Speed of speech < speed of thought

You could certainly accuse this blog of idealism about listening. In contrast to e-mail, for example, just go and talk to the person. Through listening to their words and observing their body language, you can pick up so much more subtle and complete information: How do they feel about the subject? What are their expectations and how can you adjust your own work in light of those expectations? How important is this to them, anyway?

The downside of all that additional information you get from listening is . . . all that additional information you get from listening. People speak at about 140-180 words per minute, but on average, a listener can comprehend about 400 words per minute. Different sources offer slightly different numbers, but a common thread runs across all version of this statistic: the listener thinks faster than the speaker thinks.

That “thought-speech differential” or “listening gap” means the brain has extra capacity and WILL process information using that extra capacity. For example, the listener can process lots of non-verbal cues. Great listeners will observe such cues and use them to guide the conversation to fit their communication goals.

But the difference in how fast people talk and how fast they listen also creates the opportunity for the brain’s cognitive biases to operate and shape how the listener’s perception. I have previously written about some of the cognitive biases that may arise in particular when listening is involved. See Listen Like a Lawyer blog posts here and here and here covering cognitive biases such as the well-known confirmation bias.

To use Daniel Kahneman’s framework, the difference between the speed of thought and speed of speech is a space where “System 1” can roam. System 1 is the automatic, always-on system and also the one with all the cognitive biases (in lay terms, mental shortcuts). The more thoughtful “System 2” is where you find the careful “thinking slow” of his great book’s title, Thinking, Fast and Slow.

Whatever the task, the most effective communicators are able to use the speech/thought differential for custom listening, not listening fueled by standard cognitive biases based on the Kahneman formula “WYSIATI”—What You See Is All There Is. Effective listeners are able to suss out what is not happening, and what they need to ask.  Effective lawyers in particular will use their excess cognitive capacity to both attend to non-verbal cues and how the speaker presents, while also ignoring the cues and presentation to focus on the information and what else they need to know. As with all other lawyering skills, the most effective lawyer-listeners perform the task in a way that is both standardized to what they need to know and do as well as customized to the particular situation including strictly relevant facts and all the other seemingly irrelevant but highly important background and emotional factors affecting the communication experience.

Note: The original version of this post cited to sources no longer available, an article by Rita Hedley on Medium, and Ken Grady’s project for Seyfarth Shaw at Seytlines. Ken now teaches at Michigan State and writes on Medium here.



Being “judgeable” is a good thing, mostly

Listen Like a Lawyer previously reviewed Heidi Grant Halvorson’s No One Understands You and What to Do About It. The review (and much of the book) focused on understanding how you are perceived, to have a more accurate effect on others. Accurate in this sense means you are perceived the way you intend to be perceived. It’s a pragmatic concern about how to interact with the world so as to be effective. The portions of the book about trust, power, and ego should be highly relevant to any lawyer working in a group.

What I didn’t talk about enough in the original review, and want to talk about now, is a deeper and more personal aspect of the book: the concept of being “judgeable.” Different people are stronger and weaker at being judgeable. What it means is expressing yourself so that others can perceive you more accurately:

It is definitely better to be judgeable—to have others read you easily and accurately. Research consistently shows that people who are more judgeable are psychologically better adjusted—they are happier; are more satisfied with their personal and professional lives; have more lasting, positive relationships; and have a greater sense of purpose. They feel able to live more authentically and are more confident in their self-knowledge. This makes a lot of sense.  . . . Life is simply easier and more rewarding when people “get you” and provide you with the opportunities and support that are a good fit for you.

Halvorson mentions a connection between being judgeable and living authentically. Within the context of a book all about thinking about how others perceive you, I found that a bit counter-intuitive at first. Before reading No One Understands You, I might have naively described authenticity like this: Proclaim you are living authentically and then stop caring about what other people think; you’re now living authentically and people need to accept you as you are. If they don’t understand you the way you like to express yourself, that’s their problem. You shouldn’t do anything about it because to do so would be compromising your authenticity.

(It should be obvious I hadn’t read very much on authenticity up to this point.) 

In fact, the book implies that living authentically means caring more about what other people think. Thinking about how trust, power, and ego may affect the way others are interacting allows a person to adjust to those distortions. By understanding the perception of others and trying to shape their perception toward what is really intended, a person can become more judgeable. This in turn helps them find the right social and professional fit for their skills and personality, which bears an obvious connection to living and working authentically.

In the professional world, we all know there are times when professionals—including but not limited to lawyers—need to make themselves less judgeable. Masking one’s motives in a negotiation, for example, could be an important skill. Projecting confidence when you are feeling dread seems like a good tool for any trial lawyer.

But negotiating and trying cases call for different skills than effectively managing a team. No One Understands You  is a business book, and Halvorson’s main audience is business leaders. For leaders, coming across to others as they intend helps with both communication and motivation. Thus lawyers interested in leadership and retention would do well to check out No One Understands You. 

So would lawyers who are interested in authenticity on a more individual basis. I had never heard the word “Judgeable” used in this context, and to be honest, the spelling with that “e” in the middle of “judgeable” still makes me cringe a little bit. (Too many years of highlighting “summary judgement” in commenting on legal writing.)

The concept of being judgeable, however, makes a lot of sense, both personally and professionally.

Listening analytics?

One of my favorite sayings is from F. Scott Fitzgerald:


Kenneth Grady’s Seytlines blog is an exercise in what Fitzgerald meant. In Grady’s essays on innovation in the legal industry—what it needs and where it is stagnating—human skills including “soft skills” have never been more valuable. Yet humans must use processes and systems and technology to avoid losing the competition to deliver value. Individual lawyers in all of their humanity have never been less expendable—or more.

Grady’s recent post Talking About Lawyer Performance illustrates the tension:

Providing legal services today involves much more than listening to a client’s problem and giving an opinion or delivering a document. It is a complex task in a fast moving environment that involves a much deeper and more nuanced understanding the environment in which the client operates. This isn’t an equation solely for large law firms and corporate legal departments, it is true throughout all levels of legal services delivery. Individuals’ lives are much more complicated today than 10, 20 or 30 years ago, so advising them isn’t as easy today as it was then.

This complexity manifests in the idea that legal-services delivery should be examined and broken into more distinct parts. This idea is pervasive throughout the legal-innovation conversation, and I’d like to think more about how it affects listening.

There may be a tradeoff in client satisfaction unless technological innovations are built with empathy and surgically precise understanding of how to approximate human interaction, and when actual real-time conversations and face time are crucial. On the other hand there will be a gain in client satisfaction if perceived unnecessary conversations where the client keenly feels the billing clock ticking are reduced or even eliminated. As I said, I’d like to think more about the delivery questions—and mostly I would just like to learn from those such as Grady and Patrick Lamb and Jeff Carr and others, the gurus in this area.

Beyond the questions of legal services delivery are deeper questions about what an individual lawyer does. (See Grady’s post on Defining the Unique Role of the Lawyer.) The analytical and problem-solving contributions are inextricably wrapped in the soft skills used to deliver them. As Grady has written elsewhere, “During the next decade, the skills that make up personality will play an increasingly important role.”

But do not believe that means the lawyer is unique beyond measure. Even the most human of human skills can benefit from systems analysis because even the most human of interactions can be measured:

Alex “Sandy” Pentland, who directs MIT’s Human Dynamics Laboratory and the MIT Media Lab Entrepreneurship Program, is one of the leaders in the people analytics field. His team developed sociometric devices—smartphones using special software—that teams of employees would wear during the day. The devices measured proximity to other employees, who was talking, engagement levels, and other data points. They did not capture what was being said. But, from this data Pentland’s team could determine which group dynamics led to more creativity or productivity. By altering the work situation, such as aligning work breaks rather than staggering them, Pentland’s team drove performance improvement along many metrics.

This was the part of the Lawyer Analytics post that really stood out. This blog has talked at various times about the problem of measuring listening. If you can’t measure it, you probably can’t assess it in a meaningful way. Perhaps these “sociometric devices” are the beginning of a solution to the problem.

When I first got started blogging here, I read a difficult but rewarding academic book, Talk and Social Theory: Ecologies of Speaking and Listening in Everyday Life, in which a scholar, Frederick Erickson, analyzed detailed transcripts of several conversations recorded in 1974: a blue-collar family at dinner, a college counselor and a student who was eligible for the Vietnam draft, a combined kindergarten-first grade class, and a medical resident and intern diagnosing a difficult case. He parsed every last detail of these conversations and even showed how they could be rendered with musical notation:


This book is where I learned the concept of the “conversation turn,” which essentially means taking over or handing back the conversational flow to your conversation partner. (See prior post on the “turn sharks” in law school.)

How do a bunch of random conversations in 1974 relate to legal skills today? Some things don’t change: Being a good listener means mastering conversation turns to keep the conversation going without taking over.  Just refer to Pam Woldow’s lengthy discussion of “manterruptions,” and the gender imbalance in who does the interrupting versus gets interrupted, to understand the relevance of conversation turns today. (Part I of Woldow’s series is here.)

The conversation studies in Erickson’s book were fascinating but clearly expensive to create and difficult to replicate.  With newer and more affordable technology like the sociometric device described in Lawyer Analytics, people won’t need to be invited to a scholarly study to get this kind of data. (To see the logical and alarming extension of these possibilities, read this article on “searchable speech.”)

The possibilities of these devices inevitably bring to mind FitBits. Ken Grady’s boss Stephen Poor has already covered that ground for lawyering generally in “FitBits, Data and Lawyers.” On quantifying communication specifically, it seems pretty likely that we will soon have relatively affordable “FitBits” for listening.

No offense . . .

Today 3 Geeks and a Law Blog offers an interesting post by Casey Flaherty: “No Offense, But Aren’t You Embarrassed to Open Your Mouth?” Flaherty is known for creating the Service Delivery Review (formerly known as the Legal Tech Audit) and generally promoting efficient lawyering through technology in a variety of ways including via his company, Procertas.

Flaherty travels the legal-tech circuit, and on that circuit he recently received a potentially offensive question:

No offense, but how did a mid-level lawyer at a mid-tier company get so much pub for saying something that everyone already knows.

Flaherty’s response (both internal and external) should be interesting to readers of this blog on a couple of levels.

“No Offense, But . . .”

This phrase is not good. In a comment on the 3 Geeks post, former general counsel Jeffrey Carr (newly on board at Valorem Law Group) points out, “lawyers are particularly prone to use these kinds of ‘amnesty phrases’—phrases that give the speaker ‘permission’ to say something that appears responsive but in actuality can be non-responsive, offensive, groundless, insensitive, or simply unsupported.” A few others he lists are these:

  • with all due respect
  • I don’t disagree with that
  • It would not be inappropriate
  • It’s a business decision

I would add this gem:

  • I’m not trying to . . . . but . . . .

Somewhere on the Internet I read a great interpretation of this phrase: delete the “not” and replace “but” with “therefore”:

  • I am trying to . . . ; therefore . . .

(If a reader could help me find the origin of this great interpretation, I would be very grateful. I have tried many times to track down the source because it’s so clever.)

Slide1The main point here is that phrases such as “No offense, but . . . ” are generally not consistent with a constructive conversation. Careful observation of nonverbal cues after a “no offense” statement will probably reveal hostility and reduced eagerness to continue with good-faith conversation. (Let me rephrase: they won’t want to talk to you anymore, or at a minimum they will be annoyed.)

So those who want to work on their listening would do well to eliminate these phrases from their own working vocabulary. Honestly I would think that’s fairly obvious, but see the discussion of the Dunning-Kruger effect that follows.

“No offense, but you’re saying something that everyone already knows.”

Flaherty writes that when he received this question, he actually was not offended. In that sense he may be a particularly gifted conversationalist, or just a very peaceful person.

He writes he was not offended because he has often wondered the same thing. Is what he is preaching really common knowledge? He then delves into the nature of ignorance and knowledge, as general concepts and specifically in his area of legal process and technology usage.

The first point of interest is “meta-ignorance” or delusions of inadequacy—that is, the Dunning-Kruger effect: the most ignorant do not know what they don’t know. I think he’s saying that since there are enough lawyers out there ignorant of their own ignorance about process and technology improvements, technology innovators in law have to keep going and spread the word.

His second point is that saying something and actually demonstrating it by doing are two different things.

And third, information is only common knowledge if everyone in a group not only knows that information but also knows that the rest of the group knows that same information. (Check out the links in his post for more interesting backdrop on each of these points.)

What I liked about his post for Listen Like a Lawyer is that I’ve gotten similar comments:

No offense, but it’s obvious that listening is valuable and under-appreciated. You’re saying something that everyone already knows.

So Flaherty’s response is helpful to me as well. Modeling Casey: I shan’t take offense when people suggest listening is obvious. I have that same question!

Regarding the problem of meta-ignorance, just as legal process improvements may not be appreciated by those who labor in a state of low-tech, inefficient ignorance, listening too may be a victim of the Dunning-Kruger effect.

Here I couldn’t help but think of legal writing by comparison. Listening in the legal profession receives a fraction of the attention legal writing gets from articles, blog posts, tweets, and comments by judges and Supreme Court Justices about what attorneys need to do better. And even with all that coverage, Dunning-Kruger remains a real problem for poor legal writers, as my friend Scott Killingsworth has pointed out, leading to this discussion by Bryan Garner. If it’s possible to exist in a state of meta-ignorance about one’s legal writing, how much more so is that a problem for the relatively less-appreciated skill of listening?

Also listening skills are much more subtle and hard to recognize and assess, whereas bad writing can seem so glaring. The red squiggly line on Microsoft Word’s grammar checker is at least one tool that the meta-ignorant have going for them to try to overcome that state. There is no grammar checker for listening.

Another point of interest is the nature of knowing something and doing something about it. We all know listening is important and valuable. But how many lawyers really do something about their own listening or training others in effective listening? It’s worth continuing to talk about listening to try to bridge that divide between saying and doing. Personally I try to walk the walk by being a good listener. It can be quite difficult. Sometimes I will write about that here, and through sustained effort over time, maybe this blog can offer some lawyers the tools they need at the right moment to become stronger listeners or encourage others to do the same.

And lastly, to track Flaherty’s analysis, what exactly is “common knowledge” about listening in the legal field?

I don’t think the legal community’s common knowledge—that we all recognize as common knowledge—is all that fleshed out or deeply shared. Law professors such as Neil Hamilton have worked to enhance that body of knowledge. Despite such efforts, I worry that the actual common knowledge in the field may boil down to two words: active listening. That isn’t enough.

I want to do more on this blog to help expand that base of common knowledge, or create a conversation about what it might be. I’m still reading and learning a lot, so this is very much a work in progress. No offense.

Thanks to Casey Flaherty of 3 Geeks and a Law Blog for an interesting post prompting these thoughts. 

Listening—and speaking—in a time of grief

Carolyn Elefant, solo practitioner and blogger at My Shingle, is a valuable source of wisdom and advice, as well as some spicy and entertaining sarcasm.

But earlier this year she shared a beautiful post of grief and remembrance after the death of her husband.

Today she follows up with a related post, When Faced With Loss. Say Anything. This post should be read by any law student or lawyer whose colleague or client may die or face the death of a loved one—which is to say it should be read by all law students and lawyers. Especially those who care about kindness.

I recently fielded a question from a law student whose supervisor’s mother had just passed away. She was not sure whether to send an e-mail, write a personal note, or say anything at all. For business colleagues, as Carolyn points out, just acknowledging their situation and their grief is so much better than avoidance. Even if you say or do the wrong thing, it’s better than not trying.