Month: August 2014


Just another balancing test?

What does it mean to think like a lawyer? On Simple Justice, criminal-defense lawyer Scott Greenfield took on this question for the benefit of a curious software engineer who asked. I recommend this post to new law students who also want to know, and to lawyers who are willing to reflect on what they do.

In the post, Greenfield talks a lot about logic, but it’s all wrapped up in and inseparable from the real-world experience of interacting in a complex situation with complex person, i.e. the client:

When someone walks into a lawyer’s office, they will tell their story. It’s usually a long story, convoluted and filled with extraneous details, all of which matter enormously to the story-teller because they suffered the details. It’s the lawyer’s job to focus, to sift through the details and figure out which are relevant (tends to make a fact more or less probable) and material (bears a logical connection to a fact in issue), and which are simply there, background noise of no consequence to whatever the core issue may be.

In this interaction, there will be conflicts in how the client sees the case and how the lawyer sees it: “To the lawyer, only the facts that affect the outcome matter. To the client, every detail matters.” Indeed, “[t]he client demands that the lawyer care about what matters to him.”  Different lawyers manage the conflict in different ways, some more effective than others:

Some lawyers prefer to handhold clients, catering to their sensitivities at the expense of addressing the relevant legal issues. Others prefer to guide clients to understand why some things matter and others, deeply important perhaps on an emotional level, are of no relevance at all on a legal level.

Greenfield ended the post by pointing out how lawyers must set aside the issues that interest them personally and focus on the client’s needs.  Recognizing and analyzing those issues comprise the “the hard work of a lawyer.”

After reading this post, I recognized how much it intertwined listening with the essential act of lawyering. From Listen Like a Lawyer’s Twitter account, I quickly tweeted the following:


And then the rest of the day, something kept bothering me.

Is it really a balance? (Just one more balancing test among so very many in legal doctrine and the lawyering-skills literature.)

Yes, it is a balance. Of course. In listening to a client and asking questions, most lawyers are going to show a mix — a balance — of empathy and analysis. Project too much empathy and the client will gain false hope and/or try to use the lawyer as a tool for “tangential beefs.” Project too much logic and the client will turn away.

This is an important point and one that some lawyers struggle with. For those who repeatedly gets entangled with unrealistic client expectations and, on the other hand, for those whose clients repeatedly become distant and wary, working on the balance may be worthwhile.

But it strikes me that Greenfield’s post was saying something more profound and difficult. He is not a fan of superficial thinking, and the idea of a simple balance isn’t exactly true to his point. 

What the post said is that lawyers shouldn’t be unempathetic. That’s a lot different than saying lawyers need to balance their logic with their empathy. Actually, he writes, “[t]hinking like a lawyer demands a dedication to harsh logic.” At the core of what we do, the law and its logic reign supreme. So really we are using empathy — and all our other communication tools — to help our clients understand the logic. 

We might need to listen more to do this. We might need to listen differently, or less (if the client is fixated on an irrelevant fact, as the post suggests). But we need to listen with discernment. By hearing their words, watching their faces and body language, using our experience and intelligence to notice what they aren’t saying, deftly steering the conversation to relevance, and generally bringing all of our listening skills to bear, we can be faithful to the law’s logic — while also performing the difficult task, articulated in Greenfield’s post, of guiding clients to understand.

Please share comments, particularly on this view of empathy and lawyering. It’s a conversation I hope to continue. 

Client developmentLaw firm marketingLegal communicationPeople skills

Listening to internal and external clients

A friend recently sent me a nice compliment about the blog. She works in sales and marketing (not within the legal industry) and said she’s finding the listening skills discussed here very useful for communicating with both “internal and external customers.”

Courtesy Flickr/Elliott Brown

Courtesy Flickr/Elliott Brown

The focus on “internal and external customers” (or clients) caught my particular attention. Of course lawyers are going to want to listen intently to their external clients. One way to keep a client is to listen; conversely, a great way to lose a client — especially a senior business executive — is not to listen, such as by checking your smart phone during a meeting.

For lawyers, the idea of internal clients may be more subtle but still should be a given, especially for in-house lawyers and anyone who works in a place where client-service teams are chosen partly based on who the senior team leaders want to work with. Here’s a good post by Timothy Corcoran on better understanding your internal client. And here’s a good post with advice to associates on impressing partners — such as by treating them as an internal client.

But is effective listening different for lawyers’ internal and external clients, or should it be? Apart from what listening practices are most effective, as a descriptive matter might lawyers subconsciously listen differently in internal and external situations?

Active listening provides a focal point for exploring this question. Active listening has been defined by law professor John Barkai as “the lawyer’s verbal response that reflects back to the client, in different words, what the client has just said.”

Barkai suggests that we can evaluate active listening on at least three metrics:

  • accuracy: did the lawyer understand the speaker’s informational content and emotions?
  • intensity: did the lawyer understand the intensity of the speaker’s emotions?
  • form: did the lawyer respond with clean, simple paraphrasing — or did the lawyer use what Barkai views as potentially patronizing and unhelpful introductory phrases such as “I understand” and “What I’m hearing you say is . . .”? 

So with these metrics in mind, we can reflect on whether lawyers listen with different degrees of accuracy, attunement, and form when they are dealing with external versus internal clients. Here are two brief hypothetical case studies:

Lawyer #1 believes in the importance of listening and attempts to be a particularly strong listener with external clients. He focuses on their information and their content, and he accurately perceives the strength of their feelings. But he wants to show them how carefully he listens, and thus habitually and intentionally uses phrases such as “I understand” and “As I see it.”  Sometimes these phrases lead clients to feel a bit patronized, and as a result they may hold back. 

Lawyer #2 is at a stage of her career where she wants to show her technical lawyering skills to senior lawyers. She listens with a strong focus on the information they are sharing, and she concisely reiterates information and tasks to ensure everyone is on the same page. She is not quite as accurate at judging the emotional state of senior lawyers. Sometimes Lawyer #2 asks task-related follow-up questions too quickly. Slowing down the conversation by reiterating general instructions could allow her to glean more global, contextual information about how the senior lawyer feels about the representation and wants to approach it.

Ultimately, whatever the context, effective listening demonstrates strength at each step of the listening process — roughly attention, perception, memory, understanding, analysis, and response. (This outline is drawn very generally from listening frameworks such as Brownell’s HURIER model and Worthington and Fitch-Hauser’s MATERRS model.)

Also regardless of context, effective listeners are “uniform” in their ability to choose and tailor their approach for the particular situation. The best communicators will take the internal/external factor into account — of course. But that’s just one of many other factors such as the length of the relationship; the other person’s stress level; the complexity of the content; the time of day; and the other person’s preferred style of communication such as informal or formal, just to brainstorm a few.

In this sense listening is just like all the other communication tasks a lawyer performs: there is a very broad common framework for effectively performing each task, and the most effective listeners/speakers/writers tailor their approach within the framework to meet the needs of the client — whether internal or external.

*Thanks to Lou Spelios for comments on an earlier version of this post.

People skills

Summer reading

Listen Like a Lawyer now has two candidates for a (hypothetical) Very Challenging Book Club: Wolf Hall by Hilary Mantel, previously discussed here; and Zia Haider Rahman‘s In the Light of What We Know (2014). I chose Rahman’s novel for a reading challenge this summer and have not been disappointed — although I’m not quite finished with it.

The main characters are a former lawyer and a soon-to-be-former investment banker who is looking like the fall guy, perhaps deservedly, for his firm’s involvement with bad derivatives trading. This is a gross oversimplification, but as the New York Times book review stated, the book is so big in length and scope that it defies summary. The rewards, however, are great, such as this passage — and here we finally come to the topic of listening.

It’s page 268. The narrator has just told his father, an Oxford-educated Princeton physicist, about the narrator’s likely fall from grace in investment banking:

When I got to telling him that I thought the firm was about to let me go and would possibly even try to hang me out to dry, my father did not make reassuring sounds, did not contradict me with the groundless optimism of someone reassuring himself as much as another–that was never his way. He simply listened. (Some years ago, he explained to me his belief that that kind of hollow consolation was disrespectful because it presumed that the person being consoled wouldn’t see or care about the absence of reason. The thing to first and foremost, he believed, was not to talk but to listen, and listening, like anything difficult, is easier said than done.) I talked for some time, finding more and more details to tell him. Even things I hadn’t consciously thought much about I brought up, understanding then how much they had actually been weighing on my mind.

The scene goes on to weave in a few more listening lessons, such as the father’s perception of what has not been said — namely anything about the narrator’s wife. “My omission must have been as obvious to him as it now was to me.”

At a turning point in the conversation, the father also moves his chair to sit at a right angle to the narrator: “It was how my mother liked to sit. There was something less confrontational this way, she’d said. This way you see the person’s good side.”

So this scene occurs about halfway through the book. I have more than 200 pages to go, in which some kind of big betrayal is apparently going to be revealed, along with a disenchanting look (already foreshadowed) at NGO activities in Afghanistan.

At times I have been tempted to take a break from this book. It is amazing, but it is also taxing my focus and persistence. And now I can say it was a success because it produced a blog post. Yet something I read in the Chronicle of Higher Education is motivating me to persevere. Erik Shonstrom is a rhetoric professor grappling with the idea that reading ambitious novels teaches critical thinking. His essay is great for any readers of this blog who may be encouraging their children to read by telling the children how good it is for their brains, something like an intellectual green smoothie. Shonstrom says yes, fine, tell yourself that big novels help with critical thinking, but that’s actually not the payoff:

The payoff for me — and what I secretly hope for my students — is something else. Yes, I want them to develop critical faculties for decoding the world, but what I’m really after in teaching the novel is the insight to develop meaning through their experiences. I want them to notice what they notice, both in the word and — more important — within themselves. Reading novels, I believe, acutely calibrates these internal receptors. Readers are able to hear the voice in their head more clearly. . . . When reading a long novel, we start to pay attention to that running line of commentary in our heads because we’re hopelessly bored. For me, the situation is similar to long hikes in the mountains. There’s no structure or “entertainment,” and we’re left with nothing but our own thoughts, which get amplified by the lack of distraction.

So I will finish In the Light of What We Know. There probably won’t be another lesson in listening dynamics, but there is sure to be more on mathematics, physics, cognitive science, South Asian history, and international relations, not to mention some painful romantic breakups. If analysis and contemplation stand in opposition to one another as Shonstrom writes (quoting Sven Birkerts in The American Scholar) then we can ask another question: where does listening stand, closer to analysis or closer to contemplation? For this we could fall back on our legal education: It depends.

Law schoolLegal education

Listening 101 for law students

New law students file into their first law school class, take a seat, and mentally prepare themselves. The reading has been long and difficult. Now it’s time for class, where everyone can sit back and soak in the professor’s brilliance while all the confusion is clarified.

Uh, no.

The first reading assignments in law school are certainly difficult. The first listening experiences — i.e. what happens during the first few classes — are often at least as hard.

Courtesy Flickr/Stuart Six

Courtesy Flickr/Stuart Six

The actual, real solution to this problem is not what students want to hear: Over time, you will become a better listener. The jargon from learning theory is that you need to build cognitive schemas (i.e. mental frameworks) for understanding the details of law school. (An earlier post touches on this point.)

The good news is that even if your cognitive schemas are as unfinished as the Empire’s Second Death Star, there are steps that can help with more effective listening.

1. Prime yourself to hear the key concepts.

Try to get a sense of the basic concepts and vocabulary of the day, before class. Using the resources that work best for you, make a note of the key concepts you expect to hear the professor talk about. By anticipating the key vocabulary of the day, you will be able to listen better when the professor talks about it. Essentially, you are “priming” yourself to listen to what is important and to learn.

Obviously, the assigned reading is the most important source to consult. But keep in mind that the reading will often be extremely detailed or may illustrate the opposite of what the professor ends up emphasizing. Thus you may want to consult a study guide alongside the reading. The casebook’s table of contents is also an invaluable guide to key words and the course’s overall structure.

(Priming works in other ways you may want to think about as well. If your classmate always complains “Professor X really hides the ball,” then that comment may prime your brain to think class will be confusing. Or it may help you calm down and listen by accepting you’re not the only one who feels confused.)

2. Think about how you are going to take notes.

A lot of people were talking this summer about how taking notes by hand is better than taking notes on a laptops. You should weigh the pros and cons and decide for yourself. Criteria you might want to consider include:

  • What helps you focus on class?
  • What helps you recognize and write down important terms and concepts?
  • How do you show relationships among ideas?
  • What helps you differentiate what the professor says as a definitive statement versus a proposition to examine and perhaps destroy?
  • How will you record the main point of Socratic dialogue between the professor and the student?
  • What worked best for you in previous situations where you needed a mix of detailed and highly conceptual notes?
  • (This one is speculative for 1Ls who have never taken an exam, but still important to think about.) What will help you later when you need to review and consolidate the ideas of the class in studying for the final exam?

The notes themselves ultimately are the key evidence of that student’s listening, according to Moji Olaniyan, the Assistant Dean for the Academic Enhancement Program at the University of Wisconsin. Dean Olaniyan said that when she works with a law student on listening issues, the notes are the place she starts.

It bears noting here, law students should take advantage of offerings from academic support and enhancement programs. And seek personalized advice and help from academic support experts sooner rather than later if you have a concern about reading, listening, or other academic functions.

3. Consider a time-tested note-taking technique.

You don’t have to go to Cornell to use “the Cornell method” for taking notes. Lawyerist, a legal blog, recommended this method for lawyers. 

It has a lot to recommend it for law students as well:

  • It encourages organizing your notes by broad topics and important questions.
  • It creates a place for recording details.
  • It requires a summary for consolidating your knowledge after a listening event.

Whatever note-taking platform and technique you use, these three goals — (1) broad topics; (2) details; (3) summary — are an excellent way to think about how to take notes  in a law-school classroom.

Once you get comfortable with basic note-taking in the law school classroom, consider supplementing with more nuanced approaches. One example is what I call the #ProfessorSays method, which means marking particular points the professor went out of the way to emphasize by labeling them “Professor Says: . . . ” or something similar. Then you can go back to the notes and refresh your memory on what the professor really focused on.

4. Consolidate your knowledge.

After class, take a few minutes to reflect on “what just happened?”  Write down the main points you heard. Write down questions and words to look up. Can you think of hypothetical fact patterns that relate to what was just discussed? Return to the reading and highlight any key passages discussed, if it wasn’t already highlighted.  A more organized approach is the “minute paper” method.

Keep in mind also that writing more notes and summaries after class could be a form of busy work you assign to yourself. The entire purpose of this step is to help your brain learn. If you feel like you’re writing and writing but not sure what exactly what all that writing is doing, try something different. Perhaps explain to a study partner — out loud, and without looking at your notes — “what just happened.” (Listen to yourself: can you actually explain it, or at least explain what it is you need to explain?)

However you do it, try after each class to consolidate what you just learned. Even knowing what you are still confused about is a valuable form of knowledge.

5. Compare notes.

Many students find study groups invaluable; others, not so much. They have benefits but aren’t a panacea, as this pragmatic post from Lee Burgess at Law School Toolbox points out. If you are a more social learner, consider literally comparing notes with a classmate. Ultimately, your listening, reflected in your knowledge and your note-taking, should help you learn and prepare for exams. But looking at how someone else does it may help you to adjust your own method to what best suits your needs.

6. Don’t forget other kinds of listening.

Sitting in a law school classroom, taking in the professor’s brilliance and making your own brilliant inner model of the law is, at its best, really great.

But that’s not what lawyers do every day. They work in small groups or one-on-one with people. They interview clients and negotiate with other parties and depose hostile witnesses. They listen to emotional situations and get lied to and hear their own inner voices reacting to whatever they are hearing from the people around them.

As a brand-new law student, you may or may not have the opportunity to model this kind of listening. If you do, count yourself lucky. If you do not, keep in mind that even the most powerful, effective, excellent listening in the 1L classroom is not in itself sufficient to make a great lawyer. Highly analytical listening is just one skill that lawyers need. Many incoming law students will find this thought consoling.

Thanks to Professor Anne Ralph of Ohio State’s Moritz College of Law for prompting this post.