Listen Like a Lawyer’s Year-End Review

IMG_4525January 1, 2014 will begin the sixth month of Listen Like a Lawyer’s existence. In light of this benchmark as well as peer pressure from so many other blogs’ year-end reviews, this seems like a good moment to reflect on the blog’s brief past and to anticipate its future.

I am so grateful for the support received from many sources: colleagues at Emory Law School, where I teach legal writing, research, and advocacy; and many friends and acquaintances, both lawyers and non-lawyers, who have shared valuable contacts and relevant ideas about listening. Some lawyers have been particularly generous with their time, writing guest posts and giving interviews. Some of this content has already been published, and other content is yet to be published. For all who have allowed themselves to be associated with such a new endeavor, thank you!

For encouragement on the importance of listening skills for lawyers, I am especially grateful for the exchange of ideas with Professor Tami Lefko, Director of Legal Writing at Vanderbilt Law School. Professor Lefko and I look forward to our joint presentation on listening skills at the 2014 Legal Writing Institute Biennial Conference this summer.

The actual writing of the blog has involved elements of my experience as a lawyer, professor, and journalist. But blogging is a writing genre of its own. I am grateful to lawyer and blogger Dan Schwartz at the Connecticut Employment Law Blog, Professor Tim Terrell at Emory Law School, and lawyer Bard Brockman at Bryan Cave LLP for gently encouraging me to write shorter, more focused posts. I am working on it!

Just as there has been a learning curve for writing posts, there has also been a learning curve for sharing and distributing the blog. I am grateful to all who have retweeted, liked, and commented on Listen Like a Lawyer’s content. The blog has drawn interest from several communication experts, and I look forward to exploring and sharing their ideas on the blog in the year to come.

Looking to 2014, Listen Like a Lawyer will continue to offer weekly posts and curated tweets. The mix of content will continue to attempt to balance the interests of both law students and practicing lawyers. Of interest to both audiences, the blog will feature more interviews with experienced lawyers and legal professionals.

Please share your thoughts on what you’d like to see on Listen Like a Lawyer. Thank you! And Happy New Year to all. In the New Year, may we listen intently, compassionately, efficiently, strategically, and effectively. Please add your own adverbs in the comments below.

When All You Hear Is “No”

Active listening is an essential strategy for negotiating with difficult people, as discussed in this valuable post from At Counsel Table,

At Counsel Table

gtreHave you ever found yourself negotiating with a brick wall? Maybe not a wall, but an opponent, coworker, spouse or five-year old so entrenched in her position that it seems to take a herculean effort to procure even the slightest movement?

I’ve previously quoted from the slim but powerful text about negotiation strategy, Getting To Yes. One of the authors of that landmark, William Ury, subsequently wrote Getting Past No: Negotiating With Difficult People. I don’t know about you, but anyone who doesn’t go along with my program is clearly difficult.

Ury developed a five-step strategy for making progress with these . . . er . . . difficult people. The first step is to take your own emotions out of the equation; this will help prevent you from reacting without thinking, which can immediately stall or even end productive negotiations. Ury calls this Going to the…

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Secrets in the courtroom

Courtesy of the J. Paul Getty Museum
Courtesy of the J. Paul Getty Museum

People over-value secret information, according to a series of studies reported in the New York Times reported earlier this year. Information designed as “classified” is treated as highly valuable precisely because it is secret.

When two groups in an experiment read the same government report—which was labeled “classified” for one group and “public” for the other—the results were stark: “people who thought the information was secret deemed it more useful, important and accurate than did those who thought it was public.” In other words, they applied a heuristic or psychological shortcut—in this case, the “secrecy heuristic.” Study participants were also more impressed by decisions based on secret information as opposed to freely available information.

Reports on these studies prompted some thoughts about listening, jurors, and the secrecy heuristic. Jurors are instructed to listen very carefully to what happens during trial. How, then, do jurors’ minds respond when attorneys object to evidence? The entire purpose of an objection is to prevent the jury from hearing something! (Or seeing it.) Within the flow of events in the courtroom, an objection stops everything.

At this point, the secrecy heuristic could come into play in several ways. If the objections are conducted in open court, the objection process emphatically flags for the jurors that there is something that one of the attorneys doesn’t want them to see or hear. They may be able to listen to the very evidence they will then be instructed to disregard, if it is ruled inadmissible.

If the objections are conducted in a bench conference, the same effect may apply. The theatrics of the courtroom could emphasize the secrecy if the attorneys approach the bench and speak in hushed voices about the “secret” evidence. A bench conference could trigger a double secrecy heuristic: the secrecy of the evidence itself, and the secrecy of the bench conference that they observe but cannot hear. (Or the  jurors may just tune out, regarding the conference as hyper-technical legal maneuverings.) 

Legal scholars such as Jeffrey Rachlinski of Cornell have written at length about heuristics within the legal context. For example, jurors do not appear to disregard information even if a judge asks them to disregard it. If one party asks for a certain amount in damages but the judge instructs the jury not to consider the amount, that amount still serves as an “anchor.” The anchor exerts influence regardless of the instruction to disregard it, pulling the award toward  the anchor for groups exposed to it. Groups with no anchor return very different damage awards. Professor Rachlinski has also written with Judge Andrew Wistrich and Chris Guthrie of Vanderbilt about whether judges can ignore inadmissible evidence that they hear; the answer appears to be “no.”

Under the concept of the secrecy heuristic, it seems possible that judges and jurors who hear inadmissible information and are instructed to disregard it may not only *not* disregard it but actually give it more weight. Jurors who know something is being kept from them may assign more weight to the gap in their knowledge. (If the word “insurance” arises at trial and then is hushed over by an objection, jurors might spend time in deliberations discussing whether to reduce a plaintiff’s award based on the likelihood of coverage. The role of insurance might seem even more important because they are not supposed to hear about it.)

The scholarship does not use the term “secrecy heuristic” in describing this effect but bears it out in different words: In the article on judges and limiting instructions, Wistrich, Guthrie, and Rachlinski cite practical advice from Keeton’s Trial Tactics and Methods: asking the judge to instruct the jury to disregard evidence “calls to the jury’s attention the relevance of the evidence to the very issue on which you are seeking to avoid their considering it.” They also cite a 2001 articleJury Decision Making: 45 Years of Empirical Research on Deliberating Groups, which found that limiting instructions are “associated with a paradoxical increase in the targeted behavior.”

The secrecy heuristic would help to explain the psychology of this paradox. When you instruct someone to listen carefully, but then to disregard certain information, the whole process is likely to reinforce their memory of that information and their assessment of just how important and valuable it really is.

Many thanks to Jeff Rachlinski of Cornell, and Julie Seaman and Paul Zwier of Emory for feedback on an earlier version of this post. For more background on cognitive heuristics and listening, here is an earlier series from Listen Like a Lawyer exploring cognitive biases and listening in the legal context.

Holiday parties are listening opportunities

The holiday season brings many opportunities for lawyers and legal professionals to reconnect with old friends and make new ones at holiday parties, school events, and other social gatherings. Law students may also have networking opportunities at bar events and family gatherings. Making the most of these opportunities requires good conversational skills–which require good listening skills. […]

Lawyers: listen to your writing

Little books about little writing are everywhere these days. The one that I can’t put down right now is Verlyn Klinkenborg’s Several short sentences about writing. This book takes on the dogmata of writing instruction in both its substance (outlining is overrated–gasp!) and its style (poetic prose or prose-like poetry; whatever it is, it’s more fun to read than a standard “how to write better” manual).

Although Several short sentences about writing is not tailored for lawyers, a high percentage of its criticisms and advice apply to legal writing:

  • Sentences that are trying too hard to sound like what an expert would write? Yes, we’ve definitely got those.
  • Sentences with unintentional repetition and other unpleasing rhythms? Yes, got those too.
  • Sentences that are overly long with no good reason to be that way? Check.

The book has a particularly interesting section on the role of listening in improving one’s writing. “Read your work out loud” is not revolutionary advice, but my sense is that few people actually do it. Maybe that’s because it takes time and needs to be done right. Klinkenborg digs into why it works and how to do it:

Try reading your work aloud.

The ear is much smarter than they eye,

If only because it’s also slower

And because the eye can’t see rhythm or hear unwanted repetition.

Klinkenborg raises and dismisses a couple of reasons writers may passively resist this practice. They may do it wrong, reading like a robot and therefore revealing very little about the prose. Or they may expect too much, thinking it will erase their own knowledge as writer so they can commune directly with the reader. That is just not possible, and Klinkenborg argues for more of a middle position:

But how should you read aloud?

There’s self-awareness even in this, 

A tendency to overdramatize or become self-conscious,

To read as though the words weren’t yours,

Mechanically, without listening,

As though you were somehow hiding from their sound

Or merely fulfilling a rote obligation.

Try reading the words on the page as though they were meant to be spoken plainly

To a listener who is both you and not you–

An imaginary listener seated not too far away.

That way your attention isn’t only on the words you’re reading.

it’s on the transmission of those words.

As you read aloud, catch the rhythm of the sentences without overemphasizing it.

Read so the listener can hear the shape of the syntax,

You be the listener, not another person.

You’ll be stopping often.

This idea of stopping is integral to his major theme about writing: notice things. You don’t need training in grammatical or rhetorical jargon just to notice something is or isn’t working in your sentences. Something “sounds funny.” You’ll feel a “subtle disturbance,” a “faint stirring[].” And when this happens, stop. And fix the problem.

There is a longer-term benefit to reading your work out loud as well, the book points out. Consistently reading your work out loud will “help you discern the underlying texture of your prose.” The act of reading out loud demonstrates the reader’s understanding, or lack thereof:  “[h]ow well you read aloud reveals how well you understand the syntax of a sentence.” And understanding the syntax of the sentence is a key toward being able to manage the shape of future sentences you will write and edit.

Klinkenborg’s prose/poetry will be uncomfortable, at least at first, for many lawyers used to our judicial opinions and IRACs, our demand letters and our contracts. But his overall approach to writing couldn’t be more on-point to what we do:

Know what each sentence says,

What it doesn’t say,

And what it implies.

To be able to do these three things, writers need to start by just noticing what the writing is doing. Listening to the sound of your own writing is one way to notice.

Lawyers, law students, and legal professionals: have you ever read your work out loud? Why did you get started and how do you do it? Some readers may have tried this practice but stopped. Does Klinkenborg’s approach persuade you to try again? Please share your comments, experiences, and advice on reading your work out loud as a writing and editing practice.


Listening to nonverbal cues

Effective listening captures information that can’t be gotten any other way. A previous post talked about the rich information found in spoken “discourse markers” that help structure and annotate speech content. Another rich source of information is nonverbal cues. Lawyers who want to glean the most information from their communication encounters should be attuned to what a speaker’s nonverbal cues are saying.

Daniel Goleman, author of Emotional Intelligence, writes in his new book, Focus, about nonverbal cues as an element of attention

“[A] steady stream of nonverbal exchanges rushes to and from everyone we interact with, whether in a routine hello or a tense negotiation, transmitting messages received every bit as powerfully as whatever we might be saying. Perhaps more powerfully.”


For lawyers, an excellent overview of nonverbal communication can be found in Professor Michael Higdon’s law review article on nonverbal communication during oral argument. According to Higdon, “nonverbal channels” outshine the “verbal band” in two ways:

(1)  they “carry more information” and

(2)  they “are believed more.”

As far as the breadth of information provided, Higdon cites the following (admittedly broad) definition of nonverbal cues:

“communication by means other than words.”

This communication comes via body movements, characteristics of the voice, proximity and spacing, movement, pauses and other temporal features, and “surrounding furnishings and objects that may add to one’s identity.”

Actors work on their nonverbal communication and thus can be a good starting point for brushing up on this aspect of communication:

  • To see an exaggerated but charming example of nonverbal communication, follow Roger Ailes’ advice in You Are the Message: watch a tape of Angela Lansbury—with the sound turned off.
  • For a funny and all-too-familiar example of annoying nonverbal behavior, watch this smartphone advertisement about a date night gone awry: “Date Night.”

For lawyers, heeding nonverbal cues can enhance client communications. Heeding these cues can also provide a deeper strategic understanding for negotiations and disputes. When communication in person with clients, nonverbal cues send important signals:

  • Do you have the client’s attention?
  • Does the client understand your content?
  • Does the client like and trust you?
  • What are the client’s “pain points” with the process you are describing?
  • Does the client have the power or confidence to make an independent decision?
  • Is the client interested in continuing the conversation, or does the client want the conversation to end?

In addition to being highly informative, nonverbal communication is generally believed to be authentic—that is, “more spontaneous, harder to fake, and less likely to be manipulated,” compared to explicit verbal statements, as Higdon points out. This belief is reflected in U.S. civil procedure’s prohibition on credibility determinations at the summary judgment stage: the judge or jury at trial can see, hear, and evaluate all of the nonverbal cues that aren’t present on paper at the summary judgment stage.

So what can a lawyer do to better listen to nonverbal cues? Lawyers could benefit from watching tape of great, or even just average, lawyers in action, and focusing on these main criteria:

  • body language;
  • “paralanguage” (sounds other than language); and
  • appearance.

The goal of this exercise would be to focus very closely on the cues that usually seem peripheral when we think we’re listening just to content. Exercising our focus on these cues can enhance our attention to them during day-to-day interactions. Attending to the unique information in these cues can help lawyers have better conversations with clients and better understand the dynamics of in-person interactions.

Please share your experiences and advice on observing and interpreting nonverbal communication in law practice.