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.

Listening and metrics of quality

Jennifer RomigLeave a comment

If a client feels listened to, is that client likely to use the lawyer or law firm again? Maybe, but not if the lawyer listened deeply and sincerely while charging three times what the client expected for the work. Metrics for lawyers and firms get complicated very fast.

Courtesy Flickr/Scott Akerman/CC by SA 2.0
Courtesy Flickr/Scott Akerman/CC by SA 2.0

Kenneth Grady’s latest Seylines post points toward the lack of process (and process-based metrics) for delivering legal services. The lack of process makes it difficult to measure the services and compare them. Instead, “counseling and advisory skills” are viewed as what can and should be measured:

[M]any general counsel talk as if legal services delivered by one firm are not distinguishable in substance from those delivered by another firm. Rather, say general counsel, it is the counseling and advisory skills that separate the desirable outside lawyers from the rest of the pack. While soft skills are key qualities differentiating lawyers, until we become a process-oriented industry, legal services will not be interchangeable.

So I think what he is saying is, general counsel may be using metrics about soft skills because they don’t have “harder” metrics about process. Grady points with hope toward signs of better process:

As the ways in which lawyers handle matters become standardized, it becomes easier to compare what law firms do, the quality delivered, the value clients receive, and to find areas for improvement. This is the first major step to transforming legal service delivery from a world of inputs and outputs with a black box sitting between them, to a world of transparent legal services and costs.

I hope he’s not saying that “counseling and advisory skills” will become unimportant in a world of truly standardized legal services. I don’t think he’s really saying that, although perhaps he would like these skills to be measured in the background against a foreground with objective metrics of process.

Whether metrics for counseling and advisory skills are a good thing, or just a second-best waiting for something better, Grady’s post made me want to know more about the metrics for these skills. In particular: How do GCs measure whether lawyers and firms are listening to them? 

The most accessible list of metrics I found was published by the Valorem Law Group. (Thanks to Ron Dolin’s post on “Getting to New Law: Standardized Quality Metrics” for pointing me to the Valorem list.) I took a look at the common metrics suggested in the Valorem list to see whether listening was mentioned. It wasn’t explicitly, but it could play a role in quite a few of them.

Here’s a chart brainstorming how listening may play a role in lawyers’ and firms’ performance on a number of common metrics. The metrics are on the left; thoughts on listening are on the right:

Typical metric

How listening may play a role
Cycle time Effective listening could help resolve matters more quickly and reduce cycle time.
Performance to budget Effective listening can help counsel gauge how difficult a matter will be (e.g. reluctant or poor witnesses) and thus estimate budget realistically
Results to predicted outcomes Similarly, effective listening can help with more accurate predictions by teasing out bad facts and revealing problems with potential testimony.
Timely work completion Effective listening can help the lawyer understand the client’s preferences on setting up timelines (more flexible or more aggressive and strict).
Percentage of holdback awarded and buckets of holdbacks awarded These are incentives that are “indicative of widespread client satisfaction.” Effective listening could contribute to the overall effect of widespread satisfaction.
Re-engagement percentile and   re-use index A client is more likely to want to re-use and re-engage with a lawyer or law firm that listened to the client effectively. Or at least, a client is not likely to engage a firm or lawyer who didn’t listen.
Recommendation index A client is more likely to recommend a lawyer or law firm that made the client feel listened to.
Creativity index This metric “[r]equires client to assign a score on lawyer’s creativity in solving problems, structuring settlements, providing strategy ideas, etc.” Understanding the client’s goals and what the client can give up is an example of effective listening that contributes to problem solving. In general, effective listening enhances problem solving. (This claim is worth a more detailed post at a later time.)
After action ratio The Valorem Law Group post notes that an after-action review isn’t necessary in every case. Effective listening could help a lawyer gauge whether a client wants to spend time on this kind of review. Effective listening in an after-action session seems like it could be crucial to making the session productive, especially in a sensitive situation.
Quality of advice Effective listening could contribute by allowing the lawyer to have more complete information when crafting advice, and a better understanding of client preferences in receiving advice.
Quality of written product Listening indirectly contributes to good writing by giving the writer more information. “Listening” to how the writing sounds in draft form helps a writer modulate tone. Reading out loud and listening to the words can be very effective.
Quality of outcomes Listening can tease out weaknesses and strengths that the lawyer can then use to help the client understand what kind of outcomes to expect.
Wins v. losses Can listening contribute directly to wins and losses? I’ll make a case here: Poor listening can result in problems such as failure to make a record, so yes. Good listening can steer a lawyer toward the arguments that matter most to the judge, so yes. And effective listening can help a lawyer manage which cases are appropriate to go the distance as “contested proceedings,” thus affecting the overall set of cases measured in terms of winning and losing.
Collaboration As defined by Valorem Law Group, a collaboration event would be “two or more people meeting to discuss the case, brainstorm about strategy and tactics, and similar discussions yielding value for client.” Listening is crucial to these meetings. This one isn’t hard at all.
Transparency index Transparency seems to be more about what the lawyer says and shares than how the lawyer listens. But effective listening can help a lawyer recognize what the client wants in terms of frequency and manner of sharing, and when the client may not understand. (Giving a correct and detailed explanation that the client does not understand may not help a lawyer’s transparency rating.)
Total value index This index “[f]actor[s] in all metrics weighted in whatever manner client sees fit.” Listening could contribute to the client’s perception of “total value.”
Percent of claims resolved within 30/180 days of claim As noted earlier, effective listening could help resolve matters more quickly and reduce cycle time.

The list here does not include all of the metrics from the Valorem Law list. Although I try to relate almost every legal topic to law in some way, I just could not see the connection to metrics such as “effective disaggregation,” “average number of timekeepers per matter,” and “average seniority on team,” as well as a number of quantitative measures based on fees. (But wait. For average seniority on team, maybe there is a connection to listening. Ineffective communication with junior associates may lead them to seek opportunities elsewhere, reducing the pool of senior associates available for staffing.)

Another caveat is that not all legal matters involve the traditional definition of listening, as in some form of spoken and/or nonverbal input. For those that do involve meetings or phone calls at any step of the way, the metrics above suggest that listening can affect a pretty broad variety of metrics.

The Valorem Law post notes that many of these metrics are “subjective” such as whether a client would recommend a firm or lawyer and what the client feels is the “total value index.” And that brings us back to the difficulty of measuring listening in any context.

Two hemispheres of law practice

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 Securities law and divorce law. Lawyers in these practice areas may not be from different planets, but they live in different “hemispheres,” according to sociological work being explored by Deborah Merritt at the Law School Café. Her first post is here and second post here.

Flickr/CC by SA-2.0
Flickr/CC by SA-2.0

Merritt is revisiting the study Chicago Lawyers by sociologists John Heinz and Edwards Laumann. This study generated the “hemispheres” metaphor for categorizing the work done by lawyers:

Heinz and Laumann concluded that a “fundamental distinction” divided lawyers into “two hemispheres.” One group of lawyers “represent[ed] large organizations (corporations, labor unions, or government),” while the other “work[ed] for individuals and small businesses.” The division between these two was so sharp that “[m]ost lawyers reside exclusively in one hemisphere or the other and seldom, if ever, cross the equator.”

The concept of these two hemispheres immediately brought to mind potential differences in listening. Here are some exploratory thoughts. More are certainly welcome in the comments.

First-hemisphere listening

Listening in the “first hemisphere” means listening to large organizations. A single organization may or may not have a single “voice,” notwithstanding established lines of communication between the lawyer and client. A lawyer who represents an organization must know how to listen efficiently but broadly to the different perspectives of that organization. For example, what if the client contact urges an aggressive approach in a particular matter, but the key witnesses are unwilling or ineffective?

First-hemisphere listening may also involve heavy use of e-mail to enable simultaneous communication among a group. This could mean losing the nonverbal nuance of spoken conversation, as many critics of e-mail have pointed out. It’s a truism of e-mail skills that the best communicators know when to pick up the phone.

Listening to an organization also means sensing whether the key players remain satisfied with the work. As I recently heard a law firm’s chief marketing officer say, “When a [big] client isn’t happy with your work, they don’t tell you, because they don’t like confrontation. They just stop giving you any more work.” She made a great case for how a marketing officer in a big firm can help with listening to clients and teasing out more of what they really think.

Second-hemisphere listening

Listening it the “second hemisphere” would involve a different set of challenges. This second hemisphere brings to mind the more traditional image of listening such as one-on-one meetings where the lawyer listens actively and builds rapport. Perhaps the lawyer must guide the conversation to legally relevant facts, while respecting the client’s need to be heard. Many (almost all?) lawyers in this hemisphere also need strong skills in cross-cultural lawyering to be able to effectively listen to and problem-solve with their clients.

The business of law works plays a role here as well: lawyers must work on efficient yet welcoming intake procedures and appropriate listening behaviors from any staff who interact with individual clients. (See Lee Rosen’s tale of woe on Divorce Discourse, in which he interacts with a law firm in an attempt to refer some business.)

Why do these hemispheres exist?

So in terms of listening, are the two hemispheres more different or more alike? To think about that, we should think about why these different hemispheres exist in the first place. Merritt considers several factors such as income and power. Ultimately, she suggests—drawing from Heinz and Laumann’s work as well as Andrew Abbott from the University of Chicago—that the real issue is “professional purity”:

By professional purity, [Abbott] means the ability to resolve problems primarily through application of the profession’s own principles. The most prestigious professionals apply their knowledge to particular problems, but they do not grapple directly with messy facts or human emotions. Lower status professionals, in contrast, resolve problems that reflect a full range of “human complexity and difficulty.” (Andrew Abbott, Status and Status Strain in the Professions, 86 Am. J. Sociology 819, 823 (1981).

This idea helps to delve into the listening question. For the first hemisphere, perhaps listening takes a background role to the foreground role of legal analysis and problem-solving driven by that analysis. As Merritt writes, the lawyer’s role here is doing “some of the most ‘legally’ powerful work in the profession” such as examining “statutes, rules, and precedents to construct new, advantageous ways for the client to conduct its business.”

The privileged role of the lawyer here, doing this “legally” powerful work, perhaps can generate leeway for how and when the lawyer communicates. In the classic law-school legal-memorandum assignment, the legal analysis may lead to additional facts to investigate. Not knowing all the facts to investigate up front does not bring blame on the lawyer because unique legal analysis drives what needs to be known. Individual contacts in an organization may or may not be impressed with a particular lawyer’s communication skills, but one person’s experience may not be the most important criteria for selecting counsel.

Moreover in the first hemisphere, the organizational client’s workplace culture itself may discourage the expression of “messy facts and human emotions.” A non-emotional workplace culture could thus reduce the expression of these emotions in interactions with lawyers. (Merritt implies and I would argue that an emotion-suppressing workplace culture does not in fact mean the effective first-hemisphere lawyer need not worry about those emotions. More on this in a moment.)

For the second hemisphere, perhaps there is more obvious, explicit pressure on listening. It is certainly what is needed to deal with the “full range of ‘human complexity and difficulty.’” For individual problems that can’t really be solved with a neat legal solution, listening can go a long way toward helping and healing. An individual client may not know social-security law, but that client can recognize whether the lawyer is doing a decent job of listening. And the individual client may be less constrained on finding new counsel if the client feels dissatisfied. (However, lack of experience with lawyers and lack of a consumer mentality may cut the other way.)

Ultimately, Deborah Merritt suggests that the differences between the first and second hemisphere are less than we might think:

“Both hemispheres involve mundane, repetitive tasks, as well as intellectually challenging work. Similarly, effective education of ‘second hemisphere’ lawyers is just as intellectually demanding as that for ‘first hemisphere’ ones.”

First-hemisphere lawyers who refuse to delve into “messy facts” ultimately do risk their relationship with organizational clients. Merritt cites the facts that corporations complain when their law firms do not take the time to really understand their business.

What does this mean for law schools?

Merritt makes a number of points about teaching and scholarship. The “most important changes we can make in law schools, for all clients and lawyers” is to reduce the focus on appellate decisions. Instead, she argues law schools should bring client interaction into the entire law-school curriculum, including the sacrosanct first year.

In this way, students would be better prepared for their work as lawyers, in either hemisphere. Perhaps ultimately this type of reform would begin to erode distinctions between hemispheres as well, although they are very deeply rooted, as the sociologists work has repeatedly showed.

Listening for healthy signs

Jennifer RomigLeave a comment

The Dean of Hastings College of Law, Frank Wu, recently wrote a widely shared article in Huffington Post, “Why Law Firms Fail.” He states a counterintuitive hypothesis:

Law firms fail for many reasons. Among them is not one that might be expected. Very few, if any, of the law firms that have “failed” has foundered because the people employed there were lousy lawyers.

The causes of these debacles are varied: too much debt or space, not enough revenues or collegiality (the latter merely referring to how to divide the former), geographic expansion for its own sake, promises to lateral recruits that cannot be sustained according to any rational calculations, and so on.

As I read the article, I wondered whether there is a connection to listening. Poor skills in business and management are the real culprits, Wu says:

It is necessary to be great businesspeople, too. Or to affiliate with great businesspeople, which means recognizing that the technical skills needed to be a great lawyer might (or might not) correlate with the other skills needed to thrive.

Dean Wu emphasizes hard skills such as understanding debt and managing costs such as compensation. But soft skills—including what might be called advanced business listening—are surely part of the solution as well. In the “business world” (acknowledging very broad generalization here), listening is recognized as at least helpful, if not essential, to effective management—as well as under-appreciated and often poorly practiced in the field. Anyone who follows LLL’s Twitter feed will know how often it draws upon the Harvard Business Review, which addresses listening skills quite a bit such as here and here and here and here.

The kind of listening that may be most pragmatically effective for addressing the failures Wu describes is the most difficult listening of all: listening for what isn’t there. (Peter Drucker: “The most important thing in communication is hearing what isn’t said.”)  Listening for the client pitch that could involve multiple client-service teams in a law firm but goes ahead with just one team. Listening for the lawyer on a complementary team who isn’t saying much about the opportunity he or she didn’t get. Listening for the lunch meeting that never gets set up with the attorney who isn’t in the office that much anymore. Listening for the sound of one foot out the door.

This isn’t just about the technical definition of listening as a receptive communication skill, although face-to-face conversations are a major opportunity for sensing these issues. It’s more about broadly sensing and perceiving what is happening—and not happening—inside the business.

Sensing what isn’t there is one of the hardest things. For both individuals and groups, the absences and gaps are overshadowed by the what is there: the pitches that do happen, the events that do take place, and the lunches that people do make time for. The cognitive experts, drawing on Nobel Prize winner Daniel Kahneman’s work, call this “WYSIATI”: What You See Is All There Is. For lawyers and firm managers, if they are seeing clients and revenue and billable hours, it may be very difficult to see the opportunities that aren’t happening. (Read more on Kahneman’s work and how it relates to lawyers and listening here and here and here. And here and here are a couple of good reviews of his book more generally.)

What are the ways to compensate for these biases and better understand what’s not happening? First, there is general investment in being connected to colleagues: staying in touch with people and having conversations. Good conversations create the opportunity to perceive not just what people say (“Hey, everything is going really well! Working with the XYZ client is really keeping me busy”) but also what they don’t say and what their nonverbal behavior may reveal. (The New York Times did a nice piece on Anita Cicero, partner in charge of the D.C. office of Drinker, Biddle, and Reath. She mentioned listening as key to her management job and her client-relations job. And this article on “7 Habits of Highly Effective Law Firm Leaders” alludes to the importance of being visible and listening to others’ perspective throughout the firm.)

Second, it’s possible to mitigate the WYSIATI problem with methods such as checklists and skillful use of questions. Checklists are not the most glamorous management technique in the world, but they are quite effective for certain situations. (Read Atul Gawande’s book The Checklist Manifesto. Please.) Checklists are known and even loved for catching mistakes. The “smart” lawyers Wu is talking about may congratulate themselves on their amazing checklists for producing great client work.

But checklists are more than a stupid-mistake-prevention technique. Teams and organizations can use certain kinds of checklists to force collaboration and conversation at specified points. Only in that way can checklists even begin to address complex long-term projects such as building a skyscraper—or maintaining a thriving law firm.

This type of listening is not just for recognizing problems as they occur, but also for productively collaborating in a way that anticipates and plans, addressing “issues” before they even become “problems.” Ken Grady of Seytlines has recently bemoaned the emphasis on the reactive, failure-based culture of much legal training. When we talk about listening, it needs to be stressed that listening is not just for recognizing problems but also anticipating and preventing them. Thus, this type of advanced business listening will sense opportunities ready to be created: The client pitch that can involve multiple teams. The contribution that a lawyer or team can make to a new representation. The lunch meeting that can launch a new collaboration within the firm.

For this kind of collaborative, anticipatory checklist, meeting face-to-face at strategic points is part of what Gawande recommends, along with prompting all members of the team to contribute in a constructive way. (Thus a regular law-firm meeting stuffed with top-down lecturing and cursory Q&A wouldn’t really count. Likewise an open-ended venting session with no particular goal is not what he is talking about.)  I am certain that many healthy law firms use practices consistent with what Gawande recommends, whether they are intentionally implementing a checklist-based management theory or not.

It would be interesting to hear more from readers about checklists for law-firm management, and more broadly how listening may play a role in law firms’ strategic planning and management. And even more broadly still, how can law firms and lawyers, and law schools as well, respond to the challenge of Dean Wu’s article on why law firms fail?

If you are really interested in checklists, here is the link to a 4-part series I wrote on checklists as a tool for legal project management. That series was more about being a smart and good lawyer in the nuts-and-bolts sense—which, as Dean Wu pointed out, is not quite enough to maintain a successful law firm.

 Thanks to Joe Fore of the University of Virginia for providing feedback on an earlier draft.

Listening and legal marketing

Jennifer RomigLeave a comment

This blog is a place where not only lawyers but all legal professionals can come together around the topic of listening. Listening helps to bind us together in productive work—or hold us apart, when we listen poorly. Legal marketing professionals have a huge contribution to make here, as they really know deep in their bones the importance of listening to the client (and the potential client) in a variety of ways. I didn’t attend last week’s annual conference of the Legal Marketing Association, but the meeting produced an excessive and interesting number of live tweets, so I decided to point out some themes of interest here on the blog.

The keynote was by Daniel Pink, and he kicked it off by invoking Alec Baldwin’s ABC moment—”Always Be Closing”—from Glengarry Glen Ross to set the stage. (I thought about linking that clip here but it is quite NSFW.)

Dan Pink suggests a new set of ABC’s for a world where the seller no longer has superior information to the buyer. Instead, the key principles to successful sales, or marketing, or whatever term makes you comfortable when it comes to finding potential clients and convincing them to use your services—which this blog fundamentally assumes to be activities of interest to most lawyers and legal professionals—are attunement, buoyancy, and clarity. If attendees got one thing from Pink’s keynote, it would be these three principles:

Each of these principles has something to do with listening, I think, with attunement at the top of the list.

A. Attunement and listening mutually reinforce each other

Attunement means being able to understand the client’s point of view. Being open to the other person’s perspective is crucial:

But it’s not the same thing as emotional intelligence:

To stress the point, what the other side is thinking is at least as crucial and probably more so than what they are feeling:

Tweets from other sessions, not the keynote, touched on attunement in different ways such as handling the pitch meeting and maintaining the relationship:

Attunement remains crucial throughout the relationship, when things are going well . . .

. . . and especially when the relationship may be going south:

One tweet pointed out the importance of attunement for legal marketers in their role as facilitators of business delivered by others:

This was an intriguing point with several interpretations. Maybe it’s necessary to understand “the service” and the providers of that service, and the strengths and weaknesses of both. As a witness in one of my first IP cases said, “My job is to make sure the sales team only sells what the engineering team can actually deliver.” Or maybe it’s necessary in the sense of how the legal marketer adds value to a law firm: legal marketers who are superior at attunement to client needs add irreplaceable value to the law firm’s team of professionals.

And this point about attunement in a three-point relationship (legal client/legal marketer/lawyer) may be expanded to the cover lawyers. Being attuned to the knowledge and expertise of the legal marketers who specialize in understanding clients and potential clients can help lawyers better understand their clients as well.

B. Buoyancy means dealing with rejection

The value of buoyancy apparently came wrapped in some generalities about lawyers’ perhaps non-buoyant personalities:

But relationships can help:

The tweets don’t say this, but isn’t it clear that listening is a great tool for anybody to build relationships with mentors and sponsors?

I’ll have to read Pink’s book To Sell Is Human to get a fuller picture of what he says on buoyancy. He also wrote the book (literally) on motivation, which leads me to expect words of wisdom on self-talk, or internal dialogue. What do lawyers and legal professionals hear when they listen to their own self-talk? To be buoyant, we need healthy ways of handling self-talk. And if our self-talk is overwhelmingly negative, we probably can’t listen effectively to others for problem-solving and relationship-building.

C. Clarity is about finding problems and curating information to help solve them

The clarity principle seems to focus on finding problems and sharing information in productive ways. Pink spoke about helping clients find problems:

The part about not being a problem solver is interesting. “Solving” problems too quickly can itself cause problems, such as not fully understanding the actual problem and not forging the relationship necessary to address it. And jumping in to answer a question, rather than fully hearing someone out, is a hallmark of bad listening.

So finding problems is part of clarity, and the most advanced way to do this is to find the problems that are hard to perceive:

The theme of information saturation plays a continuing role throughout these new ABC’s. For example, clarity is a huge part of content strategy, basically selecting and sharing what clients and potential clients really need to know:

And that brings us full circle to the role of the legal marketing professional. Revealing more about who the clients are and what they need helps everyone:

“Personas” and “key client types” may be a bit jargon-y, but lawyers and legal marketing professionals can work together to understand each other’s language and the ideas behind that language. Listening to one another in this way helps with the broader common goal of listening to the client. Listening helps with all of the new ABC’s of selling, which in turn lead to getting business, forming relationships, and ultimately serving clients in effective ways.

Pink’s keynote at LMA drew extensive on his book To Sell Is Human. For those interested in seeing him present the ideas, here’s a webinar hosted at the Harvard Business Review. And Nancy Myrland has collected all of the blog posts from the LMA15 meeting here.

Listening is part of emotional intelligence

Jennifer Romig3 Comments
Daniel Goleman is the father of the emotional-intelligence movement. He recently shared a checklist of “EQ” competencies with the New York Times. EQ has four overarching categories:

1. self-awareness

2. self-management

3. empathy

4. relationship skills

Not surprisingly, listening was included as a skill related to empathy:
You pay full attention to the other person and take time to understand what they are saying, without talking over them or hijacking the agenda.
In the context of ever-present smartphones, this is much harder than it used to be. The presence of a phone decreases the actual empathy the person feels, according to several psychology experiments: “[B]ecause of the many social, instrumental, and entertainment options phones afford us, they often divert our attention from our current environment, whether we are speeding down a highway or sitting through a meeting,” reported the Scientific American. “[C]ell phones may serve as a reminder of the wider network to which we could connect, inhibiting our ability to connect with the people right next to us.”
There are a lot of directions I would like to take this post—for example reflections by practicing lawyers on what EI means to them in their work. Also the pragmatic benefits of emotional intelligence such as better negotiation.  But thinking about the instrumental benefits of emotional intelligence leads me to think of Machiavellianism and the “dark side of emotional intelligence.” Without getting too side-tracked into those areas at least at this time, I’ll stop. Listening is part of empathy, and empathy is part of emotional intelligence.
Note this post has been corrected to reflect “EQ” as the commonly used acronym for Emotional Intelligence, rather than “EI.”

A tale of two sales

Jennifer RomigLeave a comment

A 40-something lawyer attempting a triathlon is apparently so common as to be a cliché, but I’d rather be a healthy, fit cliché than wither away uniquely.

Courtesy Flickr/CC by-SA 2.0
Courtesy Flickr/CC by-SA 2.0

Two recent experiences shopping for triathlon gear prompted this post about listening and sales. Listening is a crucial part of one-on-one marketing, and a few aspects of my experience may help lawyers as well.

Store #1

I happened to visit this store while picking up a race number for a small running event. It’s a place I’ve always driven by and been interested to visit, but never actually gone into until now. While I was picking up the number, the store owner stood by. He took the first step by asking if I wanted to look at some shoes. I actually am very interested in the new super-cushioned shoes I’ve been reading about, which this store does carry. But I didn’t say that just yet. I gave a noncommital but friendly “maybe, when my current shoes wear out.” I then told him the model of my current shoes.

The response was immediate and vociferous, “Oh, we’ve got to get you out of those.” He then critiqued their design and suggested they are actually weakening my feet. He asked me if I saw a television news report with an orthopedist’s endorsement of a certain brand featured in this store.

The store owner didn’t find out that my existing brand of shoes has helped me recover my running career. He didn’t find out that I have a long history of orthopedic issues. He didn’t find out what I like in a pair or shoes, or that I was actually highly interested in a different brand of shoes that he actually does carry in the store. It appeared he had a featured brand he was selling to every runner that came in the store. I got the strong impression his initial conversation with almost any potential customer would lead to the same solution no matter what the potential customer said.

Store #2

This was a bicycle store, so potentially a much more expensive purchase. A salesperson approached me as I browsed and asked how he could help. He said he had only been working there for a few weeks and brought in a more senior sales person. She asked a series of questions. First and foremost: “What is your goal?”

After I told her, she asked some follow-up questions about my commitment to triathlons. She said she would recommend a very different bike for someone attempting a triathlon once as a bucket-list item as compared to someone who was going to ride more frequently and compete throughout the summer and beyond. It was understood I wouldn’t be walking out right then and there with a bike, but she offered to e-mail me some “eye candy” and specs on the bike she suggested. Her follow-up e-mail began with “It was a blast talking with you about bikes today” and continued with detailed information about the bike.

Lessons for lawyers

What do sales tactics in specialty sports stores have to do with marketing legal services? I saw a few potentially relevant points:

Marketing to someone you just met

I had never seen the shoe guy or the bike lady before in my life. To be fair to the shoe guy, I went into the store for a different reason (to pick up a race number), whereas the bike lady knew there’s no reason for me to be in that store other than interest in bicycles.

Either way, establishing rapport seems like a fundamental sales tactic. Others have suggested an 80-20 rule: get the other person talking 80 percent of the time. In his excellent and fun book Ditch the Pitch, marketing expert Steve Yastrow recommends a higher burden: keep the conversation on the customer 95 percent of the time.

The shoe guy didn’t ask me a question other than “while you’re here, do you want to look at some new shoes?” Once he got a quasi-positive answer, he was off and running with his pitch about the benefits of the shoes and the recommendation of an orthopedic specialist in a news report.

In that sense, he fell into a trap lawyers may face as well: the desire to show what you know. It does seem intuitive that one can sell by impressing them with your subject matter expertise. This seems especially true for discerning buyers with competitive goals and a willingness to innnovate for better results. And it is especially true when you have developed an expertise in a new and exciting approach or idea or product. But he gave the impression of being wound up like a child’s toy to release his spiel.

The bike lady asked a series of questions and didn’t talk about bikes at all until she learned more about me and my goals. After building a rapport with these questions—the equivalent of intake questions for lawyers?—she moved toward a solution that addressed the questions. At that point she selected and described a solution, i.e., a particular recommended bike. She pointed to its features and compared and contrasted it with other solutions, i.e., other bikes higher and lower in the spectrum of features and price.

Marketing to someone who has already made purchases in that same market

The shoe guy heard what brand and model of shoe I wear and immediately said, “We’ve got to get you out of those.” The message and the phrasing set a bad tone in a couple of ways.

First of all, there was no “we” at that point, since I had been in the store all of five minutes. Second, I am actually really quite happy with my shoes. It almost made me feel bad about the shoes I’m wearing. Instead I resolved the dissonance by shifting into a feeling of dislike toward the sales person.

Despite the good experiences with my existing shoes, I actually would experiment with another pair of shoes that are similar to these because I have read about great results other runners have gotten from the new super-cushioned shoes. But I’m just not going to go in a totally different direction, given the good experience I’ve had to this point. And that guy would never know this because of how he approached the entire conversation.

So, if a lawyer is talking to a potential client who has a history with a different lawyer or firm, it would seem rather arrogant to lead with “We’ve got to get you away from that [lawyer or firm]!”

Rather, the lawyer could find out more about what the potential client needs in terms of business services. What does the potential client want from a lawyer? There’s no need to trash the status quo if you can—subtly—offer an improvement on it.

Marketing what you believe to be the superior product or service in the field

The bike lady selected a model to show me and talked about its great features including how light it is, its hidden cables, its smooth gears. She pointed out how the pedals can be customized to preferred feel and functionality. She offered to let me ride it in the neighborhood. She then talked about models one step down and one step up from that model. And she mentioned that adjustments to the bike are free in the store for the life of the bike—potentially 10 years or more.

In this way a lawyer can present a client or potential client with options: the one that seems the most effective to the lawyer, even if it’s not the cheapest approach, as well as the higher-end and lower-end ways to deal with the issue, including their advantages and disadvantages.

Creating a longer-term relationship with the customer/client

Some kinds of businesses are better able to form a relationship than others. A bike needs adjustments and can benefit from various add-ons any time during its useful life. The bike lady made sure to mention the free adjustments for life that come along with any bike purchase.

Still, even a one-off sale can form a relationship. For running shoes, the chance to try on the shoes in the store could be a powerful incentive to buy because now you’ve spent the sales person’s valuable time working with you. Or the store could provide ongoing support with smaller items like running gloves, water bottles, special compression socks, and so on.

It may be disturbing to discuss similarities between marketing legal services and selling special socks. But if those socks are a reasonably inexpensive way to prevent years of injury and expensive physical therapy, then they are pretty awesome. And similarly with legal services, an ounce of prevention may be worth a pound of cure, creating a grateful client. Walking out of the running store with a $40 pair of compression socks and a positive experience would have made me more likely to stay interested in buying shoes and other gear there over the long term.

Standing by the product/service while also providing flexibility

The bike lady acknowledged that the bikes she is selling are a fairly major purchase. But, she said, if you buy it and get it home and within 30 days decide you just don’t like cycling and aren’t going to use it, bring it back. We’ll give you a refund. Or, she said, if you get it home and within 30 days decide you actually love cycling and want to get an even better bike, we’ll let you trade up into something nicer.

Legal services may offer similar flexibility given the many decision points along the way in handling a legal matter. For example, a client may be able to work with counsel to test out a particular strategy and then adjust upward or downward. By explaining some of the time frames and decision points for adopting a different strategy, the lawyer can help the client understand she is not locking herself in to one decision forever.

Conclusion

Listening seems to be a key part of all of the above. The person who took time to listen to my goals and to tease out some of my experiences with biking made a far better impression than the person who reacted to my status quo by criticizing it and trying to force his favorite off-the-shelf solution.

Of course lawyering is different than selling shoes and bikes. But the universal principles of persuasion are at work for all kinds of customers and clients in all kinds of selling environments.

Innovating the 2L and 3L years

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How is listening taught in law school—if it is taught at all? Some wonderful work is being done, especially in the clinics. But even the strongest and most effective approach to listening typically found in legal education today seems to be based in individual courses. It seems possible that a given law student could graduate from a typical U.S. law school without working on listening skills at all.

That’s not the case in an innovative program at the University of New Hampshire School of Law that re-envisions the 2L and 3L years. A new report by Educating Tomorrow’s Lawyers, an initiative of the Institute for the Advancement of the American Legal System, describes the Daniel Webster Scholar Honors Program. Twenty-four students are selected at the end of their first year of law school to participate over the next two years. These students attend a careful sequence of subject-matter and skills classes. They receive frequent feedback (formative assessment) and must assess their own progress through a variety of reflection assignments. Upon successful completion of the program, students are admitted to the New Hampshire Bar without taking the regular bar exam, a fact touted in the New York Times’ recent article on bar-exam critics.

Listening plays an explicit role at the beginning, middle, and end of the Webster program.

The beginning: Getting admitted to the program

First, students are actually selected for the Webster program in part based on their communication skills. The report notes that during the program’s first year in 2005, student selection was based in large part on prior academic achievement. Now, selection is based on personal interviews with the selection committee and the committee’s assessment of a broader set of criteria. The criteria are grouped into four main categories: professional relationships, professional development, personal responsibility, and academic competence. A number of criteria in the professional relationships category relate to listening:

  • Have integrity and engage in honest discourse
  • Treat themselves and others with respect
  • Work well with others, acknowledging their own and others’ strengths and weaknesses
  • Show empathy and kindness to others
  • Listen attentively—know when to listen and when to contribute
  • Have humility—admit to mistakes and make apologies

And several criteria related to professional responsibility relate to listening as well:

  • Seek—and learn from—feedback
  • Are open to new ideas, seeing things from others’ perspectives, and sharing their views

The middle: Sequence of classes

Students in the Webster program proceed through a preset sequence of classes. Working with simulated clients appears to be required every semester. For example the first semester of the 2L year requires pretrial advocacy. The report provides benchmarks for that course. Some benchmarks address listening in the classroom: whether the student “actively and respectfully listens to peers and professor” and makes relevant comments that reflect, inter alia, insight about other students’ previous comments. Other benchmarks address performance on the skills such as taking a deposition (whether the student asks clear questions and uses effective body language and eye contact) and giving an oral argument (whether the student gives responsive answers to the judge’s questions and again uses effective body language and eye contact).

The end: Capstone class and standardized client interview

The Educating Tomorrow’s Lawyers Report is so enthusiastic about this program because graduating students in the program outperform new lawyers at least as measured on their client interviewing skills. The capstone class involves a “standardized client interview” in which students are assessed by the trained actor who plays the client. The assessment has two parts: (1) interpersonal and professional interaction such as whether the student listened to the client; and (2) skill at asking questions to glean specific facts necessary for the client representation. Appendix B to the Report contains the assessment form filled out by the trained actors/standardized client. It contains a number of questions regarding the lawyer’s demeanor and ability to gain trust and glean the correct information.

Question 2 on that assessment hits listening about as hard as you can hit it, with 1 representing “strongly disagree” and 5 representing “strongly agree”:

I felt the lawyer listened to me.

1            2           3           4           5

The students who completed this program, regardless of their LSAT scores and other entering credentials, outperformed lawyers with 1-2 years of experience who also completed a standardized client interview. They received higher scores (statistically significantly higher) on the criteria of their professional communication skills such as listening and building trust. They received significantly higher scores on their ability to glean the relevant information from the client.

The Educating Tomorrow’s Lawyers Report proclaims that these students are more ready to “hit the ground running” as a result of the program. The Report does, however, acknowledge obstacles to implementing such a program on a broader scale outside the context of the close-knit New Hampshire legal community. The Report suggests that the Webster program’s innovations could be unbundled and implemented in a more modular fashion, on a smaller scale. The key elements to preserve would be “the combination of formative and reflective assessment in a practice-based context and a focus on collaboration between the academy and the profession.”

A previous post about another initiative of Educating Tomorrow’s Lawyers can be found here.

Where competence and character come together

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The nice thing about Twitter is you can learn from events you can’t actually attend. Today Stephen M.R. Covey (son of the 7 Habits guy) spoke at the “DEXIO” conference in Canada: Developing Excellence in Others. This slide from Covey’s talk caught my eye:

(HT to @ITCatherine for the slide.)

Covey’s list of 13 leadership behaviors wasn’t specifically aimed at lawyers as leaders, but it might as well have been. The behaviors were organized into three major categories — competence, character, and the convergence of the two.

Competence was an interesting category and one that will feel good to many lawyers because we are generally very smart and good at the tasks of lawyering. But being competent isn’t enough to succeed in a collaborative work environment. UC-Hastings Dean Frank Wu wrote about this in his Huffington Post column on Why Law Firms Fail. Likewise, while character is essential, it’s also not enough by itself to make a good lawyer.

The convergence category was the payoff of this slide. While competence and character are obviously indispensable to the work of a legal professional, each on its own is not enough. On the slide, Covey lists three behaviors where competence and character come together:

  • listening first
  • keeping commitments
  • extending trust

Obviously I was excited to see listening on that list. Good listeners are highly competent, and good listeners also show great character. Or we could state the opposite: Poor listening can lead to incompetence, such as by not being able to get results because crucial facts or motives were not perceived. (Ouch.) And poor listening may be perceived as disrespectful and therefore a sign of poor character. (Double ouch.)

But the deeper point here is about what it means to be a “high-trust leader” (the title of Covey’s slide) and to develop excellence in others (the theme of the conference). For lawyers responsible for developing excellence in others, what behaviors do they use to do so? Some may take a bit of a muscular attitude toward developing excellence: “I’m going to model it and you can watch and learn.”

Or a senior lawyer may effectively “teach” excellent swimming by throwing juniors into the pool. This approach was apparent in a training video from Hogan Lovells shown at the 2016 American Association of Law Schools’ Annual meeting (video at minutes 8:30-16:10) :

In that video, a senior lawyer was faced with a potential conflict over work allocation among two juniors on his team. To get excellence from this team, he was going to have to go beyond being a good lawyer and nice guy. His response to the conflict? Something along the lines of: “They’re adults; they’re going to have to work this out. I don’t have time for it.” So this guy was clearly not what Hogan Lovells was offering up as a great example of leadership. Maybe he could have used a little more listening, a little more trust-building. He seemed like a good lawyer — very competent and unassailable character. But something was lacking in the way he approached the situation. Maybe it was those behaviors at the intersection of competence and character.

Writing this post made me want to read Deborah Rhode’s book Lawyers as Leaders. For those who have, what would Rhode say about the behavioral categories in Covey’s slide above? How would she approach the hands-off lawyer attempting to lead a team in the Hogan Lovells video?

Thanks to Jennifer Kahnweiler for correcting an earlier version that misidentified Stephen M.R. Covey as his father, Stephen Covey.

Defining success for new lawyers

Jennifer Romig1 Comment

The state bar where I am licensed just blast e-mailed a survey for the Educating Tomorrow’s Lawyers project of the Institute for the Advancement of the American Legal System. According to the survey e-mail, this project has three goals:

  • finding out “what law graduates need to launch successful careers in the legal profession”
  • creating “models of legal education to better fulfill those needs”
  • identifying “tools legal employers can use to make better hiring decisions”

The point of the survey is to clarify what “skills, characteristics, and competencies” are necessary for new lawyers in their first year of practice. The survey addresses a myriad of potential competencies from legal research to finance and accounting to personal resilience. Survey participants are asked to rank each item on a four-part scale from immediately necessary for new lawyers to not relevant (as in not relevant ever, in the survey participant’s area of practice).

The list of potential competencies is fascinating; just taking the survey should be a thought-provoking experience. Legal employers who have set objectives for new attorneys’ professional development — or who want to set such objectives— should be following this survey very closely. Lawyers who want to reflect on their own individual strengths, weaknesses, and possibilities should find it informative as well.

The survey questions were arranged by category, and several questions hit on listening either directly or indirectly. In the communications category, the survey asked about the skill of listening “attentively and respectfully.” In the category for emotional intelligence, the survey asked about reading and understanding others’ subtle cues as well as exhibiting tact and diplomacy.

If you have the opportunity to fill out this important survey, I urge you to do so. Educating Tomorrow’s Lawyers is making a major constructive effort to address the challenges “we” — defined broadly by me to include law students, law schools, lawyers, legal employers, and the clients eventually served by all of the above — together are facing.

Here is more information about the Foundations for Practice initiative. 

Mindfulness and mental chatter

Jennifer RomigLeave a comment

Listen Like a Lawyer is headed into that time of year when it’s going to be difficult to maintain weekly posts. Being too busy has a detrimental effect not only on one’s blogging goals; it can also interfere with communication. And since lawyers fall into from the “busy” trap at least as much as the average person and probably a lot more, this is a good moment to think about what that does to us and how to respond.

Seeking some wisdom on this topic, I started to check out Scott Eblin’s new book Overworked and Overwhelmed: The Mindfulness Alternative. This book seems kind of like the “7 Habits” equivalent for the mindfulness movement.

After digging into the book, I was going to start by exploring the concept of “mental chatter.” Mental chatter is also known as “monkey mind” or (less memorably) “discursive thoughts.” Basically it means random disorganized thoughts running through your head. Should we listen to them? Or ignore them? (Is that even possible?) These random thoughts are obstacles to mindfulness—defined as “the awareness that arises by paying attention on purpose in the present moment and nonjudgmentally” (Eblin quoting mindfulness pioneer Jon Kabat-Zinn). Also from Eblin:

Mindfulness is about “putting yourself in a position to be more aware and intentional about what’s really going on inside and what, if anything, you want to do about it.”

And then I had two back-to-back days that were busier than any in recent memory. They reminded me of the days back in law practice when I had three filings due in three different courts at 5 p.m. on the same day. There was no time to be mindful! Or so it seemed. The day was actually too busy for random mental chatter because there was too much to do requiring full focus. I tip my cap to the legions of practicing lawyers who handle these types of days year in and year out.

What is the solution? It’s not “finding balance.” On this, I like what Eblin has to say:

[I]f you’re an executive, manager, or professional with a demanding job, you’re about as likely to find balance as you are to be a purple unicorn. The reason is that the world and life are both fast moving and ever changing. In that environment, balance, at best, is a temporary and fleeting state. Instead of seeking balance, try to find a rhythm instead. By focusing on rhythm, you acknowledge there are times when your pace is going to be much more oriented to work, home, or community and there are times when the counterpoints of other aspects of your life come to the fore.

It’s also not about using mindfulness as a Band-Aid. Techniques such as deep breathing can help with reducing stress in specific situations, but mindfulness really means something broader. For example, having consistent routines—like sleeping and exercising—provides resilience on days that swing to the painfully hectic side of the pendulum.

And if mindfulness is about awareness, then we need to think about it when we think about listening. Eblin has some interesting thoughts on different styles of listening, and Listen Like a Lawyer will delve into those on another day.

Here are some additional resources on mindfulness:

The Berkeley Institute for Mindfulness in Law

Becky Beaupre Gillespie, Mindfulness in Legal Practice is Going Mainstream, ABA Journal (Feb. 1, 2013)

Susan Moon, Moonlighting: Mindfulness for Lawyers and the Jedi Master, Above the Law (August 12, 2014) (featuring Jeena Cho)

Robert Zeglovitch, The Mindful Lawyer, ABA GP Solo Magazine (October/November 2006)

Scott Rogers, The Mindful Lawyer: Practicing Law with Presence

Chris Bradley, Jeena Cho on Zen Lawyering, Lawyerist (June 24, 2013)

Jeena Cho, The Anxious Lawyer (ABA forthcoming 2015)

Shalini Jandial George, The Cure for the Distracted Mind Why Law Schools Should Teach Mindfulness, 53 Duq. L. Rev. (forthcoming, winter 2015).