Not thinking like a lawyer

I went to meet the listening professors (Debra Worthington and Margaret Fitch-Hauser) expecting deep theory. And they did give some, using words like “psychometric” and reflecting on the history of the listening field.

Debra Worthington, Jennifer Romig, and Margaret Fitch-Hauser
Debra Worthington, Jennifer Romig, and Margaret Fitch-Hauser

But their practical work in trial consulting was where our experiences and vocabularies overlapped a lot more, and where our most interesting conversations took place. Professor Worthington worked for 15 years in courtroom communications before she delved more deeply into listening theory and research. Professor Fitch-Hauser, now celebrating her retirement from Auburn, also works as a consultant and is the person who drew Worthington into the listening field. Their work together culminated in the listening textbook Listening: Processes, Functions and Competency.

The combination of their theoretical strength with their practical experience in the legal field made me doubly grateful for the opportunity to meet and talk with them over a long lunch in Auburn.

Worthington recounted her work with a difficult witness whose arrogance had damaged his case, both on the substance and his refusal to heed his lawyers’ guidance on demeanor. Worthington studied his testimony to understand his view of the case. She talked with him to find out what “really made him tick.” And then she used his underlying motivation to explain the case to him in a different way, and to motivate him to adopt good witness practices not because his lawyers told him too but for his own reasons as well.

As I thought about this anecdote, I became even more intrigued with the role trial consultants may play as listeners. For example, intuition may affect one’s listening. A lawyer’s intuition on dealing with a horrible witness may overlap — but not completely — with a trial consultant’s own intuition. And thus the lawyer and trial consultant would bring complementary methods to the table not just in generating themes and telling the story, but in listening to the people who in turn will be listened to by the jury.

Along these lines, Worthington shared that at an early juncture in her career, after she had already been working in legal communications, she considered whether to continue with graduate education or go to law school. Her mentor advised the former. “Debra,” he said, “your greatest strength is that you don’t think like a lawyer.”

Fitch-Hauser echoed the value of stepping outside the lawyer’s perspective: “It is crucial for attorneys not to expect the client to think as they think, and to make adjustments, and to not expect the jury to think as they think. They need to adjust their strategy and the way they tell their story to meet the jury’s needs.”

Both Worthington and Fitch-Hauser have been interested in questions about how listening intersects with personality, and how listening can be measured. One question I wanted to ask both of them relates to measurement and self-assessment: “How can an attorney know if he or she is a bad listener?”

Fitch-Hauser jumped to take this question:

There are some things anyone — attorney, or any other profession — can do, if they are willing to be objective. Ask yourself: When someone asks a question, do you always know the answer before the answer is given? If your own answer is yes, you may be listening to yourself rather than the other person. This is “selective listening,” which by one definition means “listening for the information that reinforces your own attitudes, ideas, and feelings.”

Worthington added the terms “assimiliation” and “constrasting” to the discussion at this point. Assimilation means taking in information that fits your pre-existing beliefs. Essentially, if you believe someone is similar to you, then you may perceive information from that person as closer to your existing beliefs than it really is. And the opposite is contrasting. If you go into a situation thinking someone has different beliefs, you may tend to perceive that person’s information as more different from your own beliefs than it really is. (Assimilation and contrasting seem generally related to the cognitive phenomenon of confirmation bias. Some general thoughts on listening and various cognitive biases including confirmation bias have been explored on Listen Like a Lawyer here and here and here.)

Fitch-Hauser embodies thoughtful listening in her own conversational style, and reinforced that with some advice: “Don’t be afraid to use silence.” Sometimes clients come to lawyers with a “story” that may or may not match the facts. By talking with them and learning how they feel about the case, and at times remaining silent, an attorney can find out more about the real story behind what the client presents as the “official story.”

Worthington and Fitch-Hauser also touched on the power of nonverbal communication as an aspect of listening. “Look at the client as the client is talking,” Fitch-Hauser advised. “You can hear the pause and see them glance away. And then you can say, ‘It seems like there’s something else you want to add.'”

Ultimately, being a bad listener is somewhat part of the human condition, Worthington said. We all have moments of effective and ineffective listening. Lawyers, and anyone else who cares about communication, can seek an honest self-assessment of when they listen well and not so well. By keeping a communications journal, lawyers can start to recognize the situations when their listening is strong and weak. Reinforcing a theme from their textbook, Worthington noted that the answer to good listening versus bad often lies in the motivation to listen. “Motivation is finding some reason inside ourselves to expend the energy and get in there and listen.”

Fitch-Hauser sharpened the edge a bit: “Pretending to listen isn’t listening. Many people go through the motions. They put on the face, they lean forward, they nod, and they turn on a light. But they truly need to be home.”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s