Month: September 2013

Law schoolLegal education

Listening check-up for first-semester law students

Every fall, every entering class of 1Ls faces a “paradox of comprehension,” writes Kris Franklin of New York Law School (here).  These brand-new law students have neither a framework for understanding legal concepts nor a solid legal vocabulary. Yet they have to somehow learn the law. As Franklin asks, “How do [they] enter this apparently closed circle?”

Open and Closed by Clearly Ambiguous

Courtesy Flickr/Open and Closed by Clearly Ambiguous

Listening is particularly challenging for listeners with no framework for the concepts or even the particular words used to express those concepts. To quote Terrill Pollman of UNLV William S. Boyd School of Law, “It’s like learning to speak Chinese by being dropped from an airplane in the middle of China.”

Now that first-year law students have had about six to eight weeks of this disorienting experience, it’s a good time to reflect on the listening and learning experience so far.  “How can I know whether I am listening effectively?” the mid-fall-semester 1L rightfully asks. Evaluating your own listening is difficult in any context, but here are a few thoughts. Evaluating what works and what doesn’t work can help lead to a more effective rest of the semester.

1. Self-evaluate what you are doing in class.

If you find yourself looking at unrelated Internet sites during slow moments in class, what you are doing is not working.

2. Talk to a friend about what you just got out of class.

Pick one particular class and discuss it in depth with someone. Go over what you heard and took away from what the professor said and what discussion revealed. Revisit what was said, and what you think the professor meant, in as much detail as you can.

3. Visit the professor during office hours.

Explain that you would like to check how well you are doing at listening to class sessions. Offer to restate your understanding of some segment of the class, such as one case discussed during a class session. You may not want to present this discussion as a blanket request to go over an entire class session again. The professor may be more amenable to the conversation if you frame the discussion with a more specific question and show what you are thinking about the material.

4. Look at your notes and maybe a classmate’s too.

After class one day, compare what you just experienced to what you wrote down. Expert note-taking advice often suggests not recording everything the speaker is saying, but rather working to process and prioritize the information as take notes. That is fine if you know what you’re doing. But at the beginning of law school (as well as at the beginning of any new course) you may find it more useful to err on the side of recording more of what’s happening. Consider also comparing notes—literally—with a classmate. What did each of you take away from class? What are the strengths and weaknesses of your note-taking systems?  And what are the differences in what each of you picked up from the experience? Seeing someone else’s approach to the same task can help you customize what works for you.

5. Evaluate how much you are just “letting go.”

Also make sure your notes don’t commit the sin of omission. What if you don’t understand something the professor is saying, or the point of a long Socratic back-and-forth with a classmate on call?  If you take no notes because of the confusion, then that material may be lost forever. Write down some snippets as well as a notation that you are confused and need to study this in more depth.

6. Try a practice exam question or two.

Apart from any formal practice exam your law school may offer or require, you can evaluate your listening by taking a practice exam on your own. If available, one of your professor’s own exams will work best. Practicing the traditional way by answering the question under normal time constraints will certainly help you. You might also want to try a practice question by specifically focusing on your listening. Look at the exam question, take a few moments to think, and write down what major issues it seems to cover. Do not look at your notes yet. Instead, thoroughly scan your memory for what the professor—as well as classmates—said about these issues in class. Try to remember speech snippets and even jokes and nonverbal behavior during the dialog. After priming your brain this way, work on answering the question in writing. You probably would not take an actual exam this way, but it could be helpful for keeping your classroom memories fresh, thinking broadly about themes in the class, and not getting too tied to your notes as having “the” answer.

7. Listen to a podcast recording of class or record a class, if possible.

Recoding and re-listening to every class may not be feasible. But going back over a recorded class session and studying your notes from the first time around may help you to catch nuances of the particular class that you missed. It may also help you catch nuances of what is happening in class more generally: is the professor criticizing the result or reasoning in a case? Is the professor comparing and contrasting two approaches to the same case? What are the hypotheticals that the professor lays out, and are they explored to their fullest or left unresolved for possible future analysis—say, on an exam.

8. Rest your ears and listen to nature.

If you pop in the earbuds right after class, you may be depriving your brain of the chance to process and file what you just heard in class. Yes, music and speech are different and perhaps do not compete in the brain, but still:  Try giving your listening circuits more time to work on what you have learned in class.

You may also benefit from spending time in nature. Spending a bit of time away from a computer—instead seeing, hearing, and even smelling the natural world—can reduce stress and boost creativity.

Many thanks to Professor Terrill Pollman for helpful feedback on this article.

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Celebrating National Punctuation Day by listening to punctuation

Listening to what you’ve written can be immensely helpful in revising and editing your work. “Read it out loud” is a time-tested technique for self-editing.  As Forbes magazine proclaimed, “To write like a human, read your work out loud.” 

Listening to your own writing can help with all stages of the writing process:

  • analysis (recognizing false contrasts, for example)
  • research (realizing that a statement really needs support)
  • organization (noticing that sequential paragraphs or sentences are jumping around between topics)
  • sentence length (running out of air before finishing a sentence)
  • grammar (frowning while reading because it’s now apparent that the subject and verb don’t actually agree)
  • word choice (hearing words that just sound wrong, and maybe brainstorming good alternatives out loud)

But listening can be a bit of a faux ami when it comes to punctuation. Particularly, please do not subscribe to the rule that you insert a comma wherever you pause in speech. As the University of North Carolina Writing Center points out in a comprehensive handout on commas, it’s a myth that you should insert a comma wherever you pause. Different people pause in different places.

The most common error along these lines is, I think, the desire to put a comma after but: “But, the court ultimately reversed and remanded.” I once watched someone read a sentence like this and respond as follows: “That comma makes me physically ill.”

If you are listening to your own work and really, really want to mimic the rhythm of speech by inserting a strong pause . . . consider the ellipses, as Roy Peter Clark recommends in The Glamour of Grammar.  But he also points out that the ellipses to signal a pause is more a tool of narrative writing and not so commonly spotted in the world of formal reports. He didn’t specifically mention legal writing, but he might as well have. The ellipses could perhaps work well in legal blogs and other friendly, outward-facing writing–as well as sarcastic writing like this response to a cease-and-desist.

When lawyers want to slow down the way the writing sounds but maintain a very formal tone, there’s always the old faithful, very basic punctuation mark that does a lot of work but gets under-appreciated for its rhetorical effect. Yes. The period.

EthicsLaw practiceLegal communicationLegal skillsPeople skills

Listening to children: practice pointers from an expert

Listen Like a Lawyer welcomes guest blogger Karen Worthington, a writer, consultant and children’s policy attorney.

Writer, consultant, and children's policy attorney Karen Worthington

Karen Worthington

A recent verbal exchange with my five-year-old ended like this:

Impatient mother: “We are going to be late for practice. I told you three times to pack your snack and water. Didn’t you hear me?”

Unflappable daughter: “I heard you, I just didn’t listen.”

My daughter’s statement both captures why miscommunication is so frequent in our lives and illustrates a key difference in how young children and adults communicate. Young children live in a world of concrete concepts. To them, to “hear” is to know there is a sound going on around them. To “listen” is to accept and process information that is being conveyed to them. Listening and hearing are two distinct actions and listening is not always a subset of hearing.

Truly listening to children is one of two things attorneys must do to effectively work with child clients. The other is understanding child development. Although child development is not a class found in any law school, lawyers working with children and families cannot effectively communicate with or build a case involving a child without understanding where that child is developmentally and how that impacts the issues in the case.

What is a child?

In the legal world, a child is a person who is not yet a legal adult. For most purposes, the age of adulthood is eighteen, which means that a “child” could be seven days or seventeen years old. Because of the wide range of developmental and chronological ages and abilities falling under the legal umbrella of “child,” when discussing how to work with children it is helpful to group children by developmental ability.

The developmental stages of childhood are generally categorized as infancy, toddlerhood, early childhood (ages 3-6), middle childhood (ages 7-11) and adolescence. While the exact ages and stages may vary among developmental experts, the fact remains that the skills and approach needed to listen to a child vary according to the child’s developmental age and stage. Each stage includes social, emotional, cognitive, motor and other changes that affect how a child interacts with (i.e. communicates with) his or her world. Furthermore, developmental theory provides only a framework for working with children. Each child is unique, developmental stages are not linear, and a child’s cognitive abilities may be affected by trauma, fear, hunger, excitement, tiredness, medications, hormonal changes, the setting in which the conversation takes place, and many other factors.

How to listen to children

As with any other client (and perhaps more so than most clients), attorneys need to spend time with and get to know their child clients. Listening to your child client in different settings at different times will teach you how to best communicate with that child. A preverbal infant is just as capable of carrying on a conversation as a 15-year-old, if you know how to “speak” and “listen” in the infant’s “language.” Following this post is a list of resources to help lawyers communicate with children of different ages.

There are some general guidelines that apply across the stages of childhood. First, establishing rapport with a child is essential in a way that it is not with adults. Most of the time, adult clients seek your services because they want your help with a problem and they understand the attorney-client relationship. In contrast, most child clients encounter you because of bad things that have happened in their lives and almost always, they did not seek you out–you were assigned to work with them by some other adult. Even when you represent youth accused of breaking the law, which is most analogous to a situation in which you would encounter an adult client, the youth’s perception of your role is not likely to be similar to an adult’s perception of it.

Connect with children

Rapport is essential because broadly speaking, young children will want to be agreeable and please you and adolescents are likely to distrust you. Therefore, young children need to be comfortable enough with you to disagree or correct you rather than always giving the answer they think you want to hear. Older youth will need to be comfortable enough to share relevant information with you and not just tell you what they think you would want to or should know. All ages need to feel comfortable enough with you to share information they may feel is embarrassing or shameful.

Understand the child in context

A second general guideline is to speak the child’s “language.” Learning the child’s language comes in part from understanding child development (such as when children can understand abstract concepts, compound sentences, time, space and size comparisons, etc.) and in part from understanding the world in which the child lives–physically, culturally, socially and emotionally.

To understand a child in the context of her environment you need to see the child in her home or school and you probably need to observe interactions with important people such as parents, siblings or peers. You also need to be able to talk about what is important to the child. If you work with tweens and adolescents, read some magazines targeted to that age group, find out what music is popular with the teen and his friends and listen to it. Know something about what the youth is interested in, whether it is college basketball, pro football, the latest dance craze or the newest viral video. You probably can’t bill for watching music videos, but the improved ability to relate to your client is a huge payoff.

Don’t just talk; do something

A third general guideline applicable to most youth is to interact with them rather than interrogate them. Instead of a traditional one-on-one conversation which, for lawyers, often includes a desk and taking notes, it is best to engage in an activity with a child. For young children that might be coloring or playing with trucks or dolls, for older youth it might be playing a card game that doesn’t require much concentration, swinging at the park or walking around the neighborhood.

Having something to focus on other than an adult asking questions tends to make a child more comfortable. For many children, the only time they sit and talk to an adult without doing something else is when they are in trouble. Because of the setting in which you talk with a child, you may not be able to take notes, so you need finely honed listening skills.

Be honest; be real

A fourth general guideline is to be genuine and keep your word. Children have a sixth sense for insincerity and a finely attuned BS-o-meter. Develop rapport but still be yourself. Maintain boundaries. You are the responsible adult in a relationship where there is a power imbalance. You are their lawyer not their friend. Don’t overpromise and always follow up. Be clear and do what you say you will. Most of the time children have lawyers because other adults have failed them. Do not be another adult who lets them down.

Listen with your heart as well as your ears

A final piece of advice is be prepared to be surprised. When we allow ourselves to listen to children, we are likely to be surprised by their wisdom. Children’s insights and observation can be biting in their honesty. Appreciate the profundity in simple statements such as “I heard you but I didn’t listen to you.”

Resources

Click on the resource title to open the URL.

ABA training video, “Interviewing the Child Client: Approaches and Techniques for a Successful Interview 

ABA Center on Children and the Law

CASA of Arizona online training segment, “Interviewing Children”

National CASA article excerpt, “Interviewing Children” (PDF)

NJDC training module “Talking to Teens in the Justice System: Strategies for Interviewing Adolescent Defendants, Witnesses, and Victims”

“Handbook on Questioning Children: A Linguistic Perspective, 3rd Edition,” by Anne Graffam Walker, et al, published by the ABA Center on Children and the Law (July 2013)

Author bio

Karen Worthington is a writer, consultant and children’s policy attorney who has spent the last 19 years working to improve children’s lives as a policy wonk, educator, author, child law and policy center director, nonprofit leader, legislative advocate and children’s law expert. Her consulting website is http://www.karenworthington.com and her writing website is http://www.lightningboltwriting.com.

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Guest post on Legal Productivity: 5 Benefits of Effective Listening

Effective listening is crucial to establishing rapport with clients, witnesses, and anyone, really. But effective listening also contributes to lawyers’ analysis, strategy, and future workload in several concrete ways.

Effective listening helps lawyers find the right narrative for the facts, avoid nasty surprises, and generate more work–in a good way. Read more in my guest post at the Legal Productivity blog here.

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Effective Listening During Fact Investigation

Today Listen Like a Lawyer brings you this conversation with Emory Law Professor Paul Zwier, director of Emory’s Advocacy Skills Program, co-author of Fact Investigation: Interviewing, Case Analysis, and Case Theory Development, and noted speaker with the National Institute of Trial Advocacy.

Many thanks to Professor Zwier for sharing his thoughts on establishing a rapport with your client, active listening for empathy and for information, and developing listening skills over the course of your legal career. To quote his book, “Without expertise in both asking questions and listening, the lawyer as fact researcher is likely to fail.”

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Updated listening resources

This week’s end-of-the-week update highlights Listen Like a Lawyer’s growing list of listening resources. The list is here, and can always be found on the left panel of the blog in the menu item “Listening Resources.”

The updates include several articles from the Harvard Business Review and the HBR Blog, as well a number of additional books on listening. My favorite title, I confess, is Rule #1: Stop Talking!

There are some very valuable insights in these collected resources, and I would be grateful if blog readers suggested more. The resource list will continue to grow. And likewise, Listen Like a Lawyer will continue to explore ideas about listening, placing a particular focus on the needs of lawyers and other legal professionals, as well as law students and professors.

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The Lawyer’s Ethical Duty Not to Listen

Lawyers have a duty to listen to their clients, as discussed in an earlier post. Lawyers also have a duty not to listen to certain information.

Do not listen to a person represented by another lawyer.

A lawyer may not listen to information provided by a person represented by counsel, as set forth in Model Rule of Professional Conduct 4.2. In short, communication with a represented person is a terrible idea! The rule itself says that in representing one client, a lawyer “shall not communicate about the subject of the representation” with another person represented by counsel. (Exceptions apply when the other person’s lawyer has consented, or when a court order or other law allows the communication.)

Listening includes having other people listen.

Lawyers may not circumvent the prohibition on communicating with represented parties by having non-lawyers take over the communication. Rule 8.4(a) defines professional misconduct to include violations done “through the acts of another.”

Listening is still listening, even without asking a single question.

The prohibited acts of listening include completely passive listening as well as active questioning. In In re Howes, 940 P.2d 159 (N.M. 1997), the New Mexico Supreme Court upheld sanctions against a prosecutor for listening to several statements by a criminal defendant without his defense counsel’s knowledge. The prosecutor did not initiate the communications and never asked a question during any of these statements. He merely “listened to everything defendant had to say.”

The New Mexico Supreme Court roundly rejected the idea that this was not communication: “To argue that one does not violate [the precursor to Rule 4.2] if one does not ask questions or impart information borders on sophistry. People do not compromise their positions or waive their defenses by listening to an attorney; they do so by talking while the attorney listens.” The attorney, who was quoted by the court as lacking remorse for his actions, was publicly censured and ordered to pay costs.

Unethical listening isn’t limited to dealing with represented parties.

Inappropriate listening could subject a lawyer to discipline under Rule 8.4 even if it does not involve communications with represented parties. Rule 8.4 defines professional misconduct to include conduct “involving dishonesty, fraud, deceit, or misrepresentation.”

For example, in In re Matter of Schwartz, 599 S.E.2d 184 (Ga. 2004), a lawyer accessed and listened to voicemails at the firm where he no longer worked. He went on to randomly delete some of them. The lawyer admitted violations and was suspended under a voluntary plan, which the Supreme Court of Georgia affirmed. The reasoning in the case did not separate out the wrongfulness of the act of listening to the voicemails from that of randomly deleting some of them. The court found suspension is generally appropriate when “a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal profession.” This case is among those listed in the ABA Annotations to Rule 8.4.

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A “KISS Principle” for Listening

This post continues Listen Like a Lawyer’s end-of-the-week tradition of sharing short links, images, and other concise content about listening.

In the college textbook Listening: Process, Functions, and Competency, authors Debra Worthington and Margaret Fitch-Hauser present brief advice from a trial consultant about listening. “For attorneys, one of the key principles to listening well begins with setting up an atmosphere conducive to the clients’ believing they are listened to,” says Diane Wyzga, trial consultant and founder of Lightning Rod Communications.

To do the job of listening to what clients want or need to say, one phrase is particularly helpful:

“Tell me more.”

This, Wyzga says, is the “most invaluable statement you can ever use to encourage someone to speak.” There is no need to craft strategic questions, she says, and using this simple phrase “allows the client’s narrative story to emerge.”

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Listening and e-mail

A recent critique of “digital dualism” got me thinking about lawyers, listening, and e-mail. Digital dualism refers to the mindset that online digital life is something different—and the frequent implication is: something less—than authentic “real life.”

http://www.flickr.com/photos/krossbow/6708494277/

Thanks to F. Delventhal

This blog may at times veer to close to digital dualism, as in this early post. It is pretty easy to think that listening to a real conversation is a rich, informative experience, whereas e-mail is a weak, underwhelming medium. To use a visual metaphor from photography, listening in real life is like viewing the rich hues and shades of a photograph taken the old-fashioned way, on real film. An e-mail conversation is like digital photography: easy to use but less subtle in shades and gradations; and subject to digital distortion, conveying only what the limitations of pixels and memory allow.

Lawyers’ responses to this idea would seem to fall along the same lines as non-lawyers’ responses. Some embrace the dualism and the preference for “real life,” arguing that the law profession has become too reliant on digital forms and too hopeful about their promise for the future. In the listening context, lawyers perhaps could do better by themselves and their clients by replacing some e-mail exchanges with real-life conversations.

Some lawyers would go the opposite direction with a pragmatic response: Who cares? Even if e-mail is different or even definitively less than real-life listening, there’s no way a modern law practice could exist on real-time listening alone.

The hope is that many lawyers would seek the benefits of both. They would reconcile the dualism debate by concluding that online and offline communication forms complement and enrich each other. The most effective lawyers strategically inhabit both worlds, picking and choosing their method of communication depending on what is necessary and appropriate. (This reconciliation is suggested in Nathan Jurgenson’s post on digital dualism linked above. As he writes: “our reality is both technological and organic, both digital and physical, all at once.”)

Developing that point, here are some thought on how real-life listening techniques can be useful for handling e-mail:

1. Listen to the tone of an e-mail.

Much has been written about tone in e-mail. It’s hard to control when you’re writing an e-mail. But what about “hearing” the tone of an e-mail?

Listening to the tone of an e-mail can be valuable in a variety of ways. The e-mail’s tone can tell you about how the sender is positioning his client.

The e-mail’s tone can also guide you in handling further communications in a satisfying and/or strategic way. For example, to acknowledge that you understood the e-mail’s intended tone, you can use “active listening” techniques. Active listening generally involves listening to and processing the speaker’s message, then paraphrasing it back so as to demonstrate understanding and initiate further conversation. (Professor Neil Hamilton has a helpful overview of active listening and some pitfalls for lawyers here.)

For example, active listening could help with managing a hostile-sounding e-mail like this one:

 “We have been asking for a new set of draft agreements for more than two weeks. We have received no response from you or anyone on your team throughout this time despite repeated requests. This delay in receiving a new set of drafts is unacceptable.”

Using active listening techniques, a response e-mail could acknowledge and reflect back the sender’s disappointment—while also not admitting an actual significant “delay”:

“We are sorry that you are disappointed in the timing of the drafts.”

By using the active-listening technique in e-mail, a lawyer can demonstrate attention to the matter and good will in continuing to communicate. The lawyer’s e-mail “listening” can also show an understanding of the gamesmanship inherent in some e-mail exchanges, while still moving forward with the matter immediately at hand.

2.  Listen to what is not said in an e-mail.

Peter Drucker asserted that “[t]he most important thing in communication is to hear what isn’t being said.” This is true in e-mail and in real-life conversations.

Thus, searching an e-mail for important gaps can be an extremely important communication tool. Discovering what hasn’t been said allows further conversation to close up gaps and finalize details.

Discovering what hasn’t been said can also be part of an effective lawyering strategy. Understanding what the e-mail sender left out of the message can give a lawyer ideas about strategic next steps.

3. Listen to e-mail silences.

When an e-mail trail goes quiet, that silence may or may not be significant. Acknowledging a significant silence can be a form of listening with empathy:

“After our many exchanges last week on the status of the new draft agreements, I was surprised not to hear from you since my last e-mail on Friday at 2:26 p.m. I hope everything is all right with you and your team.”

Acknowledging a silence can also be somewhat equivalent to nonverbal communication in a real-life conversation, signaling your engagement with and continuing interest in communicating.

So to return for a moment to the idea of digital dualism, it seems the best (and really only) approach is to embrace both forms of communication–both online and offline. Both are necessary to law practice. Both have strengths and weaknesses. Great lawyers use both to get their message across and to listen as well.