Month: September 2018

Today is the International Day of Listening

Jennifer Romig1 Comment

Today, September 20, 2018, is the International Day of Listening. This event, now in its third year and sponsored by the International Listening Association, aims to promote listening benefits and practices in a variety of ways, encouraging people to:

  • Become more aware of the importance of listening
  • Listen to each other better
  • Gain awareness on their listening behaviors

The theme this year is “Listening—even when you disagree.” Personal activities you can do to observe the International Day of Listening are suggested on the International Day of Listening website. Legal professionals who have 30 minutes at lunch may want to talk to a trusted colleague about their effectiveness as a listener. Or take 20 minutes for a meditative listening walk.

The International Day of Listening has broader aspirations than helping lawyers recharge their batteries by listening to nature, collaborate effectively in the workplace, and do an excellent job representing individual clients—although all of these are excellent goals and high on the priority list for this blog. The International Listening Association’s broader aims with political dialogue raise far more difficult questions about listening and power. Part of a lawyer’s job is to listen effectively in difficult situations. All professionals in the legal industry should have experience listening in difficult situations. Ideally, these skills from the professional realm can serve beneficial purposes in public discourse.

How do clients choose what to do?

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Getting into the minds of litigants is no easy task. Few lawyers or lawyers-to-be receive any systematic instruction regarding the psychology of clients. Indeed, although lawyers interact with litigants extensively—often about sensitive matters with serious implications— lawyers frequently have little knowledge about what motivates litigants’ decisions about their cases, in part because there is a dearth of empirical research on litigants’ thought processes. Although polls and survey studies attempt to discover how lawyers think, civil litigants are seldom the direct subjects of similar inquiries (citations omitted).

This is from an interesting new paper, Inside the Mind of the Client: An Analysis of Litigants’ Decision Criteria for Choosing Procedures by Donna Shestowsky of UC Davis To help fill this gap, she conducted a longitudinal study about litigants themselves and how they chose procedures in their cases. How did litigants decide whether to mediate, arbitrate, or go to trial? Shestowsky surveyed litigants in California, Oregon, and Utah, all of which have some sort of ADR offered as part of the civil litigation process.

Unsurprisingly, she found that cost is a stable factor before and after, but her study goes much deeper. Here is the article abstract (unfortunately the whole article is behind a Wiley paywall):

This article presents findings from the first longitudinal study to ask civil litigants prospectively what criteria they plan to consider when selecting legal procedures and then retroactively assess the criteria used to make those decisions. The most commonly referenced ex ante criteria are lawyer’s advice, cost, and time. The retrospective reasons also include these factors, but the list is narrower and more practical. Litigants who initially listed a desire to reduce costs or follow their lawyers’ advice were later significantly more likely to report using procedures for these reasons, suggesting the stability of these criteria. However, the same stability did not manifest for other criteria. Implications for improving protocols for counseling litigants about procedure are discussed

She found that litigants considered a wide variety of factors before deciding on procedure, but afterwards in explaining their choices, they were much more prone to rely on practical considerations and highly constrained choices. This finding reinforces earlier findings that “litigants sometimes expect more from the legal system than it can ultimately deliver.” (Here she is referring to Tamara Relis, It’s Not About the Money!: A Theory on Misconceptions of Plaintiffs’ Litigation Aims, 68 U. Pitt. L. Rev. 701 (2007).)

One major factor throughout the process for represented litigants was attorney influence. Shestowsky’s deeper dive into litigants’ own preferences and choices led her to reinforce the value of open-ended conversations with clients:

Given the extent to which litigants are predisposed to following their lawyers’ advice about which procedures to use, lawyers should attempt to understand their clients’ interests, values, and objectives before sharing their personal evaluations of procedures to avoid imposing their own views. When values differ, lawyers should not interfere with the client’s prerogative to work within her own values framework.

Hat tip to John Lande at the Indisputably blog on dispute resolution for sharing this interesting article. As John pointed out, lawyers don’t always know what their clients are thinking, and this study helps to address the disparity:

Donna’s research is particularly important because we know that litigants often have systematically different perspectives than their lawyers.  It’s much harder to study litigants than lawyers and it is easy to assume, incorrectly, that lawyers’ responses in studies accurately reflect their clients’ perspectives.

Listening in a law-school class

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The fall semester has been in session now for two to three weeks. New law students have immersed themselves in class, with 40-50 hours of class logged at this point. It’s the perfect time for new law students to evaluate and adjust their own listening and note-taking during class. Enough time has gone by and enough notes taken that this evaluation will be meaningful, but there is still tons of time left, so any adjustments could make a real positive difference moving forward.

Figuring out how to evaluate your own listening is an abstract and difficult task especially in an unfamiliar academic environment with large classes and assessments few and far between. Actually on that note, law schools have been ordered by the ABA to do more “formative assessment,” meaning assessment before the final exam so that students can monitor their progress, understand how they are doing, and make adjustments. Formative assessments such as a midterm or paper won’t explicitly mention or measure listening, but they can be an important indirect clue about listening skillfulness. Students should be proactive in preparing for formative assessments and should actively seek feedback on their results.

Even before any formative assessment such as a midterm, a new law student can reflect on the classroom experience and make adjustments. One way to give some shape to these reflections is by considering what veterans and experts say. That is why, earlier this summer, I reached out to lawyers and law professors, asking for suggestions on effective listening in class. Suggestions by lawyers on what worked for them can be found in an earlier post here. This post focuses on advice from law professors themselves. What do law profs say students should listen for, in the law-school classroom?

Note, as usual, I tried to delete the “parent tweet” of me prompting the question and as usual my efforts failed. Focus on the responses, not the irritating repetition of my prompt.

 

Please note that another good way to evaluate your own listening is to talk with a academic-support expert. Here’s an earlier post, “Listening 101 for Law Students,” featuring that and more general advice on listening in the law-school classroom.

See also my guest post on The Girl’s Guide to Law School about a unique note-taking method that worked for me personally. I call it the #professorsays method.