Month: January 2015

People skillsProfessional development

Mindfulness and mental chatter

Listen Like a Lawyer is headed into that time of year when it’s going to be difficult to maintain weekly posts. Being too busy has a detrimental effect not only on one’s blogging goals; it can also interfere with communication. And since lawyers fall into from the “busy” trap at least as much as the average person and probably a lot more, this is a good moment to think about what that does to us and how to respond.

Seeking some wisdom on this topic, I started to check out Scott Eblin’s new book Overworked and Overwhelmed: The Mindfulness Alternative. This book seems kind of like the “7 Habits” equivalent for the mindfulness movement.

After digging into the book, I was going to start by exploring the concept of “mental chatter.” Mental chatter is also known as “monkey mind” or (less memorably) “discursive thoughts.” Basically it means random disorganized thoughts running through your head. Should we listen to them? Or ignore them? (Is that even possible?) These random thoughts are obstacles to mindfulness—defined as “the awareness that arises by paying attention on purpose in the present moment and nonjudgmentally” (Eblin quoting mindfulness pioneer Jon Kabat-Zinn). Also from Eblin:

Mindfulness is about “putting yourself in a position to be more aware and intentional about what’s really going on inside and what, if anything, you want to do about it.”

And then I had two back-to-back days that were busier than any in recent memory. They reminded me of the days back in law practice when I had three filings due in three different courts at 5 p.m. on the same day. There was no time to be mindful! Or so it seemed. The day was actually too busy for random mental chatter because there was too much to do requiring full focus. I tip my cap to the legions of practicing lawyers who handle these types of days year in and year out.

What is the solution? It’s not “finding balance.” On this, I like what Eblin has to say:

[I]f you’re an executive, manager, or professional with a demanding job, you’re about as likely to find balance as you are to be a purple unicorn. The reason is that the world and life are both fast moving and ever changing. In that environment, balance, at best, is a temporary and fleeting state. Instead of seeking balance, try to find a rhythm instead. By focusing on rhythm, you acknowledge there are times when your pace is going to be much more oriented to work, home, or community and there are times when the counterpoints of other aspects of your life come to the fore.

It’s also not about using mindfulness as a Band-Aid. Techniques such as deep breathing can help with reducing stress in specific situations, but mindfulness really means something broader. For example, having consistent routines—like sleeping and exercising—provides resilience on days that swing to the painfully hectic side of the pendulum.

And if mindfulness is about awareness, then we need to think about it when we think about listening. Eblin has some interesting thoughts on different styles of listening, and Listen Like a Lawyer will delve into those on another day.


Here are some additional resources on mindfulness:

The Berkeley Institute for Mindfulness in Law

Becky Beaupre Gillespie, Mindfulness in Legal Practice is Going Mainstream, ABA Journal (Feb. 1, 2013)

Susan Moon, Moonlighting: Mindfulness for Lawyers and the Jedi Master, Above the Law (August 12, 2014) (featuring Jeena Cho)

Robert Zeglovitch, The Mindful Lawyer, ABA GP Solo Magazine (October/November 2006)

Scott Rogers, The Mindful Lawyer: Practicing Law with Presence

Chris Bradley, Jeena Cho on Zen Lawyering, Lawyerist (June 24, 2013)

Jeena Cho, The Anxious Lawyer (ABA forthcoming 2015)

Shalini Jandial George, The Cure for the Distracted Mind Why Law Schools Should Teach Mindfulness, 53 Duq. L. Rev. (forthcoming, winter 2015).

AdvocacyLegal communicationPublic speakingTrial advocacy

A myth about listening and learning

Listening is a loser, at least according to the widely circulated Pyramid of Learning:

Slide1

I’ve been hearing about the Pyramid of Learning — also known Dale’s Cone of Learning — since I was a child. Yet it has a problem. Specifically, a lot of credible people believe it to be “zombie learning theory that refuses to die.”

Digging through the evidence to find out exactly what is true turns out to be difficult, partly because there are just so many sources that repeat these numbers. One of the best I have seen is by Candice Benjes-Small and Alyssa Archer on the Association of College & Research Libraries blog (these are the folks that called the learning pyramid a “zombie learning theory”). They gather sources and trace how this idea started as a conceptual model about conveying information at various levels of abstraction. There were no numbers making any retention claim. At some point, most likely during World War II, the graphic of the pyramid emerged with numbers attached to it representing retention percentages.

The graphic of the pyramid and numbers makes it feel irresistible. Matching the strength of their appeal with a strident attack, Will Thalheimer has described the pyramid as “dangerous” and a “fraud” on his blog Will at Work Learning. A fairly comprehensive timeline of debunking sources can be found at the Institute for Learning Professionals. The American Society of Engineers published a conference paper with a detailed, balanced refutation including graphical representations of where these numbers appear to come from.

In her textbook Designing Information Literacy Instruction: The Teaching Tripod Approach (2014), Joan Kaplowitz commits the debunking to print:

As appealing as that notion [of the learning pyramid] might be, an exploration of the literature shows there is no solid, research-based data to support it. 1

Kaplowitz goes on to suggest the numbers themselves contain the seeds of their own destruction:

Even the numbers themselves should make us raise an eyebrow and question the so-called data. The percentages are just too perfectly distributed with each number being a multiple of 10 and the spacing of categories somewhat even to have arisen from any real-world experimentation.

That’s a lot of debunking, but is it enough? The appeal of the learning pyramid creates a pedagogical Scylla and Charybdis: If you tout these numbers, many teaching faculty will discount your credibility. But if you doubt the numbers, you may lose your connection with other faculty who embrace them. Benjes-Small and Archer advise “treading carefully.”

What does this mean for lawyers and law professors?

We are experts in being precise with words as well as being skeptical about claims. So we can avoid broad assertions of the pyramid’s scientific truth.

We can be careful in how we present information, testing it on audiences when possible and relying on our own experience as a guide. For example, showing a text-heavy Power Point while simultaneously reading the words is terrible. it doesn’t reinforce the information; it creates competing streams of information and, in a broad sense, is just plain annoying.

We can rely on more recent and more specific research into information retention. Not surprisingly, studies support the use of images: “Humans can remember pictures with 90% accuracy in recognition test over several days, even when the images are presented for only a short time during learning.” This is from Doug Linder and Nancy Levit’s The Good Lawyer: Seeking Quality in the Practice of Law, citing a study that is about 1000 percent more scientific than the cone of learning (as well as 1000 percent more difficult to read and understand). The science confirms the art of lawyering, as recounted by Linder and Levit:

Images are so effective to effective communication that David Ball contends a “trial attorney without images is like an art book without pictures.”

The fundamental truth behind Dale’s original concept is that information can be presented in many forms ranging from the concrete to the abstract. Whether teaching a class, making a presentation to clients, or arguing to a jury, we can “mix it up.” That’s not scientific, and there are fancier ways to say it, like Benjes-Small and Archer’s recommendation: “Think multimodal.” However it is phrased, this broad recommendation is more reliable than a neat set of mythical percentages.


  1. Kaplowitz cites Char Booth, Effective Teaching, Effective Learning (2011); James P. Lalley and Robert H. Miller, “The Learning Pyramid: Does It Point Teachers in the Right Direction?” published in volume 128 of Education (pages 64-79) in 2007; and Michael Molenda, “On the Origin of the Retention Chart” in volume 44 of Educational Technology in 2004.
Client developmentLaw firm marketingLegal communicationLegal skillsSummer associates

Steal their listening

Keith Lee’s book The Marble and the Sculptor: From Law School to Law Practice (ABA 2013) is a bracing, honest, challenging compendium of advice for new lawyers. I would strongly recommend it to upper-level law students and new lawyers. (See also his blog, Associate’s Mind, as well as his columns in Above the Law.) One chapter in Keith’s book that caught my eye is “On the Importance of Stealing.”

In addressing new lawyers, Keith advises the following:

“[S]tealing is an essential skill for you to develop.”

Not for larceny, of course, he says, but “within the framework of learning and growth.” The objects of this stealing are varied: “other lawyers, CLEs, books, anything really.” New lawyers should “steal their pattern of success.”

This is great advice. But it’s easier in some areas than others. We can look at a great legal brief and break down how each section and each sentence works. We can watch a great advocate and recognize skillful pauses and variations in tone. We can admire a senior lawyer who knows literally every statute and case in a given area of expertise and can assemble and reassemble them instantly in response to any factual question.

What about listening?

Listening is hard to observe and very hard to measure. Speaking and writing are productive – i.e. observable – communication skills. Listening is one of the two receptive communication skills, along with reading. “Listening is a hypothetical construct, something you know exists but you can’t physically see. You can see only the behavioral indicators supporting its existence.” This is from Debra L. Worthington and Margaret Fitch-Hauser’s textbook on listening.

So how do you steal from a hypothetical construct?

The behavioral indicators are a place to start.

This is a complex process: you’re observing affirmative actions such as making eye contact, using appropriate body language, asking questions, and providing “discourse markers” such as “um-hm” that encourage conversation. But you’re also observing what the listener doesn’t do: noticeably look away, check a smartphone, interrupt. Noticing what isn’t there is very, very difficult. As Nobel Prize-winning psychologist Daniel Daniel Kahneman tells us, “WYSIATI”: What you see is all there is.

The ease of perceiving what is there may partly explain why active listening is such a popular listening concept. It has a set of specific repeatable, measurable behaviors that go with it, such as repeating what the speaker has said. If you watch a skilled active listener, you can steal the method. But note how this is not really stealing the person’s listening skills. It’s stealing the productive act of speaking in a certain way, by repeating what the listener just heard.

The most important components of listening are hidden: being aware of and receiving the information, placing it into context with one’s previous knowledge, evaluating and (perhaps) remembering the information, and responding. These elements of listening are drawn again from Worthington and Fitch-Hauser’s MATERRS model of listening.

It’s hard to steal someone’s level of awareness. Again here, specific affirmative behaviors may be the only practical proxy. Making eye contact is a sign of awareness, for example. The educational-reform model KIPP teaches children a set of specific classroom behaviors that include “sit up,” “track the speaker,” and “nod your head.”  Body language can shape not only communication behaviors but actual brain chemistry, as Amy Cuddy famously described in her TED Talk and other work on “power posing.” 

The “s” in the MATERRS listening model stands for “stay connected and motivated.” To be a good listener, you have to want to listen.

But how can a person “steal” someone’s else’s motivation? Maybe the answer is an instrumental one: you can observe what their good listening does for them. Specifically, you can observe how you feel when you interact with a skilled listener.

In The Marble and the Sculptor, Keith Lee emphasizes communication — actually over-communication — with clients. This means keeping the client informed, of course. It also means taking time to get to know the client: “Take time out to learn the stock price, industry, day-to-day culture, players and overall goals of your client. Visit their offices and plants. Do it free of charge.”

This is one of Keith’s many kernels of advice to consider stealing. (Actually he got it from and attributes it to Dan Hull of What About Clients.) Before going on an outing to spend the afternoon at the client’s site, it’s a good idea to prepare. Study up on the client, of course. But also, consider inviting a great lawyer to lunch — someone whose client development and communication skills you know to be first rate.

And then steal their listening.

***

Note: I was grateful to meet Keith in person as he spoke to the legal blogging class I am co-teaching at Emory Law School. His advice on lawyering and legal blogging is first-rate (obviously!) and was received with great enthusiasm by the students. After seeing him interact with students, I can say Keith is not only a great speaker but also an excellent listener.

EthicsFact investigationLaw schoolLegal communicationLegal education

Core professional qualities of lawyers

About a thousand law professors are gathering now at the Annual Meeting of the American Association of Law Schools. The first session I attended this morning was Incorporating Teaching Professional Identity into the Legal Education Curriculum, with speakers from Mercer Law School and the University of North Dakota School of Law. Both schools offer innovative courses in building a professional identity as a lawyer.

The new program on professional identity at North Dakota emphasizes twelve core professional qualities, which I quote here from their handout:

  • Adaptability/Deals with Unpredictability
  • Confronts Mistakes
  • Courage
  • Diligence/Reliability
  • Empathy/Compassion
  • Generosity/Public-Mindedness
  • Honesty
  • Humility/Respectfulness/Courtesy
  • Integrity Under Pressure
  • Loyalty
  • Patience/Perseverance/Resilience
  • Professional Objectivity/Sympathetic Detachment

I really love this list and wanted to focus the rest of this post on how listening relates to these core qualities. Interestingly, the list does not include anything about “communicates effectively.” I think the point is to talk about the essential character of the lawyer, which is separate and broader than the lawyer’s discrete skills like communicating effectively. The lawyer’s core qualities are broader and more significant than any one skill; they drive the lawyer’s individual actions and deployment of skills in many ways.

Here are my quick thoughts on highlights of the list in relation to listening.

Adaptability and Dealing with Unpredictability

To be able to adapt, the lawyer has to listen. This is easier at the beginning of a project, when the lawyer is beginning to create the narrative of the case or the strategic approach. It’s harder when the client and/or lawyer already have a narrative or strategy in mind. The best lawyers can hear explicit or implicit dissonance with their chosen narrative, and then assess the risk to that narrative.

Listening also helps with unpredictability, I think in the sense of asking questions and listening to the answer. Open-ended questions may tease out that unpredictability and let a lawyer prepare for it. Closed questions that lead the conversation in a certain way may mask unpredictable facts or preferences, setting up nasty surprises later.

Courage

Lawyers have to deal with very difficult facts sometimes. The setting may be a courtroom where a witness recounts painful testimony or a law office where a client shares an uncomfortable truth or a mediation room where harsh words are exchanged or an icy test of wills becomes apparent. The lawyer has to have courage to face these situations and listen with professional body language and a problem-solving demeanor, even if that lawyer’s personal preference would be to go anywhere else in the world.

Diligence

To do a thorough job, the lawyer has to set up sufficient time for fact-investigation including, possibly, interviews. And the lawyer should use judgment to decide how to go about collecting facts, whether by e-mail or phone or face-to-face meetings.

Empathy/Compassion

Listening like a vacuum cleaner sucking up information is not, by itself, effective listening. The listener may be primarily interested in fact investigation and analysis, but listening with empathy will almost always be more professional (as a value) as well as more effective (as a skill).

Generosity

Giving time to listen is a form of generosity. Giving undivided attention during that time is more difficult and therefore more generous.

Humility/Respectfulness/Courtesy

Effective listening is all of these things. We’ve all witnessed situations with a bad listener who interrupts to ensure everyone gets the benefit of his or her “wisdom.” Interrupting is a little more complicated than that, though, because some forms of interruption show engagement with the conversation. Effective listening, like professional identity more broadly as discussed in this session, is complex and holistic and cannot be wholly addressed by a set of steps or distinct, invariable behavior rules.

Patience

At times, listening is hard. That’s partly because people speak more slowly than our brains want to process information. (A whole separate blog post or posts will cover this idea later. It’s a huge component of why really effective listening can be so hard.) Effective listeners may need to show explicit signs of patience, such as body language and encouraging responses. Effective listeners may also need to struggle with their own intrinsic impatience due to the differential between how fast they hear the information and how fast they are capable of processing information.

Perseverance

Many people have mentioned to me that the best listeners are able to hear what’s not said. That’s partly an intellectual skill. But perseverance helps–asking questions in different ways, listening with discernment to how a person says something, and defining the gap. That’s just one specific point where perseverance and listening intersect. Being able to withstand a 4-hour conference call is another form of perseverance.

Professional Objectivity and Sympathetic Detachment

Effective listening means limiting the influence of one’s preferences and biases. It means being empathetic while not becoming so wrapped up in the narrative that one’s objectivity is compromised. The lawyer’s role is a complex and difficult one, and the seeming paradox of “sympathetic detachment” is just one illustration of the fine line lawyers must walk.

Please feel free to use the comments for sharing more thoughts on listening and how it relates to the core qualities of lawyering.


Thanks again to Professors Patti Alleva and Michael McGinniss of the University of North Dakota and Professors Tim Floyd and Patrick Longan, and Dean Daisy Hurst Floyd of Mercer. I probably won’t be able to blog in this depth again during the conference but will try to at least tweet further thoughts of interest on listening. Listen Like a Lawyer’s Twitter feed can be seen here on the blog on the right-hand panel.