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. 

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