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 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.

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