What lawyers say, and what they actually do

How do lawyers transfer their knowledge? Lawyering scholars have been talking about “tacit knowledge” since the early 1990s. A recent ABA publication encouraged law students to use their externships and other practical experiences to interact with lawyers and try to glean some of that tacit knowledge via “extensive personal contact, regular interaction, and trust.” I touched on tacit knowledge in an early-summer blog post encouraging summer associates to talk with experienced lawyers about their work and to closely observe their nonverbal signals during these conversations.

This advice suggested perhaps the slightest hint of the idea that there might be dissonance in what lawyers say they do and what they actually do. An article by one of my law-professor heroes, Richard Neumann, Jr. explores this concept in depth.  The article is Donald Schön, The Reflective Practitioner, and the Comparative Failures of Legal Education, 6 Clinical L. Rev. 401 (2000). It attacks superficial notions of lawyering and legal education at multiple levels.

What is the difference between what lawyers say they do and what they actually do? The real tacit knowledge is in what they actually do—which they may not be willing to describe or even fully aware of.

This insight is from the work of Donald Schön, a now-deceased professor of architecture at MIT. Schon’s ideas and Neumann’s exploration of them aren’t new, but the insights remain relevant and helpful.

Schön sought a deeper understand of tacit knowledge, questioning its foundations:

[T]acit knowledge is not necessarily accurate knowledge. Because it is tacit, it is also unexamined.

And because it is unexamined, it may be worthy of the term “knowledge” only in sarcastic quote marks:

The tacit ‘knowledge’ of an ineffective professional might be nothing more than superstition—and correspondingly dangerous to clients.

Schön questioned professionals’ capacity to understand and describe their own work. What professionals think they do and what they actually do are often entirely different. Here he used two terms to categorize false and real tacit knowledge. (Neumann, while clearly a fan of Schön’s work, didn’t really like his terminology, and here you may feel a particularly strong urge to close this browser window. But consider plowing on.) Schön’s terms distinguish what a professional says about the work from how the professional actually does the work:

  • A “theory of action” is how a person describes the work they do.
  • A “theory-in-use” is what actually governs the person’s actions.

As a result, we can only learn a person’s true “theory-in-use” by observing their behavior. More broadly, this discrepancy “makes it harder to improve how professionals work.” A lawyer might resist making a change out of the mistaken belief about what she is actually doing. “Because our theory of action seems satisfactory to us, we do not see any reason to change.”

And willingness to change isn’t necessarily sufficient to make a real change. “[E]ven if we can be persuaded to change, we might be satisfied” just by changing our theory of action. This is a change in name only if “we continue what we were doing before because our theory-in-use remains unexamined and controls our actions.”

I’ve thought about this concept with legal writing, and writing generally. It’s much easier to change one’s nominal theory of action, especially if that means adopting new writing software or formats or labels about what one is doing. In an article titled Fighting “Tippism,” Stephen Armstrong and Timothy Terrell wrote about how superficial writing “tips” are no substitute for the real work of learning and using the lessons of rhetoric, logic, and cognitive psychology.

In the realm of listening, the problems equally difficult if not more so because listening is so difficult to observe and measure. One may have a theory of action that they are in fact a great listener and an active listener. They are totally on board with the value of listening.

But their theory-in-use could be quite different. How well someone listens can be described in three major categories, according to Melissa Daimler, Head of Learning and Organizational Development at Twitter, writing for the Harvard Business Review Blog:

Internal listening is focused on your own thoughts, worries, and priorities, even as you pretend you’re focusing on the other person.

Focused listening is being able to focus on the other person, but you’re still not connecting fully to them. The phone may be down and you may be nodding in agreement, but you may not be picking up on the small nuances the person is sharing. 

360 listening.  You’re not only listening to what the person is saying, but how they’re saying it — and, even better, what they’re not saying, like when they get energized about certain topics or when they pause and talk around others.

A lawyer may believe he is a 360 listener, when in fact he is an obstinately internal listener. This mismatch of belief means the lawyer does not feel any need to work on listening because how can you improve upon something already pretty terrific?

And if such a lawyer does read a blog post or attend a training on listening, she might pick up a new term of art for listening, such as “I’m a 360 listener,” while remaining rather poor at it.  This obviously connects to the Dunning-Kruger effect of being so bad at something that you don’t even know you’re bad.

Schön and a collaborator apparently tried to address this difficulty through seminars and training that guided participants to confront the differences between their theories of action and theories-in-use. They sought to help professionals recognize two major approaches to going about professional work:

  • Model I exhibits “highly developed rationality and a commitment to goals and winning.”
  • Model II “develops the largest amount of valid and relevant information and generates the largest number of options from which to choose.”

Model I sounds a lot like a stereotypical lawyer personality. That’s not good news. Model I—also known by Robert Condlin’s term “persuasion mode”—has a lot of problems. Persuasion mode is sometimes useful and beneficial, but as a default personality it has some significant pitfalls, as described in Neumann’s article:

[A] person in persuasion mode tends to act on hidden agendas and strategies; “to minimize self-analysis and to reserve it for private moments when it will not weaken instrumental effectiveness”; and to argue in ways that are subtle but “needlessly stylized and hyperbolic.” Persuasion-mode behavior is profitable in situations where the struggle is for control rather than insight, and where the “self-sealing properties of persuasion mode habits” minimize tentativeness and perplexity. “Persuasion-mode habits predispose lawyers to take evaluative stands automatically” so that they “make statements that, on reflection, they know to be false.” “It causes one to impute rather than explore others’ ends, shut off rather than encourage legitimate objection, . . . and accumulate rather than share decision-making authority.

The other possibility is the learning mode, also known as the inquiring mode. Neumann’s essay on Schön explores how the inquiring mode is more consistent with curiosity, open-ended thinking, and exploration of ideas regardless of consequences. A number of benefits accrue to clients and lawyers, with more meaningful and effective collaboration at the top of the list. The collaboration is better in at least two ways: First, the lawyer does not have to maintain a “professional façade” of being the expert. “The ‘expert’ will want “deference and status in the client’s response to [the] professional persona,” while the reflective practitioner will prefer a ‘sense of freedom and of real connection to the client.’”  At the same time, a client may feel more comfortable with a lawyer in persuading mode because the client can sit back and rely on the assumption the lawyer is the expert and will do everything right. A more reflective lawyer can create a more reflective relationship with the client. In these relationships, lawyer and client “join” in making sense of the case. The client gains “a sense of increased involvement and action.”

With the inquiring mode, lawyer-client collaboration is better in at least two ways: First, the lawyer does not have to maintain a “professional façade” of being the expert. “The ‘expert’ will want “deference and status in the client’s response to [the] professional persona,” while the reflective practitioner will prefer a ‘sense of freedom and of real connection to the client.’” At the same time, a client may feel more comfortable with an “expert” lawyer in persuading mode because the client desires the comfort of passive reliance. A more reflective lawyer can in turn create a more reflective relationship with the client in which lawyer and client “join . . . in making sense of the case.” The client gains “a sense of increased involvement and action.”

Neumann’s review of Schön’s work ends on an extended exploration of how difficult it is to teach any of this in a formal curriculum—especially the curricula of medical and law school as distinct from the arts and architecture. Teaching reflection and modeling it in experiential classes are crucial. One way to start is simply by sharing with law students and lawyers Schön’s essential and upsetting insight that the way we intuitively explain what we do may not be very accurate.

 

 

 

 

 

 

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