Month: February 2018

“I hear you”

Jennifer RomigLeave a comment

“I hear you.”

Those words can be powerful. They can also be scripted.

At his listening session with survivors of mass shootings at schools and families of victims, President Trump was photographed holding a notecard with five points. They included questions such as “What would you most want me to know about your experience?” The last line, point number five, was “I hear you.”

Trump was derided by some for having to script out basic empathy. Was he actually listening?

There are multiple levels of listening. In their textbook on listening, Margaret Fitch-Hauser and Debra Worthington cite literature on workplace conflicts that identify six levels of listening:

  • Passive listening. This is “marginal listening” while sitting quietly while someone talks. “We are aware that the other person is talking, but we don’t expend enough energy to truly comprehend what the individual is saying.”
  • Responsive listening. This means “making acknowledgements, either verbal or nonverbal, that we are listening.” Responsive listening “has the potential to damage a relationship because we remain disengaged as a communicator but send the false message that we are paying attention and listening.” Responsive listening relies on established social schema (basically scripts, in this context) such as “How are you? Fine, thank you. And you? Fine thanks.”
  • Selective listening. This means engaging the brain and listening, but for “only things that support what we believe, think, or endorse.” Fitch-Hauser and Worthington call it “listening with an agenda.” Doing this too much leads others to resent the selective listener for having a lack of awareness.
  • Attentive listening. This is a form of selective listening because it does have an agenda—for example, a doctor or lawyer interviewing a patient or client. But the listener uses “probing and inquisitiveness” and “evaluative questions that guide the responses of the other person.” Still, this form of listening is about the listener’s agenda, not the speaker’s needs to be heard.
  • Active listening. This uses all of one’s listening capability and “total sensory” engagement to pay attention to verbal and visual cues: “we listen to the paralinguistic aspects of the message, we focus on the facial expressions and the body language, and we listen to the patterns of silence.” Active listening also means giving “reflective responses that provide feedback to the other party” demonstrating understanding and encouraging them to continue. Active listening requires accepting that the other person has feelings and ideas, although it does not require accepting that their feelings and ideas are justified.
  • Empathetic listening. This means “listening with the intent to accept and understand the other person’s frame of reference.” Empathetic listeners “suspend [their] personal reality and immerse themselves in the other person’s reality.” The purpose is not to gather information but to understand and accept the other person’s feelings.

The words “I hear you” could be used at several of these different levels. They may be a rote script, i.e. just responsive listening. They may be a placeholder for selective listening: “I hear you. But . . .” They may be a tool for the attentive listener to hasten the speaker and move on with the agenda of questions. Or the words “I hear you” may be part of a more complete response with active, empathetic listening. “I hear you. You just went through the worst experience of your life and lost your best friend. And you want to do something about this so it never happens again.”

So I think the problem with the notes containing “I hear you” is actually not that the president prepared substantive questions or was reminded to use listening cues. At least one person agrees with me, I discovered when searching for reactions to this photo:

Revealing that list of listening cues is the bigger problem and impediment to meaningful sharing. Being a good listener means managing your listening behaviors to establish your sincere intent.

But revealing a list of cues containing the words “I hear you” means any authentic utterance of “I hear you” would look inauthentic. The very visibility of the notes to others means the notes shouldn’t be used. At least not as to the overall generic reaction language of “I hear you.”

Revealing the cues could silently shape the dialogue by discouraging those who were considering sharing something, but spied the notes. Scripted responsive listening may damage a relationship, as Fitch-Hauser and Worthington point out. Seeing “I hear you” in someone’s pre-prepared notes could reasonably be interpreted to mean the listener will represent that listening has occurred, regardless of whether it actually has. And what’s the point of sharing with a listener on autopilot?

Using notes is not a bad thing. But notes—whether jotted on a 3×5 card, tapped out on a phone screen, or outlined on White House card stock—are a tangible part of the listener’s overall effectiveness. The notes should be held and managed with care to promote listening, not to distract and possibly stifle it.

 

 

Supporting those who failed the bar

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It’s so difficult to balance empathy with advice. This post from Joe Regalia in the ABA Before the Bar Blog achieves that balance in addressing a very sensitive subject: life after failing the bar exam.

Joe acknowledges that the community of those who have failed the bar is something of a “secret society,” one that you can’t really understand unless you’re a member:

We need to have more respect for the toll failing a bar has on real lives. This is not just getting a bad grade. These people need our support.

Joe goes on to deliver a hopeful message—hopeful in the sense he compares failing the bar to getting a horrible flu but, eventually, recovering. And he describes some constructive advice for exactly how to do that.

This post came to my attention when Joe shared the reaction he’s gotten from the post. I’ll end here with Joe’s own observations:

The response to this article has been incredible this last year. It’s short and nothing special in the writing department. But I get a staggering number of emails from folks who stumble on it and ask to talk. Just this week I’ve chatted with three random people who wanted to talk about their experience.

I’m always struck by these conversations. I don’t do anything magical. I just listen and encourage. Tell them that all kinds of people have been where they are and give them a few practical tips for doing better.

But it always seems to help. For many of them, I think it’s just knowing that others have experienced this and that there is light at the end of the tunnel. Like many things in life, just having someone to listen goes a long way.

Joe-Regalia Joe Regalia clerked for several years in federal district courts and at the U.S. Court of Appeals for the Ninth Circuit. These days he keeps his plate full as an adjunct law professor, an associate at the firm of Sidley Austin, and a frequent speaker and consultant on legal writing and legal test-taking.

 

 

 

 

Ready to listen

Jennifer RomigLeave a comment

How can I be an ally? How can I let people know I’m really ready to listen?

At the Georgia Association for Women Lawyers’ CLE on women in leadership held today at the State Bar of Georgia, several participants shared their desire to help and to listen. Discussions around #MeToo are bringing out stories suppressed sometimes for decades, stories often peeled back to more layers of race and class. Although there are no easy answers, many agreed on the value of listening. What can we do? One thing is we can listen, actively, to one another’s stories.

Then a question was raised: what if you’re ready to listen but others aren’t sharing?  “I do want to listen, I am ready to hear. But sometimes I feel people aren’t willing to speak. Maybe they think I won’t understand, or they put up a defensive barrier. How can I prove I really want to listen?”

Listening is such a gift. But—as someone pointed out from the audience—showing up to listen does not obligate others to share their stories. Receptive body language and an open heart does not guarantee others will reciprocate by speaking. Nor should it. If listening is a gift, it must be given without expectation of repayment.

At a different CLE last summer, through the International Listening Association’s annual convention, I co-presented a CLE on “Better Listening for Better Lawyering.” One of the most popular parts of the CLE, according to the feedback, was discussion of the “Preparing to Listen” checklist. People—especially task-driven, problem-solving, professional people like lawyers—just love checklists. You have a focus, broken down into small parts. You can check off the boxes. If you do everything on that checklist, you’re prepared to listen. Right?

That checklist is great, and many people are failing miserably at doing half the tasks it lists. Atul Gawande popularized checklists as a lifesaving measure in surgical units, citing evidence they work because they catch “the dumb stuff.” In the world of listening, “dumb stuff” means looking at your phone or starting a conversation by telling someone they don’t look like a lawyer—another story shared at the GAWL session today.

But today’s conversation also revealed, yet again, that listening is more than checking off boxes. Avoiding the “dumb stuff” is not quite the path to the authentic, vulnerable speaking and listening.

Panelist Gwendolyn Keyes Fleming offered a response that transcends checklists and neat reciprocal obligations: Readiness to listen means being there. It means finding “small points of common interest” with the people around you. It means putting in the work “day by day.”

Someone chimed in that change comes from individual relationships, not the top down. I’m not sure I agree with giving up on top-down measures. But I agree change won’t happen without the relationships—the kind that are built through small, incremental, meaningful gifts of attention and recognition. And perhaps, when the moment is right, speaking and listening.

 

How Should Judges Listen to Victim Impact Statements?

Jennifer Romig1 Comment

Many thanks to Rhani M. Lott of Emory Law School for this guest post.

“I do want to thank you, first, Judge Aquilina, for giving all of us the chance to reclaim our voices. Our voices were taken from us for so long, and I’m grateful beyond what I can express that you have given us the chance to restore them.”

Victim Impact Statement of Rachael Denhollander

In “In Defense of Victim Impact Statements,” Professor Paul G. Cassal identifies four main justifications for victim impact statements:

First, they provide information to the sentencing judge or jury about the true harm  of  the  crime—information  that  the  sentencer  can  use  to  craft  an  appropriate  penalty.  Second, they may have therapeutic aspects, helping crime victims recover from crimes committed against them.  Third, they help to educate the defendant about the full consequences of his crime, perhaps leading to greater acceptance of responsibility and rehabilitation.  And finally, they create a perception of fairness at sentencing, by ensuring that all relevant parties—the State, the defendant, and the victim—are heard.

In light of the Nassar trial, I have been thinking a lot about how a judge should handle victim impact statements.  I’m not alone.  My social media feeds are full of lawyers celebrating and excoriating Judge Aquilina.  One career public defender had this to say:  “Grandstanding on a grand stage, let’s not forget that a judge’s role is to administer justice, not advocate for one side or the other.”  Another friend, a family law attorney, wrote, “[t]he way that Judge Rosemarie Aquilina handled the survivors in this case brings me hope for our justice system.”

HeadshotAt its heart, I think this is a conversation about how we think the judge should “listen” to victim impact statements.  In turn, how we want the judge to listen depends on how we prioritize the purposes of victim impact statements.

If we are chiefly concerned with victim impact statement’s utility in providing information that the sentencer “can use to craft an appropriate penalty,” then we want the judge to be listening to learn.  We will be disappointed if there does not appear to be a correlation between the statement and the sentence.  Santa Clara County Judge Aaron Persky finds himself facing a recall election at least in part because of his failure to listen and heed the pleas in a victim impact statement that attracted national attention in the Stanford rape case.

If we believe the “perception of fairness” is paramount, then we might think the judge should listen attentively but not engage with the victims.  For example, Rachel Marshall criticizes Judge Aquilina for the way she “talked to victims as though she were their confidante . . .” Rachel Marshall, The Moment the Judge in the Larry Nassar Case Crossed a Line (January 25, 2018).  Ms. Marshall is worried about “future defendants who shouldn’t get sentenced harshly but may face judges too swayed by their own emotional reaction to victims . . .”  A former colleague I spoke with has the same concern about judge’s being “swayed by their emotional reaction,” but for a different reason.  She prosecutes crimes against women and children and has seen judges swayed by emotional pleas for leniency from domestic violence victims even when that leniency is not in the best interests of justice or the victim.

If we believe that “help[ing] to educate the defendant about the full consequences of his crime” is an essential aspect of victim impact statements, then we may expect the judge to be unobtrusive.  If the defendant is the primary audience for the statement, then it will be upsetting if the statement becomes too much like a conversation between judge and victim.  We may also find it inappropriate if the judge’s commentary doesn’t leave room for “acceptance of responsibility and rehabilitation.”

Finally, if we highly value the therapeutic aspects of victim impact statements, then we might demand a judge engage in empathic and active listening.  We might appreciate someone who, like Judge Aquilina, “punctuate[s] each and every victim statement with some words of her own—a mix of praise, gratitude and support for the women who have come forward to address the court and, in many instances, Dr. Nassar himself, who has been a captive to it all from the witness box.”  Scott Cacciola, Victims in Larry Nassar Abuse Case Find a Fierce Advocate: The Judge (January 23, 2018).

Perhaps Judge Aquilina was not grandstanding; maybe she was just trying to maximize the therapeutic aspects of the process.  That doesn’t make her actions right or wrong, but considering it might help us understand why she “listened” as she did.