Law school conditions you to know the difference between righteousness and self-righteousness. That’s why lawyers know how to go to war without turning the other side into an enemy.
A student group collectively responded, arguing that Gerken mischaracterized their protest during Murray’s visit to Yale and suggesting limits on law’s social and political influence:
If anything, our legal training has taught us that civility has its limits, and that disruption, creative protest, and rule-breaking are valid and often necessary tactics to effect change.
Amidst this debate and much, much more, a new class of law students is arriving at law schools across the country right now. Thus I was grateful to hear some excellent advice on promoting discussion and civility in legal education, shared at the recent Southeastern Association of Law Schools’ Conference.
Professor Suzanne Rowe of Oregon Law spoke on a panel about building character in the classroom. She briefly stated the character values law school seeks to instill—integrity, trust, respect. And then she focused on specific tools and methods for discourse within the classroom. That may not be all we need right now, but it definitely can help.
What do students need? They need to hear other views, respect other viewpoints, share their convictions with other classmates, and engage across the spectrum of ideas.
But what happens when this “spectrum of ideas” leads to a truly difficult conversation—where someone offers an opinion that fundamentally attacks the integrity, worth, and humanity of another person? Professor Rowe offered a roadmap for responding in these moments:
1. Recognize what happened.
For example, the professor might describe reactions: “I’m seeing eyebrows raised and people seeming very uncomfortable.”
2. Share what you feel and believe.
After an objective assessment of what has happened, the professor can share her reaction. For example, “I believe you can say that in a more professional way” or “I feel that the words you’ve used are harmful to members of our community.”
If the professor has prepared for this type of disruption, she might immediately lead students in a discussion of the unprofessional or harmful comment. If not, she might ask the class to take a break and regroup in a few minutes or the next day to engage in that discussion.
Professor Rowe also talked about teaching the value of disengaging. Students can engage more fully when they know they do not have to continue engaging no matter what they may hear. Some students might chose to step out of the classroom during a discussion.
There are no easy answers, but the framework for recognizing, sharing, and acting—plus disengaging at times—may help.
This post is for law professors, educators, and anyone interested in listening-related skills training…
Listening contributes to law students’ success in many ways. From participating in class discussion to doing good work in clinics to writing an exam that reflects what was discussed in class, students who listen effectively are in a better position to succeed in law school. They are also in a better position to effectively handle job interviews and real assignments on the job.
Law professors therefore may want to spend some time emphasizing listening skills, either explicitly or implicitly. Here are a few ideas for integrating listening skills into any law school class. Please share feedback and more ideas in the comments.
Model a client interview.
Modeling means showing how to do something the right way. It could also mean showing how to do something with a mix of successful and less successful moments, then discussing the challenges and the process. Either way, students can begin to learn by seeing and hearing models in action.
Modeling an interview during class time would be a significant investment of class time. For teaching in clinics, this investment should pay off directly. Students who have seen and discussed effective listening during an interview are far more likely to do the same in their own work with clients.
In doctrinal classes, a model client interview would be unconventional but could demonstrate good lawyering (including listening) while also covering doctrinal material in a vivid way. One specific idea comes to mind: remedies. Clients may feel they are entitled to some particular measure of compensation that the law actually does not allow. A client interview could bring out the client’s ideas of what he or she deserves, including the lawyer’s careful listening even where the client’s damages theory cannot be supported by law. And then the discussion after the interview could address the substance of remedies as well as the interpersonal challenges of communicating with clients.
Offer listening conferences with assessment and feedback.
The next step after modeling a skill is letting students try it. A “listening conference” is one way to do this, as suggested by Hamilton in his listening article. The listening conference would be a chance for students to role-play a client interview or talk about a doctrinal area of law, and then get feedback on listening.
The conversation partner would be a professor (if time permits) or perhaps a teaching assistant, or a student’s mentor in the legal community. Afterward, the conversation partner would provide feedback and assessment of the student’s listening. The feedback could involve a play-by-play of certain key moments:
“I felt like you really heard me when I was talked about xyz because your eye contact and body language were very receptive.”
“When I mentioned xyz, it seemed like you started thinking about what you were going to say.”
“You used active listening techniques when I described my goals as a client, but you didn’t restate one aspect of my goals, so I wasn’t sure you totally understood that part.”
The assessment could provide more structured feedback on criteria for listening. The criteria’s substance is a topic for future blog posts here. Hamilton has some sample assessment rubrics such as a student’s performance during a client interview.
If you use Power Point, use it to promote listening and learning.
That is one of many reasons it’s such an awful idea to use text-heavy Power Point slides. Use a blank placeholder slide in every presentation, advises Professor Paul Zwier of Emory Law School, author of Power Point 2003 for Professors. Navigate the Power Point to the blank backdrop when you want students to focus entirely on listening.
To promote effective listening, consider abandoning the bullet points, at least on what you show during a lecture. Intensely visual slides such as what you can make with Haiku Deck or by downloading images from Creative Commons are a great backdrop to help the audience both listen and remember what you say. Seth Godin recommends this best practice in his e-booklet “Really Bad Power Point (and how to avoid it)”:
You can use the screen to talk emotionally to the audience’s right brain (through their eyes), and your words can go right through the audience’s ears to talk to their left brain.
Enforce a classroom 5-second rule.
Another common issue with listening in the classroom is that students may not have enough time to remember—much less process—what was said at key moments. The bounds of working memory are an inherent limitation on effective listening. And in the law school class, the words in a lecture and discussion sometimes come so fast and furious that sometimes students may leave the class with the feeling of “What just happened?”
One protocol that can dramatically improve listening is to impose a “5-second rule”: everyone must wait 5 seconds after a speaker has concluded speaking before raising a hand or otherwise continuing with the conversation. Mark Weisberg and Jean Koh Peters suggest this method in their paper Experiments on Listening.
They report that professors meeting with other professors in small groups found an “astonishing” benefit to this protocol. Participation was both broader—no longer favoring the gunners and turn sharks—and more thoughtful. The same benefit could extend to a law school classroom.
Assign students to listen to a particular case or legal authority in addition to reading it.
Various software, browser apps, and websites can read text out loud. Hearing an entire case read out loud, rather than silently reading it on the page, is a big investment of time. But intensely engaging with one or two cases this way could assist learning, especially for beginners. To use one common error students make when learning the structure of court opinions, where does the review of precedent end and the court’s own decision begin? I believe that listening to the case could help them slow down and recognize the different components of the opinion.
(And please don’t ignore this suggestion because you think “some people aren’t auditory learners.” The idea of a learning style may reflect an individual’s desired learning preference but not necessarily a more effective way for that individual to learn any given material. See here and here.)
The suggestion to listen to a case is better suited for students’ own time outside of class. Class time could also involve short breaks from the lecture in which students read to one another. Bear with me here: Performing the law with a speaker and listener in this way could set up the significance of statutory language or a short segment of a case. The student reading the case out loud would have to decide how to inflect the reading, and the student doing the listening would get the benefit of hearing the words. It may feel forced and awkward to the students and perhaps to the professor as well, but they almost certainly would remember the language better as result of the process.
Better listening leads to better learning as well as better lawyering. These exercises are just a few ideas for focusing on listening in the law school classroom. The articles cited here contain many more ideas, and please also share ideas in the comments to this post.
Actually they had me with the title of the handout:
“Mindfulness without Meditation.”
Last week I attended the 2017 meeting of the Southeastern Association of Law Schools, a.k.a. SEALS, in beautiful Boca Raton. The SEALS meeting lasted all week but included a two-day Conference on Mindfulness in Law co-sponsored by SEALS, the AALS Section on Balance, the Mindfulness in Law Society, and the Fredrick P. Lenz Foundation.
Day two featured a session on “Emotional Intelligence and Mindfulness in Law.” That’s where the elusive promise of mindfulness without meditation came in. There were several speakers, and I hope to blog about each of them. This post focuses on remarks by William Blatt of the University of Miami.
Professor Blatt has seven years’ experience teaching a law-school course on emotional intelligence and mindfulness. He acknowledged that mindfulness as a concept can be difficult to effectively communicate. Being mindful helps people to be at peace with themselves, to be more productive, and to have better relationships. But it’s like a neutral gear or a general state. It’s universal, but subtle. Telling someone to gain emotional intelligence by being mindful is like telling a triathlete to get better by exercising.
Professor Blatt uses his mindfulness class to delve into more specifics:
Students are drawn to techniques that help them concentrate better because they know it will help them academically. To help students see how they must intentionally focus, Professor Blatt draws a parallel to focused intensity in body building. He walks students through a bicep curl exercise. No weights are needed. The first time you just lift your arm. The second time, you imagine a marble in your bicep and you place a finger on your bicep, lifting your arm with focused intensity.
Becoming more aware of your own body can help with mindfulness. The bicep curl exercise above is one way to do it. But Professor Blatt showed some more energetic ways to do this. First, breathe for 30 seconds but forcibly exhale. Let your breath be heard. By breathing out so strongly, you gain more body awareness.
Beyond that, you can get up out of your seat, put your arms over your head, bend your knees, and jump. Like 20 times. Your attention will come back to your body. Yes it looks strange to see a hotel ballroom full of law professors doing this, but it works.
One barrier to mindfulness is repetitive thoughts. Professor Blatt shows students how to take a word—maybe “stress”—and repeat it over and over again. The key is to distort it. Repeat it so fast that it sounds like gibberish. Or slow it down and say it in a deep, slow, movie-trailer voice. Or say the word in a mouse voice. These techniques can break the association of such repetitive thoughts.
Professor Blatt also talked about ways to reframe certain feelings. Stress may feel like a threat, but perhaps it can be reframed as an opportunity. This is easy to say and hard to do. Professor Blatt suggested a good technique which is to change a problem into a question beginning “how…” For example “I’m feeling stressed about maintaining this blog” could become “How can I continue to find and post good content on this blog?”
Building on this interrogative technique, Professor Blatt talked about the broader “release technique” which walks through a series of questions about deciding whether to release a current emotional state—or not. The hyper-rational among us who find themselves dealing with an unwanted emotional state may like this pragmatic series of steps.
Perspectives on the self
Does an individual have just one personality—one mood, one approach, one way of being in the world? “I contain multitudes,” Walt Whitman wrote. Professor Blatt discussed a technique for mindfulness in which you try to acknowledge these different “sub-personalities.” The examples he gave were the controller, the seeker, the skeptic, the big mind, and the big heart. Allowing yourself to “hear” the voice of these sub-personalities builds compassion for yourself and is connected to mindfulness more broadly.
I enjoyed Professor Blatt’s remarks about mindfulness because they spanned a wide range of mindfulness techniques from active (jumping up and down) to practical (using a checklist for deciding whether to let something go) to linguistic (articulating a difficult word in an exaggerated way) to conversational (practicing “talking and listening” to your own sub-personalities).
As he said, mindfulness is a general state. But there are many paths to reach—or at least to seek—that state.
Recently I used a ride-sharing service that shall remain nameless. I was with another law professor on our way to the airport from a weeklong conference. It was a 30-minute ride.
The driver was a relatively young person. For the first half of the ride, he drove without speaking. My friend and I discussed the conference, some professional gossip, and what we will be working on next year.
We reviewed the conference and I described one of the sessions I attended, on raising average Americans’ awareness about participating in the regulatory process. Speaking colloquially, I summarized a key point from the session: outside of the realm of law professors, many people are basically “stupid” about the administrative process. It was not a word used in the session; it was my shorthand to mean ill-informed.
That colloquial word somehow emboldened the driver to speak up.
“Are you lawyers?”
We told him we are law professors, and we don’t practice law anymore. That did not give him any pause.
“Can I ask you a question?”
Our extreme listening saga began as the driver shared his personal passion and desire to sue the federal government. He has been studying information about a few globally prominent and historically famous billionaire families. He believes they have some connection to the continent of Antarctica. Something is happening in Antarctica, and he wants to know more about it. Specifically, he said, he wants to get into court and have a judge—and the public—take him seriously.
My friend and I gave him some leeway. “To get into court, you have to have a legal claim. You have to be injured in some way that the courts would recognize as something they spend their time on.”
He did not have a sense what his claim would be. He did say he feels Antarctica has resources that are either not being used or are being used by global families in some way that needs to be discovered and revealed. “I want to do something drastic,” he said. “I want to make a difference.”
This was a listening challenge for several reasons. I didn’t want to listen to him at all; I wanted to talk to my friend. I didn’t believe anything he was saying. And I didn’t agree with his choices to spend his time ruminating on such theories. He’s about the same age as many law students, and it made me feel like he was wasting his off-hours from work staring at various websites. Maybe he needs an outlet for his curiosity and engagement with big questions because he has to work and earn instead of pursuing formal education. That is possible, perhaps even likely. But whatever the reason for his life situation here and now, there is wisdom in focusing one’s efforts on changing one’s actual sphere of influence. (I believe that’s from Stephen Covey.) Yes, the Internet is amazing and allows investigation plus amplification of voices—but it does seem that uncovering a global conspiracy in Antarctica is outside the sphere of a 24-year-old ride-sharing driver in a southern U.S. state.
Whether to keep listening and if so, how to manage this conversation?
I tried echoing about “making a difference.” I asked him if he has family in the U.S. and he said yes, although they live almost a thousand miles away. I said, “When I start to think about making a difference, I think about my family and how I can help them. That’s something I know I can work on.”
My friend nodded toward me, but her eyes signaled a desire for exit.
The driver repeated his desire to do something and make a statement. He mentioned wanting to know what NASA is doing in Antarctica.
I tried to think of something he could actually do. I told him about the Freedom of Information Act. I also told him about the ability to file a public comment if he found an agency that is dealing with Antarctica in some way.
When there was a short lull in the conversation, I turned it back to my friend with a moderately loud question aimed solely at her. She picked up the conversation and we reclaimed the rest of our time—although not really since there were only about five minutes left in the ride and urgent questions about airlines and terminals and such.
A few thoughts lingered after this conversation.
There aren’t that many spaces in this world where people with extremely different viewpoints come together to discuss those viewpoints in a context expected to be civil. I am not sure what persona this guy might use while researching his interests online, but his persona while driving the car was extremely professional and courteous. Reflecting on our conversation raised several important points for engaging with people with different viewpoints.
First, conversations work best in good faith. Try to find some area of common ground. Try to find a way to help the other person on their chosen journey even if you really don’t agree with their choices.
Second, honor the risks that the other person in a conversation takes. This guy took a risk by asking us whether we are lawyers. He used caveats like “I know it might sound crazy, but….” If we had curtly cut off the conversation and used all the time for ourselves, what would his takeaway have been? Would we have confirmed that lawyers are jerks?
Third, stand for your own beliefs, ideally with kindness. At one point my friend explained what we teach: “The most important thing, really, is critical thinking—the ability to tell what’s true from what’s false.” She was giving him something to think about in the future, and laying out a boundary for the immediate conversation.
Finally, look for opportunities in a conversation. One way to build a conversation is to echo what the other person is saying and add more. You can sometimes shape the conversation by what you choose to echo. The most famous improvisational technique is “Yes, and…”
Also look for opportunities to refocus. Ending a conversation is a skill, especially when you’re in a small car with miles to go until the airport.
You may know this blog is a huge fan of the #PracticeTuesday hashtag. I covered it here and follow it every Tuesday at 5 p.m. Eastern on Twitter. The conversation ranges from reminders about handling witnesses . . .
Co-founders Professor Rachel Gurvich of UNC and Sean Marotta of Hogan Lovells have now expanded the discussion to a blog at http://www.practicetuesday.com.
The mission of the Practice Tuesday blog is broad and consistent with that of the hashtag conversations: "sharing advice from law students, attorneys, professors, and judges for law students, attorneys, professors, and judges." The hashtag conversations thus far have been honest and enlightening, and Rachel and Sean promise the Tuesday Twitter conversations will continue. The blog will expand discussions that just can't fit into 140 characters, via weekly postings.
I know PracticeTuesday.com will address listening skills, and in fact is already doing so in one of the first posts, advice for law students during on-campus interviews:
Listen carefully to what you hear from each attorney and actively engage in the conversation on their terms.
Thanks for the shout-out and links to this blog. It seems we will have a lot in common, and I look forward to more conversation on Twitter and on the new blog.
You can follow the Practice Tuesday blog's updates at @PracticeTuesday on Twitter.