A myth about listening and learning

Listening is a loser, at least according to the widely circulated Pyramid of Learning:

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I’ve been hearing about the Pyramid of Learning — also known Dale’s Cone of Learning — since I was a child. Yet it has a problem. Specifically, a lot of credible people believe it to be “zombie learning theory that refuses to die.”

Digging through the evidence to find out exactly what is true turns out to be difficult, partly because there are just so many sources that repeat these numbers. One of the best I have seen is by Candice Benjes-Small and Alyssa Archer on the Association of College & Research Libraries blog (these are the folks that called the learning pyramid a “zombie learning theory”). They gather sources and trace how this idea started as a conceptual model about conveying information at various levels of abstraction. There were no numbers making any retention claim. At some point, most likely during World War II, the graphic of the pyramid emerged with numbers attached to it representing retention percentages.

The graphic of the pyramid and numbers makes it feel irresistible. Matching the strength of their appeal with a strident attack, Will Thalheimer has described the pyramid as “dangerous” and a “fraud” on his blog Will at Work Learning. A fairly comprehensive timeline of debunking sources can be found at the Institute for Learning Professionals. The American Society of Engineers published a conference paper with a detailed, balanced refutation including graphical representations of where these numbers appear to come from.

In her textbook Designing Information Literacy Instruction: The Teaching Tripod Approach (2014), Joan Kaplowitz commits the debunking to print:

As appealing as that notion [of the learning pyramid] might be, an exploration of the literature shows there is no solid, research-based data to support it. 1

Kaplowitz goes on to suggest the numbers themselves contain the seeds of their own destruction:

Even the numbers themselves should make us raise an eyebrow and question the so-called data. The percentages are just too perfectly distributed with each number being a multiple of 10 and the spacing of categories somewhat even to have arisen from any real-world experimentation.

That’s a lot of debunking, but is it enough? The appeal of the learning pyramid creates a pedagogical Scylla and Charybdis: If you tout these numbers, many teaching faculty will discount your credibility. But if you doubt the numbers, you may lose your connection with other faculty who embrace them. Benjes-Small and Archer advise “treading carefully.”

What does this mean for lawyers and law professors?

We are experts in being precise with words as well as being skeptical about claims. So we can avoid broad assertions of the pyramid’s scientific truth.

We can be careful in how we present information, testing it on audiences when possible and relying on our own experience as a guide. For example, showing a text-heavy Power Point while simultaneously reading the words is terrible. it doesn’t reinforce the information; it creates competing streams of information and, in a broad sense, is just plain annoying.

We can rely on more recent and more specific research into information retention. Not surprisingly, studies support the use of images: “Humans can remember pictures with 90% accuracy in recognition test over several days, even when the images are presented for only a short time during learning.” This is from Doug Linder and Nancy Levit’s The Good Lawyer: Seeking Quality in the Practice of Law, citing a study that is about 1000 percent more scientific than the cone of learning (as well as 1000 percent more difficult to read and understand). The science confirms the art of lawyering, as recounted by Linder and Levit:

Images are so effective to effective communication that David Ball contends a “trial attorney without images is like an art book without pictures.”

The fundamental truth behind Dale’s original concept is that information can be presented in many forms ranging from the concrete to the abstract. Whether teaching a class, making a presentation to clients, or arguing to a jury, we can “mix it up.” That’s not scientific, and there are fancier ways to say it, like Benjes-Small and Archer’s recommendation: “Think multimodal.” However it is phrased, this broad recommendation is more reliable than a neat set of mythical percentages.


  1. Kaplowitz cites Char Booth, Effective Teaching, Effective Learning (2011); James P. Lalley and Robert H. Miller, “The Learning Pyramid: Does It Point Teachers in the Right Direction?” published in volume 128 of Education (pages 64-79) in 2007; and Michael Molenda, “On the Origin of the Retention Chart” in volume 44 of Educational Technology in 2004.

Resolve to do more than “active listening”

Lawyers are not stupid. They know that listening is important to their professional success. In fact, when a recent study asked about 100 U.S. and Finnish lawyers to assess their own “listening competence,” they answered realistically, ranking themselves average to good. They supported these rankings with qualitative answers so closely linked to their work as lawyers that the authors of the study concluded they were really answering a different question focused on their “professional listening competence.” The study is Professional Listening Competence: Promoting Well-Being at Work in the Legal Context by Sanna Ala-Kortesmaa and Pekka Isotalus, published in the International Journal of Listening.

The study by Ala-Kortesmaa and Isotalus is quite interesting and will be addressed in a longer post later in 2015. For now, here at the end of 2014, it offers a gem to take away as a potential New Year’s Resolution:

Active listening is the wrong answer. Or at least it’s not always the right answer.

Listening competence requires a broad range of skills from cognitive strengths such as memory to emotional (“affective”) strengths such as being able to focus on the conversation partner. And listening competence requires the listener to adjust behavior to the situation, using a variety of approaches.

People—including lawyers—generally do understand that they need to adjust their listening to the situation. The problem is the widespread belief that the way to do this is by active listening.

Active listening is focused on other conversation partners, with the goals of “adopting the emotions of others or interpreting their thoughts and meanings.” (This language is from the Ala-Kortesmaa article; the original source of this critique is by John Stewart and Milt Thomas, summarized here.)

What is often more effective is “dialogic listening.” Dialogic listening focuses on the shared aspect of the conversation. It explores what the other person is saying, not to crawl inside that person’s mind or try to paraphrase meaning but rather to create shared understanding. It’s more open-ended. It tends to be less manipulative. According to the original source on dialogic listening, Stewart and Thomas, the practice of dialogic listening means encouraging conversation partners to say more, using metaphors to reach new understandings, asking the conversation partner to paraphrase (rather than paraphrasing for them), and exploring the context behind the conversation partner’s statements.

One difficulty for attorneys that Ala-Kortesmaa and Isotalus point out is to find out if their conversation partner is communicating dialogically. This is the idea of the dual role of listening. The article implies what most attorneys will have experienced: sometimes they have to communicate with people who aren’t communicating in anything close to good faith. Or, it’s hard to communicate openly and non-manipulatively with someone who is trying to manipulatively guide the conversation toward his or her own goal. (Stewart and Thomas admit that dialogic listening itself can seem manipulative. So that goes back to the idea that however one labels communication, if it’s not good-faith communication then the labels really don’t matter.)

Throughout my time blogging here at Listen Like a Lawyer, I’ve been wanting to take a hard look at active listening. It is such a popular listening concept, yet there seems to be a subtle kind of domination in restating someone’s thoughts, either in the same words (now they are my words) or different words (let me fix that and put the right words on it). This topic needs further exploration because clearly active listening is a technique every lawyer does need, and great communicators can do active listening in good faith, without manipulation or domination.

But this insight from the Professional Listening Competence study seems like a great way to end the year. Active listening is not the formulaic answer to being a good listener. No single formula is the answer to being a good listener. Dialogic listening is worth learning more about, especially with client conversations, because it’s not about forcing meaning or extracting meaning but sharing meaning.

This New Year’s Eve post is inspired by Matt Homann’s “Looking for a Resolution?” post on the [non]billable hour

Yes, I’m listening to Serial. Aren’t you?

The podcast Serial has, in the past few months, become the most popular podcast ever. As a dedicated bibliophile and not much of an audiobook fan, I’ve been surprised to become so engrossed. Serial reinvestigates the murder of Hae Min Lee, a high-school student from Baltimore who was killed in 1999. Her ex-boyfriend, Adnan Syed, was convicted and remains in prison. Serial raises a lot of questions about criminal justice, the legal system, and lawyering—and it manages to raise them in an interesting, suspenseful way. Listening is intertwined with these issues in a variety of ways, from our own experience as listeners to the vexed role of listening in the investigation and beyond.

Lawyer as listener

Lawyers are used to be the “tellers” in storytellers. As we listen to Serial, we experience a story as the audience. Producer Sarah Koenig controls the pace of the narrative both “week by week” and moment by moment. What immediately struck me—in a good way—was her use of pauses. She speaks quickly but in comprehensible segments, leaving space for understanding. She also uses the voices of others so well. Of course, one would expect nothing less from any affiliate of This American Life. Yet Serial brings a fresh appreciation for the interplay of voices and pauses delivered up for the listener’s ear. Just as one concrete benefit to spending your time with Serial: if you have a CLE presentation to prepare, it might inspire you to use a short video segment, or to experiment a little more with pauses and conversational suspense the way Koenig does.

It’s also interesting that each episode of Serial differs in length. Koenig doesn’t try to space out the narrative to fill a set length of time; she breaks off one coherent piece of the story, fleshes it out, and stops. An episode may be 28 minutes long, or it may be 53. The flexibility of the podcast format is extra courteous to the listeners: we can listen whenever and wherever we want, and we know that an episode is just exactly as long as the producer thinks it should be, no more. The fact it’s free doesn’t hurt either. (In episode 9 she asks for listener contributions, and to date enough has been gathered to support a second season.)

One more note on the listening experience, and this is a little more critical: Serial is in part a work of entertainment, and as such, it has own music. At first, the signature jaunty opening piano left me confused. The music also includes some looming, menacing moments, as well as plaintive notes associates with Hae, the victim. But when we later think of Serial and its phenomenal podcast success, I think we’re going to think of the jaunty piano. As Slate asked, “What the heck is Serial: A mystery? A comedy? A touching memorial?” I can understand why her family may be in pain to have her murder brought back into the public’s view—and the public’s ear—in this way.

Listening in the criminal-justice system

Then there is Serial‘s substantive coverage of how listening happens in the legal system. The listening comes in the form of information gathering, but also information-confirming, and the line between them is not always clear.

We hear several segments of taped interviews with a key witness—indeed, the state’s star witness—talking to Detectives Ritz and MacGillivary. One detective would ask a question that leads the witness to answer and perhaps ramble, at which point the other would follow up with pointed clarification, as Koenig points out. Perhaps it’s surprising that we hear any tactics at all in these interviews. Before taping, the witness and detectives spent three hours “ironing out” this witness’s statement, which was the standard practice back in 1999 and has since been discredited. As producer Sarah Koenig points out this untaped “pre-interview” is “where the mischief can happen, the contamination.” She’s quoting Jim Trainum, a former homicide detective and now consultant to police forces, innocence projects, and others (such as famous podcasts) on issues of interrogation techniques and false confessions. Serial hired Trainum as a consultant for the series.

In prosecution of Syed, the star witness had the virtue of providing valuable information the detectives hadn’t been able to get anywhere else. That witness also provided closure, “a satisfying investigative circle, a murder case on a silver platter,” Koenig points out. When detectives hear possibly conflicting details, they don’t push. The reason they don’t push are both explicit and much more subtle. In terms of obvious strategy, as Trainum states, “You don’t want to do something if it’s going to go against your theory of the case.” No confession is perfect; there will always be some inconsistencies. Those inconsistencies are handled very, very carefully because police don’t want to create “bad evidence.” Producer Koenig literally sputters when Trainum tells her the purpose of the interrogation is not so much to get to the truth as it is to make the case.

Compounding the conscious intent to make the case is the subconscious effect of verification bias. (Listen Like a Lawyer has previously posted on various cognitive biases including confirmation/verification bias.)

To illustrate verification bias, Trainum recreates the mental dialogue of a detective taking a statement, when that detective hears something that doesn’t quite fit: ”I want to believe you because you’re my witness and I think this is what happened and all that, so the fact that you’re giving me something that’s inconsistent and doesn’t fit my theory of the case, what does verification bias cause you [sic] to do? Ignore it and push it aside.”

By the time the detectives interview defendant Syed, as chronicled in episode 9, they have moved from information-gathering to what looks like information-confirming: they open his interview with a “theme.” One of the detectives introduced himself to Syed by suggesting that the detective himself had an ex-wife and could understand how “this” could happen. Serial doesn’t suggest that listening must always be open-ended and can never arrive at a central narrative. That would be naive. But Koenig is certainly suggesting the narrative that convicted Syed is problematic. In essence, Serial is listening to Syed’s story as of today, as it has developed post-conviction, in a way that the court system may or may not do. His petition for post-conviction relief is pending.

Serial has finished its ninth episode and has a handful more to go. For lawyers who have not yet picked up on it, I do recommend it. For those who are already listening to Serial, please share your thoughts. How has the listening experience affected you? What do you think it shows about listening within the legal system?

Second-chair listening

The role of a good second-chair lawyer at trial is strategically crucial. Yet the second chair’s contribution can be difficult to see, compared with that of the lead lawyer starring in the show. Two major components of the second chair’s contribution are preparation (before trial) and listening (at trial). The preparation gives the second chair something to contribute, and the listening is what allows the second chair to make that contribution at the right time.

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Courtesy Flickr/Independent Man

I wanted to write about second chairing partly based on my own experience (years ago) as a second chair at depositions, arbitrations, and trial. Sometimes I knew I was being helpful, such as by pointing out some questions the lead attorney didn’t quite get to. Other times I worried that I was being annoying or distracting and wasn’t sure how to adjust the filter on how much to share. It was crucial to listen not only to the information being revealed through the proceeding itself, but also to the subtle cues of the first chair on the best and worst times to speak up.

Various ABA publications have some good advice for second chairs such as “How to Shine as a Second Chair” by Myra Mormile and “Your First Trial: Understanding the Second-Chair Role” by Michael R. Carey. A few major themes of listening are woven throughout. One is active listening. The other is listening for what’s not there (perhaps the hardest kind of listening, cognitively). Another important aspect of the second chair’s role is that even though it’s not a starring role, the second chair is being observed as well. The second chair’s demeanor in the act of listening and assisting has to be controlled just as much as the lead lawyer’s.

Virtually every piece of advice on second chairing will talk about active listening. Mormile cautioned second chairs going to trial for the first time every to avoid “deer in headlights” syndrome. She’s not addressing active listening in the traditional sense of listening, rephrasing the statement back to the speaker, and asking him or her to go on. She’s talking about the activity that should come about as a result of listening:

Don’t react; anticipate. If the first chair turns to you more than you turn to him or her, you have failed as a second chair. Avoid this by anticipating where your first chair, and the case, is headed. Listen to your first chair, the opposing party, and the fact-finder. If opposing counsel directs the witness to an exhibit or references a specific case, you should pull it on your own before your first chair asks for it.

This idea that the second chair is always active also resonated with Carey:

[W]hen your first chair crosses that expert, you get to listen and take notes. But second chair is not a casual observer role–you are actively listening and evaluating the evidence for substance and delivery. Tell your first chair about any problems before it is too late. If you cannot successfully fulfill this role, you might as well be sitting in the gallery.

Listening for what is not said, what’s left out, what’s elided — that’s one of the hardest parts of listening, at trial or otherwise. The reason is what Nobel Prize winner Daniel Kahneman calls the availability bias. Our brains are biased towards information that is present in the affirmative sense. Yet to be a good second chair, a lawyer must try to overcome this bias and listen for missing pieces. As Mormile points out, “When your witness leaves out a point in his or her testimony, bring it to your first chair’s attention.” How does one overcome the availability bias to do this? It’s difficult, but checklists may help trigger your brain to search for gaps, a suggestion that certainly resonates with best practices for trial prep. (Just Google “trial preparation checklist.” Here’s one example of too many to count.)

Beyond listening for specific information, problems, and gaps, the second chair’s listening role is also atmospheric. The second chair should have some extra cognitive bandwidth (that the lead lawyer doesn’t, given the demands of that role) to monitor the entire scene, as Michael Carey points out:

You have the luxury of looking around the room to see who might be falling asleep, who is aghast, who is rolling their eyes, or who is nodding along with your first chair’s line of questining. First chair relies on you to provide a comprehensive evaluation of how the jury and the judge are responding to the evidence.

And your listening is itself being observed, as Carey further points out: “[R]emember that you are being watched by the jury. If you look like you are trying to spy on opposing counsel, the jurors will lose trust in you.” Thus, non-distracting, focused, respectful body language is crucial. Here are a good quick primer on effective body language in court and some videos from litigation consulting firm A2L.

As noted above and in earlier posts on this blog, I’m a strong proponent of checklists. The parent of the  checklists-in-the-professions movement is Dr. Atul Gawande, author of The Checklist Manifesto: How to Get Things Right. Gawande recommends that process-based checklists should include some sort of post-performance or “after action” review. For second chairs, this is crucial advice for many reasons, not least of which is that presumably most second chairs want to move up to first chair at some point. Second chairs can seek an informal “after action” by asking their first chairs, “How did I do?” Listening is very difficult to evaluate  in part because the act of listening is itself difficult to observe. But a first-chair lawyer who just finished relying on a second chair to perform a listening role may be able to give better feedback because of the intensity of that experience.

The audience for listening?

Knowing your audience is key to any effective blog project. So who actually is the audience for Listen Like a Lawyer? Who cares — I mean who actually does care — about listening enough to read this blog and share posts from time to time?

At the outset, Listen Like a Lawyer’s primary audience was practicing lawyers and legal professionals, kind of like a CLE in blog format. There is such thing as a listening CLE as well as many CLEs on communication with significant listening components. Compared with several hours of listening training that detract from billable or other core work, the benefit of the blog is regular reminders and varied content in small segments over time. As a proponent of listening, of course I would recommend both listening CLEs and  attention to small snippets of information spread out over time such as via this blog.

To reach lawyers, the blog has thus far tried to cover topics of general interest from marketing to litigation and mediation (with gratitude to guest Greg Parent) to management issues involving feedback and team dynamics. Some lawyers are highly engaged with listening in a particular context, such as listening to children (with gratitude to Karen Worthington for a wonderful guest post).

But this blog does not seek only to preach to the converted, i.e. great listeners who are engaged with listening concepts. My background is legal writing, and sometimes I get the feeling that many of the wonderful books and blogs on legal writing are devoured solely by lawyers who already care deeply about legal writing and are fantastic at it. Bryan Garner has written about the Dunning-Kruger effect as applied to legal writing: bad legal writers cannot even realize they are bad. We could debate how much Dunning-Kruger really applies to legal writers, but it most certainly does apply to listening. (Expect more elaboration in a future dedicated post.) Efforts to break through the unwarranted illusion of listening competence take a variety of forms.

One strategy is guilt and implied threat. Perhaps a lawyer is not getting good evaluations on soft skills due to listening problems. Perhaps a lawyer feels a lack of connection with clients and potential clients and wants to try some things to do better.

A rhetorical tactic for reaching less-engaged potential blog readers is through the Upworthy-style heading. I haven’t written that many headlines such as “10 Ways Your Law Career Is Being Sabotaged By Bad Listening!” or “The Secret Ingredient to Getting Clients to Love You in 60 Seconds.” But the blog has published some serious posts directly focused on listening problems such as mismatches in team communication styles, the crossover of bad listening into personal life, and issues with mobile devices and other forms of distractions. A few humorous posts have experimented with mock scare-tactics such as “Four Scary Kinds of Listeners” (a Halloween special) and “A High Intensity Listening Workout” — basically, Tabata for listening. Other forms of humor include Tami Lefko’s guest post with great TV clips on active-listening, and a compilation of listening advice for Valentine’s Day.

No lawyer has ever openly denied to me that listening is important, but there are often discernible traces of a passive, unengaged attitude. Most of all I think it comes from a fixed mindset — the belief you’re either a good listener or not, and probably can’t do much to change that fixed quality. This blog is really trying to break through that fixed mindset about listening and promote a growth mindset instead. Clearly we need more posts directly on the growth mindset. (Carol Dweck is the guru of this field and her book Mindset is a highly recommended read.) The growth mindset is the way out of guilt and threat as the motivation for learning.

In the spirit of growth, the blog has also sought to teach some subtle information that lawyers may not have encountered explicitly before such as the power of nonverbal communication and discourse markers in speech. Some of the posts have delved into topics that perhaps are more suitable for trial consultants, such as this early series on cognitive biases. I don’t think the blog has done enough to speak to legal professionals who work in teams with lawyers, and that is a gap I hope to remedy in the future.

Beyond lawyers and legal professionals, the blog’s other main intended audiences are law professors and law students. I’m still so grateful to Neil Hamilton for his in-depth law review article on listening, which confirmed for me that this is an important conversation to have in the legal-education community. This blog has therefore covered the classroom and other aspects of teaching. For law students, the blog has talked about listening in the classroom and in experiential situations. Georgia State’s Kendall Kerew contributed a wonderful guest post on listening skills in externships. You can expect additional future posts on intriguing ways to teach listening in law school.

So, more than a year later, how has everything turned out? Did these efforts to reach the various components of the blog’s intended audience actually work?

The blog has reached its core audiences. Law professors have been the most ready audience and the most positive in sharing and helping. Thank you to all friends and colleagues who have been so encouraging! I am also grateful to the Academic Support blog and many professors such as Susan Landrum and Gabrielle Goodwin who have shared posts with J.D. and L.L.M. students. Contributing to a conversation on educating future lawyers as good listeners helps the blog indirectly achieve its goal of encouraging better listening in the legal workplace among lawyers, clients, and judges.

One way I know the blog has been at least somewhat successful in reaching lawyers and legal professionals is that they have found this blog through interesting and relevant search terms. They have used social media to share various posts as well. On a personal note, many have been willing to talk with me and share their thoughts. I was grateful for the opportunity to guest-blog about listening at Legal Productivity. The audience of practicing lawyers and legal professionals is the blog’s most important target, and will be a more direct focus of blog content moving forward.

A very small, surprising audience has been clients affected by their lawyers. One search query that led someone to this blog was, “Do I have to listen to my lawyer?” These search queries may, ironically, lead the searcher to posts about lawyers’ ethical duties to listen (and not listen) to their clients.

A larger and more surprising audience has been undergrads or graduate students, most of them apparently working on listening-related term papers. The blog has been found by a lot of search terms for the HURIER model of listening and the Worthington-Fitch Hauser model of listening. Although it was not the blog’s intent to be a source for college term-papers, such readers are welcome and in fact should know that listening is crucial in the law-school classroom and interactions with judges and clients. In other words, effective listening yields a competitive advantage in law school and lawyering. That was a central theme of the blog at its outset and remains so today.

Thanks to all who have read Listen Like a Lawyer in its first year. Please keep the blog in your Twitter feeds, your Facebook status updates, and your RSS subscriptions. Also please feel free to send ideas for future posts. Writing this retrospective inspired a number of ideas and I look forward to sharing them.

Listening on TV: What Sitcom Clips Can Teach Lawyers

Thanks to unnamedTami K. Lefko for this fun and informative guest post.

I often use clips from television shows and movies in class, and there are a few related to active listening that I especially like. Here are three of my favorites, from three popular sitcoms:

1. Everybody Loves Raymond, “Father Knows Least”

This early episode of Everybody Loves Raymond largely focused on active listening. In the first part of the episode (“Part I” below), Debra forced Ray to attend a parenting class with her after their daughter Ally began misbehaving. Ray did not take the class seriously and did poorly when he was asked to role play with the instructor and demonstrate how he listens to their daughter.

(Part I – Ray demonstrates ineffective listening skills in parenting class)

But later in the episode (“Part 2”), he has a little more success using active listening techniques with his own parents. The most relevant part begins about 50 seconds into the “Part 2” clip and continues for about two minutes.

(Part II – Ray does better with his own parents)

One tangential aspect of this episode that I find interesting is that it also illustrates (and debunks) a common misperception about skills like writing and listening: that they can’t be taught. Those of us who teach legal writing and related skills have probably all heard, at one time or another, the objection that these skills cannot be taught: either you are a talented writer (or good listener) or not. In this episode, Ray initially objects to attending the parenting class. He agrees to attend, however, when he catches himself saying that his parents never took a class and they did a fine job — not exactly how he usually describes their parenting. Similarly, his parents tease him about taking a parenting class, but the techniques he learned in class are shown to work well to diffuse one of their arguments.

Credit: Season 2, Episode 2/Original Airdate: September 29, 1997

2. The Big Bang Theory, “The Extract Obliteration”

For a more recent example, I like this one from The Big Bang Theory. In the clip below, Sheldon and Leonard realize they are talking past each other rather than having a real conversation, so they try using a chess timer to give each other a chance to speak in turn.

The brief non-conversation that prompted Leonard to suggest using the chess timer is included in this longer clip, but it is of lesser quality than the clip above:

Although the use of the chess timer is played for laughs here, a chess timer or something similar could be used effectively in class for listening practice. Clients often complain that their lawyers do not truly listen to them, and law students can also find it difficult to listen, uninterrupted, to another’s story. Using a chess timer or similar device could make students aware if they tend to interrupt or pressure a speaker rather than listening patiently.

Credit: Season 6, Episode 6/Original Airdate: November 1, 2012

3. The Office, “The Whale”

In the episode linked below, Pam tries to teach Dwight how to appear interested in what other people have to say so that he can sell to female clients more effectively, without much success.

https://www.youtube.com/watch?v=Qg8PIK74KO4

Credit: Season 9, Episode 7/Original Airdate: November 15, 2012

All three of these episodes can be viewed in their entirety on Amazon Instant Video and similar services. If you have any favorites of your own on the listening topic, please mention them in the comments! I’d love to expand my repertoire of listening videos that are both entertaining and informative.

Listening at Trial

United States District Judge Mark Bennett (N.D. Iowa) has published a great article on the “Eight Traits of Great Trial Lawyers: A Federal Judge’s View on How to Shed the Moniker ‘I Am a Litigator.'”

Studying the entire article would be an excellent use of time for any litigator trial lawyer. Judge Bennett’s coverage of being a great listener — Roman numeral VII in the article — is centered around a pretty strong criticism: “In my view, listening skills are incredibly underdeveloped in most lawyers I have observed in the courtroom.”

Judge Bennett outlines how listening is essential to core competencies of a trial lawyer such as understanding the other side’s case, being responsive to the judge hearing the case, and effectively examining friendly and hostile witnesses. It’s particularly helpful that he gives a specific example — in transcript form — of how a good lawyer can listen effectively at trial. Judge Bennett further points out that listening is rather helpful to building trust with clients, an important skill for any type of lawyer.

Hat tip to the Legal Skills Prof Blog, which shared this article earlier in the week.

Review of Stone and Heen’s Thanks for the Feedback

Doug Stone and Sheila Heen co-wrote what is now a business classic, Difficult Conversations: How to Discuss What Matters Most (2010). Their new book explores the challenges of one of the most difficult kinds of conversation — feedback. The title and subtitle of Thanks for the Feedback: The Science and Art of Receiving Feedback Well (2014) signal their thesis: in these conversations, “the key player is not the giver, but the receiver.” 

Lawyers may benefit particularly from this book’s wisdom, given situations in law practice involving the lack of feedback, poorly delivered feedback, and the dire consequences of certain feedback. One difficulty was summed up by Dennis Kennedy’s advice for new lawyers in the ABA’s Law Practice Today:

Many attorneys will say nothing about your work and continue to give you more and more work. To you, this can be frustrating. In their minds, they have given you the highest form of feedback. “If I didn’t like the work, I wouldn’t give them more.” They don’t realize that most of us need to hear the words.

And likewise, Kennedy points out, some generic feedback may hide quite negative thoughts:

A hearty “great job” and no specific comments may disguise the fact someone can’t believe what a poor job you did and just wants to get you moved on to someone else.

So, for the feedback receiver, the first key to getting more out of feedback is recognizing it is everywhere; Stone and Heen define it to include “any information you get about yourself.” And since feedback is everywhere, we can guarantee that not every source of feedback will be skilled or thoughtful. People who want to be more effective can do so by focusing on the part of the feedback transaction they can control: how they receive it and what they do with it. I love this point for lawyers.

Several frameworks can help feedback receivers to do more with what they are receiving. The first is to understand the types of feedback:

  • appreciation: knowing that others are noticing what you’re doing, and grateful for it
  • coaching: understanding direction to grow and change in an area of skill or in a relationship
  • evaluation: being rated or ranked, perhaps comparatively, and learning about future decisions based on rank

Some of the problems with feedback arise when the receiver just wants appreciation but receives detailed coaching, or wants a clear evaluation but receives vague appreciation (and so on). That’s what Dennis Kennedy was talking about with the “hearty great job” that disguises real dissatisfaction. I have also seen a confusion with coaching and evaluation, when an attorney receives a draft motion and marks it up extensively. For some attorneys, they aren’t criticizing the drafter but just using the first draft as a tool to recognize what they really want to do. This is coaching. But for other attorneys, having to mark up anything carries with an implicit judgment/evaluation of the drafter’s skills. Understanding the differences in types of feedback and clarifying expectations in a feedback situation can make conversations more productive.

The second important framework Stone and Heen outline is three categories of “triggers” — as in emotional triggers — that block feedback:

  • Truth triggers arise when the feedback receiver thinks “that’s wrong”; “that’s not helpful”; or “that’s not me.”
  • Relationship triggers arise when the feedback receiver feels unappreciated, does not respect the feedback giver, or blames the giver.
  • Identity triggers arise when the feedback receiver takes the feedback personally, feels helpless, and starts to question everything.

And with these frameworks in mind, Stone and Heen then suggest various process-based approaches for effectively receiving feedback. There is really too much good material to describe here even at a very high level.

One point important point is the “mindset” work led by Carol Dweck at Stanford. If you believe people’s skills are fundamentally fixed and feedback merely reveals what their skills are, then you have a fixed mindset. If you believe people can develop their skills over time and feedback can help with that, you have a growth mindset. This is an incredibly important distinction for professional growth, such that the ABA’s Commission on Women in the Profession has an entire “GRIT Project” devoted to this concept. Professor William Henderson also wrote a great article about whether great lawyers are born or made. (For in-depth articles focusing on legal education, see articles by Sarah Adams-Schoen and Carrie Sperling. These are just two examples of a lot of great work in this area.)

At times Stone and Heen’s book focuses on listening specifically:

Advice about listening is white noise. It’s so common and so boring that we no longer even hearing. But if you’re drifting off, this would be a good time to wake up. Listening may be the most challenging skill involved in receiving feedback, but it also has the biggest payoff.

Part of the challenge with listening is the competing “inner voice” that drowns out external information. Stone and Heen advise listening for specific information and cultivating a sense of curiosity that can help to tamp down some of the inner voice’s resistance.

Another challenge with listening is the difficulty of doing it really well. Stone and Heen point out that great listeners are able to recognize not just what is being said substantively but also what is happening with the process of the conversation. Here’s one of their examples of managing process within a team:

Okay, we’re deadlocked. We both need to agree on this, and we don’t. Your solution is that I should give in. As a process, that doesn’t feel fair to me. On the other hand, I don’t know how to break this deadlock, so we’ve got to figure it out. What’s a fair and efficient way to decide when we don’t agree?

There is a whole lot more really valuable information in Thanks for the Feedback. Much of it is general information useful for any professional or personal setting. But among their many gigs, Stone and Heen teach negotiations at Harvard Law School; thus, they include several good law-related examples in the book. For anyone who gives or gets feedback, I really recommend this book.

Empathy and communications with clients, spouses, and partners

This week has seen several great posts on major issues for lawyers involving listening.

The first one was Jordan Furlong’s post “Don’t Think Like a Lawyer.” He argues that thinking like a lawyer is “easy and fun,” and also a dangerous replacement for thinking like a person. He argues that feeling like a client is totally lacking from legal education, and law students should be required to visit lawyers’ offices and experience what clients experience. “Legal education is a powerful drug; but if you’re not careful, it can drown out your instincts, stifle your emotions, and numb your heart.” To be great, lawyers must be more than “tacticians”; they must be “instinctive, heartfelt, caring, and real.”

These themes were addressed as well in Mark Perlmutter’s post on “6 Things We Learned in Law School that Shouldn’t Be Tried at Home” on Trebuchet Legal. Perlmutter recalls his shift from lawyer to counselor including his own experience in counseling: “I’ve come to realize how much my lawyer competencies had helped to make me an utterly incompetent husband.” Perlmutter explains some good therapy concepts boiled down to the idea that responding with opposition is not effective. Paraphrasing and building on the conversation may work a lot better. (That sounds a lot like active listening.)

These effect of these posts was encouraging for the project here at Listen Like a Lawyer. Upcoming content will explore some brass-tacks listening topics such as listening at deposition and listening at trial. If you’re a hard-core litigator and want to share some thoughts on listening, please let me know. On that note, here’s a nice article on listening at trial.

But this blog will continue to explore the soft skill of listening on its own terms — including its essential role in empathy, relationships, and human connections.

The music of advocacy

As a legal-writing professor for 14 years, I’ve attended countless conference workshops on various aspects of legal writing. The ones with music always stand out. There’s just something extra cool about a law professor who plays an instrument. Music speaks to the human ear in a way no law-school lecture ever can. Concert-trained pianist Allison Kort is also a legal-writing professor at UMKC. Today she shares this guest post on the piano sonata and oral advocacy.

IMG_5052“The Court below should be reversed for the following three reasons . . .”

The piano sonata form, particularly the Beethoven sonata (he wrote only 32), usually starts off with a bang. He gets the listener’s attention. The second movement—the slow movement—will bring in a second musical theme, weaving in finer, lighter musical points. The third sonata movement (or fourth) ends by tying together and resolving the development of the pieces, showing the listener how they must come together to a logical conclusion.

In college I sat in a square room in a row of square rooms in the Mosse building in Madison, Wisconsin, cursing the Waldstein, (No. 21, Op. 53). I continued learning the intricate patterns and movements, the difficult runs in the right hand, don’t rush it, don’t slow it, too much crescendo, not enough pedal. My father, who had been a music professor before he went to law school, said it was too technically difficult, just not worth the effort. Maybe, but I will not give it up. I have been practicing the Waldstein and its three movements, on and off, since 1993. It is 2014. Fortunately, during that time, I found something else to do. Like becoming a lawyer and a law professor.

In appellate advocacy, we encourage students to provide the listener with a theme. A theme may be unspoken—a general sense conveyed of why the judge should hold in the advocate’s favor—or it may be directly stated. Regardless, it will pervade the entire argument, be referred to in some way over and over again during the argument, interjected throughout the advocate’s answers to the judge’s questions, and appeal to the judge’s sense of fairness and morality.

Some of us coach advocacy as legal storytelling. Advocates begin the story with a protagonist, and then explain the relationship between the parties, the conflict brought about by that relationship, and the appropriate outcome that should result with the court’s assistance. While oral argument is often described as a “conversation with the court,” certain rules apply. Don’t speak too fast; don’t speak too slowly; never interrupt a judge, but stop talking when a judge interrupts you. Answer a question and always the question asked, but do not ask the court a question. (Since when does a conversation involve only one party asking the questions?)

Is advocacy more music than writing? An expected logical conclusion arrives only after the conflict is introduced, followed by the boldest arguments, the details, and the triumphant conclusion. The practiced storyteller anticipates the judge’s questions, moves at the correct pace, guides the judge effortlessly through the affirmative arguments and through the opposing drama. It may look like a novel, but to the classical pianist, “May it please the Court . . .” sounds like Ludwig.