Thanks to all who have supported Listen Like a Lawyer since its launch in August. Please keep it up with the e-mails, comments, suggestions, and networking connections. I am so grateful for your support. Have a wonderful holiday!
Part of effective listening is dealing with what you hear from your own self-talk. As reported by Susan David and Christina Congleton in their Harvard Business Review article on Emotional Agility, we speak on average 16,000 words per day–out loud. A comment to the article suggests that internal self-talk generates 20,000-40,000 “neurological” words per day.
The idea behind the Emotional Agility article is exactly what I wanted to write about here at Listen Like a Lawyer at this time of year. Law students are headed directly into exams, a petri dish for negative self-talk, as Alison Monahan has written about here at Ms. JD. Recent graduates are about six months out of school and either moving past the honeymoon phase of a new job or still seeking employment. Practicing lawyers face pressures to close out the year in terms of projects, deals, cases, and billable hours. In general the holidays can be a time of stress, and those involved in the legal profession have our own brand of stress around this time. Stress leads to “internal chatter” that may be counterproductive.
Thus these difficult times are exactly when effective listening skills in terms of dealing with your own self-talk is so important. Self-talk is pervasive, but as David and Congleton write, sometimes we become “hooked” on certain “rigid, repetitive” thoughts. To break these patterns and become more emotionally agile, they recommend recognizing, labeling, and accepting these chattering thoughts–followed by intentionally acting not on the chatter but on your own values. I recommend the full article (available free with registration) as well as the comments, which acknowledge related models serving both therapeutic and business/leadership goals.
Particularly for law students headed into study periods and finals, there is no better time than now to work on productive management of self-talk. As one example of a resource, here is Berkeley Law’s online guide addressing law student stress. And one of the sources cited there is Debra Austin’s law review article on “neural self-hacking to optimize law school performance.” I recommend this article, particularly the solutions section at the end. The benefits of mindfulness and meditation are most directly related to the self-talk issue. But other solutions such as exercise and sleep have powerful indirect effects on negative self-talk as well.
Lawyers, law students, and legal professionals: please share your own experiences and advice about effectively dealing with self-talk. Thank you, and happy Thanksgiving to all.
Spontaneous speech doesn’t fit together like Legos. Because speech reflects a sometimes messy thought process in real time, spoken transition words and phrases—what the linguists call “discourse markers”—serve a crucial purpose in conversation.
Discourse markers can be as empty as “I mean,” as overused as “clearly,” or as specific as “at the end of the day.” (I had thought “at the end of the day” was just a legal/business buzzword. Apparently it formally qualifies as a discourse marker as well.)
There are different kinds of discourse markers, including those the speaker provides to structure what he or she is saying, and those the listener provides in participating in the conversation. Saying “um-hmm” to keep the conversation going is one example. This post focuses on listening to the speaker’s own discourse markers because they are tempting to disregard.
Lawyers may think that they can listen most efficiently by disregarding most discourse markers and focusing on the “real” content they are hearing. I confess to having tried this in many past conversations. But disregarding discourse markers is actually a really bad idea. They are an important source of information about the speaker’s attitude toward the conversation itself. They can:
- highlight important events in a narrative;
- help listeners follow a speaker’s train of thought;
- help listeners recover from a “repair”; or
- show the relationship between two statements.
This list is quoted from a linguistics article by Fox Tree and Schrock, Oh What a Difference an Oh Makes, found in this PDF. The article reports on language experiments with a fascinating conclusion: listeners better understood speech content when it included a discourse marker as simple and seemingly insignificant as the word “oh.” When listeners heard the same speech content without the “oh” or with just a pause where the “oh” would be, they didn’t understand the content as well.
For listeners, recognizing and showing responsiveness to a speaker’s discourse markers can build trust and move the conversation forward. Misinterpreting or entirely missing a significant marker can set the conversation back and make the speaker think less of the listener.
Many markers focus on the content of the conversation:
- Signaling an important idea, such as “The key point is . . .“
- Highlighting an objection, such as “Here’s the thing . . .”
- Marking an attempt to end the conversation, such as “So the takeaway from all of this is . . .”
Some discourse markers seem more personal than others, and may serve as a sign of submission or authority:
- Using the listener’s name, as in “Casey, . .” or “Your honor, . . .”
- Phrasing the message directly and personally to the listener, such as “What I need you to understand is . . .”
And some discourse markers involve repackaging part of the conversation to relate it to a new piece of content:
- Rephrasing an idea and moving into a new idea as another item in a list, such as “In addition to the time and energy it will take to litigate this issue, there are also hard costs to consider.”
- Rephrasing a concern and subordinating it to a larger concern, such as “And although the timeline is challenging, it’s going to be very difficult to justify waiting any longer.”
Discourse markers are a universal trait of language in both speech and writing. Jill Ramsfield and Christopher Rideout have written about discourse markers unique to legal writing such as “whether” for introducing a traditional Question Presented. In spoken legal discourse, perhaps “your honor” in addressing a court is the most ingrained discourse marker? One of my favorite law school professors, a frequent advocate before the United States Supreme Court, described using “your honor” as a filler when she was brainstorming what to say next. Readers: please chime in with further thoughts on uniquely legal discourse markers.
What really matters for lawyers is to recognize the importance of discourse markers. Maybe a more memorable word for the practical lawyer is “signals”: discourse markers can send a *signal* about what a speaker thinks. They could signal what a client thinks is really important or when a judge is ready to move to a new argument.
Noticing these signals can increase lawyers’ effectiveness as listeners because by doing so, they will better understand the speaker’s content in the abstract as well as the structure of the content and the speaker’s attitude toward the content.
P.S. This post started as a tirade against the conversation stopper “yes, but,” which is a type of discourse marker provided by a listener in taking over the conversation. Here’s a quick summary of how “yes, but” works as an effective conversational technique: it doesn’t.
P.P.S. For a law-review treatment of conversation theory including discourse markers, I highly recommend Linda F. Smith, Always Judged: Case Study of an Interview Using Conversation Analysis. It contains transcripts of effective interviewing techniques. As the abstract states:
Legal interviews are infrequently recorded and rarely studied. The few empirical studies of actual legal interviews have been primarily critical of the lawyers for being too controlling, eager to impose a solution on the clients, and uninterested in the message the clients want to convey. This article presents a case study of something heretofore unavailable – an experienced, expert attorney conducting a successful initial interview with an actual client. This article uses ethnographic conversation analysis to describe the interview in terms of question form, interruptions, control of the floor, and expressions of empathy. It relies upon the insights from prior empirical studies and shows why this is an excellent interview – the client not only is heard, but feels understood, rather than “judged,” by his lawyer.
Earlier today I participated in a very difficult conference call. I was listening on a handheld cordless phone. On the receiving end, a cellphone set to speaker was on the table surrounded by seven people.
These folks—who made every conscious effort to include me—also conducted the meeting in the grand tradition of meetings, often mumbling, interrupting, and talking over one another. I could only hear about half of what was said. This frustrating inability to hear and follow the conversation was a reminder of what people with hearing loss face on a daily basis.
If you are a legal professional dealing with hearing loss and if you would like to be interviewed or share advice with Listen Like a Lawyer’s readers, please comment below or e-mail me at firstname.lastname@example.org. The hope is that this conversation can help affected legal professionals to recognize and address hearing loss, and help others understand more about this issue in the legal workplace as well.
Thanks to the International Listening Association, I learned of this video from HuffPost Live. It’s a quick, fun, informative look at problems with listening and ideas for improving. The panelists offer suggestions for managing your own thought process when you feel like you’re about to “check out.” The panelists also delve into different types of listening and the consequences of good and bad listening. I recommend the video for its informative and sometimes funny take on listening problems and solutions. (There is a really funny movie clip about halfway through.)
Listening to clients seems like mostly an affirmative duty, if only an implied one. But in writing about lawyers’ duty *not* to listen to represented parties, I began to wonder about the limits of a lawyer’s duty to listen to clients as well:
Can a lawyer ever choose not to hear what the client has to say?
Can a lawyer be present with a client and let the client talk out loud, but choose not to really listen to or process what the client is saying?
Can the lawyer listen to what the client is saying but choose not to act on it? Does the lawyer ever have a duty not to act on what the client says?
The main area where a lawyer might have the ethical discretion not to listen to a client, is in dealing with clients who have diminished capacity. Model Rule of Professional Conduct 1.14 sets out a lawyer’s obligations and options in representing clients with diminished capacity:
(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.
As the language shows, the rule has several guiding principles:
- preserving a lawyer-client relationship that is as close as possible to a relationship not involving diminished capacity
- allowing the lawyer to seek help from third parties when necessary
- not allowing the lawyer to substitute his or her judgment for the best interest of the client, as Elizabeth Laffitte points out in her article Model Rule 1.14: The Well-intended Rule Still Leaves Some Questions Unanswered (LexisNexis).
Echoing and developing Rule 1.14(a)’s requirement of a normal client-lawyer relationship, comment 2 specifically focuses maintaining communications:
The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.
The rule is thus quite clear that the lawyer has the same ethical duty to listen to the client as applies to clients without diminished capacity. The question then becomes how to carry out this duty for a client with diminished capacity.
Choosing not to hear
For example, what if a client has sporadically compromised mental states—times when the lawyer can barely follow, much less understand, what the client is saying? Can the lawyer treat the client with attention and respect while also effectively choosing not to hear what the client has to say?
Good lawyers recognize and accommodate these peaks and valleys in clients’ abilities to communicate.
“Many times, a client may have diminished capacity, but still be pretty lucid at certain times during the day,” notes attorney Adrienne Ashby of the Georgia Senior Legal Hotline, a project of Atlanta Legal Aid and other Georgia agencies.
Comment 6 to Model Rule 1.14 explicitly instructs lawyers to take into account their clients’ “variability of state of mind” as well as their known long-term goals:
In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.
Thus, once it becomes clear a client is in a temporarily compromised state of mind, a lawyer could indeed choose neither to hear nor listen to a client. Ashby suggests that “[a]n attorney would do well to try to communicate with the client during the lucid times, so as to try to ensure that what she hears from the client is something that she can act upon.”
Choosing not to listen to contradictory statements
A different hazard may arise when the client seems lucid yet makes contradictory statements in the same conversation. Under Rule 1.14, the lawyer cannot substitute his or her own judgment about the client’s best interests. But can the lawyer selectively listen, giving greater weight to the portions of the conversation that the lawyer believes to be more in the client’s own best interests?
Better for the client and less risky for the lawyer would be to seek clarification using listening techniques such as the active-listening response of rephrasing what you have heard:
“Mr. Jones, you said earlier that you would like to put your daughter’s name on your retirement account so that she can use the money for the grandchildren. But then you stated that you wish to disown your daughter and remove her from all your accounts entirely. It is not possible to do both of these things. Which would you like to do?”
Using active listening in this way permits the lawyer to pinpoint areas of uncertainty and also to counsel the client on proceeding.
Listening to third parties
Clients who may have diminished capacity may have family, friends, or others assisting them with their legal affairs. From her work on the Georgia Senior Legal Hotline, attorney Adrienne Ashby describes a common scenario: “The client contacts me to discuss a legal issue, and there is a family member in the background ‘coaching’ them or filling in what the client leaves out. It becomes really hard not to listen to this family member and to only listen to the client. It is even harder when the client repeats what the person says.”
The ethics of this situation are fraught, writes Stanley Herr in Representation of Clients with Disabilities: Issues of Ethics and Control (Hein Online).
On the one hand, family members and close friends know the client and often do have the client’s best interests in mind; they may be the only voice that can fully speak about the client’s values. Thus listening to these voices can be indispensable.
But on the other hand, the voice of the client should remain paramount. Conflicts of interest abound in these situations, Herr writes, “especially where institutionalization, control of financial resources, or other life-determining choices are at issue.”
Comment 3 to Model Rule 1.14 acknowledges this exact situation and allows friends and family to assist. Yet the client’s interests and the client’s decisions must remain paramount:
The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client’s interests foremost and, except for protective action authorized under paragraph (b), must to look to the client, and not family members, to make decisions on the client’s behalf.
Disregarding what the client has said
What if the client makes a clear, lucid statement that appears to run totally against the client’s interest? The lawyer must evaluate both the client’s ability to communicate as well as the client’s decision-making ability, under comment 5 to Model Rule 1.14:
If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then paragraph (b) permits the lawyer to take protective measures deemed necessary.
Such measures could include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decisionmaking tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client.
The option to use a “reconsideration period to permit clarification or improvement of circumstances” suggests that the lawyer may indeed choose not to act upon what the client has said he or she wants to do—at least for a while.
These situations are too sensitive for a rigid rule about what a lawyer must listen to or disregard. Rule 1.14(a) says the lawyer “shall” maintain a normal client-lawyer relationship to the extent possible. Rule 1.14(b) gives the lawyer the option to take steps when the client is at risk. Rule 1.14(c) clarifies that the lawyer must maintain client confidences except when necessary to protect the client’s interest under Rule 1.14(b). There are no neat solutions and a lot of judgment involved. Listening with discernment is a crucial part of that judgment.
I hope this post will open up an opportunity for lawyers to discuss their listening challenges—and possible solutions—in representing clients with diminished capacity. Thank you.