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.