Month: May 2016

Legal communication

Commencement

While it may be cost prohibitive to see Hamilton, you can take in Lin-Manuel Miranda’s commencement address at the University of Pennsylvania for free:

As with Hamilton, Miranda’s address uses an old genre in deep and deeply entertaining ways. A few points about listening:

Listening to what’s not there

Miranda begins by apologizing for the fact there is one and only one allusive reference to Philadelphia in all the 22,000 words of Hamilton. “Every story you choose to tell by necessity omits others from the larger narrative.”

Listening to your body

While writing his first Broadway play, In the Heights, Miranda developed a “blinding pain” in his right shoulder. Miranda found himself constantly cracking the shoulder until a back specialist helped him really listen to what his body was telling him. The life story of opera composer Giuseppe Verdi was also involved.

Listening—or not—to feedback

While developing an early version of In the Heights, Miranda and director Thomas Kail got some advice from a “big-deal veteran theater producer.” The advice would have helped them get the play produced right away. The advice was also worse than clichéd. Rejecting this advice and the opportunity to work with this person meant they had to “wait for it”  quite a while longer. “The story they fought to tell” survives.

Legal communication

Scorecard of practical readiness       

Chicago-Kent College of Law recently announced its concept for a practice-ready approach to law school. This program, named “Praxis,” is for students who want to “fully embrace” an experienced-based course of study.

The feature of the Praxis program most fascinating to me is the “scorecard” students must complete each semester of the program. It’s a list of 12 practice competencies grouped into four major categories:

  1. initial case development
  2. written and oral communication
  3. case and project management
  4. practice management and professionalism

You can see the scorecard here.

The idea is that students have to reflect on their progress toward gaining these 12 competencies as they move forward in the program, completing various classes and a mandatory live-client clinic.

Listening comes up directly and indirectly throughout the scorecard:

  • Initial case development requires a professional and thorough client interview. The law student needs to “[u]nderstand the client’s perceived problems, objectives, resources, and limitations.”
  • Initial case development also requires collecting evidence including testimony from others.
  • Problem-solving requires identifying the client’s legal and practical problems.
  • Trial work requires examining witnesses effectively.
  • Negotiation skills require empathy and active listening to understand the parties’ objective goals and try to find solutions that will meet them.
  • Effective collaboration and teamwork requires seeking clarification when needed. It also requires treating all co-workers with respect.
  • Client service requires “[r]esponsive, effective, prompt, and respectful oral and written communications” with clients. It also requires the law student to be able to “[p]rovide advice and predictions where appropriate, but avoid imposing [the law student’s] own values.”
  • Client development requires meeting new people and making connections.

The items on this list aren’t surprising, but it’s nice to see them collected in this way and used directly with students to help them track their own learning and development.

Hat tip to Scott Fruehwald, who described the Praxis Program here on the Legal Skills Prof Blog.

Law firm managementLegal communicationLegal technologyMediation

Listening and legal tech

I have followed Mike Whelan, Jr., on Twitter for a while now but only recently discovered his blog, Lawyer Forward. Mike is a Texas family lawyer and law-practice coach for lawyers who founded a CLE conference, also called Lawyer Forward. Whelan says his “ninja thing” is “teaching and cultivating relationships.” It’s therefore not surprising his blog has touched on both practical and personal aspects of listening, such as his appreciation for legal tech vendors who actually listen to lawyers speaking about their needs.

Mike’s most recent posts were inspired by social-media chatter about the Canadian legal tech conference, LexTech16. He wrote about it here and here. In his first post “It’s Not That We Hate Tech, It’s That We Hate Your Tech,” he  describes a simple method for deciding whether to spend on tech:

[T]ransactions happen under fairly simple dynamics: you give me something that I want more than the money in my pocket. If you don’t, there’s no sale.

Thinking about the payoff of legal tech brought up similar questions about the potential value to lawyers of time spent working on their listening. Also: does legal tech itself hold any promise for helping lawyers with listening and communication more broadly?

As far as the value of working on listening, I started writing this post with the idea of claiming there is no opportunity cost to better listening. There is no tradeoff! Effective listening should enhance any other choices a lawyer might make, whether the lawyer’s niche is in virtual drone lawyering with alternative fee arrangements based on social-media marketing or trusts-and-estates lawyering in a brick-and-mortar setting with retainers and billable hours based on marketing at the Rotary Club.

But that idea is not really right. There is an opportunity cost to the effort of improving the skill, even if the skill itself has no downside.

To use the most obvious opportunity cost I could think of, what about going to mediation training for 40 hours? Mediation and listening aren’t exactly the same thing, but any good mediation training should be spending a good chunk of time on effective listening.

So, to use Whelan’s value question in a broader hypothetical sense, would abandoning all other activities for 40 hours of mediation/listening training be worth it for a lawyer? This assumes the lawyer isn’t seeking an official mediation credential but rather thinking of investing in better listening more generally. Competing lawyers may be winning and keeping clients (as well as prevailing in negotiations and cases, etc. etc.) because they have better listening skills. But it’s very hard to prove that’s actually happening. So how should a lawyer or firm invest for effectiveness over the long term?

Here, additional parallels with legal tech emerge. Assuming a lawyer has decided in principle to work on listening via mediation training, how does that lawyer go about selecting the most effective training? One article from Mediate.com on how to select mediation training notes several challenges:

  • Potential participants don’t know the right questions to ask to select appropriate mediation training.
  • There’s no uniform regulation (nationally) over mediation training, although many states do regulate mediation training.
  • There are different theories within the field about what mediation even is and how it should work.
  • “Although the majority of organizations that provide mediation training are legitimate and are staffed by qualified trainers, there do exist mediation trainings that fall far short of accepted standards . . . .”

I’ll note that Georgia is strict in regulating mediation training. And I had a wonderful experience with 28 hours of mediation training towards a Georgia certification. It was fast-paced, well-supported, both practical and theoretical, and—most of all—immediately useful.

But beyond the challenge of selecting quality training, another challenge (threat?) is the idea that investing in listening training just wouldn’t help. In essence, a lawyer might think it would be harmless but probably also be a waste of time and resources. This attitude is likely to overlap with a “fixed mindset” about listening—the (mistaken) belief people’s listening skills are fundamentally set and cannot be appreciably improved with effort. When I started this blog, someone told me, “I’m a bad listener and always will be. People who work with me get used to it.” Just as some lawyers may resist even good legal tech because it doesn’t seem to them like it would really make a difference, lawyers might resist good methods for improving their communication skills for the same reason.

This resistance leads back to legal tech itself, on the merits. Whether you think listening is a fixed or learnable skill, is it possible that legal tech somehow revolutionize, disrupt, or at least modestly improve communication among people in the legal field?

Some tech startups—particularly those that facilitate online negotiation or online lawyer-matching—actually seem designed to replace face-to-face contact and perhaps thus diminish the importance of listening. The classic definition of listening requires the presence of “spoken and/or nonverbal messages,” both of which online communication excise from the interaction—perhaps for good reason in some situations. This roundup post on LexTech16 mentioned online dispute resolution for resolving family disputes in England. Likewise, the coparently app helps separating and divorcing parents “have less conversations with your ex and reduce conflict.” (Coparently and a number of other legal tech startups are listed on Bob Ambrogi’s recent, updated list of legal tech startups on LawSites. Click the link in his post to see the list.)

Other startups hint at the idea they could free up a lawyer’s time for other tasks. “Ross,” the AI-driven research startup based on IBM’s Watson, suggests it “lets you get back to being a lawyer.” So, to take a positive view, improved efficiency through excellent legal technology should mean less time spent manually reviewing bills or doing legal research, etc. etc. In turn, legal tech could mean more time for other professional or personal activities. And at least one possibility for what to do with such freed-up time has to do with listening—namely, more face-to-face contact and other human interaction.

Legal tech has potential to help lawyers (and others) with their communication more directly. For example, when we will see a commercial “sociometric device” that would report social metrics—such as a lawyer’s rate of listening versus talking? Kenneth Grady talked about these devices on the Seytlines blog:

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.

We’ve all heard “if you can’t measure it, you can’t manage it.” The idea of these sociometric devices opens new possibilities for measuring listening, generating data previously available only to communication scholars with extensive research support. Commercializing a device like that would be quite the marriage of listening and legal tech.


Post script: I mentioned above that Whelan’s blog talks about listening from several angles. One of those angles is pretty personal. Whelan has done readers a service with a series of open and honest posts on his wife’s ongoing struggle  with chronic illness, and how he manages his practice while supporting his wife and maintaining their relationship. As he says, it’s a story of “pushing through difficulty.” Here’s part 5 of that blog series; check out Lawyer Forward to see the earlier posts.

Client relationshipsCross-cultural communicationEmotional intelligenceLegal communication

The outro

Still thinking about Prince . . .

Like so many, I downloaded some Prince and revisited the music of my youth. Purple Rain, of course. And in listening to it, I did something that I may never have done in the 80s: listening to all of Purple Rain, all 8:42 of it. That includes the final atmospheric two minutes of the song. There’s no more chorus, no big guitar, no more purple rain. There’s some trilling piano, a few of Prince’s vocalizations, and some echoing violins.  A friend who’s a musical expert told me that section has a name. It’s an “outro.”

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Flickr/bnilsen/Purple Rain 3/CC by SA-2.0

“Outro” is a music term for “the end of the road for your song.” It can be an instrumental solo, repeated chorus, or something else like that. There’s no real formula, but I think the most accurate description of Purple Rain’s outro is a meditation in strings (i.e. violins).

As a young person I honestly thought the end of the song was boring. It seemed like fluff after the huge vocals and massive guitars. The average song length has been on the rise since the 70s, leveling off in the 1990s at about 4 minutes. In fact the radio version of Purple Rain was shortened to 4:05, but I always listened to the album (on tape). Maybe my teenage attention span maxed out at 4 minutes. I would rewind the tape back to the beginning, craving the organ chord and unforgettable opening of the album:

“Dearly beloved, we are gathered here today to get through this thing called life . . .”

That did not feel like fluff.

Sadly now, every moment of Prince’s work seems more precious. Spending that extra two minutes finishing out the outro is a way to honor him. It’s a way of appreciating what the artist—in this case, The Artist—was doing. The whole song, including the outro, is what he was really trying to say.

Beyond that, this outro reminded me of a broader theme with communication. Conciseness is highly valued, both in writing and speaking. On this blog I sometimes pull data and anecdotes from a book called Brief: Make a Bigger Impact by Saying Less. One of its arguments for brevity is the thought-speech gap: listeners can process information at a rate of 600 more words per minute than speakers can actually speak. This gap creates “spare mental bandwidth” that can lead to distraction, boredom, and judgment. Conversely, speaking in a concise, message-heavy way maximizes efficiency and attentiveness.

Brevity is a virtue in pop music as well. A tight 3- or 4-minute pop song reduces the likelihood the listener will flip or click or tap to another song. But Prince (a) was too good to be limited to a formula and (b) probably didn’t care anyway. Those who are attentive enough to hang in through the whole 8:42 get a gift—the gift of a gentle orchestral landing to this booming ballad. Everyone else misses it.

Likewise with conversations, the informal, meandering end of a conversation—when the official conversation itself is over—can be extremely valuable. The “outro” of a meeting is a place for checking in and observing nonverbal communication to understand the real reaction. People may be creating their own outro. Are they still repeating the same chorus over and over? Are they calming down and echoing what was said? Using friendly, open body language can encourage people to tell you things they were thinking about the whole time but just not comfortable saying. Checking one’s phone at the earliest reasonably polite opportunity misses the chance to learn more from the conversational “outro.”

Connections between music and conversation are pretty fascinating; see this post on communications theorists who transcribe conversations with music notation. But ultimately my point here is a simple one about music appreciation. Purple Rain is a great song, and I recommend listening to it again. All of it.