am so sorry he’s gone.