All posts by Jennifer Romig

Jennifer teaches writing, research, and advocacy at Emory Law School. She tweets at @ListenLikeaLwyr and @JenniferMRomig.

CollaborationCross-cultural communicationDiversityEmotional intelligencemindfulness

Today is the International Day of Listening

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.

Client relationshipsDispute resolution

How do clients choose what to do?

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.

Academic SupportLaw schoolLaw school prepLegal education

Listening in a law-school class

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.

AdvocacyLaw school skills competitionsLegal educationLegal skillsMoot Court

Moot court judging—once more unto the breach

Moot court student leaders and faculty advisors are now registering for 2018-2019 competitions. One factor in choosing a competition is the quality of volunteer judges at the competition. As anyone passingly familiar with moot court knows, most of the moot court judging is done not by actual judges but by attorneys volunteering to play the role of judges. Moot court is a massive annual undertaking in legal education, with approximately 75 competitions listed on LSU’s catalog of moot court opportunities nationwide. If each competition uses 20 volunteers (a conservative estimate) and if each attorney judges at only one competition, that’s 1500 attorney volunteers annually. And that figure does not include the many internal competitions at various law schools also utilizing attorney volunteers. It also does not include the many volunteers at mock trial competitions, ADR, and other litigation-skills competitions. This post is relevant to those as well—it’s relevant to any skills competition that uses attorney volunteers to play a role during the competition, score the competition, and give feedback to law students.

These attorneys are crucial to making moot court broadly available so students can demonstrate and use their advocacy skills in a (simulated) high-stakes environment. These attorneys also have tremendous influence over the quality of competitors’ experience. The volunteer attorney judges must ask questions, evaluate answers and transitions, and give scores that determine which teams progress to the next rounds. The volunteer attorney judges also are often given the opportunity to address the competitors and share some brief commentary and advice. Moot court is “moot,” but advocating for a client before strangers, accepting feedback with aplomb, and firing up to “go again” in another competition round on short notice does help prepare students for high-stakes experiences in practice.

On all of the volunteer attorney judges’ objectives—educationally valuable questions, fair scoring, and wise feedback—their performance can vary widely. When they ask judge-like questions, score fairly, and give useful, constructive commentary, moot court succeeds. But when they badger or dominate a round, give superficial, inconsistent, or unfair scores, or share unhelpful or unnecessarily damaging comments to competitors, moot court fails.

After hearing positive and negative stories along these lines shared by other faculty advisors, I invited contributions about moot court judging. The questions contributors could choose from included the following ideas:

  • What are some of the best experiences you’ve had with attorney judges at moot court competitions?
  • What can attorneys do to prepare for judging to make it an excellent educational experience for students and helps the attorneys share uniquely valuable advice and feedback with students?
  • What are some of the worst experiences you’ve had with attorney judges at moot court competitions?
  • How do you distinguish between critical feedback and scores that are poor but fair, and inappropriate feedback and unfair scores?
  • What can competitions do to prepare their attorney judges and minimize bad experiences for students?
  • Have you ever pulled your law school out of a competition because of inappropriate judging or other problems with a competition?
  • How do you prepare students to handle any type of attorney feedback they may receive?
  • Some attorneys argue that harsh words and even harassment are part of legal culture, so moot court can help students by preparing them for that too. What are your thoughts on that stance?
  • When moot court is done right, what does it offer students and attorney judges who are willing to volunteer?

In response to the call, this compilation features three contributions: Patrick Long of Buffalo, Susie Salmon of Arizona, and Barbara Gotthelf of Rutgers. Thanks to each contributor.

PLONGBy Patrick Long 

Legal Analysis, Writing and Research Program Coordinator and Lecturer, and Director of Moot Courts, University at Buffalo School of Law

Q: What makes a good—and a bad—volunteer moot court judge?

We tend not to hear about the good experiences with judging. Few people talk to us as directors when arguments go well, judges are engaged, and there’s enough coffee. So as directors, no news is really good news. As a result, my most vivid experiences are all bad ones. I know: we need to be thankful for our volunteer judges. CLE is not much payment for the work a good judge does, and we simply could not do moot courts without their help. Nonetheless, there can be some real stinkers. The bad judges fall into two broad categories: lousy humans and lousy teachers.

In the lousy human camp are these judges:

  1. The judge who told a student with mild cerebral palsy and a slight stutter that “because of your speech impediment, litigation is probably not a great fit for you.”
  2. The judge who complimented an Asian-American student on how well she knew English.
  3. The judge who reads the bench brief for the first time when he arrives at the competition.
  4. Any judge who says “I know the dean …”

In the lousy teacher camp are those lawyers who have forgotten what it means to be a student, or to be responsible to educate students. They expect 2L’s and 3L’s to match their own (self-inflated) knowledge of law and procedure, and they expect problems that present near-actual legal issues and facts. These judges are incapable of inspiring students about the profession, or teaching them what they need to know. They also refuse to understand that those who write the problems need to find two issues, on interesting legal topics, that are not factually on point exactly with cases pending (because students will just download the briefs from Westlaw):

  1. The judge who disagreed with a student’s version of the facts because she had not read the record or the bench brief. Then castigated the student for the ridiculous problem “that could never happen in real life” after the student showed her the fact pattern. At lunch, she spent 20 minutes complaining to me about the idiot who wrote the problem, not aware that it was me. That evening, that’s team coach told me in all the years he had been coaching moot courts, he had never seen so lousy a judge, and he was convinced she intentionally tanked his team’s score because of her own failure to read the record.
  2. The judge who tells war stories about his own fabled career for 25 minutes in the feedback portion, ruining the entire day’s schedule, and ignoring the students entirely.

There are those rare angels, however, who really make me proud to be a lawyer:

  1. The judge who actually reads all the cases cited in the bench brief.
  2. The judge who tells you she enjoyed the problem.
  3. The judge who says for an extra round because you are thin on volunteers.
  4. The (actual sitting) judge who told the competitor who crashed and burned how poorly she did in her first argument in court, and how she thought about quitting the DA’s office.
  5. Your former student who comes back to judge, because she knows how much she learned from the experience, and because she knows it’s part of her duty as an attorney to give back to the profession.

These angels make it worthwhile, but they seem more and more rare these days.

 

salmon_susanBy Susie Salmon

Director of Legal Writing and Clinical Professor of Law, The University of Arizona James E. Rogers College of Law

Q: Some attorneys argue that harsh words and even harassment are part of legal culture, so moot court can help students by preparing them for that too. What are your thoughts on that stance?

I think that attitude is at best misguided and at worst disingenuous. How do we create a culture of civility and respect in the legal profession if members of the profession model this type of incivility and disrespect (and frequently seem to be having so much fun doing it) at moot-court competitions? And, honestly, I’d give that justification more credence if the attorneys who misbehaved while in role then told the students in feedback that their misbehavior—while not unheard of in the profession—should nonetheless be unacceptable. I strongly favor moot-court judges who hold advocates to account, force advocates to use law and fact to support their arguments, chastise advocates for making false statements of misrepresentations, and prevent advocates from evading difficult questions.

But I do not support moot-court judges modeling unprofessional, uncivil, or disrespectful behavior just because some real-world judges and attorneys will behave poorly.

Should we sexually harass students during moot court just because Kozinski existed? Should we make bigoted statements because students might be subjected to such behavior in the real world? No. Of course not.

We prepare students for those unpleasant realities—without perpetuating them—by discussing real-world examples and how to handle them, not by modeling that poor behavior ourselves.

Q:  What can attorneys do to prepare for judging to make it an excellent educational experience for students and help the attorneys share uniquely valuable advice and feedback with students?

Nothing devalues the moot-court experience for the students like unprepared or underprepared attorney judges. Unprepared judges cannot accurately assess the substance of a student’s argument and thus will reward superficial polish and bluster over truly proficient persuasion. Read the bench memo thoroughly and make sure you understand the legal principles and crucial facts. If you have time, read some of the key cases. Discuss the law and facts with your fellow judges, if possible, and ask clarifying questions as necessary. If the problem presents an area of law with which you are entirely unfamiliar, consider browsing a treatise or two. Try as much as possible to prepare as you would if you actually had to decide the issue.

Q: What can competitions do to prepare their attorney judges and minimize bad experiences for students?

Competitions can help by making it as easy as possible for judges to be well prepared for argument. Look: I know it’s often hard to recruit judges, and there is only so much a competition can do to control what busy volunteers do to prepare.

But competitions can make it easier, more fun, and more convenient for judges to be prepared. Many competitions—including our internal competitions at Arizona Law—provide not only thorough, well-organized written bench memos and judging guidelines but also instructional videos that include an overview of the key legal and factual issues and some tips on judging and scoring.

With the proliferation of online education, most educational institutions have access to the technology that will help you make the material accessible to judges in a mode and at a time that’s most convenient for them. Explore whether the jurisdiction allows you to offer CLE credit to attorneys who review the prep materials (maybe even create a quiz to make sure people have digested the key information); attorneys always need CLE credit!

When you create the problem, resist making the legal issues so complex and convoluted that lawyers of ordinary intelligence will struggle to get up to speed; the students will work hard to understand those issues and develop sophisticated arguments, and few things are quite so demoralizing to a moot-court advocate as having an ill-prepared judge favor your opponent’s slick but flawed retort over your nuanced, thoughtful, accurate argument.

And I love it when competitions give coaches comment cards to make it easier to share feedback on the competition, including judging issues. I provide many more suggestions in my article, Reconstructing the Voice of Authority, which came out in Akron Law Review in fall of 2018, but those would be my top tips.

Gotthelf-Barbara-photoBy Barbara Gotthelf

Professor of Professional Practice of Law and Director of Externship Programs, Rutgers Law 

Q:  How do you prepare students for comments from moot court judges that focus on superficial issues?

I’ve stopped calling our program at Rutgers “Hunter Moot Court.” Instead, I call it “Hunter Appellate Advocacy” because I want it to be seen—by students, faculty, and guest judges — as an educationally focused simulation course rather than a public speaking contest.

Hunter Moot Court, named for the late Third Circuit Judge James Hunter III, is a year-long, five credit course in which students brief the case in the fall and argue it in the spring—more or less the way it happens in real life, which is the point. The course is designed to approximate actual practice as much as possible. That goal—making it as real as possible—governs how we approach the judging of the arguments.

This is what I tell my students. From their perspective as advocates, the purpose of oral argument is to persuade the court by narrowing the issues; answering the court’s questions, rebutting arguments; and explaining in simple, concrete terms, how and why they should win. From the court’s perspective, oral argument is a chance to clarify, to probe, to challenge, and to resolve any issues that stand in the way of reaching a decision.

I also tell my students this: None of this has much to do with their oratory prowess.

As Justice White once commented, judges view lawyers as resources, not as orators. As long as the lawyer can be heard and understood, I honestly don’t believe the court cares one bit whether the lawyer appears nervous or pauses to gather her thoughts.

Judges do care, and care a lot, if the lawyer is prepared; if she is respectful; and, most of all, if she answers the court’s questions, fully and directly. I tell my guest judges this as well, and I ask them to evaluate the arguments from the perspective of an actual judge hearing a real argument, focusing on what truly matters to someone who must render a decision in a real case involving real litigants.

And then I warn my students that no matter how well we try to prepare the lawyers who will judge their arguments, some of them are still likely to give feedback on things like inflection, use of verbal fillers, dramatic flair, and rhetorical wizardry.  Worse yet, I tell them that at least one student—probably a woman—will be told to smile more, and another—probably a man—will be told to “come out swinging” on rebuttal. This is the cyclical curse of moot court. As law students, these are the criteria many of us were judged by, especially those of us who went to law school before much thought was given to what “practice ready” means.

The lawyer/judges don’t always get this. But the students do. By the time we get to the argument phase in March, they have lived and breathed the case for six months, and frankly they don’t want to be told to smile more. Because we’ve discussed this, they are able to filter out the superficial comments and focus on the substantive feedback.  This is one of many reasons I always invite Hunter alums to judge the arguments.

__

Thanks again to the guest contributors above. For more information on moot court judging, see Barbara Kritchevsky’s law-review article Judging: The Missing Piece of the Moot Court Puzzle, reprinted in the Legal Writing Institute’s Monograph Series, Volume Six on Moot Court and Oral Advocacy. (Full disclosure: I was editor-in-chief of that volume.)

And good luck to every student competing in moot court and other skills competitions this year. You are making yourselves into stronger and more skillful future lawyers by all your work!

 

Client relationshipsCollaborationLegal communicationLitigationPeople skills

Repeat listening

This Thursday, I will be pleased to moderate a panel on productive communication between insurance adjusters and insurance defense counsel. Attorney Jeremy Richter of Webster Henry and claims adjuster Nikki DeWitt of Carolina Casualty Insurance Company will be the panelists at the event sponsored by the CLM’s Alabama chapter.

Our discussion will focus on how attorneys and claims adjusters can use listening and other communication skills to work together efficiently and effectively. Many of these assignments involve repeat players on both the adjuster and attorney side. What I’m most interested in hearing from Nikki and Jeremy is steps they recommend for establishing solid communication early, and maintaining effective communication in later cases. Effective listening is a major part of both goals, and Jeremy and Nikki will share their observations and some examples of how they use listening skills. This conversation will be customized to the claims adjuster-attorney relationship, but I expect some broadly applicable points as well.

Registration is open to CLM members and fellows here. I will follow up here on the blog after the panel.

 

Client relationshipsClinical legal educationCollaborationEmotional intelligenceInterviews

Review of Alan Alda’s If I Understood You

ralph_anneThanks to Anne Ralph, Clinical Professor of Law at the Ohio State University, Michael E. Moritz College of Law, for this guest post reviewing Alan Alda’s new book on listening, If I Understood You, Would I Have This Look on My Face? 

Any lawyer who’s misunderstood (or been misunderstood by) a client, opposing counsel, or judge knows that failed communication can thwart even the best legal knowledge and skills. In If I Understood You, Would I Have This Look on My Face?: My Adventures in the Art and Science of Relating and Communicating, Alan Alda makes the case for an intentional focus on effective communication by highlighting the very real costs of failed communication: “[D]isengagement from the person we hope will understand us” [xvi]. This disengagement can “stand in the way of all kinds of happiness and success” [xvi], including, I think Alda would agree, success in the practice of law.

In Alda’s book, lawyers will find useful insights related to listening. Granted, most of Alda’s case studies and anecdotes center on how scientists communicate their knowledge—which makes sense given that Alda hosted the TV series Scientific American Frontiers for eleven years and founded the Alan Alda Center for Communicating Science at Stony Brook University. But Alda’s friendly writing voice and skill at sharing complex concepts in simple, memorable terms make the book valuable for anyone interested in improving their communication skills.

The book maps Alda’s own personal journey to improve his communication. Alda describes his communication “blunders” when he began hosting Scientific American Frontiers: He assumed he knew more than he actually did, which offended a scientist he was interviewing; he repeatedly ignored the scientist’s obvious body language showing discomfort; and finally, as he barreled along through an interview, he asked a set script of questions instead of questions that grew out of what the scientist was sharing. In short, Alda writes, “I wasn’t really listening to him” [6]. In this list of blunders, lawyers might recognize their own experiences with awkward client interviews, ineffective depositions, or unsuccessful negotiations with opposing counsel.

Alda, a prolific actor and director whose deep insights into human nature are apparent on every page, was disappointed with himself for being so disconnected in the interview. Alda’s acting experience, including his improv training, had taught him to connect to other actors in a deep and immediate sense, creating spontaneous responses between people. As a result, he had expected himself to be naturally better at listening and reacting to his interview partner.

Thus began his quest to better understand the science of communicating–or, as Alda puts it, borrowing a term from director Mike Nichols: “relating.” Relating, as Alda defines it, means “observing” another person with such awareness that “everything about them affect[s] you: not just their words, but also their tone of voice, their body language, even subtle things like where they’re standing in the room or how they occupy a chair” [10].

When Alda consciously used his improv training in his conversations with scientists, he found his way to “responsive listening,” the key first step in relating and a concept that roughly translates to being open to being changed by the other person in the conversation.

The willingness to be changed required him to use both his natural curiosity and an awareness of his own ignorance. It turned out that conversations were hampered when Alda made assumptions about the scientists’ work based on his own limited knowledge—those assumptions led him to ask limiting questions, which reduced the value of the information the scientists provided. But when Alda engaged in the kind of responsive listening that his improv work prepared him to do, the effect was contagious, leading the scientists to become more responsive as well. Alda described it as being “drawn into a kind of dance”[12]: Responsive listening made conversations dynamic because both participants in the conversation were constantly attuned to each other, instead of just waiting for each other to finish talking.

Naturally, Alda wondered if he had stumbled onto something big: would improv training help scientists better communicate complex concepts to the non-scientist world?

The answer is yes, as the rest of the book chronicles. Alda explores how people can develop their skill in relating, leading to better communication. As it turns out, both scientific studies of communication and his personal work with improv and acting bear out the idea that responsive listening is an essential building block in communicating anything to an audience.

For instance, Alda describes taking engineering students through of a series of improv exercises, which teach an ultimate lesson: “The person who’s communicating something is responsible for how well the other person follows him” [30]. In other words, true communication is inseparable from responsive listening and observing: “Communication doesn’t take place because you tell somebody something. It takes place when you observe them closely and track their ability to follow you” [17]. After these exercises, every engineering student’s delivery of a scientific talk improved. Again, Alda uses scientists and doctors in his stories, but the lessons can apply equally well to lawyers and clients or to lawyers and their other audiences.

For lawyers who want to better engage in responsive listening, this true connection that fosters communication, Alda identifies two key capacities:

  • empathy (which Alda describes as an emotional understanding of what the other person is feeling) and
  • Theory of Mind (which he describes as a rational understanding of what another person is thinking).

Both these capacities can be learned, and the book describes how teaching these skills to doctors leads to better outcomes for patients—and, interestingly, even to lower rates of medical malpractice lawsuits.

Because not everyone has access to the improv training or Theory-of-Mind courses the book describes, this blog’s readers might find Alda’s personal experiments at improving his empathy and theory of mind interesting and compelling. Alda participated in some small studies that aimed to increase empathy through practices he incorporated into his everyday life. For instance, he practiced reading the faces of people he encountered every day—from family members to passers-by on the street to cab drivers—trying to observe what they were feeling. He also practiced silently naming the emotions he observed. The results of these small studies suggest that these interventions have the intended effect of increasing empathy, and Alda invites readers to try these themselves. (In addition to describing how these exercises can improve one’s capacity for responsive listening, Alda also covers the role that increased empathy and awareness of Theory of Mind play in effective writing and in making a message memorable.)

I encourage lawyers to read the book—its friendly tone and use of stories makes the content memorable and accessible. Until you do read the book, consider the following as big takeaways for lawyers’ listening:

Listening is an essential part, a necessary precondition, of communicating well. Effective listening requires close attention to another person, thoughtful observation not only of words but of body language, withholding jumping to conclusions, and curiosity.

Thanks again to OSU’s Anne Ralph. She also writes about narrative as it is shaped (distorted?) by the rules of civil procedure. See more of Anne’s legal scholarship here: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1669761

 

 

Law schoolLaw school prepLegal educationPrelaw

Note-taking advice for law students

It’s that time of late summer when law-school boot camps and pre-orientation prep sessions start happening. I’ll be speaking about legal writing next week and note-taking skills the week after that.

For the note-taking session, I put out a call for help and got some really good responses. Here’s the call for help:

The responses covered lots of good points about note-taking. I’m re-organizing them here into a sort of chronological timeline: getting ready for class, listening in class, and reviewing after class. (Apologies for the repetition of the “parent tweet” asking for help; due to non-existent HTML skills, I can’t get rid of it despite checking the box to do so.)

Before the semester, decide on paper, highlighters, and other equipment.

Effective note-taking has elements of creativity to it, in how you capture the content of what you hear. You may want lined paper, plain paper, or paper organized for a certain note-taking strategy. Someone told me a story about their brilliant law-school classmate who took all her notes on mathematical graphing paper. The point is to prepare in advance with helpful equipment such as paper and pens that will help:

No one really talked about taking notes by laptop, which is a debate too large for this humble post. Extrapolating from the comments above, if you’re going to take notes on a laptop I would advise experimenting with apps that give you flexibility for formatting the page, using color, and otherwise doing more than just writing or typing.

Gain context before class.

The difficulty in listening to learn is that a learner, by definition, lacks the framework of an expert. (It’s sometimes called a schema.) Learners can help themselves build a rudimentary schema before class by preparing generally and specifically.

For general preparation, I was always taught to study the textbook’s table of contents. And there’s always the syllabus!

  1. Beyond the textbook and syllabus, the specific assigned reading itself may provide a framework for understanding what’s about to happen in class. This suggestion from Alex Klein shows the benefit of reading actively before class, rather than reading passively and waiting for class to clear everything up. (Hint: that’s wishful thinking in many cases.)

Listen carefully by focusing on key terms, on classmates’ contributions, and on what the professor says in expressing an opinion.

Is more always better—as in more notes, more accurately reproducing exactly what happened in the class session? #PracticeTuesday co-founder Rachel Gurvich shared a lesson learned from her law-school days:

A complete transcription is difficult and likely detracts from deeper learning while listening. But the difficulty—especially for new 1L students—is knowing what should and should not be transcribed. At first, it may be better to err on the side of transcription:

More experience in the law-school classroom should bring more discretion at what matters most. Experienced note-takers learn to recognize different categories of content as it comes out in class, such as factual distinctions and policy rationales:

Another note-taking skill in the law-school classroom is paying attention to the various perspectives offered, not just by the professor playing different sides of an issue but by classmates:

My own special twist on note-taking was to add a feature I called “professor says.” As I processed what the professor stated and asked, sometimes it would become apparent the professor was stepping out of a neutral role and taking a position on the topic. When he or she did that, I would label that moment in my notes with “Professor Says: ___” Keeping track of those moments helped me to match them up with my notes so I could be mindful of them while studying later. Here’s my guest blog post for The Girl’s Guide to Law School that expands on the “professor says” method.

Use visuals to indicate relationships and other ideas.

One less-than-effective way to take notes is uniformly and robotically writing out text from left to right on every page. A better approach is to practice active, flexible, graphical note-taking techniques:

Review and organize notes after class to prepare for outlining and final-exam prep.

Effective note-taking does not end the moment class ends. Putting those notes in a box until it’s time to study for finals is not the best advice. Rather, the advice is to use those notes sooner rather than later to review and consolidate growing knowledge:

These crowd-sourced suggestions struck me as a good starting place for 0Ls about to become 1Ls. Please feel free to share more note-taking techniques here in the comments or on social media at @ListenLikeaLwyr.

DiversityGenderInclusionNon-verbal communicationResilience

‘Nanette’ is good

What’s the difference between a joke and a story? Hannah Gadsby teaches the difference in her new stand-up special Nanette. She brings up a lot of stuff going on in current political discussions in a funny, painful, compelling performance. You will get more out of it by listening not just to the “content” she’s written and delivered—and believe it or not, she has a funny joke early on about the idea of “content” itself. You’ve also got to watch Gadsby’s non-verbal signals, the wry smiles and fleeting, then burning, eye contact as she builds to her point.

One theme running through the show is Gadsby’s stated intent to leave stand-up comedy. She unrolls the reasoning a bit at a time, moving toward her central thesis: she’s got to tell her story, and comedy doesn’t let her do that.

Why not?

What better way to tell one’s story than with humor—specifically, with jokes? They make people laugh; they make people think.

Self-deprecating jokes are causing more hurt and Gadsby states her intent not to use them anymore:

“You do understand what self -deprecation means from somebody who already exists in the margins? It’s not humility. It’s humiliation.”

That’s one of many lessons about listening tucked up in her performance. If you hear someone using self-deprecating humor, listen more closely. Listen with empathy. Why are they doing that?

But beyond the content of the joke, Gadsby says, it’s the joke itself that is the problem. A joke has a two-part structure: First, the tension. Then, the punch line that relieves tension.

That structure is missing the third part, the rest of the story. Sometimes the rest of the story is satisfying, like when she came out to her mother (producing much joke material) and later developed a great relationship with her (happy but not at all funny). And sometimes the rest of the story is really painful, such that a comedian must ignore and suppress it to get anything joke-worthy at all.

So listening for more than a joke is one thing to take away from Nanette. Listening for a joke is a way to squeeze pleasure for yourself as a listener. Some audience members seem to get even more pleasure out of judging the jokes and offering “feedback” and “opinions” to Gadsby after her shows.

But listening for a story uses your listening to help the other person share and connect. How exactly to show you, as a listener, want the story not the joke seems like it must be drawn from intuition and empathy. If your listening skills suggest that all you want or all you can handle is a joke, you’ll never get the full story.

Asking questions certainly seems like a good start. Gadsby talks a lot about the unsolicited feedback she receives, but nowhere in the performance does she recount anyone asking her a question. In a way, the whole performance constitutes an exclamation by someone who has never been asked an open question, but only placed without her consent into certain boxes and stereotypes.

I’m still processing everything I took away from Nanette, and now I get it why someone said they were going to watch the show several more times. It’s not a spoiler to share the denouement, a clip of Gadsby on a sofa with her teapot and teacup and two dogs. After the work that went into Nanette, she deserves a moment to recharge.


Here are some other reviews of Nanette that may be of interest:

https://www.npr.org/sections/monkeysee/2018/07/02/625298708/hannah-gadsbys-nanette-is-a-scorching-piece-on-comedy-and-trauma

Hannah Gadsby on the Real ‘Nanette’ and Whether She’s Really Quitting Comedy After Her Netflix Special

https://www.vox.com/culture/2018/7/5/17527478/hannah-gadsby-nanette-comedy

 

 

 

 

 

 

 

 

 

 

Clinical legal educationFact investigationLaw schoolLegal education

Law-school learning outcomes for communication

It’s that time of year when elementary and secondary students’ standardized test scores arrive in the mail. The scores should, ideally, correlate to the school’s stated learning outcomes. Elementary and secondary schools are veterans of the push for learning outcomes, and law schools are now required to determine their learning outcomes as well.

Specifically, the ABA requires law schools to develop and publish learning outcomes in a number of areas including written and oral communication:

A law school shall establish learning outcomes that shall, at a minimum, include competency in the following:

(a) Knowledge and understanding of substantive and procedural law;

(b) Legal analysis and reasoning, legal research, problem-solving, and written and oral communication in the legal context;

(c) Exercise of proper professional and ethical responsibilities to clients and the legal system; and

(d) Other professional skills needed for competent and ethical participation as a member of the legal profession.

Interpretation 302-1 For the purposes of Standard 302(d), other professional skills are determined by the law school and may include skills such as interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency, and self-evaluation.

Interpretation 302-2 A law school may also identify any additional learning outcomes pertinent to its program of legal education.

Thus, outcomes related to “written and oral communication” are mandatory. The law school must also set outcomes for “other professional skills needed for competent and ethical participation as a member of the legal profession.” But determining those other necessary skills stands within the law school’s discretion.

Posted learning outcomes on law school websites show a wide variation, reflecting different preferences in how general or specific outcomes should be. On the streamlined end, the University of Chicago Law School’s Learning Outcomes would fit on half a sheet of paper:

The Law School’s program of instruction is designed to train superb lawyers who will be leaders in all parts of the profession.  To that end, the Law School expects that all students by the time of graduation, will:

  1. Be familiar with the general approaches to the study of law and legal reasoning;
  2. Demonstrate the ability to identify and understand key concepts in substantive law, legal theory, and procedure;
  3. Have the ability to write a competent legal analysis;
  4. Demonstrate the ability to conduct legal research;
  5. Demonstrate communication skills, including oral advocacy;
  6. Demonstrate familiarity with the rules of professional ethics;
  7. Demonstrate professionalism consistent with the legal profession’s values and standards.

Does U. Chicago expect students to be able to listen effectively in a legal context? Item 7 lists oral advocacy—and only oral advocacy—as a specific example of expected communication skills. But standard statutory construction tells us that “including x” does not mean “meaning only x.” Other skills such as listening aren’t excluded, but also aren’t mentioned. U. Chicago’s learning outcomes suggest that oral advocacy holds a special although not exclusive place of honor among communication skills.

On the more specific end of the spectrum, Washburn Law School’s JD outcomes have categories with related goals. The communication category includes not just reading, writing, and speaking, but also listening:

3. Graduates will communicate effectively.

3.1 Students will write in a clear, concise, well-organized, professional manner that is appropriate to the audience and the circumstances.

3.2 Students will speak in a clear, concise, well-organized, professional manner that is appropriate to the audience and the circumstances.

3.3 Students will demonstrate active listening in communications with others, including legal professionals and laypersons.

Washburn Law also mentions fact investigation and interviewing as core legal practice skills:

4. Graduates will demonstrate competency in legal practice skills.

4.1. Students will demonstrate the ability to conduct legal research.

4.2. Students will demonstrate the ability to conduct a factual investigation.

4.3. Students will demonstrate the ability to interview and counsel a client.

4.4. Students will demonstrate the ability to negotiate and advocate on behalf of a client in appropriate circumstances.

4.5. Students will demonstrate the ability to draft documents used in legal practice.

Even more specifically, NYU Law School has published a detailed scheme of goals for its curriculum, including eight separate goals for its 1L lawyering class alone. Among those goals is interviewing, with several specific references to listening:

3. Interviewing

Effective interviewing of a client or fact witness or other individual requires familiarity with the following skills, concepts and processes:

(a)     Communication skills and processes:

(i)     Listening, and impediments to listening;

(ii)    Questioning:

(A)     Choices and effects of question formulation (open and closed questions, leading and non-leading questions, consecutive and non-consecutive questions, etc.);

(B)      Choices and effects of question sequence;

(C)      Effects of formulation, sequence, and the context of the interview on shaping (consciously or inadvertently) the narrative and the opportunity for the client or witness to tell her or his own story.

(D)     “Active listening” and similar techniques;

(E)     Precision in questioning and answering:

(I)     awareness of imprecision, ambiguity, omission, in one’s own communications and others’;

(II)    techniques for systematic control of levels of precision;

(iii)     Analysis of the possible dimensions of description and inquiry;

(iv)    The psychology of perception, memory, conceptualization, and articulation;

(v)     Analysis of the factors that may affect interpersonal dynamics, including those that may arise in cross-cultural and multilingual communications;

(vi)     Non-verbal communications.

The ABA requires law schools to post these learning outcomes. But in terms of reporting student progress on the outcomes, a detailed quantitative individual report like what elementary and secondary students receive for standardized tests seems unlikely to be required or volunteered by law schools.

The closest I’ve heard to such an option is more student-driven: individualized skills trackers for student use, in particular Nebraska Law’s Build Your Character app. The app is based on the Shultz and Zedeck factors for successful lawyering in eight categories: intellectual and cognitive; research and information gathering; communications; planning and organizing; client and business relations; working with others; and identity. Among other features, it helps students choose classes that match up to skills they want to develop and build an online portfolio for employers.

I’m genuinely curious about additional ways law schools are reporting to students (or the ABA) the students’ individual or collective progress on stated learning outcomes. Please share in the comments or on social media.

 

 

 

 

Employment Issues in the Legal WorkplaceJudicial clerksJudicial listeningProfessional responsibility

Confronting Judicial Harassment

The Senate Committee on the Judiciary is holding a hearing now: “Confronting Sexual Harassment and Other Workplace Misconduct in the Federal Judiciary.” The live feed is here Senator Richard Blumenthal is talking now about why federal judges who commit sexual harassment can retire, avoid formal censure, and continue to collect full pay. He also stated that he clerked for Justice Blackmun, who would find harassment in the judiciary to be atrocious.

Witnesses at the hearing are James Duff, Director of the Administrative Office of the U.S. Courts; Jaime Santos, an associate at Goodwin Procter and former federal law clerk; and Jenny Yang, former federal law clerk and former chair of the U.S. EEOC. Ms. Santos’s written testimony begins in substance as follows, previewing the basic difficulty law clerks encounter when dealing with harassment:

Judicial chambers are unlike any other type of working environment. Individuals lucky enough to be hired to work with judges are typically law students, for whom judges are more demigods than they are employers. Judges are titans of the profession who have shaped the law as we know it. A law clerk enters a clerkship with the belief that her judge will challenge her to become a better thinker, be a lifelong mentor, and set an example that she can follow for her entire career. When a law clerk experiences or witnesses harassment, it can be devastating on a personal and professional level. And it is incredibly difficult to speak up against someone who has the unmatched power of a life-tenured federal judge.

Judge Alex Kozinski’s former law clerk Heidi Bond, who writes as Courtney Milan, wrote about her experience here and is live-tweeting the hearing. Her letter about what could help prevent its recurrence was entered into the record by Senator Grassley.

(Note after the hearing: The recording remains available at the link, with hearing statements beginning at approximately minute 15:30.)