Month: December 2014

Client developmentPeople skills

Resolve to do more than “active listening”

Lawyers are not stupid. They know that listening is important to their professional success. In fact, when a recent study asked about 100 U.S. and Finnish lawyers to assess their own “listening competence,” they answered realistically, ranking themselves average to good. They supported these rankings with qualitative answers so closely linked to their work as lawyers that the authors of the study concluded they were really answering a different question focused on their “professional listening competence.” The study is Professional Listening Competence: Promoting Well-Being at Work in the Legal Context by Sanna Ala-Kortesmaa and Pekka Isotalus, published in the International Journal of Listening.

The study by Ala-Kortesmaa and Isotalus is quite interesting and will be addressed in a longer post later in 2015. For now, here at the end of 2014, it offers a gem to take away as a potential New Year’s Resolution:

Active listening is the wrong answer. Or at least it’s not always the right answer.

Listening competence requires a broad range of skills from cognitive strengths such as memory to emotional (“affective”) strengths such as being able to focus on the conversation partner. And listening competence requires the listener to adjust behavior to the situation, using a variety of approaches.

People—including lawyers—generally do understand that they need to adjust their listening to the situation. The problem is the widespread belief that the way to do this is by active listening.

Active listening is focused on other conversation partners, with the goals of “adopting the emotions of others or interpreting their thoughts and meanings.” (This language is from the Ala-Kortesmaa article; the original source of this critique is by John Stewart and Milt Thomas, summarized here.)

What is often more effective is “dialogic listening.” Dialogic listening focuses on the shared aspect of the conversation. It explores what the other person is saying, not to crawl inside that person’s mind or try to paraphrase meaning but rather to create shared understanding. It’s more open-ended. It tends to be less manipulative. According to the original source on dialogic listening, Stewart and Thomas, the practice of dialogic listening means encouraging conversation partners to say more, using metaphors to reach new understandings, asking the conversation partner to paraphrase (rather than paraphrasing for them), and exploring the context behind the conversation partner’s statements.

One difficulty for attorneys that Ala-Kortesmaa and Isotalus point out is to find out if their conversation partner is communicating dialogically. This is the idea of the dual role of listening. The article implies what most attorneys will have experienced: sometimes they have to communicate with people who aren’t communicating in anything close to good faith. Or, it’s hard to communicate openly and non-manipulatively with someone who is trying to manipulatively guide the conversation toward his or her own goal. (Stewart and Thomas admit that dialogic listening itself can seem manipulative. So that goes back to the idea that however one labels communication, if it’s not good-faith communication then the labels really don’t matter.)

Throughout my time blogging here at Listen Like a Lawyer, I’ve been wanting to take a hard look at active listening. It is such a popular listening concept, yet there seems to be a subtle kind of domination in restating someone’s thoughts, either in the same words (now they are my words) or different words (let me fix that and put the right words on it). This topic needs further exploration because clearly active listening is a technique every lawyer does need, and great communicators can do active listening in good faith, without manipulation or domination.

But this insight from the Professional Listening Competence study seems like a great way to end the year. Active listening is not the formulaic answer to being a good listener. No single formula is the answer to being a good listener. Dialogic listening is worth learning more about, especially with client conversations, because it’s not about forcing meaning or extracting meaning but sharing meaning.

This New Year’s Eve post is inspired by Matt Homann’s “Looking for a Resolution?” post on the [non]billable hour

Client developmentLaw firm marketingLegal communication

Artisanal listening

McSweeney’s post last week, “I Am An Artisanal Attorney,” caused a ripple of laughter and sharing among lawyers on social media. If you have ever eaten small-batch honey from a meadery or had your mustache trimmed at a groomery or considered purchasing an ascot from an ascottery—or if you just need a laugh—stop and read it.

Courtesy Larry Hoffman/Flickr

Courtesy Larry Hoffman/Flickr

Author and very special attorney John Frank Weaver promises not just to write legal documents, but to hand-craft his own paper from local flax and write the text in ancient script using a feather quill and squid ink:

Don’t be lulled into a complacent life filled with more cheap, manufactured goods than you’ll ever need and lawsuits that don’t reflect your uniqueness. Insist on a life well-lived with food, experiences, and litigation that reflect people and skills, not factories and automation.

After I finished laughing, which took a good long time, I wanted to make a semi-serious point. Weaver’s comic post taps into anxiety about new realities and related fears such as “Here Come the Robot Lawyers.”  In contrast, an artisan is “a person or company that makes a high-quality or distinctive product in small quantities, usually by hand or using traditional methods.” How much of the legal market is and should be artisanal — or “bespoke” — and how much should be standardized or automated is a huge, ongoing, and critically important debate stoked by Richard Susskind and many others. (Here’s one article from the ABA’s Legal Rebels on Susskind’s Tomorrow’s Lawyers tapping into this debate.)

Even for those of us who, at heart, want to practice on the bespoke end of the spectrum, we might agree that lawyers don’t need to squeeze their ink out of local squids. They don’t need calling cards printed on Himalayan pressed paper. But it is a requirement of the profession to provide clients with legal services that are customized to the facts of the case. It is an ideal of the profession to tailor these services to the personality and needs of the client as well. And “thinking like an artisan” can be an excellent marketing practice for lawyers because clients may screen their lawyers based on objective criteria and then choose their lawyers based upon more artisanal criteria such as values and fit.

Drawing on what it means to be an artisan, one of the lawyer’s most “traditional methods” is quality face time with people. This relationship building is intertwined with the broader tradition of lawyer as trusted advisor. And one of the traditional techniques of the trusted advisor is listening. Listening is most often and most effectively done in small quantities, such as one-on-one meetings. It takes time and attention to focus on a client and make that client feel special. It takes skill to deploy active as well as passive listening and every other form of listening as needed in the moment. Being really listened to and understood makes a client person feel, well, special—kind of like some people feel when they sip cold-pressed juice infused with artisanal ice and nibble on a side of hand-crafted toast.

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Best of 2014: LLL’s Favorite Tweets & Links on Listening and Lawyering

Listening theories. Listening techniques. Body language. Distraction. Music. Hearing impairment. Client development. Client service. Law-firm management. Collaboration. Cognitive styles. Creativity.

Courtesy Flickr/Brad K.

Courtesy Flickr/Brad K.

Asking questions. Mindfulness. Job satisfaction. Emotional intelligence. Psychology. Learning theories and myths. 

Listen Like a Lawyer has a pretty awesome Twitter feed collecting fantastic links on these listening-related topics and more. As an end-of-year review, this post collects one notable link from each month, and some honorable mentions at the end. If you want to share your favorite link about listening, please post in the comments.

January

Merrilyn Astin Tarlton, The Multitasking Mess, Attorney at Work: http://www.attorneyatwork.com/the-multitasking-mess/

February

Gerry Riskin, Seven Keys to Retaining Your Clients, Amazing Firms; Amazing Practices http://www.gerryriskin.com/seven-keys-to-retaining-your-clients/

March

Adam Pasick, The Complete Guide to Listening to Music at Work, Quartz http://qz.com/185337/the-complete-guide-to-listening-to-music-at-work/

April

Art Markman, How to Figure Out What You’re Not Being Told, Fast Company http://www.fastcompany.com/3027793/work-smart/how-to-figure-out-what-youre-not-being-told

May

Wells H. Anderson & Seth G. Rowland, How to Choose the Right Tools for Any Client Communications, ABA GP Solo: Law Practice 2020 http://www.americanbar.org/publications/gp_solo/2014/may_june/how_choose_right_tools_any_client_communication.html

June

Judith E. Glaser & Richard D. Glaser, The Neurochemistry of Positive Conversations, Harvard Business Review Blog https://hbr.org/2014/06/the-neurochemistry-of-positive-conversations/

July

Josh Beser, 5 Ways to Follow Up Effectively (With Real-World Examples), JD Supra Business Advisor http://www.jdsupra.com/legalnews/5-ways-to-follow-up-effectively-with-re-98088/

August

Anne Collier, Style Matters: How Cognitive Diversity Affects Your Work, ABA Law Practice Today http://www.lawpracticetoday.org/article/style-matters-cognitive-diversity-affects-work/

September

Gregory Ciotti, Critique v. Criticize: The Lost Art of Candor in the Workplace, The Next Web http://thenextweb.com/entrepreneur/2014/09/08/critique-vs-criticize-lost-art-candor-workplace/

October

Jeanne R. Lee, Making It Rain–Practical Tips from Those Who Do: Annita Menogan, ABA Women Rainmakers http://www.lawpracticetoday.org/article/rainmaking-practical-tips/

November

Scott Eblin, How to Pull Yourself Back from the Brink of Your Caffeine-Driven, Smartphone-Addicted Life, Leading Blog: A Leadership Blog http://www.leadershipnow.com/leadingblog/2014/11/how_to_pull_yourself_back_from.html

December

Allison C. Shields, Use the Spirit of the Holiday Season to Improve Your Networking, Slaw: Canada’s Online Legal Magazine http://www.slaw.ca/2014/12/01/use-the-spirit-of-the-holiday-season-to-improve-your-networking/

Honorable Mentions:

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How to deal with the impaired lawyer examined in @AZStateBar @azbarcle Friday 12/12

Lawyers need to be open to the signs that colleagues and friends in the profession may be struggling with substance abuse and/or mental-health issues. On that note, this looks like a helpful and important CLE. And for those not in Arizona (myself included), this post contains some helpful linked resources as well.

AZ Attorney

stress-word-blur-cloud

Law practice is a stress-prone profession. We know this through research and experience. But what can be done when we—or our colleagues—are responding to the stress in damaging ways?

As much as we might like to see stress in law practice simply evaporate, that is unlikely to happen. And it is stress and its multiple outcomes that make a State Bar seminar this Friday worth considering.

The title is “Protecting Your Practice: Ethically Dealing with the Impaired Lawyer,” and you can get more information (and register) here. As you’ll see, the panel of experts will examine how you can address—and maybe help—a colleague who is exhibiting warning signs of impairment.

The seminar will be held on this Friday morning, December 12. Because you’re likely busy, I’ll lighten your stress level by copying in here the seminar description:

“With the demands and stresses of the profession increasing…

View original post 285 more words

AdvocacyFact investigationLegal communicationLegal skillsLitigation

Yes, I’m listening to Serial. Aren’t you?

The podcast Serial has, in the past few months, become the most popular podcast ever. As a dedicated bibliophile and not much of an audiobook fan, I’ve been surprised to become so engrossed. Serial reinvestigates the murder of Hae Min Lee, a high-school student from Baltimore who was killed in 1999. Her ex-boyfriend, Adnan Syed, was convicted and remains in prison. Serial raises a lot of questions about criminal justice, the legal system, and lawyering—and it manages to raise them in an interesting, suspenseful way. Listening is intertwined with these issues in a variety of ways, from our own experience as listeners to the vexed role of listening in the investigation and beyond.

Lawyer as listener

Lawyers are used to be the “tellers” in storytellers. As we listen to Serial, we experience a story as the audience. Producer Sarah Koenig controls the pace of the narrative both “week by week” and moment by moment. What immediately struck me—in a good way—was her use of pauses. She speaks quickly but in comprehensible segments, leaving space for understanding. She also uses the voices of others so well. Of course, one would expect nothing less from any affiliate of This American Life. Yet Serial brings a fresh appreciation for the interplay of voices and pauses delivered up for the listener’s ear. Just as one concrete benefit to spending your time with Serial: if you have a CLE presentation to prepare, it might inspire you to use a short video segment, or to experiment a little more with pauses and conversational suspense the way Koenig does.

It’s also interesting that each episode of Serial differs in length. Koenig doesn’t try to space out the narrative to fill a set length of time; she breaks off one coherent piece of the story, fleshes it out, and stops. An episode may be 28 minutes long, or it may be 53. The flexibility of the podcast format is extra courteous to the listeners: we can listen whenever and wherever we want, and we know that an episode is just exactly as long as the producer thinks it should be, no more. The fact it’s free doesn’t hurt either. (In episode 9 she asks for listener contributions, and to date enough has been gathered to support a second season.)

One more note on the listening experience, and this is a little more critical: Serial is in part a work of entertainment, and as such, it has own music. At first, the signature jaunty opening piano left me confused. The music also includes some looming, menacing moments, as well as plaintive notes associates with Hae, the victim. But when we later think of Serial and its phenomenal podcast success, I think we’re going to think of the jaunty piano. As Slate asked, “What the heck is Serial: A mystery? A comedy? A touching memorial?” I can understand why her family may be in pain to have her murder brought back into the public’s view—and the public’s ear—in this way.

Listening in the criminal-justice system

Then there is Serial‘s substantive coverage of how listening happens in the legal system. The listening comes in the form of information gathering, but also information-confirming, and the line between them is not always clear.

We hear several segments of taped interviews with a key witness—indeed, the state’s star witness—talking to Detectives Ritz and MacGillivary. One detective would ask a question that leads the witness to answer and perhaps ramble, at which point the other would follow up with pointed clarification, as Koenig points out. Perhaps it’s surprising that we hear any tactics at all in these interviews. Before taping, the witness and detectives spent three hours “ironing out” this witness’s statement, which was the standard practice back in 1999 and has since been discredited. As producer Sarah Koenig points out this untaped “pre-interview” is “where the mischief can happen, the contamination.” She’s quoting Jim Trainum, a former homicide detective and now consultant to police forces, innocence projects, and others (such as famous podcasts) on issues of interrogation techniques and false confessions. Serial hired Trainum as a consultant for the series.

In prosecution of Syed, the star witness had the virtue of providing valuable information the detectives hadn’t been able to get anywhere else. That witness also provided closure, “a satisfying investigative circle, a murder case on a silver platter,” Koenig points out. When detectives hear possibly conflicting details, they don’t push. The reason they don’t push are both explicit and much more subtle. In terms of obvious strategy, as Trainum states, “You don’t want to do something if it’s going to go against your theory of the case.” No confession is perfect; there will always be some inconsistencies. Those inconsistencies are handled very, very carefully because police don’t want to create “bad evidence.” Producer Koenig literally sputters when Trainum tells her the purpose of the interrogation is not so much to get to the truth as it is to make the case.

Compounding the conscious intent to make the case is the subconscious effect of verification bias. (Listen Like a Lawyer has previously posted on various cognitive biases including confirmation/verification bias.)

To illustrate verification bias, Trainum recreates the mental dialogue of a detective taking a statement, when that detective hears something that doesn’t quite fit: ”I want to believe you because you’re my witness and I think this is what happened and all that, so the fact that you’re giving me something that’s inconsistent and doesn’t fit my theory of the case, what does verification bias cause you [sic] to do? Ignore it and push it aside.”

By the time the detectives interview defendant Syed, as chronicled in episode 9, they have moved from information-gathering to what looks like information-confirming: they open his interview with a “theme.” One of the detectives introduced himself to Syed by suggesting that the detective himself had an ex-wife and could understand how “this” could happen. Serial doesn’t suggest that listening must always be open-ended and can never arrive at a central narrative. That would be naive. But Koenig is certainly suggesting the narrative that convicted Syed is problematic. In essence, Serial is listening to Syed’s story as of today, as it has developed post-conviction, in a way that the court system may or may not do. His petition for post-conviction relief is pending.

Serial has finished its ninth episode and has a handful more to go. For lawyers who have not yet picked up on it, I do recommend it. For those who are already listening to Serial, please share your thoughts. How has the listening experience affected you? What do you think it shows about listening within the legal system?