Month: December 2015

GenderUncategorized

Best of 2015

This post is a rather unscientific summary of some of the best articles and posts related to lawyers, law practice, and listening in 2015. Please feel free to comment on other sources you think should be considered among the best of 2015.

General article of the year

How People with Type A Personalities Can Become Better Listeners

Type A personality patterns include competitiveness, urgency, and hostility. For type A people, “the listening struggle is real.” This article offers a few techniques for compensating such as practicing the “WOA” method: Wait. Observe. Allow. It’s amazing what one can learn by patiently waiting and letting the person finish his or her thought.

Study of the year

Take a paragraph. Have one test group read the paragraph out loud to a listening audience. Have another test group hand over the paragraph in writing so the audience reads the exact same text. These two audiences will rank the speaker as more intelligent than the writer, even though the text is exactly the same. The study, conducted by business-school professors at the University of Chicago, found this result to be true across several different conditions. Even when a text is written to be read rather than spoken, audiences who hear it still rank the speaker more highly than audiences who rank the author after reading it.

It is thought that “vocal cues” provide more signals of intellect than are available in the reading experience. As one study author summed up,  “If you read aloud my written pitch, you’d sound smarter than my written pitch.” The study was described in the New York Times here, “The Mouth Is Mightier than the Pen.” The study is available here, with a subscription to Sage Publications: http://pss.sagepub.com.proxy.library.emory.edu/cgi/content/long/26/6/877 (subscription required)

Law review article of the year

A theme of this blog has been that it’s difficult to measure listening and even more difficult for any person to accurately judge just how good—or bad—a listener they are.* Professor Andrea Curcio of Georgia State wrote about how hard it is to accurately judge one’s own cultural sensibility as well, due to a variety of cognitive biases. A culturally sensible lawyer is a lawyer “who understand[s] that we all have multifaceted cultural backgrounds, experiences, and biases that affect how we perceive and analyze legal problems and how we interact with clients and colleagues.” Curcio’s article discusses cultural sensibility, barriers to developing it, and methods law schools/classes may consider to foster it. Being not just theoretically knowledgeable but actually skilled at cultural sensibility leads to more effective listening, which is why this article is LLL’s law review article of the year. The citation and link are here:  Andrea Curcio, Addressing Barriers to Cultural Sensibility Learning: Lessons from Social Cognition Theory, 15 Nev. L. J. 537 (2015).

Book of the year (reviewed on the blog)

Heidi Grant Halvorson, No One Understands You and What To Do About It, reviewed here. This book is short and insightful for analyzing different aspects of communication situations through the lenses of trust, ego, and power. The book explores ways to make a more accurate, less distorted impression and perhaps even recover from having made a bad impression.

Book of the year (still to be reviewed)

Another book of the year, not yet reviewed on this blog is Sherry Turkle’s Reclaiming Conversation: The Power of Talk in a Digital Age (2015). The New York Times (and specifically, Jonathan Franzen) reviewed it here. He sums up the book as a “call to arms”:

Our rapturous submission to digital technology has led to an atrophying of human capacities like empathy and self-­reflection, and the time has come to reassert ourselves, behave like adults and put technology in its place.

Tweet of the year

This is from the Clio Cloud Conference in the keynote by John Suh, CEO of Legal Zoom:

 

Word of the year

Manterrupting

Pam Woldow and Doug Richardson wrote a great series on “manterruption” at Pam’s website At the Intersection: Where General Counsel & Law Firms Connect. They wrote about this issue in three parts:

Part 1: Are You a Manterrupter?

Part 2: The Quest for a Cure 

Part 3: Reader Responses and Connecting the Dots

Not surprisingly, some of the feedback they received included helpful thoughts such as “Stick to your knitting.” Some of the other feedback was actually constructive and hopeful.

Runner up for word of the year

Deipnosophist: “a person skilled in table talk”

Hat tip to @LibrarySherpa:

  

Futuristic thought of the year

Ken Grady of Seytlines argues for process improvement and technological innovation in the legal industry, while also maintaining that soft skills have never been more important. In a September post on measuring lawyer performance, he touched on the possibility of wearable sociometric devices that will quantify social skills and effectiveness—essentially, as Ken said, a “FitBit for listening.” Such devices can already measure “proximity to other employees, who was talking, engagement levels, and other data points.” Such data can be interpreted to “determine which group dynamics led to more creativity or productivity.” (Seyfarth CEO Stephen Poor more broadly explored the idea of FitBits for lawyers as well.)

Thus, perhaps by 2016 or 2017 one of the “best of” posts here will include someone’s experience using a sociometric device to assess their actual listening skills.

*(By 2017 “their” as a pronoun for “someone” and “a person” will be widely accepted as well, but that is a different post for a different day on a different blog.)

Law schoolLegal communicationLegal educationLegal skillsLitigation

The 4 T’s of Listening

One of Listen Like a Lawyer’s most enduringly popular posts is “A Model of Listening.” The honest truth about why it’s so popular appears to be that students enrolled in listening classes are doing searches like these:

models of listening
model of listening
HURIER model
HURIER model of listening

One clue that these are college students is the timing of these searches: they tend to spike toward the end of the fall and spring semesters. I had actually never heard of a college course in listening until starting this blog two years ago. That’s when I found Judi Brownell’s textbook, Listening: Attitudes, Principles, and Skills. One of the blog’s earliest posts was that Model of Listening posts exploring the “HURIER” model and how it fits with lawyering. (HURIER stands for Hearing, Understanding, Remembering, Interpreting, Evaluating, and Responding.) Apparently a lot of students are assigned to write about this model.

Thinking about college classes in listening leads, inevitably, to thinking about the idea of a law school class in listening. I am not aware of any law-school class focused directly and solely on listening in the way a legal writing class focuses on writing, for example. (Please comment or e-mail if this is not correct.)

Of course listening is directly involved in any class with interviewing, deposing or examining witnesses, or negotiating. It’s a small but crucial part of effective oral advocacy. And part of the overall motivation for Listen Like a Lawyer is that listening plays a subtle role in just about all law school and lawyering activities. A more effective listener is going to be better at taking exams based on in-class material, better at writing papers building off of class discussion, and better at handling skills classes and clinics. Essentially, listening helps in any context where other people are involved. (Professor Tami Lefko presented a menu of ideas for incorporating listening throughout the law-school curriculum at the 2014 Biennial Conference of the Legal Writing Institute, with slides available here. Her awesome collection of listening-related YouTube clips is available as a guest post here as well.)

At the conclusion of my legal writing class, I like to talk about the content of the class and next steps for the students using the following framework, the 4 T’s:

  • Tradition
  • Trends
  • Techniques
  • Transfer

The same framework could be useful in shaping a law-school listening course. So here’s an exploration of what the final class session might look like in a law-school listening class.

Tradition

Listening has its traditions (which have been covered and practiced throughout this semester). Perhaps the listening tradition most deeply embedded in law comes from the conflict resolution field. Mediators seem to have the most training and, in the mediators I’ve been lucky to meet, the most personal affinity with the value of listening. In mediation, the chance to be heard is respected if not absolutely paramount. The mediator’s role in “nuanced listening” for the real conflict is crucial.

Advocacy presents the opportunity for high-stakes listening. Lawyers who examine witnesses must be able to listen to a witness, echo the testimony when needed, and recognize what is not being said. (The same is true of listening to opposing counsel.) There is a strong tradition of listening as part of appellate advocacy as well: Listen to the specific question and respond to it. Listen to the overall feel of the bench and adjust your argument accordingly.

Unfortunately what seems to be the most significant actual or perceived listening tradition is the law is this:

Lawyers are terrible listeners.

This recent observation from John Suh of Legal Zoom may capture it all:

It does not seem a stretch to say the legal profession attracts talkers, not listeners. Any traditions of listening within the legal profession must thus reflect a knowledge of the audience. Essentially, many bad listeners will only want to get better if they think it’s in their self interest. That was one lesson of experience suggested by Debra Worthington, a professor at Auburn University and experienced trial consultant as well as co-author of another college listening textbook. In this sense listening can be coached in a somewhat Machiavellian way, like mindfulness coaching for Type A personalities.

Trends

Legal project management is one movement with listening-related implications such as planned and spontaneous face-to-face meetings. When is face time valuable or a waste of time? What about collaborative platforms that allow clients and lawyers to access and monitor each other’s work real time, with no “wall” of email protocol to separate the work from the communication about that work?

“Social listening” on social media channels is not really listening at all, but it speaks to the way business is done and people communicate today. Lawyers interested in social media will encounter advice to engage in social listening essentially for marketing and understanding how they and competitors are perceived. “Listening” on social media is also of course a trend in juror and witness research.

Returning to depositions for a moment, court reporters may give way to voice recordings and digital transcriptions, a controversial topic to say the least. (How would a listening course be graded? A lot of ideas come to mind and frankly many of them involve some aspect of writing about listening. For example, a good essay question in a listening course would be to discuss the movement toward “digital court reporters” and what that would mean for the judicial process.)

Artificial intelligence-enabled devices that can detect facial expressions—and perhaps predict lying—will be an interesting development to watch as well. Wearable “sociometric devices” may be able to measure and report a person’s ratio of talking to listening.

Techniques

Techniques of listening would of course include “active listening” as well as “passive listening,” as outlined in Professor Neil Hamilton’s law-review article Effectiveness Requires Listening.

There is also the technique of fact investigation that involves first listening with open-ended questions throughout the witness’s first narrative, and then reviewing each step with closed questions to firm up the information.

The art of asking good questions is so critical for lawyers not just in litigation but in any activity including—importantly for those who need to earn a living in private practice—marketing.

And listening for what isn’t being said is one of the most challenging and valuable skills a listener can work on. (Peter Drucker is the most often quoted on this point:  “The most important thing in communication is hearing what isn’t said.”)

Those are just a few examples of the “listening toolkit” lawyers can develop.

Transfer

As with any skill, the ideal is to be able use that skill in a variety of settings beyond the specifics of how it was taught and learned. This is the core of what “learning transfer” mean—transferring learning to new contexts.

Listening skills could be transferred in a myriad of ways. Strong recall of spoken language is always a benefit, but has to be adjusted for the social context. For example, a lawyer may show a high level of skill at remembering and echoing key parts of a witness’s answer and moving forward in an unforgettably effective direct or cross before a jury. However, this echoing might seem aggressive and/or robotic in a private and casual conversation with a prospective client. A subtle and selective echoing could work quite well. Or, weeks later, a thoughtful handwritten follow-up note that paraphrases the conversation can make a very positive impression.

One of the most difficult questions about lawyers and listening is the role of trust. Lawyers simply cannot deeply and trustingly—and naively—listen with an open heart in a combative deposition or negotiation. Different listening skills are required in collaborative and competitive contexts. Even with clients, too much trust may lead to trouble:

But if lawyers transfer distrustful listening to all contexts, that’s really not good either. Several great posts have been written on bad things that happen when lawyers bring certain communication techniques home with them, as in “6 Things We Learned in Law School that Shouldn’t Be Tried at Home.”

And even within work-related contexts, there is certainly room for lawyers to compassionately listen to one another. Perhaps a stronger listening culture with in the community could in some way help ameliorate some of the stress and alienation, not to mention substance abuse and depression, that afflicts the legal profession. Practices such as bar-sponsored “take opposing counsel to lunch” events are a start.

Learning is a process

The ultimate message of this “traditions-trends-techniques-transfer” framework is that learning doesn’t end—or at least it shouldn’t end, and for the truly effective lawyers and lawyer students it never ends—when any given class is over.

Where does this leave the lawyer who wants to be a better listener? For one thing, the lawyer can seek training and the opportunity to reflect on his or her current skills as a listener. Here are a few CLEs related to listening that were offered this past year: “Civility Skills CLE: The Art of Listening” and “The Ethics of Listening—and Not Listening—to Your Client”. I am fascinated with the idea of actors teaching “improvisation CLE” and hope to take one of these classes sometime. On a more traditional note, in a few weeks I will have the privilege of taking an intensive mediation class and fully expect it to address listening in depth.*

Beyond CLEs, lawyers can read about listening, not only on blogs (ahem) but also books such as Thanks for the Feedback (which is about taking feedback effectively and has a lot to say about listening more generally) or Power Listening (which is more in the strategic, utilitarian school of listening). A thoughtful and challenging legal blog that often touches on listening is Lee Rosen’s Divorce Discourse. (For example here’s a post on how not listening is one of the worst mistake a lawyer can make in an initial consultation.) Kenneth Grady’s Seytlines blog and other writing touches at times about listening to corporate clients in the context of larger themes about legal-services delivery and innovation. (Here’s his “5 Reasons to Become a Doctor Dolittle of Client Communication.”)

That’s at least 75 minutes worth of material to talk about. So that’s  the end of these hypothetical lecture notes for the hypothetical final class in a hypothetical law-school listening course. Good luck and please stay in touch.

*Side note for 2016: I’ve also recently had the pleasure of meeting and talking with several listening experts who are working on a potential listening CLE at the International Listening Association’s meeting in Tucson in March 2016. I may have the opportunity to be a guest speaker or contributor in some way, and will let blog readers know more about that as it develops.