Month: September 2017

Legal communication

International Day of Listening

This Thursday, September 21, 2017, marks the second annual International Day of Listening:

The [International Day of Listening] will promote a variety of events that engage people of all ages and all around the world in listening interactions—everything from one-on-one conversations with friends and family to business or community meetings to governments and their citizens talking about mutual concerns.  The goal is to promote better listening in our conversations that will lead to better relationships and solutions to problems that will help make us more human.

This day, sponsored by the International Listening Association, has its own website, an excellent resource for anyone who wishes to place more of a focus on listening.

Suggested activities range from listening to the environment on a mindful walk to listening to someone with a different viewpoint. Sharing and displaying this poster would be a good way to remind oneself and others that listening is a choice (and how to make that choice). Listen Like a Lawyer’s Twitter feed will share more information leading up to Thursday, but the best source is the website itself and International Listening Association’s email list. Check out what they are doing and join as a member or affiliate if you’d like to get their updates as an ongoing reminder and resource about listening.

Of course, you don’t have to be a member of that association to observe the International Day of Listening.

And it bears noting that this Thursday, September 21, 2017, also falls upon Rosh Hashanah. A friend and colleague, Rabbi (and Professor) Mark Goldfeder, suggested potentially reflecting upon Moses’ command “Shema Yisrael.” The word “Shema” may be translated not just as “Hear!” but can also be explored in the sense of “Listen!” Professor Goldfeder quoted a beautiful sermon from Rabbi Helen Cohn:

It is a great gift to be able to listen to another person in a way that gives relief and comfort and a sense of worth.  Being able to listen is one of the most generous and kind things we can do for another person.  And it’s an ability we all have.  We just need a few tools and a reminder, in order to do it well.

Here’s a post about last year’s first annual International Day of Listening. 

AdvocacyClinical legal educationLegal skillsLitigationTrial advocacy

New book: Litigation in Practice by Judge Curtis E. A. Karnow

What does a veteran trial judge have to say about . . . everything trial related? On my summer reading list was Litigation in Practice by Judge Curtis E. A. Karnow of the San Francisco Superior Court. It has some of the obvious—be nice to court staff; how to introduce documents into evidence—but also delves deeper into complex litigation, statistical evidence, expert witnesses, and the strategy of timing settlement.

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The book doesn’t directly address listening at trial. But it indirectly touches on listening by criticizing lawyers who interrupt the witness or use “body language such as a raised hand.” Judge Karnow advises lawyers to ask the judge for help directing the witness to answer. He points out that “[y]our questions, too, might be part of the problem, in inviting a meandering, narrative response.” And that leads to my favorite section of the book: “Bad Questions.”

I thought the section on bad questions would be good for this blog because I know I’ve heard many of these questions used repeatedly in depositions and at trial. In fact, one of the questions on Judge Karnow’s list was described to me by a senior trial lawyer as his favorite question.

So I’m interested in blog readers’ reactions to whether they agree these are bad questions. or perhaps just in California where Judge Karnow sits. What are other bad questions you’ve heard lawyers try?

“Is it possible that . . . .” Unless the matter is a logical impossibility (is it possible that 2+2=8?) or a factual impossibility (is it possible you saw a unicorn?) the answer to this question is always “yes.” Anything is possible. Accordingly the question is pointless . . .

“Didn’t you testify that . . . .” This is often a squabble about wording. I assume the jury has been paying attention, and testimony on what a witness has testified about poses the risk of a dangerous infinite regress. Find another way to impeach. . . .

“You heard witness X say . . . (or, “Assume witness X said . . . .) . . . are you calling X a liar?” This is either rhetorical flourish, argument to the jury, calls for speculation, or all of the above.

“Would you be surprised to know . . . .” or “Would it surprise you to learn that . . . .” Nobody cares if the witness is surprisable or not. The question obviously is designed to get a fact in front of the jury whose source is the lawyer, not the witness.”

“Is it fair to say that . . . .” What would it mean if the answer were yes? Or no? Fair to whom, exactly? . . .

Judge Karnow also says that “[a]ny question longer than fifteen words” is a bad question.

For cross examination, he agrees with the “common wisdom” of asking short, focused questions that avoid double negatives. His introduction to the whole section on bad questions serves as a conclusion here: “While most of these are ultimately harmless, they confuse the issues and are a waste of time.”

My question to readers is: Do you agree with Judge Karnow that these are bad questions at trial? Have you used these questions with success? Do you have ideas for better questions that do work across contexts?