Who can resist a good Hercule Poirot line, especially when it comes to listening?
Here’s another good one in the spirit of brutal honesty: “Mr. Ratchett, I have made enough money to satisfy both my needs and my caprices. I take only such cases now as interest me, and to be frank, my interest in your case is, uh… dwindling.”
As a legal-writing professor for 14 years, I’ve attended countless conference workshops on various aspects of legal writing. The ones with music always stand out. There’s just something extra cool about a law professor who plays an instrument. Music speaks to the human ear in a way no law-school lecture ever can. Concert-trained pianist Allison Kort is also a legal-writing professor at UMKC. Today she shares this guest post on the piano sonata and oral advocacy.
“The Court below should be reversed for the following three reasons . . .”
The piano sonata form, particularly the Beethoven sonata (he wrote only 32), usually starts off with a bang. He gets the listener’s attention. The second movement—the slow movement—will bring in a second musical theme, weaving in finer, lighter musical points. The third sonata movement (or fourth) ends by tying together and resolving the development of the pieces, showing the listener how they must come together to a logical conclusion.
In college I sat in a square room in a row of square rooms in the Mosse building in Madison, Wisconsin, cursing the Waldstein, (No. 21, Op. 53). I continued learning the intricate patterns and movements, the difficult runs in the right hand, don’t rush it, don’t slow it, too much crescendo, not enough pedal. My father, who had been a music professor before he went to law school, said it was too technically difficult, just not worth the effort. Maybe, but I will not give it up. I have been practicing the Waldstein and its three movements, on and off, since 1993. It is 2014. Fortunately, during that time, I found something else to do. Like becoming a lawyer and a law professor.
In appellate advocacy, we encourage students to provide the listener with a theme. A theme may be unspoken—a general sense conveyed of why the judge should hold in the advocate’s favor—or it may be directly stated. Regardless, it will pervade the entire argument, be referred to in some way over and over again during the argument, interjected throughout the advocate’s answers to the judge’s questions, and appeal to the judge’s sense of fairness and morality.
Some of us coach advocacy as legal storytelling. Advocates begin the story with a protagonist, and then explain the relationship between the parties, the conflict brought about by that relationship, and the appropriate outcome that should result with the court’s assistance. While oral argument is often described as a “conversation with the court,” certain rules apply. Don’t speak too fast; don’t speak too slowly; never interrupt a judge, but stop talking when a judge interrupts you. Answer a question and always the question asked, but do not ask the court a question. (Since when does a conversation involve only one party asking the questions?)
Is advocacy more music than writing? An expected logical conclusion arrives only after the conflict is introduced, followed by the boldest arguments, the details, and the triumphant conclusion. The practiced storyteller anticipates the judge’s questions, moves at the correct pace, guides the judge effortlessly through the affirmative arguments and through the opposing drama. It may look like a novel, but to the classical pianist, “May it please the Court . . .” sounds like Ludwig.
One way to become a better listener is to work with a coach. Just Google “listening coach” and you may be surprised by how many resources there are.
One coach who reached out to me is Laurie Schloff, Senior Coaching Partner with the Speech Improvement Company. She has worked with professionals including attorneys for more than 25 years, and (not surprisingly) believes that communication competence is essential to attorneys’ professional success. In one-on-one work, she uses this coaching framework:
Laurie provides various types of feedback, including her own personal feedback and video feedback. She also encourages attorneys to seek feedback from peers and to reflect and learn how to become their own coach (the concept of self-coaching).
Laurie coaches on all of the communication skills, but has some specific methods for helping attorneys improve their listening. She promotes the idea of “persuasive listening.” According to Laurie, persuasive listening means “conscious use of listening skills as a tool to build positive rapport, engagement and influence with others in your ‘communication world.’”
She encourages attorneys to think about listening in terms of the acronym “E.A.R.”:
For engaging, attorneys can do something they may feel very competent at, which is asking questions:
Attorneys can become stronger listeners by asking different types of questions depending on the situation. Laurie identified three particular types of questions to consider: “open,” “structured,” and “short reply.” An example of an open question is, “What are your thoughts about the training lawyers receive in listening skills?” An example of a structured question is, “What are some ways legal training could include listening skills practice?” An example of a short-reply question is, “Do you think lawyers are good listeners in general?”
For attending, the key issue is attention:
Attorneys can demonstrate attention to clients and colleagues by controlling distractions and multitasking. Employing positive behaviors are easy ways to convey attention, including occasional head nods and encouragers such as “uh huh” or “mhm.” Laurie pointed out that verbal encouragers are especially necessary during phone conferences. In person, even when taking notes, attention should be on the client’s face as much as possible.
And for responding, again Laurie encourages attorneys to think of different types of responses:
The attorney may be responding to Information, for example by paraphrasing or summarizing before offering a fresh perspective: “So you’re looking to settle this by November.” The attorney may be responding to feeling. This means identifying the undercurrent of emotion if appropriate: “I sense a lot of stress around this last minute change in deadline.” The attorney may be responding to a goal. By this, Laurie means moving the client or colleague in a positive direction: “So you’d ideally like to look at possibilities for a national seminar in 2015.”
Laurie intertwines her coaching with hypothetical examples and anecdotes from her experience. On the value of listening, she shared a few words of wisdom from some of her contacts in the legal world:
This article, “How Cognitive Diversity Affects Your Work” from the ABA Law Practice Today is one of the best things I have read in quite some time about how lawyers and clients interact. The author, Anne Collier, explores a hypothetical legal team’s relationship with its client, where the CEO and general counsel have different cognitive styles and the lawyers on the legal team have different cognitive styles as well — not to mention the huge differences among the CEO and one of the lawyers on the team. These differences emerge from different approaches to the “paradox of structure” in solving problems: “The paradox of structure is the seemingly incongruous fact that structure both enables and limits one’s ability to solve a problem.” A group of professionals can all be operating at a very high level but still have different preferences for structure and innovation. Their differing preferences can lead to clashes in cognitive style.
The article focuses on some (fascinating) metrics for problem-solving styles and never uses the word “listening.” Yet listening is part of the “bridging” and “coping” strategies it recommends for handling clashes of cognitive styles. My favorite line in the article, other than the one about the paradox of structure, is this example of a nonverbal bridging strategy: “Oscar agrees to give Madison ‘the look’ in meetings when she needs to be more concrete.”
Have you investigated your own cognitive style, or gotten informal or formal feedback on it? How do you use listening skills — including nonverbal signals — to perceive and anticipate problems stemming from cognitive diversity?
Here’s a thoughtful post urging caution in the debate over laptop vs. handwritten notes. Note-taking provides important (although not perfect) evidence of listening, and thus this discussion is pretty important to Listen Like a Lawyer.
Recently there was an article that captured the attention of the popular press and those who teach. A few months ago, The Atlantic trumpeted, “To Remember a Lecture Better Take Notes by Hand .” Scientific American also got into the act with the article “A Learning Secret: Don’t Take Notes with Your Laptop”. Even the research article upon which these news reports were based had a catchy title, “The Pen is Mightier than the Keyboard: The Advantages of Longhand over Laptop Notetaking.” Soon education listserves began to advocate banning the laptop from the classroom. What’s not to like about this finding that fits into our sneaking suspicions about the digital devices? There is much to admire about the Mueller and Oppenheimer (23 April 2014) study that found handwritten notes were superior to laptop notes; it’s a tightly constructed study. Based on the Mueller article, should educators be telling…
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