Listening and the art of the “callback”

What do oral argument, marketing pitches, and improvisational theater have in common? This blog previously reviewed Steve Yastrow’s informative and entertaining book, Ditch the Pitch: The Art of Improvised Persuasion, and addressed how some of Yastrow’s recommended approaches could apply in the oral-argument setting.

Philip Larson/Flickr

Some of these applications may be unexpected — but one particular tactic is something skilled oral advocates have been doing from time immemorial: the “callback,” or referring to something someone said earlier.

“Calling back,” or referring to a judge’s earlier question or comment is a classic tactic for oral argument, although lawyers don’t tend to use the term“callback” in this context. Whatever you call it, Yastrow’s explanations for why it works so well in business translate fairly well to the oral-argument context as well. (And apart from oral argument, the approaches in Ditch the Pitch certainly deserve consideration by lawyers developing their marketing pitches conversations.)

Callbacks demonstrate listening. And listening generates rewards, Yastrow writes, namely the rewards of your audience’s attention and interest.

Callbacks also help the audience understand the conversation. They make it more coherent: “[A] callback ties material together, making it easier to understand and engage with that material,” Yastrow writes. When the information is easier to understand, it feels more cohesive and resonant. It’s more believable.

Most subtly, callbacks involve the audience. In improvisational theater, callbacks help make the audience feel that they are “in on the joke.” They are “with” the cast and not part of the audience. Similarly, using a callback in oral argument involves the judge in the argument as more than a passive listener. When done right, mentioning a judge’s earlier comment or question can subtly suggest that the judge has already begin to take a few steps down the road toward accepting a certain position.

Yastrow’s advice for executing a callback strategy is helpful for oral advocates (and legal marketers) as well. The three basic steps, he writes, are discovering the opportunity for a callback, remembering it, and integrating it into the conversation.

Discovering the opportunity for a callback means being alert. Notice things that are important to the audience. Try to make a mental (or actual) list of “Things That Matter” to the audience. Advocates can prime themselves to be alert by their usual preparation steps such as studying precedent and the particular judges’ prior rulings. During the argument, advocates would certainly want to make a note of the dominant topics, i.e. Things That Matter to the judges.

Remembering the opportunity can be difficult because of the need to be engaged in the conversation itself. This is exceptionally true in oral argument, where time seems to distort itself and nerves interfere with simple tasks like taking a drink of water. (Anyone remember Tom Cruise struggling to take a sip in A Few Good Men?)

Yastrow recommends attaching visual images to the comments to help with recall. For example in a trade secrets case, if the judge asks whether other employees had access to the alleged trade secret, an advocate might visualize a large company meeting with all employees sitting in an auditorium, and the trade secret sitting on a platform on stage. This visual technique may sound a bit kooky, and it is explained fully in a very kooky and wonderful book, Moonwalking with Einstein by Joshua Foer. As Yastrow shows, it works in serious business situations. And it will work in oral argument as well. (Lawyers and law students, have you tried this?)

Lastly, the callback must be integrated into the conversation. There’s a ham-handed way to do this and an effective way. “Play it cool,” Yastrow advises; don’t say, “Hey, look at me, aren’t I clever, I just came up with a callback!” For advocates, one risk is over-playing their hand. Presenting the callback as a “gotcha” to the judge is probably worse than doing no callback at all.

To be effective, the callback must naturally fit in with the conversation itself. And that requires an overall mindset of alertness to the audience’s interests and needs, as well as a willingness to take the risk of improvising.

Bad listening is stronger than good

What’s more productive: targeting problems or building on strengths? Robert Sutton wrote in the Harvard Business Review Blog that “Bad Is Stronger Than Good.” This essentially means that eliminating the bad in the workplace – performance obstacles, bullying behavior, and even toxic people – is more effective than recognizing positive accomplishments and helping employees build on their strengths. Sutton’s post recounts the work of psychologists such as Roy Baumeister: “a huge pile of peer-reviewed studies” show that “negative information, experiences, and people have far deeper impact than positive ones.”

Courtesy Jes/Flickr

Under this reasoning, eliminating bad listening habits should be more of a priority than celebrating the most enlightened listening practices. Damage done to team and client relations by bad listening is more significant than the benefits of recognizing and promoting listening excellence.

Thus perhaps this blog should use more scare tactics: 10 Ways to Fail as a Listener, and Therefore as a Lawyer?  5 Listening Mistakes No Decent Lawyer Should Make?

Although these titles are a bit dramatic, they do lead to an important and somewhat fun question: What actually *are* the worst listening practices?

Here are my opening nominations for the three worst. Please feel free to use the comments for sharing your own thoughts on lawyers’ worst listening practices.

1. Looking at one’s smartphone while supposedly listening.

I recently heard two complementary stories about how smartphones affect listening. In the first story, an interviewee checked his phone during the interview. The interviewer couldn’t help but wonder: “What’s so important that you need to look at your phone during my interview with you?”

In the second story, a law firm won a client’s business partly because none of the 20 firm lawyers in the room looked at a smartphone during their lengthy presentation to the client. The client expressed astonishment at the focused attention and lack of distraction in the room during that presentation.

2. Appearing to listen, then sending a confirmatory e-mail that is misleadingly incomplete or biased

Effective listening is a great way of building trust. That trust is broken when an ostensibly good listener follows up with a disappointingly incomplete recounting of the conversation. Or worse, a biased and self-serving recounting.

3. Listening with intent to start speaking at the first opportunity

In a scene from Pulp Fiction, Uma Thurman’s character asks John Travolta: “Do you listen or just wait to talk?” He says, “I wait to talk, but I’m trying to listen.” Several people have brought this scene to my attention since I started Listen Like a Lawyer. It is so memorable because it rings so true with people’s experience of frustrating conversations.

Negativity can be so . . . well, negative. Yet the idea that “bad is stronger than good” suggests that the most productive way for people and organizations to be better at listening is to stop being so bad at listening. 

Listen Like a Lawyer is grateful to Matt Homann for tweeting a link to Sutton’s post. Thanks to Matt for passing along another thought-provoking article with implications for listening.



Therapeutic jurisprudence and listening

Suffolk Law School hosted a workshop Friday, April 11, on “The Study and Practice of Law in a Therapeutic Key: An Introduction to Therapeutic Jurisprudence.”  Therapeutic jurisprudence has been discussed and debated since the 1980s, and a working formal definition has emerged, quoted here from Professor David Yamada’s blog post about the workshop at Suffolk:

Therapeutic Jurisprudence (TJ) concentrates on the law’s impact on emotional life and psychological well-being. It is a perspective that regards the law (rules of law, legal procedures, and roles of legal actors) itself as a social force that often produces therapeutic or anti-therapeutic consequences. It does not suggest that therapeutic concerns are more important than other consequences or factors, but it does suggest that the law’s role as a potential therapeutic agent should be recognized and systematically studied.

TJ has been applied in specific contexts such as mental-health diversion programs, juvenile-offender programs, workers’ compensation, medical malpractice, and other areas. Apart from specific areas of law and problems, therapeutic jurisprudence has been explored as an overall mindset for the practice of law. TJ founders professors David Wexler and Bruce Winnick have written (Hein sub. req’d) that TJ asks “whether the law’s anti-therapeutic consequences can be reduced, and its therapeutic consequences enhanced, without subordinating due process and other justice values.”

Listening seems inextricably linked with a therapeutic approach to anything involving other people. Here are some preliminary thoughts on therapeutic and anti-therapeutic approaches related to listening skills that one might see in law practice and legal proceedings:

Therapeutic Anti-therapeutic
Comfortable environment Threatening, high-stakes environment
Listeners use receptive body language Closed body language
Sufficient time for sharing one’s story Time constraints cutting off story
Listener demonstrates understanding such as by paraphrasing key points Listener responds immediately with advice and instruction
Listener has expertise or experience in the situation Listener doesn’t “get it”
Responses help identify solutions Responses are “gotcha” moments
Door is open for sharing further information Pressure to remember and include all points in one sitting

I’d love to hear from law professors and lawyers who have studied and applied TJ concepts and methods in their areas of practice. A quick look at the literature suggests that TJ has had the biggest impact on specific court systems designed to address specific problems. Can and should TJ concepts filter into the general court system and general law practice? Perhaps it should be something that lawyers are familiar with and can draw upon when a situation needs more than just dispassionate analytical investigation and solutions. Mediators trained in TJ would seem particularly valuable in certain cases calling for a therapeutic approach.

And one does not need to have an advanced law degree in therapeutic jurisprudence to understand that giving someone your attention and listening to his or her story is one of the most therapeutic gifts anyone can share. 

Rules for listening

Every law student learns about default rules in contract law. A recent post from Matt Homann at the [non]billable hour shows how default rules can affect communication as well.

Here’s the scenario: A team (lawyer-to-lawyer or lawyer-to-client) meets to discuss a matter. After the meeting, “everyone seems to reach consensus on what to do next.” But later, it becomes painfully apparent that “some didn’t agree at all.”

Homann suggests the problem may be the way the team leader interprets silence.  If the leader assumes from silence that the client understands and agrees with everything just discussed, that leader may be in the midst of a real communication breakdown. Silence may and often does mean something very different: resigned acceptance, covert resistance, simmering resentment — or just lack of understanding.

The problem is that a default rule of interpreting silence as acceptance/agreement is often inaccurate. In law-and-economics terms, applying this rule leads to suboptimal outcomes. (Economics experts – please don’t get technical here. This is a loose metaphor.)

So instead of assuming that silence means agreement, Homann suggests the opposite. At the end of a meeting, ask everyone if they agree. In the absence of explicit verbal affirmation, assume they do not agree. Homann draws from Patrick Lencioni’s book The Advantage to suggest this method for both internal meetings and client meetings. The safest and best interpretation of silence is, as Homann writes, that silence means “no.”

What I particularly like about Homann’s post is that it shows a specific listening breakdown and a technique for addressing that breakdown. Listening is not a monolithic, intuitive talent that one is either good or bad at, forever. By studying listening successes and failures, we can derive and apply specific methods to improve.

For lawyers working in teams, what methods do you use to listen effectively in meetings? What about working with clients — how do you handle a client that doesn’t say much in a meeting?

Embracing interruptions

One of the rewarding aspects of starting this blog has been the opportunity to challenge preconceived notions about listening — both my own and others. This recent post from the Harvard Business Review, “Turn Your Next Interruption into an Opportunity,” is a great example of such a challenge.

The preconceived notion is that interruptions interfere with real work. The author, Douglas Conant, takes a more positive spin on interruptions: “Every ‘interruption’ offers an opportunity to lead impactfully, to set expectations, bring clarity to an issue, or infuse a problem with energy and insight.”

But he doesn’t stop there. More radically, “these thousands of little interruptions aren’t keeping you from the work, they are the work.” Conant encourages leaders to affirmatively seek out interruptions and to engage with both the issues they raise as well as the relationship dynamics they reveal.

Lawyers: can you embrace this positive spin on interruptions? How do you cope with interruptions?


Oral argument as an improvised conversation

Oral argument — is it really a “conversation”? How can it be an authentic conversation when the power dynamics are so skewed toward the judges and when the attorney is ethically bound to advocate for the client? A recent incident with Judge Richard Posner is just one example of the inherent challenges of oral argument. Advocates may err on the side of scripted arguments and default answer structures as defense mechanisms to survive in this environment. Conversely, great advocates argue with flexibility, maintaining their basic persuasive agenda but effectively listening and responding to the judges’ questions.

I was thinking of the challenges of oral argument when I came across about a new book, Ditch the Pitch: The Art of Improvised Persuasion by Steve Yastrow (SelectBooks 2014).


Yastrow seeks to replace the scripted, one-size-fits all business “pitch” with the art of “improvised persuasion.” This book is most directly relevant to lawyers interested in marketing, and I highly recommend it for that reason. But for this post, the focus is on making oral argument more responsive and conversational using Yastrow’s improvisational techniques. The rest of the post substitutes [advocates] for salespeople, and [judges] for customers.

The basic truth is harsh and hard to accept. Yastrow begins by attacking the belief that anyone — customer, judge, anyone at all — is actually interested in someone else’s scripted pitch/argument.

“[H]ere’s the unadorned truth: Your [judge] doesn’t really care what you have to say about yourself or what you are trying to [argue.] Your story is not all that interesting to him. He cares much more about his own story.” 

This underlying lack of interest (in what the advocate has to say) informs everything else Yastrow recommends:

“The first thing you have to do if you want [judges] to listen to you, is to earn the right to be heard. Contrary to the most fundamental beliefs about [advocacy], you do not earn the right to be heard just be delivering the right message to the right [judge] at the right time. You earn the right to be heard once you have engaged your [judge] in a dialogue that is meaningful to him.”

Conversations that are meaningful to the other person (the customer or judge) arise out of a “diagnostic” mindset. This means finding out what the other conversation partner wants, needs, and is concerned about. A diagnostic conversation stands in opposition to a prescriptive conversation where you just tell the other person what he or she needs. (This would be oral arguments consisting entirely of scripted arguments and scripted answers to questions.)

How does one create a diagnostic conversation? An advocate cannot turn the table on a panel of judges and say, “Your honors, I’d like to start by learning more about your needs in handling the challenges of deciding this case. What are your sticking points with my client’s position?” But advocates *can* use oral argument as the opportunity to learn how the judges are thinking about the case.

In this sense, many techniques from the book seem applicable:

  • “Think input before output.” Perceive and comprehend the input conveyed through the judges’ questions and even at times their facial expressions and body language.
  • “Say less to notice more.” Speak slowly enough that judges have a chance to think and ask questions as they arise. Make points thoroughly but concisely.
  • “Turn down your analytic brain.” This doesn’t mean abandoning legal analysis. It means trying to turn down the overly critical self-judging that comes from worrying about how things are going as they happen. If an advocate is berating him- or herself for bungling a question, the advocate is not open to the new cues being offered and how to keep the focus on the judges’ needs.
  • “Listen for the game.” Oral argument isn’t a game, but this language, drawn from theater improvisation, means finding the common ground of the improvised conversation: “What are we really doing? What are we really talking about? What’s going on here?” If an advocate is emphasizing the substantive legal question but the judges are asking technical questions about procedure or the effect on future cases, then there is no common ground — and no shared game to play.
  • “Ensure your [judge] keeps saying yes.” In Yastrow’s words, “If your [judge] says ‘no’ to something you say or disagrees with a statement you make, you will immediately feel the conversation stall.” Indeed. To try to minimize these stalled moments, focus on areas of “mutual affirmation and agreement.” It seems that mutual agreement may come many sources: taking reasonable positions that the court might actually adopt; using binding precedent in skillful way; invoking shared understandings such as canons of construction; and possibly invoking shared imagery that is meaningful to the court.

And one final interesting approach: “Keep 95 percent of the conversation about the [judge].” When selling, Yastrow continually monitors his own performance in the conversation and asks, “Are we still talking about them?” Phrased in terms of oral argument, “[the judge] wants to hear about himself. If you notice that the conversation is about you, change it! Focus the conversation on your [judge].

There are some other interesting points from the book to be explored in later posts, but let me end this post on the 95 percent point. How can advocates actually advocate for their clients while also keeping 95 percent of the focus on the judges? I have a few ideas, such as highlighting what the opinion will mean for the court as precedent going forward. What do you think? For oral advocates, have you explicitly tried to keep the focus on the court, and if so — how?

And more generally: does the analogy of a sales pitch correspond to oral argument? How can advocates listen and improvise more effectively at oral argument?