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.

Habits of cross-cultural lawyering

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What if a lawyer from a modest financial background is working with relatively wealthy clients for the first time? What if a commercial litigator at a large firm takes on a pro bono project interviewing kids in juvenile detention? What if a young female lawyer is representing an international client with a serious legal problem and a seriously sexist attitude?

These are just a few examples drawn from my own experience. The common thread is cross-cultural competence. One might also call it cross-cultural literacy or cultural consciousness or simply cross-cultural lawyering. Whatever you call it, it’s a really big topic.

The culturally competent lawyer is one who can work—effectively—with clients, co-workers, judges, and people in general from a wide variety of ethnic and cultural backgrounds.

There’s no such thing as “culture-neutral” lawyering; debunking that claim is a beginning point in the landmark 2001 publication of Susan Bryant’s Five Habits: Building Cross-Cultural Competence in Lawyers. Differences in cultural backgrounds affect many aspects of the lawyer’s role, even as seemingly simple a lawyer’s request to a client that the client ask for clarification if the client doesn’t understand something or the lawyer is not being clear. Those two different ways of phrasing the request may generate different reactions—or what seems like non-cooperation—depending on the client’s background. Cultural competence connects with core professionalism requirements such as competence and communications, as this Oregon Bar article points out. Lack of cultural competence could also cost a firm in terms of employee and client retention.

In this post, I will briefly summarize the “five habits” framework developed by Bryant and Peters. (They refer to teaching law students, so that is the terminology used below, but obviously the concepts are meant to apply far beyond the walls of any law school class.) At various times this year, the blog will highlight related articles, ideas, and practical recommendations.

Habits One and Two

The beginning of the five habits requires thinking about similarities and differences with clients—not just what those similarities and differences are, but how the process of thinking about them affects the relationship and the law student’s effectiveness. How can a law student find similarities with a client from a very different background? What if a law student identifies as so similar to a client that she misses other important differences?

More broadly for analyzing and managing the client’s case, how do the similarities and differences affect interactions between the client, law student, and judge (or other decision-maker)? How strong is the client’s legal claim, and can the law student shape the legal argument to encompass more of the client’s claim and situation?

Habit Three

When a law student and client come from different backgrounds, the student may miss what the client is intending to communicate. And nothing hurts communication more than the illusion it has taken place (said George Bernard Shaw). The student may believe the interaction is productive when in fact the student is negatively judging the client. Maybe the client even senses that judgment and withholds information accordingly. Maybe the lawyer later finds out that the client has in fact not shared all the relevant information.

Part of the cure for these problems is “parallel universe” thinking in which the student looks for multiple interpretations of the facts. The point is to reach a deeper, less judgmental understanding of the client’s perspective and actions.

Habit Four

Communication is a huge part of cross-cultural competence. Thus, students should think about “pitfalls and red flags.” One pitfall is the problem of “scripts.” Scripts are habitual templates lawyers may use in repeated situations. Rather than using scripts, students are encouraged to bring out the client’s own story with attentive listening and to gauge the client’s own sense of engagement and understanding. (Here I will note the connection to Ken Grady’s exploration of how lawyers are prone to rely on mental shortcuts just as much as non-lawyers.)

Red flags would include signs that real communication is actually not taking place, such as a client who tries to dominate a conversation or another one who withdraws and takes no notes. Law students have to overcome their sensitivity and move past communication challenges; they need a “broad repertoire” of communication skills for gauging clients’ understanding.

Habit Five

The final habit is the most difficult, which is why Bryant and Peters place it last. It asks students to confront their own biases and stereotypes, an uncomfortable process to say the least. To develop this habit, students can “create settings in which bias and stereotype are less likely to govern.” Because people are more affected with bias when they are under stress, Bryant and Peters encourage law professors and students to proactively address stress. Professors can “promote reflection and change of perspectives with a goal of eliminating bias.”

Communication skills are critical

Communication skills run throughout the habits. For example, “remaining present with the individual client is an essential part of cross-cultural competence.” More specifically, good cross-cultural lawyers have to be good listeners:

Intercultural communication skills include deep listening skills and capacities to focus on content rather than style, the ability to read verbal and non-verbal behavior, and the ability to adapt conversation management behaviors and style. These are communication skills that lawyers need in every situation and more so in cross-cultural situations.

The original Five Habits paper is now 15 years old. Bryant and Peters have collected a wealth of materials here at LegalED, including resources on listening.  The discussion of cross-cultural lawyering has continued vigorously, with a recent burst of work on implicit bias.

In this blog’s continuing exploration of additional articles, ideas, and recommendations, the goal will be what Ascanio Piomelli wrote in 2006, surveying the field of teaching about cross-cultural lawyering:

[C]ross-cultural materials are at their best . . . when they spark generous curiosity, nurture engaged, nonjudgmental inquiry, and foster real connection with others.

 

You should watch The People v. O.J. Simpson

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To echo what many have said, I now know what I’ll be doing for the next ten Tuesday nights. The People v. O.J. Simpson: An American Crime Story (FX Networks) is as incredible as everyone is saying. For viewers who lived through the spectacle, it brings back memories (“Where was I the night of the white-Bronco chase?”) and forces connections (an even closer look at the Kardashian family, which didn’t seem possible). More broadly and as the New York Times has pointed out, the opening scenes of the Rodney King beating and subsequent riots (mediated through TV news) set the stage not just for the investigation and “Trial of the [20th] Century” but for connections to police brutality and the Black Lives Matter movement today.

The People v. O.J. Simpson is also a story about lawyers and lawyering, with a deeper view than anyone got in real-time, drawing from Jeffrey Toobin’s book The Run of His Life: The People v. O.J. Simpson (interview with Toobin here).

There’s the distracted Marcia Clark cradling a landline and feeding cereal to her cute but ungrateful kids while she learns about the murders. (Actor Sarah Paulson told the Wall Street Journal: “I didn’t understand what I do now—that it was a great failure of women everywhere to not have come out rallying behind her in what was a real assault on her by the media.”) There’s Robert Shapiro holding court about his greatness in a posh restaurant when he’s interrupted to take O.J.’s call. There’s Robert Kardashian patting his friend O.J.’s shoulder, his eyes widening perhaps just a bit when Shapiro suggests that he reactivate his law license and join O.J.’s defense team. There’s Christopher Darden in an unguarded moment with Johnnie Cochran before either of them knows what is about to hit.

During the first episode, I tried to watch with an eye toward blogging something about listening. The most obvious scene was Shapiro’s show of meeting alone with O.J. to ask him if he did it. O.J. looks him back in the eye and says, “No. I loved my wife.” The police demonstrated some really poor listening and questioning skills in their early taped interview with him, sending Marcia Clark into paroxysm and foreshadowing trouble for the prosecution. (Later listening to the tape, an officer notes how hard it is to question a famous guy like The Juice.) Yet there’s the initially positive and collaborative environment within the prosecutors’ legal team, fueled by confidence at the story they perceived to be coming together.

By the end of the episode, however, I turned off the analytical brain and just watched. Even now, it was too much. How did this all happen? I couldn’t parse it objectively from a distance. And I guess that’s the problem and one of the show’s essential points.

Do you know it when you hear it?

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When taking a deposition, can you immediately recognize the testimony you want to quote in a later dispositive motion? Do the words jump out at you like a “nugget” in a “treasure hunt”?

Legal writing and nonfiction writing have a lot in common, as a recent New Yorker article by John McPhee suggested. I studied his work in journalism school and continue to follow it more as a hobby than anything strictly related to lawyering. But McPhee’s article on selecting material is very much relevant to what lawyers do in taking depositions and conducting witness examinations to generate powerful, memorable words later used in writing such as motions and briefs.

The article is Omission: Choosing What to Leave Out (September 14, 2015). This post explores his essay and draws some points of contrast with legal writing, before arriving at the real connection to listening, which is the art of the quotation. McPhee is partly a luxury for the novelists disguised as lawyers among us, but here’s the pragmatic sell:

Lawyers who can elicit, recognize, remember, and effectively frame quotations in writing have an advantage in their writing and advocacy just as creative nonfiction writers do. In other words, being an effective listener leads to more persuasive writing and lawyering.

McPhee’s broad point in Omission was to explore the experience and process of cutting his own work and having it cut. From the beginning to the end, “[w]riting is selection”:

Just to start a piece of writing you have to choose one word and only one from more than a million in the language. Now keep going. What is your next word? Your next sentence, paragraph, section, chapter?

And then when the draft is complete, it may need to be cut in order to fit on a magazine page, or just because readers may not persevere through 40,000 words about a topic such as oranges. It’s not surprising that he wrote 40,000 words on oranges because, according to McPhee, the decision to leave something in should be based on whether it is “interesting to you.”

And by “you,” he means the “you” doing the writing, not the hypothetical “you” doing the reading:

At base you have only one criterion: If something interests you, it goes in—if not, it stays out. That’s a crude way to assess things, but it’s all you’ve got. Forget market research. Never market-research your writing. Write on subjects in which you have enough interest on your own to see you through all the stops, starts, hesitations, and other impediments along the way.

This writer-centric view is very different from client-driven legal writing such as trial and appellate advocacy. If you as a lawyer writing on behalf of a client and putting something in because it interests you personally, you may be on the wrong track. In some cases, I’ve seen writers insert comments in their memos and briefs such as “Interestingly, . . . .”

These types of comments are rarely effective. And in that sense, the tenets of good legal writing and good nonfiction writing come back into accord, as McPhee instructs: “If you see yourself prancing around between subject and reader, get lost.”

After exploring these thoughts on how to select material, McPhee narrowed the focus to selecting quotations. He received the following inquiry from a reader:

“I was curious—do you know right away when you hear a quote you want to include in the story, or do you usually mine for it through your notes?”

He responded in part as follows:

Dear Minami—Across my years as a writer and a writing teacher, I have been asked myriad questions about the reporting and compositional process but not before now this basic one of yours. And the answer comes forth without a moment’s contemplation: I know right away when I hear a quote I’ll want to include in the story.

McPhee is a master of weaving themes throughout his writing. (For anyone who likes thinking about themes and structures in writing—such as modifications to the “IRAC” format taught and derided in legal writing—read McPhee’s incredible essay, Structure.)

In the essay on omission, the theme comes back again and again:

Writing is selection.

He doesn’t explicitly mention listening very much, but it runs throughout.

McPhee takes copious notes so he can have lots to choose from later. (In a separate article, Elicitation, he goes into more depth about creating conversational settings for interviews, and how he uses a tape recorder unobtrusively when possible.)

He doesn’t need good notes to recognize a “nugget” in the “treasure hunt” immediately when he hears it.

And he brings affection to his work; about one subject, he says, “I loved just listening to him talk.” The joy McPhee described is perhaps not exactly what a lawyer experiences sitting at the deposition table for hours on end—until that moment of hearing a perfect quote that will ice the dispositive motion. (Forget about the Bluebook;

Forget about the Bluebook; block-quote it for emphasis even if it’s only one word.

That’s a type of joy unto itself.

 

 

 

 

 

Best of 2015

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This post is a rather unscientific summary of some of the best articles and posts related to lawyers, law practice, and listening in 2015. Please feel free to comment on other sources you think should be considered among the best of 2015.

General article of the year

How People with Type A Personalities Can Become Better Listeners

Type A personality patterns include competitiveness, urgency, and hostility. For type A people, “the listening struggle is real.” This article offers a few techniques for compensating such as practicing the “WOA” method: Wait. Observe. Allow. It’s amazing what one can learn by patiently waiting and letting the person finish his or her thought.

Study of the year

Take a paragraph. Have one test group read the paragraph out loud to a listening audience. Have another test group hand over the paragraph in writing so the audience reads the exact same text. These two audiences will rank the speaker as more intelligent than the writer, even though the text is exactly the same. The study, conducted by business-school professors at the University of Chicago, found this result to be true across several different conditions. Even when a text is written to be read rather than spoken, audiences who hear it still rank the speaker more highly than audiences who rank the author after reading it.

It is thought that “vocal cues” provide more signals of intellect than are available in the reading experience. As one study author summed up,  “If you read aloud my written pitch, you’d sound smarter than my written pitch.” The study was described in the New York Times here, “The Mouth Is Mightier than the Pen.” The study is available here, with a subscription to Sage Publications: http://pss.sagepub.com.proxy.library.emory.edu/cgi/content/long/26/6/877 (subscription required)

Law review article of the year

A theme of this blog has been that it’s difficult to measure listening and even more difficult for any person to accurately judge just how good—or bad—a listener they are.* Professor Andrea Curcio of Georgia State wrote about how hard it is to accurately judge one’s own cultural sensibility as well, due to a variety of cognitive biases. A culturally sensible lawyer is a lawyer “who understand[s] that we all have multifaceted cultural backgrounds, experiences, and biases that affect how we perceive and analyze legal problems and how we interact with clients and colleagues.” Curcio’s article discusses cultural sensibility, barriers to developing it, and methods law schools/classes may consider to foster it. Being not just theoretically knowledgeable but actually skilled at cultural sensibility leads to more effective listening, which is why this article is LLL’s law review article of the year. The citation and link are here:  Andrea Curcio, Addressing Barriers to Cultural Sensibility Learning: Lessons from Social Cognition Theory, 15 Nev. L. J. 537 (2015).

Book of the year (reviewed on the blog)

Heidi Grant Halvorson, No One Understands You and What To Do About It, reviewed here. This book is short and insightful for analyzing different aspects of communication situations through the lenses of trust, ego, and power. The book explores ways to make a more accurate, less distorted impression and perhaps even recover from having made a bad impression.

Book of the year (still to be reviewed)

Another book of the year, not yet reviewed on this blog is Sherry Turkle’s Reclaiming Conversation: The Power of Talk in a Digital Age (2015). The New York Times (and specifically, Jonathan Franzen) reviewed it here. He sums up the book as a “call to arms”:

Our rapturous submission to digital technology has led to an atrophying of human capacities like empathy and self-­reflection, and the time has come to reassert ourselves, behave like adults and put technology in its place.

Tweet of the year

This is from the Clio Cloud Conference in the keynote by John Suh, CEO of Legal Zoom:

 

Word of the year

Manterrupting

Pam Woldow and Doug Richardson wrote a great series on “manterruption” at Pam’s website At the Intersection: Where General Counsel & Law Firms Connect. They wrote about this issue in three parts:

Part 1: Are You a Manterrupter?

Part 2: The Quest for a Cure 

Part 3: Reader Responses and Connecting the Dots

Not surprisingly, some of the feedback they received included helpful thoughts such as “Stick to your knitting.” Some of the other feedback was actually constructive and hopeful.

Runner up for word of the year

Deipnosophist: “a person skilled in table talk”

Hat tip to @LibrarySherpa:

  

Futuristic thought of the year

Ken Grady of Seytlines argues for process improvement and technological innovation in the legal industry, while also maintaining that soft skills have never been more important. In a September post on measuring lawyer performance, he touched on the possibility of wearable sociometric devices that will quantify social skills and effectiveness—essentially, as Ken said, a “FitBit for listening.” Such devices can already measure “proximity to other employees, who was talking, engagement levels, and other data points.” Such data can be interpreted to “determine which group dynamics led to more creativity or productivity.” (Seyfarth CEO Stephen Poor more broadly explored the idea of FitBits for lawyers as well.)

Thus, perhaps by 2016 or 2017 one of the “best of” posts here will include someone’s experience using a sociometric device to assess their actual listening skills.

*(By 2017 “their” as a pronoun for “someone” and “a person” will be widely accepted as well, but that is a different post for a different day on a different blog.)

The 4 T’s of Listening

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One of Listen Like a Lawyer’s most enduringly popular posts is “A Model of Listening.” The honest truth about why it’s so popular appears to be that students enrolled in listening classes are doing searches like these:

models of listening
model of listening
HURIER model
HURIER model of listening

One clue that these are college students is the timing of these searches: they tend to spike toward the end of the fall and spring semesters. I had actually never heard of a college course in listening until starting this blog two years ago. That’s when I found Judi Brownell’s textbook, Listening: Attitudes, Principles, and Skills. One of the blog’s earliest posts was that Model of Listening posts exploring the “HURIER” model and how it fits with lawyering. (HURIER stands for Hearing, Understanding, Remembering, Interpreting, Evaluating, and Responding.) Apparently a lot of students are assigned to write about this model.

Thinking about college classes in listening leads, inevitably, to thinking about the idea of a law school class in listening. I am not aware of any law-school class focused directly and solely on listening in the way a legal writing class focuses on writing, for example. (Please comment or e-mail if this is not correct.)

Of course listening is directly involved in any class with interviewing, deposing or examining witnesses, or negotiating. It’s a small but crucial part of effective oral advocacy. And part of the overall motivation for Listen Like a Lawyer is that listening plays a subtle role in just about all law school and lawyering activities. A more effective listener is going to be better at taking exams based on in-class material, better at writing papers building off of class discussion, and better at handling skills classes and clinics. Essentially, listening helps in any context where other people are involved. (Professor Tami Lefko presented a menu of ideas for incorporating listening throughout the law-school curriculum at the 2014 Biennial Conference of the Legal Writing Institute, with slides available here. Her awesome collection of listening-related YouTube clips is available as a guest post here as well.)

At the conclusion of my legal writing class, I like to talk about the content of the class and next steps for the students using the following framework, the 4 T’s:

  • Tradition
  • Trends
  • Techniques
  • Transfer

The same framework could be useful in shaping a law-school listening course. So here’s an exploration of what the final class session might look like in a law-school listening class.

Tradition

Listening has its traditions (which have been covered and practiced throughout this semester). Perhaps the listening tradition most deeply embedded in law comes from the conflict resolution field. Mediators seem to have the most training and, in the mediators I’ve been lucky to meet, the most personal affinity with the value of listening. In mediation, the chance to be heard is respected if not absolutely paramount. The mediator’s role in “nuanced listening” for the real conflict is crucial.

Advocacy presents the opportunity for high-stakes listening. Lawyers who examine witnesses must be able to listen to a witness, echo the testimony when needed, and recognize what is not being said. (The same is true of listening to opposing counsel.) There is a strong tradition of listening as part of appellate advocacy as well: Listen to the specific question and respond to it. Listen to the overall feel of the bench and adjust your argument accordingly.

Unfortunately what seems to be the most significant actual or perceived listening tradition is the law is this:

Lawyers are terrible listeners.

This recent observation from John Suh of Legal Zoom may capture it all:

It does not seem a stretch to say the legal profession attracts talkers, not listeners. Any traditions of listening within the legal profession must thus reflect a knowledge of the audience. Essentially, many bad listeners will only want to get better if they think it’s in their self interest. That was one lesson of experience suggested by Debra Worthington, a professor at Auburn University and experienced trial consultant as well as co-author of another college listening textbook. In this sense listening can be coached in a somewhat Machiavellian way, like mindfulness coaching for Type A personalities.

Trends

Legal project management is one movement with listening-related implications such as planned and spontaneous face-to-face meetings. When is face time valuable or a waste of time? What about collaborative platforms that allow clients and lawyers to access and monitor each other’s work real time, with no “wall” of email protocol to separate the work from the communication about that work?

“Social listening” on social media channels is not really listening at all, but it speaks to the way business is done and people communicate today. Lawyers interested in social media will encounter advice to engage in social listening essentially for marketing and understanding how they and competitors are perceived. “Listening” on social media is also of course a trend in juror and witness research.

Returning to depositions for a moment, court reporters may give way to voice recordings and digital transcriptions, a controversial topic to say the least. (How would a listening course be graded? A lot of ideas come to mind and frankly many of them involve some aspect of writing about listening. For example, a good essay question in a listening course would be to discuss the movement toward “digital court reporters” and what that would mean for the judicial process.)

Artificial intelligence-enabled devices that can detect facial expressions—and perhaps predict lying—will be an interesting development to watch as well. Wearable “sociometric devices” may be able to measure and report a person’s ratio of talking to listening.

Techniques

Techniques of listening would of course include “active listening” as well as “passive listening,” as outlined in Professor Neil Hamilton’s law-review article Effectiveness Requires Listening.

There is also the technique of fact investigation that involves first listening with open-ended questions throughout the witness’s first narrative, and then reviewing each step with closed questions to firm up the information.

The art of asking good questions is so critical for lawyers not just in litigation but in any activity including—importantly for those who need to earn a living in private practice—marketing.

And listening for what isn’t being said is one of the most challenging and valuable skills a listener can work on. (Peter Drucker is the most often quoted on this point:  “The most important thing in communication is hearing what isn’t said.”)

Those are just a few examples of the “listening toolkit” lawyers can develop.

Transfer

As with any skill, the ideal is to be able use that skill in a variety of settings beyond the specifics of how it was taught and learned. This is the core of what “learning transfer” mean—transferring learning to new contexts.

Listening skills could be transferred in a myriad of ways. Strong recall of spoken language is always a benefit, but has to be adjusted for the social context. For example, a lawyer may show a high level of skill at remembering and echoing key parts of a witness’s answer and moving forward in an unforgettably effective direct or cross before a jury. However, this echoing might seem aggressive and/or robotic in a private and casual conversation with a prospective client. A subtle and selective echoing could work quite well. Or, weeks later, a thoughtful handwritten follow-up note that paraphrases the conversation can make a very positive impression.

One of the most difficult questions about lawyers and listening is the role of trust. Lawyers simply cannot deeply and trustingly—and naively—listen with an open heart in a combative deposition or negotiation. Different listening skills are required in collaborative and competitive contexts. Even with clients, too much trust may lead to trouble:

But if lawyers transfer distrustful listening to all contexts, that’s really not good either. Several great posts have been written on bad things that happen when lawyers bring certain communication techniques home with them, as in “6 Things We Learned in Law School that Shouldn’t Be Tried at Home.”

And even within work-related contexts, there is certainly room for lawyers to compassionately listen to one another. Perhaps a stronger listening culture with in the community could in some way help ameliorate some of the stress and alienation, not to mention substance abuse and depression, that afflicts the legal profession. Practices such as bar-sponsored “take opposing counsel to lunch” events are a start.

Learning is a process

The ultimate message of this “traditions-trends-techniques-transfer” framework is that learning doesn’t end—or at least it shouldn’t end, and for the truly effective lawyers and lawyer students it never ends—when any given class is over.

Where does this leave the lawyer who wants to be a better listener? For one thing, the lawyer can seek training and the opportunity to reflect on his or her current skills as a listener. Here are a few CLEs related to listening that were offered this past year: “Civility Skills CLE: The Art of Listening” and “The Ethics of Listening—and Not Listening—to Your Client”. I am fascinated with the idea of actors teaching “improvisation CLE” and hope to take one of these classes sometime. On a more traditional note, in a few weeks I will have the privilege of taking an intensive mediation class and fully expect it to address listening in depth.*

Beyond CLEs, lawyers can read about listening, not only on blogs (ahem) but also books such as Thanks for the Feedback (which is about taking feedback effectively and has a lot to say about listening more generally) or Power Listening (which is more in the strategic, utilitarian school of listening). A thoughtful and challenging legal blog that often touches on listening is Lee Rosen’s Divorce Discourse. (For example here’s a post on how not listening is one of the worst mistake a lawyer can make in an initial consultation.) Kenneth Grady’s Seytlines blog and other writing touches at times about listening to corporate clients in the context of larger themes about legal-services delivery and innovation. (Here’s his “5 Reasons to Become a Doctor Dolittle of Client Communication.”)

That’s at least 75 minutes worth of material to talk about. So that’s  the end of these hypothetical lecture notes for the hypothetical final class in a hypothetical law-school listening course. Good luck and please stay in touch.

*Side note for 2016: I’ve also recently had the pleasure of meeting and talking with several listening experts who are working on a potential listening CLE at the International Listening Association’s meeting in Tucson in March 2016. I may have the opportunity to be a guest speaker or contributor in some way, and will let blog readers know more about that as it develops.

The Good Lawyer

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levitlinder

“What does it mean to be a good lawyer?” Thus begins The Good Lawyer: Seeking Quality in the Practice of Law by Douglas O. Linder & Nancy Levit (Oxford 2014). The introduction assures readers there will not be chapters such as “The Good Lawyer Uses Proper Citation Format.” (Why not? asks the legal writing professor.)

Instead, The Good Lawyer explores empathy, courage, willpower, valuing others in the legal community, intuition as well as deliberation, realistic thinking, the pursuit of justice, integrity, and persuasion. Its final chapter addresses the difficulty of all of these in the current legal climate. 

The book is largely aspirational but delves into skills and techniques. Its first chapter—”The Good Lawyer Is Empathetic”—would be valuable to any lawyer who wants to be a better listener.

Empathy has been defined as “our ability to identify what somebody else is thinking or feeling and to respond to their thoughts or feelings with an appropriate emotion.”

And what are the actual benefits of a lawyer’s being empathetic?

First, empathy enables you to acknowledge and respect other people’s thoughts, so they feel valued. Second, empathy substantially reduces the likelihood of miscommunications that can lead to wasted effort and counterproductive results. Third, as you become more aware of other people’s feelings, you more readily assess their feelings toward you and can make adjustments to smooth things over when necessary.* . . . Fourth, having walked inside another’s skin, you’ll be better able to compellingly tell that person’s story, should the time and place arise for it.

*The omitted portion of the quote says this: “When others think you’re being a jerk, at least you know it soon enough to stop your jerk-like behavior and apologize.”

I am well aware of the sentiment that being a jerk is necessary or even desirable at times, as a way of serving a client’s interests. It shouldn’t be surprising to learn that’s not the agenda of Linder and Levit. In their chapter on serving the true interests of clients, they walk through various roles a lawyer may serve: helping the client win; being a “mere tool” of the client’s autonomy; or essentially telling the client what to do based on the lawyer’s legal expertise.

Their recommended approach is none of these in isolation. Instead they embrace more of a collaborative deliberation: “The most demanding and also the most rewarding function that lawyers perform is to help their clients decide what it is that they really want, to help them make up their minds as to what their ends should be” (quoting Anthony Kronman). Linder and Levit acknowledge that “many forces today conspire to limit opportunities for lawyers and clients to enter into deep moral conversations, as friends might do.”

They go on to discuss specific communication techniques to help lawyers learn more about their clients’ interests in meaningful conversations. For example lawyers can frame conversations in terms of “we” (i.e. the lawyer and client together). Lawyers can ask clients who else would be affected by various approaches, and how those others might respond. 

These suggested techniques are valuable, yet perhaps meager given what it takes to forge a truly collaborative relationship and be someone’s friend in a moral sense. On this point and others, the book was (lightly) critiqued by David Lat in the Wall Street Journal as being better at issue-spotting than at deeply diving into practical solutions. 

The issues to be spotted include a number of tough questions. For example, are empathetic lawyers born, or can they be made? Linder and Levit review psychological literature showing that empathy can be taught in the sense that people can get better at recognizing emotions. The evidence is weaker for the teachability of the empathetic response. A checklist on “How to Make the Most of Your Empathy” (page 17) would be a good primer for new lawyers, or for more experienced lawyers who want to work on making a better connection with clients. The book also cites the scholarship of Kristin Gerdy and Ian Gallacher on incorporating empathy into legal education and teaching students how to “think like a non-lawyer.”

Another tough issue both individually and socially is whether empathy can  actually be harmful. Highly empathetic people may burn out and run from extremely painful situations, or may cross ethical boundaries to help those with whom they empathize. (In raising the topic of whether judges should be empathetic, the book cites Justice Blackmun’s “Poor Joshua!” dissent, recently in the news again after the death of Joshua DeShaney at age 36.)

The chapter on persuasion features the book’s most specific treatment of listening and lawyering:

Listening and interpreting body language, two skills that allow us to understand—and then better influence—the thinking and emotion of others, receive nothing like the attention each deserves. Only by listening to a client can a lawyer understand what the client wants and develop a theme for a story that might help the client her goal, and listening carefully to a judge’s questions or remarks is essential to the process of addressing any concerns the judge might have with your argument. People, of course, send signals with their bodies, not just with their words, and being attentive to the body language of clients, witnesses, jurors, and judges also can be critical to a lawyer’s success. Sometimes lawyers are so focused on covering each of twenty points on the outline of an argument that they don’t see the judge or juror stifling a yawn, raising eyebrows, or crossing arms; these are all signs that the lawyers are going seriously off track and need to change course. Defense lawyer F. Lee Bailey, describing the work of another lawyer he admired, said that he kept his eyes “ever on his audience.” Bailey continued, “The slightest quizzical brow, a mere change of impression of a single juror, these would be a sign from which he could shift and bear down on a point, paraphrase it if he thought the first shot hadn’t got through, or shift his topic if he thought attention was starting to drift.”

There is no chapter titled “The Good Lawyer Listens.” Yet The Good Lawyer advocates that the good lawyer does listen. Listening helps lawyers understand clients and make them feel valued. If that’s not enough, listening also helps lawyers figure out what to say.

Listening from ignorance to mastery

Jennifer RomigLeave a comment

The Farnam Street blog has this, this morning on becoming a lifelong learner:

When assessing our competence in any particular discipline, we can place our level of ability somewhere along a continuum moving from ignorance, to conversational competence, to operational competence, then towards proficiency, and finally all the way to mastery.

The quote is from Laurence Enderson, Pebbles of Perception: How a Few Good Choices Make All the Difference, a collection of wisdom inspired by Charlie Munger, lawyer and vice chair of Berkshire Hathaway. I haven’t read the book, but Farnam Street extensively quotes its exhortations to move beyond “coasting,” and rather to embrace lifelong learning. The passage on this continuum of learning was of particular interest.

What would this continuum look like as applied to listening?

Ignorance

It seems like many are operating in a state of ignorance about listening as a concept and an improvable skill. Yet they may be decent or even very strong listeners. In the same way, a talented self-taught writer may not use the vocabulary learned at the Iowa Writers’ Workshop but still produce great prose. On the other hand, many others are ignorant of listening and/or ignorant about how bad they are at listening. (This is the Dunning-Kruger effect, a delusion of competence that applies to listening as to any other skill and has been discussed on the blog here and here and here.)

Conversational Competence

For the rest of us—the coachable who haven’t yet been coached—a state of ignorance about listening seems inexcusable, although common. I say it’s inexcusable in part because “conversational competence” can be reached without a lot of effort. A bit of time spent learning active listening could be sufficient.

Operational Competence

The operational competence is harder. Actually practicing active listening is much more of a challenge than talking about it. And what if active listening isn’t even the right strategy?

Professor Neil Hamilton, in a formative law review article on listening, talked about passive listening as well. (Here’s the link: “Effective Requires Listening: How to Assess and Improve Listening Skills.”) Passive listening has three components, according to Hamilton (citations omitted):

First, the attorney should place an emphasis on silence in conversations. “[A] brief but definite pause in a conversation” can be an effective tool, allowing the client to collect his or her thoughts and then provide information in a more comfortable fashion.The failure to allow periodic silence can interrupt a client‟s stream of association and make the client feel cut off, hurried, or pressured. Effective lawyers will often pause and allow the client to reflect before continuing with their dialogue.

The second key to passive listening is the use of “minimal prompts.” While silence can make some clients and lawyers uncomfortable, “minimal prompts” can let the client know that the lawyer is listening and understands what is being said.

The final passive-listening technique is the use of open-ended questions.

Of these three techniques, the first—using silence—seems by far the hardest. The role of silence is a challenge for many, perhaps especially for lawyers. Legal Zoom CEO John Suh recently offered the following statistic:

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Before one becomes operationally competent in tolerating and even encouraging real silence, one must first be operationally competent in remaining silent while someone—such as a client—is talking.

Proficiency and Mastery

What makes a listener not only competent, but even proficient and, eventually, masterful? Malcolm Gladwell profiled “gifted listener” Konrad Kellen, the Vietnam consultant who was able to listen to interviews with the North Vietnamese without bias. This meant he did not allow the prevailing theory of the war to shape his perception of what they meant.

Listening without bias is closely connected to hearing what isn’t being said:

The most important thing in communication is to hear what isn’t being said.

-Peter Drucker

In other words, great listeners overcome the “availability bias” of paying attention to what is on the list or what the witness is saying, instead of what is not.

So proficient listening is in part a set of technical skills such as appropriate body language, recall, notetaking, compensating for cognitive biases such as the availability bias. Professor Neil Hamilton’s article provides a variety of self-assessments and exercises. Taken together, the questions on the self-assessment provide a sort of schematic of a masterful listener. Here’s an excerpt:

  • I use head nods and facial expressions to indicate that I am listening to a speaker.
  • I establish and maintain eye contact with a speaker.
  • I maintain strong posture and avoid slouching during conversations.
  • I notice changes in a speaker’s volume or tone of voice or nonverbal expressions.

But masterful listening can be—and at least sometimes should be—more than a set of techniques. Hamilton ultimately approaches listening as a virtue. He writes that “listening requires the ability to empathize and relate authentically to a speaker, in addition to technical skills.”

One difficulty lawyers face with the “virtuous listener” theory is what to do with those who act and speak in bad faith. Even with their own clients, lawyers may need to “trust, but verify.” 

If the true sign of genius is being able to hold two opposing truths in mind at the same time and still function (paraphrasing F. Scott Fitzgerald), then the lawyer-as-listener who reaches mastery is indeed a sort of genius. The lawyer uses all the technical tools of listening. More broadly, the lawyer achieves the virtues of empathy and connectedness—but only when appropriate. Sometimes, as communication consultant Jennie Grau pointed out in her recent interview here, the lawyer-as-listener just has to “listen to respond” (not to understand). The mastery lies in knowing the difference.

I was going to end on that note, but that’s not quite enough. Sometimes a situation that begins with hostility and distrust can be transformed into a real opportunity to resolve a dispute, such as in mediation. Listening has a key role to play here. It’s certainly not easy, and listening may seem at times like a zero-sum game with many players. For example, what if the client (who may not be an advanced listener) perceives the lawyer has somehow empathized too much with the mediator or “the enemy”? The difficulty of these situations is exactly why there’s a difference between the lawyer with competence and the one with mastery. When the conditions are right, the masterful listener can use the tools and virtues of listening not just to encounter and understand a situation, but to change it.

What is listening? Q&A with Jennie Grau

Jennifer Romig1 Comment

One of the best things about writing this blog has been the opportunity to talk with and meet (in person, by phone, or by e-mail) a variety of communication experts. One of them is Jennie Grau, President of Grau Interpersonal Communications. Jennie has spent her career training, coaching, writing, and speaking, on the subject of listening. She is a Certified Listening Professional (CLP) of the International Listening Association. Although not an attorney, she is surrounded by attorneys in her family life. In her professional work, she has done a variety of trainings with lawyers and other legal professionals. Listen Like a Lawyer is grateful to Jennie Grau for responding to this Q&A.

What would you say are the classic concepts in listening?

Listening is thought of and explored from many perspectives. Musicians talk about listening in terms of entertainment, emotions, and aesthetics. Listening to music is a form of appreciative listening. While it may not seem pertinent to lawyers, there is a music of the voice which through tone, pace, pause, and quality communicates the emotional undercurrent of human interaction.

In legal contexts and in law school, listening is often thought of as a tool to support critical thinking and analysis. The focus is on critical listening, or reply style listening, to better advocate for a position.

Empathic listening, often associated with medical and therapeutic contexts, is equally important for dispute resolution. Empathic listening involves being able to understand and articulate another person’s perspective. If you can see the world through someone else’s eyes, you are better able to uncover viable solutions which result in more successful negotiations. In addition to dispute resolution, empathic listening is key to building rapport, loyalty, and trust, the foundations of good relationships with both clients and colleagues.

Mindfulness is another form of listening. It involves listening to oneself. Mindfulness can be thought of as the ability to still one’s own thoughts. It expands one’s awareness and ability to concentrate. The aggressive Type-A business personality may not intuitively embrace the idea of listening to self. The need to quiet the noise in our heads, to fully focus, to relinquish the speaker role, is essential for full understanding. Mindfulness is appreciated by the business community when it is recognized as a tool to accomplish their goals.

What package of listening skills do lawyers need?

Stephen R. Covey observed that “most people do not listen with the intent to understand; they listen with the intent to reply.” In fact, one of the skills of advocacy is “listening to reply.” Listening to reply is important because lawyers have to give advice, set an agenda, evaluate, and at times rebut.

But there is a complementary other half of that famous statement—the listening to understand. That second set of skills, inquiry, comprehending, supporting and uniting, is important because the courtroom is not the only legal context where listening happens. In these additional contexts understanding the other party is a powerful skill.

Think about who is encouraged to go to law school. If you are good at debate and rhetoric, people say, “You should be a lawyer!” But if you are a brilliant listener and can understand the human condition, no one says that. They say, “You should be a social worker or psychologist or go into business.”

Among this second set of skills, lawyers need the skill of inquiry. That’s different from interrogation. Inquiry sustains rapport during an interaction while uncovering new information. Lawyers also need skills that demonstrate comprehension such as paraphrasing what was said and sometimes what is not said overtly but implied such as the feelings, needs, and interests of the speaker.

Lawyers also need the skill of unifying parties’ discrepant interests. For example, in a gritty and messy divorce, lawyers benefit from the skill of keeping people at the table and working through the issues. In dealing with family conflict, the lawyer may need to listen through years of emotions and relationship issues. In listening to what lies below the objective statement, the lawyer can recognize possible solutions by understanding what is important to each party.

Why is it important to develop those deeper listening skills?

 Because there are so many benefits, for both tasks and relationships, when you listen deeply. Real listening means getting to a shared understanding between speaker and listener. Without that, we lose vast amounts of data that could help solve problems and resolve conflicts. Deep listening is worth the effort.

How do you know if you are good or bad at listening?

The short answer is you ask key people in your life for feedback: your colleagues, your family, and your friends. Our own perception of our listening skills is usually inaccurate. Ask questions like:

  • Do I focus on you and what you are saying when you want my attention?
  • Do I seem to understand what you mean rather than what I would mean if I had said the same thing?
  • Do I remember what you tell me?
  • Do you feel like I really listen to you?

Most people’s listening is unskilled. We rarely teach this in schools, and we are blind to the fact we are unskilled. Prior to my seminars, I ask people to rate how skillful they are as listeners. On average I get a rating of 80%. After the seminar I ask again. They laugh and tell me they did not know how much they did not know.

What is your advice for lawyers and other legal professionals?

Assume there is more than you are getting

When you are listening begin with the assumption that what you understand may not be accurate or complete. Create opportunities to explore a conversation more fully: “What did you mean?” “Tell me more.” “How does that work?” The beginning of listening is recognizing how likely you are to have misunderstood what the other person meant.

Appreciate the power of the pause

It may seem like a speaker is finished. They may use downward inflection in their speech and break eye contact but still have more to say. A listener can use the pause: count to ten and do a full inhale and exhale before going on or even asking a follow up. You will be surprised to discover how often more will come. This is particularly true when you are listening to someone speaking in a language other than their first language.

Try “the five why’s”

This means asking “why” five times. This practice comes from the world of engineering. The theory is that the first time someone answers a question about “why,” their answer is probably superficial. Going beyond the first answer allows the speaker to find the root cause and gives them more time to connect ideas that they had not connected before. This technique is especially effective if you don’t use the word “why” which can cause people to feel defensive. Instead ask a “why question” saying “How come?” “What caused that?” or “What lead to that?”

What else?

Use this technique when you believe everything has been said and you are effectively done with the discussion. Questions such as “Is there anything else?” and “What else should we be talking about?” often elicit new information. It is shocking how often people will add new and often critical content at this time. There is a parallel in the medical field, “the door knob moment” when the doctor is about to leave the exam room and the patient shares new and important health information.

Build the listening container with your non-verbal presence

The way listeners use their face, eyes, body, posture, gesture and voice create a context for interaction. Your non-verbal presence can put people at ease or make them more guarded. People often enter a lawyer’s office with anxiety. They may not be happy to be there. They may be worried about the cost or the outcome. Many people are uncomfortable with conflict. It’s an unfamiliar setting and alien experience. In this context, listening is extremely important for building trust with new clients and ensuring existing clients follow your advice. It is a way for you to develop respect.

This Q&A has been condensed and edited for brevity.

Listen Like a Lawyer is currently working with Jennie Grau and several other lawyers/mediators/Certified Listening Professionals on a possible CLE session in Tucson, Arizona, in March 2016. More information will be forthcoming on the blog when details are more certain. 

Listening for international law students: Q&A with Prof. Gabrielle Goodwin

Jennifer RomigLeave a comment

 Gabe Goodwin, IU Maurer School of Law 8.28.2012Professor Gabrielle Goodwin teaches graduate legal studies at Indiana University’s Maurer School of Law in Bloomington, Indiana. She has bachelor’s and master’s degrees in linguistics, and she taught English as a foreign language before attending law school. In her work at Maurer, she teaches three courses in the graduate legal studies department: legal writing, introduction to U.S. law, and criminal procedure through writing for LLMs. Her research interests include art and cultural heritage law, and she has also contributed to the development of a trilingual university in the Former Yugoslav Republic of Macedonia. Professor Goodwin blogs at http://llmlegalwriting.blogspot.com/. What she likes most about teaching is learning more about people, cultures, and legal systems.

Listen Like a Lawyer is grateful to Professor Goodwin for sharing her thoughts and advice for prospective and current international law students.

For a student considering enrolling in a U.S. law school, how can that student prepare for the style of a U.S. law school class?

A great way to prepare is to take an “Introduction to U.S. Law” type of class in the summer before starting at a U.S. law school. These classes introduce students to the basics of U.S. law and to the style of teaching in U.S. law schools. These days, a lot of law schools are offering such classes to their incoming students and some of them are open to any interested student.

However, not every student is able to attend such a class, and for those students, I would recommend listening to a variety of English language law-related material, such as TED talks, Oyez oral arguments, or legal podcasts, such as Life of the Law, Serial,  and Amicus. Although listening to such programs won’t help students understand the U.S. law school classroom, it will familiarize students with English speaking styles and legal vocabulary and concepts.

Gaining some background knowledge on American history and culture, the political system, ethics and theories of justice, and the structure of the courts would also benefit students as they prepare for law school classes. There are many free audio/video resources online, for example: Overview of the Federal Court System, Supreme Court Interviews, American Law: History and Origins, and The Preamble. Additional resources may be purchased, for example, The Great Courses on American History. 

What are the listening challenges that a student may face in law school, particularly if the professor is speaking a language other than the student’s first language?

 Aside from just understanding what the professor is saying generally, I think the biggest challenge is trying to discern what the point of a lecture is and understanding relevant versus irrelevant information. Also, because of cultural and speech pattern differences, it may be difficult for a non-native speaker of English to figure out when to interject a comment or ask a question. Even knowing the difference between when a professor asks a rhetorical question that doesn’t need a specific answer versus when a professor is waiting for an answer before moving on can be a challenge.

We might think of listening as being a passive activity; however, listening to a lecture, and learning from the lecture, means being an active listener. There are many interesting research studies showing that teaching people how to listen makes a difference in their comprehension. For non-native speakers of English, the challenge in listening is to prioritize what gets more or less attention, monitor understanding, and engage in ongoing self-evaluation and reflection. Students need to pay attention to what’s going on in their own heads while they’re listening – Are they simultaneously translating? Losing concentration? Finding the vocabulary hard to understand? Getting frustrated? – so that they can find ways to mitigate these difficulties.

Listening is not exactly the same as note-taking, but they are certainly related. What type of note-taking techniques do you recommend?

 Note-taking can be difficult for some of the reasons stated above, specifically knowing how to prioritize and organize information, but there are ways to mitigate this challenge. To begin with, students should come prepared to class. That means doing the reading or other homework that provides the background knowledge necessary to listen to and understand what the professor is saying. Predicting the types of information and possible vocabulary words can make students feel more prepared. If appropriate, make a pre-outline of the topics to be covered in class and add notes to the outline during the lecture.

Also, try to listen, understand, prioritize, and organize before writing anything down. Just writing everything the professor says doesn’t help when studying later because the context and relationships between ideas may be missing and because what’s quickly written down and what the professor actually said may in fact be different, leading to wrong conclusions. Similarly, noting words or concepts that are confusing, and then going back to them later to figure out, is better than becoming frustrated and losing the narrative of the lecture.

For some students, creating a “map” of lectures makes sense. Rather than trying to record everything in a linear outline, a student can draw a map of concepts, terms, and other information, which shows the relationships among them and where they fit in the big picture.

Soon after each lecture, class notes should be reviewed and amended. Putting notes in to a standardized outline format helps review and organize the material. Discussing and verifying notes with classmates is another good way to check understanding and review notes for accuracy.

Many international law students have legal expertise or training from their home countries. How can that expertise and training influence students’ experience in U.S. law schools?

 Most international law students come to U.S. law schools better prepared than American students. LL.M. students typically are lawyers in their home countries and have legal training and experience with taking a bar exam, not to mention practice experience. This is a huge advantage because international students are familiar with “the law” and the legal world. They are able to analogize from their prior experiences and training to more quickly understand new concepts.

However, this previous experience and training can be a disadvantage at times. Most international law students come from civil law countries, not common law countries. Noting the similarities and differences between the legal systems can distract students from understanding what is important about those similarities and differences. Also, always comparing what one is learning with what one already knows may get in the way of actually listening to what is being said.

In linguistics, we use the term “false friends” to denote words from different languages that look or sound similar but in fact have very different meanings. For example, parade in English and parada in Spanish, which means “bus stop,” not parade. In U.S. law schools, if international law students rely on “false friends,” concepts or terms that seem similar to those in their own legal systems, they may end up more confused than if they had no preconceived understanding of these concepts or terms.

Your class is a legal writing class. How does students’ listening matter to their legal writing?

We think of language proficiency as involving four skills—listening, speaking, reading, and writing—but these are not discrete skills. If a student is able to discuss and explain an issue, chances are good that the student will also be able to write about it. In my legal writing classes, my students are often asked first to brainstorm, discuss, explain, or clarify an issue as part of the pre-writing process. Talking to me, to each other, or even to themselves can help students decide what’s relevant, clarify their language, and organize their writing.  

What are the most helpful habits that law students can develop to listen effectively in class?

I think the most helpful habits are to think of listening as a multi-stage event:

  1. pre-listening tasks, such as planning and predicting
  2. listening tasks in the moment, such as selective attention, monitoring, evaluating, and organizing
  3. post-listening tasks, such as reviewing and reflecting

Each class lecture is not an isolated event, so trying to understand and fit each lecture into the big picture is also a useful strategy. Finally, it takes real concentration to listen to a lecture for the entire class period, and staying away from distractions, such as browsing the internet, texting, talking with classmates, or thinking about something outside of class, can make that easier.

Being an international student in a U.S. law school is a real challenge, but that challenge is not insurmountable. Developing good listening skills and habits will make the life of an international law student much more comfortable and less intimidating.

Speaking “business”

Jennifer RomigLeave a comment

Listen Like a Lawyer is a fan of several lawyers who write and blog in ways that touch on listening skills, including but not limited to* Jeena Cho, Keith Lee, Lee Rosen, and Pam Woldow. Another highly, highly recommended blog resource on listening and lawyering is this six-part series from Mark Perlmutter on Trebuchet Legal.

And then there is Kenneth Grady, who writes at Seytlines (for Seyfarth Shaw) and often on Medium. His Medium post today, 5 Reasons to Become a Doctor Dolittle of Lawyer-Client Communications, should be read by any lawyer who interacts with business clients in any way.

Let me repeat that: if you are a lawyer and you ever deal with any client that runs a business, works for a business, or has a background or connection remotely related to business, read this post.

Years ago when I was a summer associate in my first week at a firm, my partner mentor shared the same advice he gave to all new and aspiring attorneys at the time: take more business classes. Now almost 20 years later, Ken’s post updates and magnifies this sentiment, pointing out that the gulf between attorneys and business clients has widened into an even broader gap. And it’s not something one class (or CLE, or blog post) can fix. It’s a cultural chasm, and those who bridge it will succeed.

One thing I really like about Ken’s post is how it presents real-world situations for lawyers to understand the more abstract yet crucial lessons of Daniel Kahneman’s Thinking, Fast and Slow. (This book popularized the finding that Israeli parole judges made different decisions depending on whether they were about to eat lunch, or had just eaten lunch.) Are lawyers guilty of retreating to their legal comfort zone? Do lawyers give easy answers to the wrong questions? Trying to understand a client’s real business issue, explore options, and perhaps create new options is certainly more difficult than quickly selecting and suggesting a commonplace legal approach.

(Thoughts on Thinking, Fast and Slow in the context of listening can be found on this blog here and here and here. Keith Lee also shared advice on getting to know your business client in his book for new attorneys, The Marble and Sculptor, reviewed on the blog here.)

Ken’s post touches on listening in a number of ways both abstract and specific. It exhorts lawyers to learn to “speak business” so they can truly understand their clients and help solve their problems. Of course that does not mean adopting the business buzz words that generate so much mocking. (For a more serious and historical insight into business jargon, see this article from The Atlantic.) Speaking business means tearing down—and not incrementally rebuilding—the “artificial ‘law versus business’ wall.”

One of the post’s anecdotes sums up the techniques and benefits of listening in a way that applies to all client conversations, whether corporate or individual. Its message of listening and problem-solving is a fitting close to this post:

One manager approached me with a request that our company immediately bring a lawsuit against a business partner for breaching a contract. Rather than discussing the lawsuit, we talked about the contract and the relationship. After a long conversation, the client opened up and explained that he had misread the contract years ago and had been overpaying the other party to the contract. The business person on the other side came into the relationship after the contract had been signed and just accepted the payments without checking the contract. After investigating a bit further, I called the general counsel of the other party and we were able to work out a solution fairly quickly.

  • This short list was not meant to be exhaustive; please share suggestions on other bloggers who consistently touch on communication issues for lawyers.