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.