Exploring effective listening practices for lawyers, law students, and all legal professionals
Author: Jennifer Romig
Jennifer teaches writing, research, and advocacy at Emory University School of Law. She tweets at @ListenLikeaLwyr and @JenniferMRomig. For legal writing coaching, contact her at www.shapelegalwriting.com.
I grew up listening to Prince’s music. Maybe I didn’t understand some of the nuances at first, which is probably a good thing since I was 11 when 1999 came out.
Later when I took on competitive cross-country and track, Prince was one of my go-to artists for training and race-day music. My Sony Walkman was my constant companion, with songs like 1999, Let’s Go Crazy, U Got the Look, and Kiss fueling many runs and races.
I listened to the compilation The Very Best of Prince today during my run, in Prince’s memory. And it definitely helped. Like all of his fans expressing disbelief and sadness today, I am so sorry he’s gone.
This week Attorney at Work re-published a “classic” (i.e. 2012) post by Gerry Riskin on “Five Things Lawyers Hate to Hear Clients Say.” This post lays out some predictable, potentially recurring situations where communication is sensitive and can easily go awry. These situations certainly deal with classic challenges to lawyer-client relationships such as setting retainers, delegating work, identifying additional work, and dealing with an unhappy client.
Riskin says he’s not offering any scripts although the post does offer some ideas on language that might be a good start. He also qualifies that the post assumes the lawyer in these situations is in fact offering excellent service of unsurpassed quality. The idea is to anticipate challenging situations that arise even when the lawyer does provide great service and to handle them with tact. Part of this, of course, is listening and not getting defensive.
This post caught my interest because it’s not a “top-down” approach to listening. Instead of laying out general techniques and then applying them, it is structured around very specific situations where communication and client relationships are challenging. This seems more interesting to lawyers who don’t care about listening in an abstract sense but do want to have better experiences than the stressful situations they’ve encountered with clients.
Focusing just on specific situations—the ones listed in Riskin’s post or whichever situations are most likely to arise in a particular lawyer’s practice—should certainly help a lawyer maintain client relationships. The opposite strategy, reacting in the moment without much thought and doing the same thing over and over, seems quite likely to yield less-than-optimal listening and client relationships.
Of course it’s also true that incredible communication skills may not fix a problem caused by other factors such as the economics of law practice. Those are issues for other blogs, but it seems pretty clear that incredible or at least reasonably strong communication skills are helpful in these situations.
Did Riskin capture the universally common situations that “lawyers hate to hear”? Which ones would you add to his list?
Sherry Turkle’s Reclaiming Conversation: The Power of Talk in a Digital Age has been on my reading list for a while now. I’m in the process of reading it and was stopped cold by something on page 54. Turkle is talking about “the flight from conversation.” The flight from conversation basically means kids these days—and yes, their parents too—don’t want to talk and will take active steps to avoid conversation.
I’m in the process of reading it and was stopped cold by something on page 54, a reference to a law student in the making.
This is a pretty big book, and in the first section (which includes page 54) she goes to lengths to lay out her basic premise about “the flight from conversation.” This flight affects every facet of life and goes down very deep in the psyche. The most worrisome suggestion is that an intense digital life (at the expense of a social life) doesn’t just make people inefficient or unempathetic at that moment, but it actually stunts emotional growth.Turkle describes the work of Stanford psychologist Clifford Nass showing that spending too much time with social media and its “thumbs-up” emotional culture deprives frequent users of the ability to process more complex negative emotions. These people then become even less able to respond appropriately and quickly in real-life situations involving negative emotions. This diminishing skill set creates a downward cycle driving people to avoid difficult face-to-face situations and to seek out comfortable digital forms of communications.
Page 54 is part of this background. It caught my eye because it featured an aspiring law student. Turkle frames this anecdote as “[t]he desire for the edited life”:
A college senior doesn’t go to his professors’ office hours. He will correspond with his teachers only through email. The student explains that if he sees his professors in person, he could get something “wrong.” Ever since ninth grade, when his preparations to go to an Ivy League college began in earnest, he and his parents have worked on his getting everything “right.” . . . Now he is three years through that Ivy education and hoping for law school. He is still trying to get things right. “When you talk in person,” he says, “you are likely to make a slip.”
He thinks his no-office-hours policy is a reasonable strategy. He tells me that our culture has “zero tolerance” for making mistakes. If politicians make “slips,” it haunts them throughout their careers. And usually they make these mistakes while they are talking. He says, “I feel as though everyone in my generation wants to write things out—I certainly do—because then I can check it over and make sure it is okay. I don’t want to say a wrong thing.”
I really wish I could reach out to this student. If he’s in law school now and if his first-year professors have used the Socratic method in any way, shape, or form, he has probably had a pretty rough transition. And whether he’s in law school or not, somehow he’s going to have to face a terrible realization: conflict and imperfection and mistakes and regret are
And whether he’s in law school or not, somehow and sometime he’s going to have to face a terrible realization: conflict and imperfection and mistakes and regret are all a reality, for all of us. You can run but you can’t hide. So he might as well build some strength now, ideally with a matching dose of empathy and humility, to deal with them as best he can.
I would also introduce him to the concept of a “growth mindset” as popularized by Carol Dweck of Stanford. A growth mindset is consistent with effort, mistakes, learning, and forward progress. What you are at the beginning of college/law school/a new job/anything is not your destiny.
The opposite is a fixed mindset, which is the concept your skills can be uncovered and revealed by testing but not truly built up or changed. The fixed mindset has a lot of disadvantages. One of them is a possible correlation with unethical conduct. A person’s desire to conceal a mistake might make that person dangerous. Being terrified about making a “slip” can lead to covering up mistakes, not seeking help, and in general turning potentially small problems into much worse.
This is just one reflection on the wealth of points in Turkle’s book. I’m still reading it! Throughout the summer I will be blogging about passages of interest, and perhaps even trying a Twitter chat at some point.
A year ago I watched a barrage of #LMA15 tweets with interest. Dan Pink was the keynote speaker at the Legal Marketing Association’s 2015 Annual Meeting. After a clip from Glengarry Glen Ross, he talked about “Attunement, Buoyancy, and Clarity” as the ABCs of selling.
Starting especially with Pink’s discussion of capital-A Attunement to the buyer, it was impossible not to make connections with listening. As the live tweets recounted, “attunement” means understanding the intellectual and practical needs of sophisticated business clients. (It’s not really about general emotional intelligence, although that certainly can’t hurt.) Pink’s references to clarity also centered on helping clients find their hidden problems and curating information on point to begin to address those problems. I tried my own curation of tweets from #LMA15 on those concepts here.
Seeing the high points of Pink’s talk reinforced the fact that for many lawyers—especially those in law firms and those with repeat business of any type—legal marketing and listening are very much aligned. Legal marketing officers who visit clients and seek feedback on the firm’s work are serving as a listening channel to enhance client service and anticipate problems before they grow. As I’ve heard from a variety of sources, clients don’t really tell a firm or lawyer when they are going to pull work. It just slowly starts to dry up until there are no more matters to complete and no relationship left to tend. Listening to what clients are and are not saying is therefore crucial. It’s also extremely challenging for any single attorney also engaged in providing the legal services for that client, even a designated relationship partner with an oversight role. On a more positive note, this additional listening channel can help attorneys and firms act more responsively and anticipate client needs, perhaps finding “clarity” about hidden problems as Dan Pink mentioned in his talk.
This year I have the pleasure of actually attending the #LMA16 conference in Austin. I’ll be speaking Tuesday afternoon on how legal marketing professionals could explore potential roles as writing coaches and trainers for attorneys, motivating and encouraging them to blog. This session will focus on writing topics such as writing style for screen readers; methods for choosing good examples and discussing what makes them good; and conditions associated with satisfaction and productivity in legal blogging. (I teach a law-school class in blogging and have published a research article on blogging and other public legal writing in the Legal Communication and Rhetoric: JALWD journal.)
Apart from all the focus on writing, my session at #LMA16 will emphasize listening among colleagues—colleagues serving different but complementary roles in the firm, namely legal marketers and attorneys who write the legal blog posts. If a recent LexisNexis survey is correct that a majority of representative law firms are planning to do more blogging to generate business, then the question becomes how that additional blogging is going to occur. Maintaining open lines of communication between attorneys and legal marketing professionals seems like part of the answer. Other sessions at #LMA16 will address collaboration and communication inside the firm in many other ways.
If you’re not familiar with vocal fry, check out this MSNBC video at minute 3:30 for an example drawn from law practice (“Um, I don’t really think that evidence is sufficient.”) The video briefly explores a few themes expanded upon in much greater depth in Professor Higdon’s piece: Is the problem with women using vocal patterns that diminish their appearance of competence? Or is the problem with managers and society scrutinizing and judging women harshly yet again? Higdon quotes Amanda Hess describing the joint perils of vocal fry and “upspeak”:
So we’re wrong when we raise our voices, and we’re wrong when we lower them.
Higdon takes this debate into the realm of law and the individual choices women law students and lawyers must make. He also places vocal fry into a larger framework of nonverbal persuasion including body language such as gestures, the use of space, the relationship to the speaking environment as well as any props or other instruments, physical appearance, the use of time, and other factors. “Vocalics” or what the speaker sounds like is the factor raising these questions.
Higdon and many others eschew the easy answer that women should stop vocal fry simply because it hurts others’ perception of them.
What is a female attorney to do? Does she scrupulously monitor and adjust her professional nonverbal behavior to match those qualities that social science tells her tend to be perceived more positively? Or does she ignore this research and what it might mean within her own career and instead follow her own preferences on how to present herself? Clearly, this essay cannot definitively answer that question—it is instead a personal question that must be answered by each person individually.
[W]hat one gains in the short term by presenting herself as in line with societal expectations can create problems in the long term by making it that much easier for everyone to ignore the sexism motivating those preferences.
Some would say the women lawyer’s identity shouldn’t matter. If she’s going to court where a judge has previously expressed disdain for women in pants suits and if she takes seriously her role as an advocate for the client, then she should grin and wear it (the skirt, that is). Likewise if society is saying vocal fry makes a woman sound incompetent and if a woman lawyer wants to represent clients effectively in said society, then stop with the vocal fry. As Higdon acknowledges, failure to comply can be damaging.
But he urges a deeper analysis that makes room for identity even as it contemplates audience:
[T]he preferences people have for certain behaviors are almost always motivated by something other than the behavior itself. Typically there is a connection in the audience member’s mind between that discrete behavior and something else—and it is the “something else” that requires more inquiry.
I recommend this article, especially as a companion to Higdon’s foundational article on nonverbal persuasion, previously reviewed here on the blog.
Listen Like a Lawyer is happy to bring you this guest post from a lawyer who wished to remain anonymous.
E-mail is really my favorite way to communicate. It’s just so much better. You can figure out exactly what you want to say before you send. You have a record of what you said and what the other person sent. And it’s good to see their words on the page so you can figure out the best way to react in the situation. Being able to email back and forth with people helps me keep my work day clear.
Clients don’t really care about a lot of hand-holding and face time. It takes up their time and mine. I bill for every minute I spent with them, and we all already know what we need to do. So what is the point anyway? We need to get on with it and get our work done. If they want to give me feedback, they can email their comments on whatever I send them when it’s most convenient for them.
When I do meet face to face with clients, what they really want is to be dealing with me an expert who knows the answer—right then. They want answers. But it’s a lot of pressure to come up with “the” answer right there on the spot. Being an effective lawyer means I have to think about what I’m going to say when they’re still talking.
Real conversations generally waste my time anyway. The other person thinks out loud and drones on and on. They’re not even sure what they’re really saying. Or they’re venting about their issue, and that’s just not productive. When I’m stuck in a long meeting or conversation, everyone understands that I will be checking my phone. As a lawyer, I have to keep up with what could be more urgent in that moment.
The truth is I’m a bad listener, and there’s nothing I can do about it. It’s not like a person can get better at listening. I’ll never be able to dunk the basketball or sing an aria, and I’ll never be a good listener. People who work with me get used to it after a while.
Earlier this week Listen Like a Lawyer discussed Google’s teamwork study investigating the qualities of effective teams. In the post I mentioned that teamwork is so important in part because many cases are too complex for one person to manage. One bit of feedback on the post agreed that teamwork is “vital now for successful legal practices.”
I think the real issue is the difference between formal teams and informal collaboration throughout an organization.
The Google study profiled in the New York Times seemed to focus on formal work groups—groups formed by assignment to address some specific task or role over time. These work groups seem analogous to a group of lawyers assigned to a client service team or a specific deal, trial, or other project.
The Harvard Business Review article on collaboration appears to be addressing a much broader phenomenon. It’s not just about the dynamics inside individual work groups assigned to discrete projects, but also about collaboration throughout an organization. Collaboration may take the form of sharing information, sharing social resources, or sharing one’s own time and energy—which, unlike the first two categories of collaboration, is a finite and exhaustible resource. These can happen within a formal team or in broader, more diffuse ways throughout an organization. A person who is willing to collaborate with others may be subject to “escalating citizenship” in which workers who want to help become so over-burdened that they become a burned-out bottleneck. To quote the article, the “virtuous cycle” of collaboration turns “vicious.”
I’m no Adam Grant, but if this distinction is correct, then the Google study and the Lawyerist post are also both correct. Complex long-term problems and strategic goals cannot be solved by lone-wolf lawyers. Therefore, lawyers working in formal teams can benefit from studying their group norms and seeking to collaborate most effectively. These types of teams should not be disbanded or reduced in scope.
On the other hand, managers should monitor the collaborative burdens across their organization to avoid inefficient, inequitable demands on “extra milers” (quoting the HBR article) being asked to collaborate beyond the scope of their roles.
Of course there is a challenging question in the middle of this: work groups formed not for direct legal service but for internal firm/agency management. In other words, firm committees. These groups can certainly benefit from studying dynamics in the spirit of the Google study. But the HBR study and Lisa Needham’s critique raise the question: what is the reward structure of the firm or organization, and is collaborative committee work compromising individuals’ capacity to participate in that reward structure?
On a more quantitative note, the HBR study suggests collecting and assessing data about who is doing what. It also suggests employee surveys and 360 feedback. To take a 50,000-foot view of these suggestions, it seems that one way to begin to address this question is by listening.
What are your key strengths and weaknesses as a listener? How can you, as a lawyer or legal professional, actually become a better listener? What listening techniques can lawyers use to be more effective with clients, witnesses, judges and mediators, and others (perhaps loved ones)?
I’m pleased to be collaborating on a CLE workshop that will help attendees explore these questions and gain a better understanding of listening skills for lawyering.The workshop will take place in Tucson, Arizona, on March 10 in conjunction with the International Listening Association‘s annual convention.
Jennie Grau
Presenters Jennie Grau and Anita Dorczak will facilitate the session in person, and I am working on video contributions right now. One fun project has been working with several wonderful colleagues and students at my law school on video demonstrations of “bad” and “good” listening skills in legal settings. I must confess it was easier to write and create the bad examples. I’ve also been rounding up a variety of statistics related to listening and lawyering. (Blog post coming soon.) There’s a lot of great research out there, but also several widely accepted yet unsupported urban myths of listening.
Anita is a Canadian family lawyer and mediator, and Jennie is a communications consultant and speaker. Collaborating with these presenters has been a wonderful experience because they are not only smart and creative and talented speakers but also—not surprisingly—such skillful listeners. Arizona lawyers who attend the session are in for a unique experience including role-plays and the opportunity to take an individual “listening inventory.” Boring PowerPoint and lecture, this is not.
Anita Dorczak
The International Listening Association is an eclectic group with connections to many disciplines such as health care, business, spirituality, cultural studies, teaching, and research.
Lawyers, mediators, and other legal professionals are invited to attend the conference for a one-day rate (4 hours of CLE). The full information can be found here. Fees for the session go to the International Listening Association. This is a labor of love for the presenters—which is actually the theme of the whole convention, Listening: A Labor of Love.
What is the effect of drinking on listening skills?
This matters for lawyers who will be networking over a glass of wine or taking clients to dinner where alcohol is served. What appears to be a still-valid1975 psychiatric study predicted that drinking would have a variety of effects on communication:
In a group setting, low to moderate doses of alcohol would increase the amount of verbal communication, increase disruptions in communication, and decrease the level of acknowledgment of the other speaker’s communication.
This hypothesis was indeed supported by the study, a study with a most interesting protocol.
Participating couples (married or good friends for several months, and between the ages of 21-30) showed up a testing facility for an afternoon of mild intoxication and testing, or a placebo event. They consumed a “low dose” of either “80-proof vodka in a peppermint-flavored cocktail” or “the masking cocktail without vodka.” In the low-dose experiment, women drank .83 ml per kg of weight, so (after a bit of math) about 1.4 ounces for a 110-pound woman. Men drank 1 ml per kg of weight, so 2.7 ounces for a 175-pound man. In sessions separated by about a week, they tested the other option. And some test subjects came back for another alcohol test at 1.5ml per kg of weight.
After consuming the alcohol, they did some coordination tests and then a 20-minute conversation session. The second 10 minutes of the conversation were transcribed for study. Then participants were “fed and detained” until signs of intoxication wore off, and driven home.
The study’s main finding seems fairly intuitive:
Overall, alcohol appeared to make social communication more disorganized and intoxicated subjects seemed less likely to follow conventional rules of etiquette in their speech.
The specific behavioral findings were a little more complex. The study found “an increase in the amount of interrupting or overlapping speech” that was even more pronounced with the higher dose. Essentially: the more you drink, the more you interrupt.
Separately, the study found with the low dose, participants talked more in the sense of initiating more conversations, and used more words. With the higher dose, these trends reversed. Thus the more intoxicated participants interrupted more but used fewer words and started fewer conversations. And there was a modest but noticeable effect on what the study called acknowledgment, or “the degree to which [a statement] responds, in terms of the content and intent” to the prior statement.
The study authors weren’t exactly sure how these effects happened. They could be from the “disinhibition” and “egocentricity” of drinking, or they could be from “decreased auditory discrimination” and “impaired memory” which had been proven in a similar previous experiment.
The authors recommended further study. They also ended with a caveat on the “dyadic” setup of the study—meaning just two people speaking one-on-one to each other. The one-on-one setup may have made it relatively easier for participants to maintain the conversation. They noted prior work showing alcohol diminishes participants’ ability to hear complex auditory stimuli. Thus they suspected that intoxicated participants would show greater impairment, relative to the placebo, in a more complicated social situation with more people. Something like an attorney networking event, perhaps.
Postscript to this research: Here’s a 2004 master’s thesis on “alcohol in social context.” The study gathered 54 men (strangers) and assigned them to groups of three, then served them alcohol or a placebo while they stayed seated in their groups for 30 minutes. The study assessed their social behavior and emotional states, finding that the drinking groups did not necessarily talk more on a word count basis, but did engage in more socially coordinated communication within the group. In other words, more members of the group contributed to talk within the group as a whole. The study author reported mild surprise that study participants did not report “improved affect” or a better mood after the experiment. The author suggested that the participants may not have enjoyed the forced interaction of drinking and socializing with strangers. This brings us full circle back to networking.
What are the implications for attorneys who want to drink while still communicating effectively?
Above the Law’s Elie Mystal has some classic advice: “You have to know yourself and what constitutes ‘tipsy’ for you.” Some more excellent advice: “when it starts to feel more like a party and less like work, leave.”
He was writing in 2012 about alcohol and networking, prompted by a Greedy Associates’ post with a “Drink-by-Drink Guide for Networking Events.” Instead of “5 Tips for Networking,” that post organized itself around a sequence of five hypothetical “drinks” from the first drink (“the icebreaker”) to the fifth drink (essentially, go home and send a bunch of LinkedIn invitations). The strategy for the “third drink” was to “shut up and listen” by “resist[ing] the urge to talk about yourself the whole night.”
The Greedy Associates’ post wasn’t actually encouraging networking lawyers to consume five drinks at any networking event. And that is a good thing. One takeaway from the present post is the following: if you get to that third drink too fast, shutting up and listening is probably not going to be an easy option.
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