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?