Month: February 2016

Legal communicationMetricsProfessional development

Better Lawyering Through Better Listening

What are your key strengths and weaknesses as a listener? How can you, as a lawyer or legal professional, actually become a better listener? What listening techniques can lawyers use to be more effective with clients, witnesses, judges and mediators, and others (perhaps loved ones)?

I’m pleased to be collaborating on a CLE workshop that will help attendees explore these questions and gain a better understanding of listening skills for lawyering.The workshop will take place in Tucson, Arizona, on March 10 in conjunction with the International Listening Association‘s annual convention.

Jennie Grau

Jennie Grau

Presenters Jennie Grau and Anita Dorczak will facilitate the session in person, and I am working on video contributions right now. One fun project has been working with several wonderful colleagues and students at my law school on video demonstrations of “bad” and “good” listening skills in legal settings. I must confess it was easier to write and create the bad examples. I’ve also been rounding up a variety of statistics related to listening and lawyering. (Blog post coming soon.) There’s a lot of great research out there, but also several widely accepted yet unsupported urban myths of listening.

Anita is a Canadian family lawyer and mediator, and Jennie is a communications consultant and speaker. Collaborating with these presenters has been a wonderful experience because they are not only smart and creative and talented speakers but also—not surprisingly—such skillful listeners. Arizona lawyers who attend the session are in for a unique experience including role-plays and the opportunity to take an individual “listening inventory.” Boring PowerPoint and lecture, this is not.

Anita Dorczak

Anita Dorczak

The International Listening Association is an eclectic group with connections to many disciplines such as health care, business, spirituality, cultural studies, teaching, and research.

Lawyers, mediators, and other legal professionals are invited to attend the conference for a one-day rate (4 hours of CLE). The full information can be found here. Fees for the session go to the International Listening Association. This is a labor of love for the presenters—which is actually the theme of the whole convention, Listening: A Labor of Love.

Clinical legal educationCross-cultural communicationEmotional intelligenceLegal communicationLegal skills

The “romance” in learning to listen

Education comes in three stages:

romance
precision
generalization

This is according to A.N. Whitehead’s “rhythm of education,” a framework widely shared last month in The Atlantic’s profile of Teller—of Penn and Teller—as a former teacher. He tells the story of his early days as a high-school Latin teacher: Read More

Client developmentEmotional intelligenceLegal communicationPeople skills

Listening under the influence

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Flickr/Keoni Cabral/CC by 2.0

What is the effect of drinking on listening skills?

This matters for lawyers who will be networking over a glass of wine or taking clients to dinner where alcohol is served. What appears to be a still-valid 1975 psychiatric study predicted that drinking would have a variety of effects on communication:

In a group setting, low to moderate doses of alcohol would increase the amount of verbal communication, increase disruptions in communication, and decrease the level of acknowledgment of the other speaker’s communication.

This hypothesis was indeed supported by the study, a study with a most interesting protocol.

Participating couples (married or good friends for several months, and between the ages of 21-30) showed up a testing facility for an afternoon of mild intoxication and testing, or a placebo event. They consumed a “low dose” of either “80-proof vodka in a peppermint-flavored cocktail” or “the masking cocktail without vodka.” In the low-dose experiment, women drank .83 ml per kg of weight, so (after a bit of math) about 1.4 ounces for a 110-pound woman. Men drank 1 ml per kg of weight, so 2.7 ounces for a 175-pound man. In sessions separated by about a week, they tested the other option. And some test subjects came back for another alcohol test at 1.5ml per kg of weight.

After consuming the alcohol, they did some coordination tests and then a 20-minute conversation session. The second 10 minutes of the conversation were transcribed for study. Then participants were “fed and detained” until signs of intoxication wore off, and driven home.

The study’s main finding seems fairly intuitive:

Overall, alcohol appeared to make social communication more disorganized and intoxicated subjects seemed less likely to follow conventional rules of etiquette in their speech.

The specific behavioral findings were a little more complex. The study found “an increase in the amount of interrupting or overlapping speech” that was even more pronounced with the higher dose. Essentially: the more you drink, the more you interrupt.

Separately, the study found with the low dose, participants talked more in the sense of initiating more conversations, and used more words. With the higher dose, these trends reversed. Thus the more intoxicated participants interrupted more but used fewer words and started fewer conversations. And there was a modest but noticeable effect on what the study called acknowledgment, or “the degree to which [a statement] responds, in terms of the content and intent” to the prior statement.

The study authors weren’t exactly sure how these effects happened. They could be from the “disinhibition” and “egocentricity” of drinking, or they could be from “decreased auditory discrimination” and “impaired memory” which had been proven in a similar previous experiment. 

The authors recommended further study. They also ended with a caveat on the “dyadic” setup of the study—meaning just two people speaking one-on-one to each other. The one-on-one setup may have made it relatively easier for participants to maintain the conversation. They noted prior work showing alcohol diminishes participants’ ability to hear complex auditory stimuli. Thus they suspected that intoxicated participants would show greater impairment, relative to the placebo, in a more complicated social situation with more people. Something like an attorney networking event, perhaps.

Postscript to this research: Here’s a 2004 master’s thesis on “alcohol in social context.” The study gathered 54 men (strangers) and assigned them to groups of three, then served them alcohol or a placebo while they stayed seated in their groups for 30 minutes. The study assessed their social behavior and emotional states, finding that the drinking groups did not necessarily talk more on a word count basis, but did engage in more socially coordinated communication within the group. In other words, more members of the group contributed to talk within the group as a whole. The study author reported mild surprise that study participants did not report “improved affect” or a better mood after the experiment. The author suggested that the participants may not have enjoyed the forced interaction of drinking and socializing with strangers. This brings us full circle back to networking.

What are the implications for attorneys who want to drink while still communicating effectively?

Above the Law’s Elie Mystal has some classic advice: “You have to know yourself and what constitutes ‘tipsy’ for you.” Some more excellent advice: “when it starts to feel more like a party and less like work, leave.”

He was writing in 2012 about alcohol and networking, prompted by a Greedy Associates’ post with a “Drink-by-Drink Guide for Networking Events.” Instead of “5 Tips for Networking,” that post organized itself around a sequence of five hypothetical “drinks” from the first drink (“the icebreaker”) to the fifth drink (essentially, go home and send a bunch of LinkedIn invitations). The strategy for the “third drink” was to “shut up and listen” by “resist[ing] the urge to talk about yourself the whole night.”

The Greedy Associates’ post wasn’t actually encouraging networking lawyers to consume five drinks at any networking event. And that is a good thing. One takeaway from the present post is the following: if you get to that third drink too fast, shutting up and listening is probably not going to be an easy option.

___

Any article on attorneys and alcohol consumption would be incomplete without noting the study released just in the past week about substance abuse among attorneys. “The level of problem drinking and mental health problems in the legal profession appear to be higher than indicated by previous studies,” reported the ABA Journal. Self-reported problem drinking was at 20.4 percent of the profession. Behavioral questions revealed problem drinking among 36.4 percent of the profession. The ABA article ended in calls for help such as training, mentoring, and bar assistance programs. 

Clinical legal educationCross-cultural communicationLegal communicationPeople skills

Habits of cross-cultural lawyering

What if a lawyer from a modest financial background is working with relatively wealthy clients for the first time? What if a commercial litigator at a large firm takes on a pro bono project interviewing kids in juvenile detention? What if a young female lawyer is representing an international client with a serious legal problem and a seriously sexist attitude?

These are just a few examples drawn from my own experience. The common thread is cross-cultural competence. One might also call it cross-cultural literacy or cultural consciousness or simply cross-cultural lawyering. Whatever you call it, it’s a really big topic.

The culturally competent lawyer is one who can work—effectively—with clients, co-workers, judges, and people in general from a wide variety of ethnic and cultural backgrounds.

There’s no such thing as “culture-neutral” lawyering; debunking that claim is a beginning point in the landmark 2001 publication of Susan Bryant’s Five Habits: Building Cross-Cultural Competence in Lawyers. Differences in cultural backgrounds affect many aspects of the lawyer’s role, even as seemingly simple a lawyer’s request to a client that the client ask for clarification if the client doesn’t understand something or the lawyer is not being clear. Those two different ways of phrasing the request may generate different reactions—or what seems like non-cooperation—depending on the client’s background. Cultural competence connects with core professionalism requirements such as competence and communications, as this Oregon Bar article points out. Lack of cultural competence could also cost a firm in terms of employee and client retention.

In this post, I will briefly summarize the “five habits” framework developed by Bryant and Peters. (They refer to teaching law students, so that is the terminology used below, but obviously the concepts are meant to apply far beyond the walls of any law school class.) At various times this year, the blog will highlight related articles, ideas, and practical recommendations.

Habits One and Two

The beginning of the five habits requires thinking about similarities and differences with clients—not just what those similarities and differences are, but how the process of thinking about them affects the relationship and the law student’s effectiveness. How can a law student find similarities with a client from a very different background? What if a law student identifies as so similar to a client that she misses other important differences?

More broadly for analyzing and managing the client’s case, how do the similarities and differences affect interactions between the client, law student, and judge (or other decision-maker)? How strong is the client’s legal claim, and can the law student shape the legal argument to encompass more of the client’s claim and situation?

Habit Three

When a law student and client come from different backgrounds, the student may miss what the client is intending to communicate. And nothing hurts communication more than the illusion it has taken place (said George Bernard Shaw). The student may believe the interaction is productive when in fact the student is negatively judging the client. Maybe the client even senses that judgment and withholds information accordingly. Maybe the lawyer later finds out that the client has in fact not shared all the relevant information.

Part of the cure for these problems is “parallel universe” thinking in which the student looks for multiple interpretations of the facts. The point is to reach a deeper, less judgmental understanding of the client’s perspective and actions.

Habit Four

Communication is a huge part of cross-cultural competence. Thus, students should think about “pitfalls and red flags.” One pitfall is the problem of “scripts.” Scripts are habitual templates lawyers may use in repeated situations. Rather than using scripts, students are encouraged to bring out the client’s own story with attentive listening and to gauge the client’s own sense of engagement and understanding. (Here I will note the connection to Ken Grady’s exploration of how lawyers are prone to rely on mental shortcuts just as much as non-lawyers.)

Red flags would include signs that real communication is actually not taking place, such as a client who tries to dominate a conversation or another one who withdraws and takes no notes. Law students have to overcome their sensitivity and move past communication challenges; they need a “broad repertoire” of communication skills for gauging clients’ understanding.

Habit Five

The final habit is the most difficult, which is why Bryant and Peters place it last. It asks students to confront their own biases and stereotypes, an uncomfortable process to say the least. To develop this habit, students can “create settings in which bias and stereotype are less likely to govern.” Because people are more affected with bias when they are under stress, Bryant and Peters encourage law professors and students to proactively address stress. Professors can “promote reflection and change of perspectives with a goal of eliminating bias.”

Communication skills are critical

Communication skills run throughout the habits. For example, “remaining present with the individual client is an essential part of cross-cultural competence.” More specifically, good cross-cultural lawyers have to be good listeners:

Intercultural communication skills include deep listening skills and capacities to focus on content rather than style, the ability to read verbal and non-verbal behavior, and the ability to adapt conversation management behaviors and style. These are communication skills that lawyers need in every situation and more so in cross-cultural situations.

The original Five Habits paper is now 15 years old. Bryant and Peters have collected a wealth of materials here at LegalED, including resources on listening.  The discussion of cross-cultural lawyering has continued vigorously, with a recent burst of work on implicit bias.

In this blog’s continuing exploration of additional articles, ideas, and recommendations, the goal will be what Ascanio Piomelli wrote in 2006, surveying the field of teaching about cross-cultural lawyering:

[C]ross-cultural materials are at their best . . . when they spark generous curiosity, nurture engaged, nonjudgmental inquiry, and foster real connection with others.

 

CollaborationFact investigationGenderTrial advocacyUncategorized

You should watch The People v. O.J. Simpson

To echo what many have said, I now know what I’ll be doing for the next ten Tuesday nights. The People v. O.J. Simpson: An American Crime Story (FX Networks) is as incredible as everyone is saying. For viewers who lived through the spectacle, it brings back memories (“Where was I the night of the white-Bronco chase?”) and forces connections (an even closer look at the Kardashian family, which didn’t seem possible). More broadly and as the New York Times has pointed out, the opening scenes of the Rodney King beating and subsequent riots (mediated through TV news) set the stage not just for the investigation and “Trial of the [20th] Century” but for connections to police brutality and the Black Lives Matter movement today.

The People v. O.J. Simpson is also a story about lawyers and lawyering, with a deeper view than anyone got in real-time, drawing from Jeffrey Toobin’s book The Run of His Life: The People v. O.J. Simpson (interview with Toobin here).

There’s the distracted Marcia Clark cradling a landline and feeding cereal to her cute but ungrateful kids while she learns about the murders. (Actor Sarah Paulson told the Wall Street Journal: “I didn’t understand what I do now—that it was a great failure of women everywhere to not have come out rallying behind her in what was a real assault on her by the media.”) There’s Robert Shapiro holding court about his greatness in a posh restaurant when he’s interrupted to take O.J.’s call. There’s Robert Kardashian patting his friend O.J.’s shoulder, his eyes widening perhaps just a bit when Shapiro suggests that he reactivate his law license and join O.J.’s defense team. There’s Christopher Darden in an unguarded moment with Johnnie Cochran before either of them knows what is about to hit.

During the first episode, I tried to watch with an eye toward blogging something about listening. The most obvious scene was Shapiro’s show of meeting alone with O.J. to ask him if he did it. O.J. looks him back in the eye and says, “No. I loved my wife.” The police demonstrated some really poor listening and questioning skills in their early taped interview with him, sending Marcia Clark into paroxysm and foreshadowing trouble for the prosecution. (Later listening to the tape, an officer notes how hard it is to question a famous guy like The Juice.) Yet there’s the initially positive and collaborative environment within the prosecutors’ legal team, fueled by confidence at the story they perceived to be coming together.

By the end of the episode, however, I turned off the analytical brain and just watched. Even now, it was too much. How did this all happen? I couldn’t parse it objectively from a distance. And I guess that’s the problem and one of the show’s essential points.