Is listening different for civil vs. criminal lawyers?

Do lawyers need different listening skills depending on their area of practice? I recently posed this question to an attorney with experience as a prosecutor and white-collar defense attorney, as well as civil practice in a highly regulated area.

This attorney described different listening challenges in civil versus criminal practice:

  • On the civil side, when talking to witnesses, this attorney looks for the witness who suddenly says too much: “When they start talking and talking — a lot — I know I’ve hit paydirt. When they’re blathering and not answering the question at all, especially when they had been answering directly and succinctly for the prior questions, that gives me a red flag that they are uncomfortable with the subject matter of that question. In turn, that leads me to pry deeper and not let them off the hook about that subject.”
  • In contrast on the criminal side, one challenge is to notice what is not said–particularly when the witness clams up about an important and difficult topic. “The witness will be in the middle of talking through a timeline and then, wait a minute–what happened in those two days you didn’t talk about?” Thus in interviewing witnesses on a criminal matter, the attorney focuses on “listening for the gaps.”

Civil and criminal lawyers have different cultures, different procedural rules and norms, and different consequences as a result of their work. Sometimes I wonder if they have much of anything in common, other than going to law school. What about listening? Do you think civil and criminal lawyers face different listening challenges? Or is effective listening fairly universal, regardless of the area of practice?

Listening the first time

Do you remember the first oral argument you ever saw? The first real trial? First mediation? First negotiation? First plea deal? First closing?

These firsts are hard to forget. They can be pure sensory overloads: the defendant comes in wearing orange, the state puts on its case and the defense tries to poke holes and humanize the defendant, the jury decides, the judge speaks, and then the bailiffs take the defendant away, or not. That’s how I felt years ago as a young journalist on the courthouse beat, watching the power of the state.

Courtesy Flickr/Jeffrey Beale
Courtesy Flickr/Jeffrey Beale

But there is another approach–preparing to listen, to see, to notice. Building a tentative framework for comprehending the event. What should an observer expect to see? To hear? What does a mentor advise an observer to pay special attention to? If an observer has never seen a trial before, how should that observer filter and evaluate the first one?

Just as one example, here is a set of “listening guidelines” for observing one’s first oral argument. Where I teach legal writing, we share these guidelines with students before they watch an oral-argument demonstration. This is not a formal assessment rubric; it’s more an intuitive list of how and what to notice. And it’s not really just a “listening” framework; it’s a learning framework for an experience that demands and rewards effective listening.

  • How did counsel begin the argument?
  • Did counsel clearly state what they wanted the court to do?
  • Did counsel make the facts of the case clear?
  • Was counsel concise in describing the facts?
  • Did counsel set out a roadmap of the argument to follow?
  • What kinds of arguments did counsel focus on (legal, factual, policy, emotional, other)?
  • How did counsel use authority to support the argument?
  • Did the argument begin with strong, favorable points?
  • How did counsel handle counter-arguments?
  • What role did the record play in the argument?
  • What kind of questions did the court ask (e.g. clarifying, hostile, or friendly questions; questions about the record or about the legal support for the argument)?
  • How effectively did counsel answer those questions? What made the answers effective or ineffective?
  • How did counsel conclude the argument?
  • Did counsel do anything distracting to you?
  • What demeanor did counsel adopt (e.g. combative, conciliatory, matter-of-fact, impassioned, etc.)?

Feedback is welcome, both on the specific guidelines and the general concept. How have you prepared yourself, if at all, before seeing a type of lawyering event for the first time? How do you advise others to prepare themselves?

Loaded questions in the law school classroom

Prawfsblawg has a thoughtful post by Mehrsa Baradaran about “Teaching While Woman.” Professor Baradaran thoughtfully and honestly describes her struggles and ultimate success learning classroom management as a new law professor. She shares advice she received from other young women professors including women of color dealing with what seem like disproportionately frequent challenges to their classroom authority.

The post is excellent; I highly recommend it to anyone considering law teaching in any form, from tenure-track to adjuncting or even guest-teaching one class.

Professor Baradaran’s experience and some of the comments on her post (by law students) prove that privilege and prejudice are still very much at work in the dynamics of the law school classroom. This is how she describes her experience:

Within the first two weeks of each class, without exception so far, there will be one or two challengers to your authority. The challengers will say something like this (usually with an aggressive tone and stance): “You say ____, but doesn’t the case actually say ____?” “I don’t agree with that, isn’t ____a better explanation?” The class will go silent as they recognize this as a small insurgency. You must shut this down. You must do it quickly, painfully, and effectively. But here’s the catch: you have to do it with a smile on your face. You cannot appear threatened or defensive. You need not spare the feelings of the aggressor, but need to convince the class that you are the one who knocks.

The professor’s and students’ identities form the backdrop of the interaction. Wrapped up as well is the context of the law and legal culture, with the professor serving as gatekeeper and guide to law students. Some of these students would rank highly on an arrogance scale, and others have so much to offer but so little confidence.

Within this context, the professor listens to the question, seeks to manage nonverbal signals in handling the question, and makes a decision how to proceed. It’s not easy. I am grateful to Professor Baradaran for sharing her experience.

Thanks to Professor Dorothy Brown of Emory Law School for feedback on an earlier draft of this post.

Thanks also to Professor Michael Higdon of the University of Tennessee College of Law for sharing Professor Baradaran’s post among legal writing professors.

Listening to your 1L voice

Listen Like a Lawyer has been on hiatus during a busy time for first-year legal writing students and professors. As the students wrote and finalized their first appellate briefs, I located my own old 1L appellate brief. Even without the 1996 date, the blue paper and Courier font are like a voice from the past.


Maybe this “voice” should really be “voices”: I can hear the words of my professor in sentences that I never would have written on my own. For example: “The district court’s ruling can be comfortably affirmed under the first or third parts of the test.” What 1L comes up with the words “comfortably affirmed”? Also any use of the Code of Federal Regulations was purely a product of what she told the class to do. I had no idea what I was doing.

And that leads to another voice: the voice of doubt. When in doubt, many people return to their comfort zone. For me, the comfort zone was description–basically, just summarizing the facts and holdings of cases. Several sequences of paragraphs consist of nothing more than “In one case, xyz happened. . . . In another case, abc happened . . . .” This brief was guilty of the incredibly common 1L mistake of the “book report,” as described by Kristen Tiscione in her article on classical rhetoric, Paradigm Lost: Recapturing Classical Rhetoric to Validate Legal Reasoning. Yes, those paragraphs should have had stronger topic sentences developing an actual legal standard. In “listening” to it now, I can hear the voice of a 1L who was just not sure what to say.

Although there is much to criticize and pity in the brief, there are also moments of confidence. Good writing often corresponds with appealing rhythm and pace–features that one can hear when reading sentences out loud. In describing the client, who had been fired due to tobacco addiction and possibly his age as well, the brief juxtaposed his seniority against what the CEO wanted: “[The plaintiff’s] age and his advanced career actually hinder him; companies want ‘new blood that will stay forever.’ (R. 18).” The brief even reached for a figure of speech: “HIs tobacco addiction resulted in the Defendant’s firing him and the doors of the biotechnology market simultaneously shutting in his face throughout New England.” There is no doubt I stated these words — verbatim — at my 1L oral argument.

Legal writing scholars debate the existence of “voice” in legal writing. As Chris Rideout has written, legal writing has a “professional voice” but not so much a “personal voice.”  Legal writing professors walk the fine line of trying to teach the professional voice while not crushing the personal.

Perhaps the voice of legal writing occupies a middle ground, as Rideout suggests: the voice comes from a “discoursal self” that performs a discourse tradition in its own way in that context, at that moment. The appellate brief, for example, embodies a certain tradition, yet the brief-writer has the opportunity to contribute to and even change the tradition in performing it.

And my old brief was certainly a performance. The words reflect the very personal effort of a fledging grownup, trying on and testing out the professional voice of a lawyer. My actual voice as a 1L probably sounded a lot like it does now, because the human voice remains relatively stable from age 20 to 60. But my “voice” as a writer and a lawyer has developed so much since that 1L brief, with one of the most obvious improvements being stronger topic sentences. They could hardly have been worse.

And now from the past to the future. Law students: Without falling victim to hoarding, maybe you should print out a hard copy of your 1L brief. Who knows whether your memory sticks and cloud servers will still be easily accessible 20 years from now? And consider saving your actual voice as well. What about doing a video time capsule to yourself? Tell your future self what you’re doing. Talk about the law generally, or describe your most recent writing project or your favorite class. Show the way you think. Use an app such as SpeakingPhoto to narrate what you were thinking when a particularly photo (yes, even a selfie!) was taken. Your future self will likely appreciate the chance to hear your voice when you were just a “baby lawyer.”

And experienced lawyers: maybe find a way to “listen” to the young lawyer and law student you used to be. Dig up some old work or find an old tape from a trial-advocacy class. Naive? Cynical? Confident? Scared? Yes, yes, yes, and yes. Sometimes it’s enlightening to listen to your own voice.

The author dedicates this post to Stephanie Feldman-Aleong, a former colleague at Emory Law School and professor at Nova Southeastern, who passed away in 2008. Stephanie inspired me in many ways such as by sharing her own 1L work with students.

Thanks to Beth Wilensky of the University of Michigan Law School for comments on an earlier draft of this post.