Month: November 2015

The Good Lawyer

Jennifer Romig2 Comments

levitlinder

“What does it mean to be a good lawyer?” Thus begins The Good Lawyer: Seeking Quality in the Practice of Law by Douglas O. Linder & Nancy Levit (Oxford 2014). The introduction assures readers there will not be chapters such as “The Good Lawyer Uses Proper Citation Format.” (Why not? asks the legal writing professor.)

Instead, The Good Lawyer explores empathy, courage, willpower, valuing others in the legal community, intuition as well as deliberation, realistic thinking, the pursuit of justice, integrity, and persuasion. Its final chapter addresses the difficulty of all of these in the current legal climate. 

The book is largely aspirational but delves into skills and techniques. Its first chapter—”The Good Lawyer Is Empathetic”—would be valuable to any lawyer who wants to be a better listener.

Empathy has been defined as “our ability to identify what somebody else is thinking or feeling and to respond to their thoughts or feelings with an appropriate emotion.”

And what are the actual benefits of a lawyer’s being empathetic?

First, empathy enables you to acknowledge and respect other people’s thoughts, so they feel valued. Second, empathy substantially reduces the likelihood of miscommunications that can lead to wasted effort and counterproductive results. Third, as you become more aware of other people’s feelings, you more readily assess their feelings toward you and can make adjustments to smooth things over when necessary.* . . . Fourth, having walked inside another’s skin, you’ll be better able to compellingly tell that person’s story, should the time and place arise for it.

*The omitted portion of the quote says this: “When others think you’re being a jerk, at least you know it soon enough to stop your jerk-like behavior and apologize.”

I am well aware of the sentiment that being a jerk is necessary or even desirable at times, as a way of serving a client’s interests. It shouldn’t be surprising to learn that’s not the agenda of Linder and Levit. In their chapter on serving the true interests of clients, they walk through various roles a lawyer may serve: helping the client win; being a “mere tool” of the client’s autonomy; or essentially telling the client what to do based on the lawyer’s legal expertise.

Their recommended approach is none of these in isolation. Instead they embrace more of a collaborative deliberation: “The most demanding and also the most rewarding function that lawyers perform is to help their clients decide what it is that they really want, to help them make up their minds as to what their ends should be” (quoting Anthony Kronman). Linder and Levit acknowledge that “many forces today conspire to limit opportunities for lawyers and clients to enter into deep moral conversations, as friends might do.”

They go on to discuss specific communication techniques to help lawyers learn more about their clients’ interests in meaningful conversations. For example lawyers can frame conversations in terms of “we” (i.e. the lawyer and client together). Lawyers can ask clients who else would be affected by various approaches, and how those others might respond. 

These suggested techniques are valuable, yet perhaps meager given what it takes to forge a truly collaborative relationship and be someone’s friend in a moral sense. On this point and others, the book was (lightly) critiqued by David Lat in the Wall Street Journal as being better at issue-spotting than at deeply diving into practical solutions. 

The issues to be spotted include a number of tough questions. For example, are empathetic lawyers born, or can they be made? Linder and Levit review psychological literature showing that empathy can be taught in the sense that people can get better at recognizing emotions. The evidence is weaker for the teachability of the empathetic response. A checklist on “How to Make the Most of Your Empathy” (page 17) would be a good primer for new lawyers, or for more experienced lawyers who want to work on making a better connection with clients. The book also cites the scholarship of Kristin Gerdy and Ian Gallacher on incorporating empathy into legal education and teaching students how to “think like a non-lawyer.”

Another tough issue both individually and socially is whether empathy can  actually be harmful. Highly empathetic people may burn out and run from extremely painful situations, or may cross ethical boundaries to help those with whom they empathize. (In raising the topic of whether judges should be empathetic, the book cites Justice Blackmun’s “Poor Joshua!” dissent, recently in the news again after the death of Joshua DeShaney at age 36.)

The chapter on persuasion features the book’s most specific treatment of listening and lawyering:

Listening and interpreting body language, two skills that allow us to understand—and then better influence—the thinking and emotion of others, receive nothing like the attention each deserves. Only by listening to a client can a lawyer understand what the client wants and develop a theme for a story that might help the client her goal, and listening carefully to a judge’s questions or remarks is essential to the process of addressing any concerns the judge might have with your argument. People, of course, send signals with their bodies, not just with their words, and being attentive to the body language of clients, witnesses, jurors, and judges also can be critical to a lawyer’s success. Sometimes lawyers are so focused on covering each of twenty points on the outline of an argument that they don’t see the judge or juror stifling a yawn, raising eyebrows, or crossing arms; these are all signs that the lawyers are going seriously off track and need to change course. Defense lawyer F. Lee Bailey, describing the work of another lawyer he admired, said that he kept his eyes “ever on his audience.” Bailey continued, “The slightest quizzical brow, a mere change of impression of a single juror, these would be a sign from which he could shift and bear down on a point, paraphrase it if he thought the first shot hadn’t got through, or shift his topic if he thought attention was starting to drift.”

There is no chapter titled “The Good Lawyer Listens.” Yet The Good Lawyer advocates that the good lawyer does listen. Listening helps lawyers understand clients and make them feel valued. If that’s not enough, listening also helps lawyers figure out what to say.

Listening from ignorance to mastery

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The Farnam Street blog has this, this morning on becoming a lifelong learner:

When assessing our competence in any particular discipline, we can place our level of ability somewhere along a continuum moving from ignorance, to conversational competence, to operational competence, then towards proficiency, and finally all the way to mastery.

The quote is from Laurence Enderson, Pebbles of Perception: How a Few Good Choices Make All the Difference, a collection of wisdom inspired by Charlie Munger, lawyer and vice chair of Berkshire Hathaway. I haven’t read the book, but Farnam Street extensively quotes its exhortations to move beyond “coasting,” and rather to embrace lifelong learning. The passage on this continuum of learning was of particular interest.

What would this continuum look like as applied to listening?

Ignorance

It seems like many are operating in a state of ignorance about listening as a concept and an improvable skill. Yet they may be decent or even very strong listeners. In the same way, a talented self-taught writer may not use the vocabulary learned at the Iowa Writers’ Workshop but still produce great prose. On the other hand, many others are ignorant of listening and/or ignorant about how bad they are at listening. (This is the Dunning-Kruger effect, a delusion of competence that applies to listening as to any other skill and has been discussed on the blog here and here and here.)

Conversational Competence

For the rest of us—the coachable who haven’t yet been coached—a state of ignorance about listening seems inexcusable, although common. I say it’s inexcusable in part because “conversational competence” can be reached without a lot of effort. A bit of time spent learning active listening could be sufficient.

Operational Competence

The operational competence is harder. Actually practicing active listening is much more of a challenge than talking about it. And what if active listening isn’t even the right strategy?

Professor Neil Hamilton, in a formative law review article on listening, talked about passive listening as well. (Here’s the link: “Effective Requires Listening: How to Assess and Improve Listening Skills.”) Passive listening has three components, according to Hamilton (citations omitted):

First, the attorney should place an emphasis on silence in conversations. “[A] brief but definite pause in a conversation” can be an effective tool, allowing the client to collect his or her thoughts and then provide information in a more comfortable fashion.The failure to allow periodic silence can interrupt a client‟s stream of association and make the client feel cut off, hurried, or pressured. Effective lawyers will often pause and allow the client to reflect before continuing with their dialogue.

The second key to passive listening is the use of “minimal prompts.” While silence can make some clients and lawyers uncomfortable, “minimal prompts” can let the client know that the lawyer is listening and understands what is being said.

The final passive-listening technique is the use of open-ended questions.

Of these three techniques, the first—using silence—seems by far the hardest. The role of silence is a challenge for many, perhaps especially for lawyers. Legal Zoom CEO John Suh recently offered the following statistic:

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Before one becomes operationally competent in tolerating and even encouraging real silence, one must first be operationally competent in remaining silent while someone—such as a client—is talking.

Proficiency and Mastery

What makes a listener not only competent, but even proficient and, eventually, masterful? Malcolm Gladwell profiled “gifted listener” Konrad Kellen, the Vietnam consultant who was able to listen to interviews with the North Vietnamese without bias. This meant he did not allow the prevailing theory of the war to shape his perception of what they meant.

Listening without bias is closely connected to hearing what isn’t being said:

The most important thing in communication is to hear what isn’t being said.

-Peter Drucker

In other words, great listeners overcome the “availability bias” of paying attention to what is on the list or what the witness is saying, instead of what is not.

So proficient listening is in part a set of technical skills such as appropriate body language, recall, notetaking, compensating for cognitive biases such as the availability bias. Professor Neil Hamilton’s article provides a variety of self-assessments and exercises. Taken together, the questions on the self-assessment provide a sort of schematic of a masterful listener. Here’s an excerpt:

  • I use head nods and facial expressions to indicate that I am listening to a speaker.
  • I establish and maintain eye contact with a speaker.
  • I maintain strong posture and avoid slouching during conversations.
  • I notice changes in a speaker’s volume or tone of voice or nonverbal expressions.

But masterful listening can be—and at least sometimes should be—more than a set of techniques. Hamilton ultimately approaches listening as a virtue. He writes that “listening requires the ability to empathize and relate authentically to a speaker, in addition to technical skills.”

One difficulty lawyers face with the “virtuous listener” theory is what to do with those who act and speak in bad faith. Even with their own clients, lawyers may need to “trust, but verify.” 

If the true sign of genius is being able to hold two opposing truths in mind at the same time and still function (paraphrasing F. Scott Fitzgerald), then the lawyer-as-listener who reaches mastery is indeed a sort of genius. The lawyer uses all the technical tools of listening. More broadly, the lawyer achieves the virtues of empathy and connectedness—but only when appropriate. Sometimes, as communication consultant Jennie Grau pointed out in her recent interview here, the lawyer-as-listener just has to “listen to respond” (not to understand). The mastery lies in knowing the difference.

I was going to end on that note, but that’s not quite enough. Sometimes a situation that begins with hostility and distrust can be transformed into a real opportunity to resolve a dispute, such as in mediation. Listening has a key role to play here. It’s certainly not easy, and listening may seem at times like a zero-sum game with many players. For example, what if the client (who may not be an advanced listener) perceives the lawyer has somehow empathized too much with the mediator or “the enemy”? The difficulty of these situations is exactly why there’s a difference between the lawyer with competence and the one with mastery. When the conditions are right, the masterful listener can use the tools and virtues of listening not just to encounter and understand a situation, but to change it.

What is listening? Q&A with Jennie Grau

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One of the best things about writing this blog has been the opportunity to talk with and meet (in person, by phone, or by e-mail) a variety of communication experts. One of them is Jennie Grau, President of Grau Interpersonal Communications. Jennie has spent her career training, coaching, writing, and speaking, on the subject of listening. She is a Certified Listening Professional (CLP) of the International Listening Association. Although not an attorney, she is surrounded by attorneys in her family life. In her professional work, she has done a variety of trainings with lawyers and other legal professionals. Listen Like a Lawyer is grateful to Jennie Grau for responding to this Q&A.

What would you say are the classic concepts in listening?

Listening is thought of and explored from many perspectives. Musicians talk about listening in terms of entertainment, emotions, and aesthetics. Listening to music is a form of appreciative listening. While it may not seem pertinent to lawyers, there is a music of the voice which through tone, pace, pause, and quality communicates the emotional undercurrent of human interaction.

In legal contexts and in law school, listening is often thought of as a tool to support critical thinking and analysis. The focus is on critical listening, or reply style listening, to better advocate for a position.

Empathic listening, often associated with medical and therapeutic contexts, is equally important for dispute resolution. Empathic listening involves being able to understand and articulate another person’s perspective. If you can see the world through someone else’s eyes, you are better able to uncover viable solutions which result in more successful negotiations. In addition to dispute resolution, empathic listening is key to building rapport, loyalty, and trust, the foundations of good relationships with both clients and colleagues.

Mindfulness is another form of listening. It involves listening to oneself. Mindfulness can be thought of as the ability to still one’s own thoughts. It expands one’s awareness and ability to concentrate. The aggressive Type-A business personality may not intuitively embrace the idea of listening to self. The need to quiet the noise in our heads, to fully focus, to relinquish the speaker role, is essential for full understanding. Mindfulness is appreciated by the business community when it is recognized as a tool to accomplish their goals.

What package of listening skills do lawyers need?

Stephen R. Covey observed that “most people do not listen with the intent to understand; they listen with the intent to reply.” In fact, one of the skills of advocacy is “listening to reply.” Listening to reply is important because lawyers have to give advice, set an agenda, evaluate, and at times rebut.

But there is a complementary other half of that famous statement—the listening to understand. That second set of skills, inquiry, comprehending, supporting and uniting, is important because the courtroom is not the only legal context where listening happens. In these additional contexts understanding the other party is a powerful skill.

Think about who is encouraged to go to law school. If you are good at debate and rhetoric, people say, “You should be a lawyer!” But if you are a brilliant listener and can understand the human condition, no one says that. They say, “You should be a social worker or psychologist or go into business.”

Among this second set of skills, lawyers need the skill of inquiry. That’s different from interrogation. Inquiry sustains rapport during an interaction while uncovering new information. Lawyers also need skills that demonstrate comprehension such as paraphrasing what was said and sometimes what is not said overtly but implied such as the feelings, needs, and interests of the speaker.

Lawyers also need the skill of unifying parties’ discrepant interests. For example, in a gritty and messy divorce, lawyers benefit from the skill of keeping people at the table and working through the issues. In dealing with family conflict, the lawyer may need to listen through years of emotions and relationship issues. In listening to what lies below the objective statement, the lawyer can recognize possible solutions by understanding what is important to each party.

Why is it important to develop those deeper listening skills?

 Because there are so many benefits, for both tasks and relationships, when you listen deeply. Real listening means getting to a shared understanding between speaker and listener. Without that, we lose vast amounts of data that could help solve problems and resolve conflicts. Deep listening is worth the effort.

How do you know if you are good or bad at listening?

The short answer is you ask key people in your life for feedback: your colleagues, your family, and your friends. Our own perception of our listening skills is usually inaccurate. Ask questions like:

  • Do I focus on you and what you are saying when you want my attention?
  • Do I seem to understand what you mean rather than what I would mean if I had said the same thing?
  • Do I remember what you tell me?
  • Do you feel like I really listen to you?

Most people’s listening is unskilled. We rarely teach this in schools, and we are blind to the fact we are unskilled. Prior to my seminars, I ask people to rate how skillful they are as listeners. On average I get a rating of 80%. After the seminar I ask again. They laugh and tell me they did not know how much they did not know.

What is your advice for lawyers and other legal professionals?

Assume there is more than you are getting

When you are listening begin with the assumption that what you understand may not be accurate or complete. Create opportunities to explore a conversation more fully: “What did you mean?” “Tell me more.” “How does that work?” The beginning of listening is recognizing how likely you are to have misunderstood what the other person meant.

Appreciate the power of the pause

It may seem like a speaker is finished. They may use downward inflection in their speech and break eye contact but still have more to say. A listener can use the pause: count to ten and do a full inhale and exhale before going on or even asking a follow up. You will be surprised to discover how often more will come. This is particularly true when you are listening to someone speaking in a language other than their first language.

Try “the five why’s”

This means asking “why” five times. This practice comes from the world of engineering. The theory is that the first time someone answers a question about “why,” their answer is probably superficial. Going beyond the first answer allows the speaker to find the root cause and gives them more time to connect ideas that they had not connected before. This technique is especially effective if you don’t use the word “why” which can cause people to feel defensive. Instead ask a “why question” saying “How come?” “What caused that?” or “What lead to that?”

What else?

Use this technique when you believe everything has been said and you are effectively done with the discussion. Questions such as “Is there anything else?” and “What else should we be talking about?” often elicit new information. It is shocking how often people will add new and often critical content at this time. There is a parallel in the medical field, “the door knob moment” when the doctor is about to leave the exam room and the patient shares new and important health information.

Build the listening container with your non-verbal presence

The way listeners use their face, eyes, body, posture, gesture and voice create a context for interaction. Your non-verbal presence can put people at ease or make them more guarded. People often enter a lawyer’s office with anxiety. They may not be happy to be there. They may be worried about the cost or the outcome. Many people are uncomfortable with conflict. It’s an unfamiliar setting and alien experience. In this context, listening is extremely important for building trust with new clients and ensuring existing clients follow your advice. It is a way for you to develop respect.

This Q&A has been condensed and edited for brevity.

Listen Like a Lawyer is currently working with Jennie Grau and several other lawyers/mediators/Certified Listening Professionals on a possible CLE session in Tucson, Arizona, in March 2016. More information will be forthcoming on the blog when details are more certain. 

Listening for international law students: Q&A with Prof. Gabrielle Goodwin

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 Gabe Goodwin, IU Maurer School of Law 8.28.2012Professor Gabrielle Goodwin teaches graduate legal studies at Indiana University’s Maurer School of Law in Bloomington, Indiana. She has bachelor’s and master’s degrees in linguistics, and she taught English as a foreign language before attending law school. In her work at Maurer, she teaches three courses in the graduate legal studies department: legal writing, introduction to U.S. law, and criminal procedure through writing for LLMs. Her research interests include art and cultural heritage law, and she has also contributed to the development of a trilingual university in the Former Yugoslav Republic of Macedonia. Professor Goodwin blogs at http://llmlegalwriting.blogspot.com/. What she likes most about teaching is learning more about people, cultures, and legal systems.

Listen Like a Lawyer is grateful to Professor Goodwin for sharing her thoughts and advice for prospective and current international law students.

For a student considering enrolling in a U.S. law school, how can that student prepare for the style of a U.S. law school class?

A great way to prepare is to take an “Introduction to U.S. Law” type of class in the summer before starting at a U.S. law school. These classes introduce students to the basics of U.S. law and to the style of teaching in U.S. law schools. These days, a lot of law schools are offering such classes to their incoming students and some of them are open to any interested student.

However, not every student is able to attend such a class, and for those students, I would recommend listening to a variety of English language law-related material, such as TED talks, Oyez oral arguments, or legal podcasts, such as Life of the Law, Serial,  and Amicus. Although listening to such programs won’t help students understand the U.S. law school classroom, it will familiarize students with English speaking styles and legal vocabulary and concepts.

Gaining some background knowledge on American history and culture, the political system, ethics and theories of justice, and the structure of the courts would also benefit students as they prepare for law school classes. There are many free audio/video resources online, for example: Overview of the Federal Court System, Supreme Court Interviews, American Law: History and Origins, and The Preamble. Additional resources may be purchased, for example, The Great Courses on American History. 

What are the listening challenges that a student may face in law school, particularly if the professor is speaking a language other than the student’s first language?

 Aside from just understanding what the professor is saying generally, I think the biggest challenge is trying to discern what the point of a lecture is and understanding relevant versus irrelevant information. Also, because of cultural and speech pattern differences, it may be difficult for a non-native speaker of English to figure out when to interject a comment or ask a question. Even knowing the difference between when a professor asks a rhetorical question that doesn’t need a specific answer versus when a professor is waiting for an answer before moving on can be a challenge.

We might think of listening as being a passive activity; however, listening to a lecture, and learning from the lecture, means being an active listener. There are many interesting research studies showing that teaching people how to listen makes a difference in their comprehension. For non-native speakers of English, the challenge in listening is to prioritize what gets more or less attention, monitor understanding, and engage in ongoing self-evaluation and reflection. Students need to pay attention to what’s going on in their own heads while they’re listening – Are they simultaneously translating? Losing concentration? Finding the vocabulary hard to understand? Getting frustrated? – so that they can find ways to mitigate these difficulties.

Listening is not exactly the same as note-taking, but they are certainly related. What type of note-taking techniques do you recommend?

 Note-taking can be difficult for some of the reasons stated above, specifically knowing how to prioritize and organize information, but there are ways to mitigate this challenge. To begin with, students should come prepared to class. That means doing the reading or other homework that provides the background knowledge necessary to listen to and understand what the professor is saying. Predicting the types of information and possible vocabulary words can make students feel more prepared. If appropriate, make a pre-outline of the topics to be covered in class and add notes to the outline during the lecture.

Also, try to listen, understand, prioritize, and organize before writing anything down. Just writing everything the professor says doesn’t help when studying later because the context and relationships between ideas may be missing and because what’s quickly written down and what the professor actually said may in fact be different, leading to wrong conclusions. Similarly, noting words or concepts that are confusing, and then going back to them later to figure out, is better than becoming frustrated and losing the narrative of the lecture.

For some students, creating a “map” of lectures makes sense. Rather than trying to record everything in a linear outline, a student can draw a map of concepts, terms, and other information, which shows the relationships among them and where they fit in the big picture.

Soon after each lecture, class notes should be reviewed and amended. Putting notes in to a standardized outline format helps review and organize the material. Discussing and verifying notes with classmates is another good way to check understanding and review notes for accuracy.

Many international law students have legal expertise or training from their home countries. How can that expertise and training influence students’ experience in U.S. law schools?

 Most international law students come to U.S. law schools better prepared than American students. LL.M. students typically are lawyers in their home countries and have legal training and experience with taking a bar exam, not to mention practice experience. This is a huge advantage because international students are familiar with “the law” and the legal world. They are able to analogize from their prior experiences and training to more quickly understand new concepts.

However, this previous experience and training can be a disadvantage at times. Most international law students come from civil law countries, not common law countries. Noting the similarities and differences between the legal systems can distract students from understanding what is important about those similarities and differences. Also, always comparing what one is learning with what one already knows may get in the way of actually listening to what is being said.

In linguistics, we use the term “false friends” to denote words from different languages that look or sound similar but in fact have very different meanings. For example, parade in English and parada in Spanish, which means “bus stop,” not parade. In U.S. law schools, if international law students rely on “false friends,” concepts or terms that seem similar to those in their own legal systems, they may end up more confused than if they had no preconceived understanding of these concepts or terms.

Your class is a legal writing class. How does students’ listening matter to their legal writing?

We think of language proficiency as involving four skills—listening, speaking, reading, and writing—but these are not discrete skills. If a student is able to discuss and explain an issue, chances are good that the student will also be able to write about it. In my legal writing classes, my students are often asked first to brainstorm, discuss, explain, or clarify an issue as part of the pre-writing process. Talking to me, to each other, or even to themselves can help students decide what’s relevant, clarify their language, and organize their writing.  

What are the most helpful habits that law students can develop to listen effectively in class?

I think the most helpful habits are to think of listening as a multi-stage event:

  1. pre-listening tasks, such as planning and predicting
  2. listening tasks in the moment, such as selective attention, monitoring, evaluating, and organizing
  3. post-listening tasks, such as reviewing and reflecting

Each class lecture is not an isolated event, so trying to understand and fit each lecture into the big picture is also a useful strategy. Finally, it takes real concentration to listen to a lecture for the entire class period, and staying away from distractions, such as browsing the internet, texting, talking with classmates, or thinking about something outside of class, can make that easier.

Being an international student in a U.S. law school is a real challenge, but that challenge is not insurmountable. Developing good listening skills and habits will make the life of an international law student much more comfortable and less intimidating.