All posts by Jennifer Romig

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

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Images of Listening

The listening process is not exactly a linear formula, but it does have some distinct phases worth reflecting on. Check out this Haiku Deck presentation on listening for lawyers: http://www.haikudeck.com/p/u7AooSuhNL

It may seem ironic to present ideas about listening with intense visual images. (“Full screen view” is recommended.) But just imagine how one might listen to the speaker’s ideas while looking at striking images, as opposed to half-listening while reading a list of bullet points.

More information on the Haiku Deck app can be found on the Legal Productivity blog here.

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Effective Listening During Fact Investigation

Today Listen Like a Lawyer brings you this conversation with Emory Law Professor Paul Zwier, director of Emory’s Advocacy Skills Program, co-author of Fact Investigation: Interviewing, Case Analysis, and Case Theory Development, and noted speaker with the National Institute of Trial Advocacy.

Many thanks to Professor Zwier for sharing his thoughts on establishing a rapport with your client, active listening for empathy and for information, and developing listening skills over the course of your legal career. To quote his book, “Without expertise in both asking questions and listening, the lawyer as fact researcher is likely to fail.”

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Trial lawyers: five key contexts for listening

Effective listening has universal themes, such as the role of focused attention. But much of listening is also context-specific. Listening in a public meeting is obviously different than in a one-on-one conversation.

Trial lawyers face at least five distinct listening contexts. Each presents different listening opportunities and challenges. Listen Like a Lawyer is grateful to share this Q&A on listening contexts with trial lawyer, mediator, and trial-advocacy instructor Jay D. Brownstein.

brownstein-photo-L

LLL: Jay, thank you for your time. What do you think are the most important contexts that trial lawyers need to be thinking about when they think about their listening?

JDB: Generally speaking, there are several areas where trial lawyers need to effectively listen:

  • First, when speaking with potential and existing clients.
  • Second, in witness examination, both in deposition and at trial. As lawyers, we are often intent on covering a predetermined outline of topics and questions. But effective advocacy requires us to carefully listen and respond to what the witness is saying.
  • Third, communicating with judges at the trial and appellate level.
  • Fourth, communicating with juries. In voir dire, you listen intently to potential jurors’ answers, looking for clues as to their beliefs and predispositions. In trial, you must “listen” to nonverbal communication from jurors (as well as witnesses and the judge).
  • Fifth, mediation, an important tool for conflict resolution. It has become a necessary aspect of litigation and requires strong listening skillls.

LLL: What are the listening challenges in conversing with a potential client?

JDB: The initial client interview can be especially challenging because the client and attorney have somewhat different goals. The client wants to tell her entire story, while the lawyer is trying to quickly determine if the client has a case worthy of further exploration.

In telling their stories, clients usually don’t know what facts are important. They frequently spend time telling you things that may have little legal significance, while leaving out truly important details. The lawyer must carefully listen to what the potential client is saying (or not saying), but also guide the conversation to facts important to the legal claim analysis.

So there is a constant tension between allowing the client to talk (and being professional and courteous), and quickly learning the necessary facts to make a case determination.

LLL: How does the listening task change when your potential client becomes your actual client?

JDB:  Throughout a representation, it is critically important to maintain effective communication with your client, which always requires listening. Clients often try to tell us things that can be very important to a successful outcome of their case, although we may not always be receptive to it. For example, to effectively advocate pain and suffering in a personal injury case the trial lawyer needs to fully explore and come to understand how the client’s injuries have affected them.

In all cases, it is critically important to develop and maintain a relationship of trust with the client that can only occur through effective listening. If clients are to entrust us with their most important confidences—which can be crucial to achieving a successful result in their case—they must know that we are listening and trying to truly understand them and their circumstances.

LLL:​ I saw a statistic from one state’s court system that only 7 percent of cases go to trial. That means a lot of them settle, and the mediation process plays a major role in settlement. How can lawyers use listening to help their clients during mediation?

JDB:  Over the past 10-15 years, mediation has evolved to become the primary means of resolving cases short of a jury trial. Available statistics suggest that a high percentage of mediated cases settle either at mediation or shortly thereafter.  For example, the EEOC reports that in 2012 over 76% of its mediated cases settled within 100 days after mediation. For clients and their lawyers, mediation is often the last best chance for a certain resolution without putting their fates in the hands of strangers (juries and judges). Lawyers should not only prepare themselves for mediation as though preparing for trial (by reviewing all discovery, depositions, research on key legal issues, etc.), but they must also prepare their clients.

This preparation involves not only explaining the mediation process, but also listening and openly talking with clients about their expectations. It does little good to tell a client what she can expect in a mediation without also helping her to set goals and manage her own expectations. Listening plays a key role in this – you must first learn and understand how a client thinks before attempting to help modify that thinking and allow for the best chance of a successful mediation.

LLL:  If the dispute lasts long enough, at some point, the lawyer will take and defend depositions and eventually examine witnesses at trial. What do you think are the keys to effective listening in the context of witness testimony?

JDB:​  Particularly in early years of practice, many lawyers prepare for depositions and trial testimony by developing extensive witness outlines covering numerous topics and containing detailed questions (sometimes including the expected answers). But as trial lawyers well know, testimony never goes exactly as planned or scripted, especially in the case of direct testimony. Learning to get the witness talking, listening to what the witness actually says (as opposed to what we expect or hope to hear), and following up to the actual responses, is critical to effective examination. This is something that, like many experienced practitioners, I am constantly aware of and seeking to improve upon.

The more an examination, even cross examination, is like a true conversation with each side listening and responding to the other, the more effective you can be at eliciting key points (good and bad) you want the jury (or judge on summary judgment) to hear and remember. All witnesses can surprise and frustrate a trial lawyer; the key is to listen and understand what you can and can’t do with a witness.

LLL: For the trial lawyer, a very important audience is the trial judge. How can lawyers use listening to better understand the trial judge?

JDB:  All trial judges are busy with heavy case dockets, and appreciate brevity and clarity. On any given civil motions calendar there could be 40 to 50 cases. The judge needs to know what type of matter is before her (discovery motion, procedural issue, etc.), what she is being asked to do, and why. Judges will generally tell you what they need to understand or hear in order to issue a ruling.

The most skilled lawyers I have observed listen carefully to questions from the bench, whether directed to them or opposing counsel, and react by instantly tailoring their argument to the point or points the judge seems most interested in or confused by. Most importantly, the best lawyers don’t waste the court’s time with unnecessary argument. If a judge indicates, directly or indirectly, that they likely agree with you, acknowledge it and move on. If there is nothing further to say, stop talking and sit down.

LLL:When cases do go up on appeal, listening during oral argument is another intense experience. What are the listening challenges of oral argument, and how do you deal with them?

JDB:  ​In appellate advocacy, the same principals apply but with even greater force. Accomplished appellate lawyers say that the best appellate arguments are like living-room conversations, except that the advocate’s window of opportunity to persuade is narrow and can easily be lost if the lawyer does not carefully listen and directly respond to questions.

Usually, a question from the bench is much more than an opportunity to expound on an issue or portion of your prepared argument. It tells you exactly which part of your argument is most troubling to the court or to the particular judge with the question. And it gives you the chance (in 60 or 90 seconds) to persuade that judge, and perhaps others, to your position.

Preparation is key, as you must anticipate and be ready to immediately give your best response to a myriad of issues and related questions from the bench. But absent insightful listening, the chance to persuade will be lost.

Jay, thanks so much for sharing your thoughts with Listen Like a Lawyer.

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Judged by our listening

Effective listening is just one of many components of being effective, overall, as a communicator and as a professional. By being effective listeners, lawyers can improve how people perceive their overall communication effectiveness. Professor Neil Hamilton’s excellent law review article Effectiveness Requires Listening: How to Assess and Improve Listening Skills delves into some ideas on how this is so.

Professor Hamilton begins by noting the “exceptional opportunity” available to lawyers and law students who enhance their listening skills. Effective listening can assist students with academic performance and practicing lawyers with client relationships. Analytically, effective listening enhances problem solving and deepens understanding of a situation. Beyond that, it builds trust. So listening is a win-win-win: competitively, analytically, and relationally.

Next Hamilton quotes a study linking listening to overall effectiveness–not just in communication, but period: “[P]eople whom others perceive as the most effective individuals have strong listening skills” (citing Kerry Patterson et al., Crucial Conversations: Tools for Talking When the Stakes Are High (2002)). Patterson’s work revealed that managers judged as effective were able to encourage others to talk about high-stakes topics and to get all the issues out in the open. Part of their effectiveness was a product of  listening to various points of view before jumping into the fray.

This particularly passage in Hamilton’s article called to mind, for me, the work of Nobel Prize winner Daniel Kahneman, most recently collected in his book Thinking, Fast and Slow (New York Times review here). Kahneman, along with Amos Tversky, found that people apply a wide variety of “cognitive heuristics”—in other words, psychological shortcuts—to guide their decision-making.

These heuristics play a particularly large role in making tough decisions involving many complex factors. For example, a lawyer might be afraid to put a client on the stand when that client has an admissible prior conviction because, the lawyer would justifiably think, the jury might substitute its overall complex decision about the facts of the case for the easier decision about whether the client was a worthy person, in light of the prior conviction.

So in the context of listening, what if people use listening as a heuristic for their judgments about someone’s effectiveness as a communicator? What if people use listening as a heuristic for judgments about someone’s effectiveness, period? Both could be true.

A speaker can observe a listener’s behavior and from the outward behavior form a judgment about that person’s listening. The judgment could be wrong; a distracted-looking person might actually be a better listener than someone who sits still but is really thinking about what to say next. Yet the outward behavior sends a message that nonetheless triggers a cascade of thoughts and judgments in the speaker’s mind.

Lawyers wishing to make a good impression with clients, judges, and others should keep this possibility in mind. By showing themselves to be good listeners, lawyers can likely ratchet up others’ beliefs about their overall effectiveness. Conversely, by appearing to be poor listeners, lawyers might be compromising more than they think. (Thus a lawyer’s slip in listening to a client might call for an immediate apology to try to counteract the client’s unfavorable judgment, which would likely be forming as quickly as a summer pop-up storm in Atlanta.)

There is something about listening that, I believe, makes it a particularly likely candidate to serve as a cognitive heuristic for effective communication. Speaking is the other significant component of interpersonal communication. (Let’s set aside writing for now.) Public speaking is notoriously difficult and intimidating. So even if a lawyer begins a presentation on a tentative note, the audience’s own experience might soften any judgment about the lawyer’s overall effectiveness. You may have heard someone described along these lines: “He’s not a great public speaker, but he does a good job.”

But listening is different. I have never heard someone say, “She’s a lousy listener, but overall she does a nice job.” Not being listened to provokes frustration if not anger. This would seem especially true for audiences with high expectations of being listened to, such as clients and judges.

And listening seems pretty to evaluate, therefore making it a good candidate for the cognitive heuristic called the “substitution effect,” or “attribute substitution.” Even if a client feels at a loss to evaluate a lawyer’s holistic legal acumen, that client can substitute an easier decision: does the client feel that the lawyer effectively listened?

Thus listening would seem to have all the ingredients of a heuristic in the making, especially for lawyers. This observation brings us back full circle to Hamilton’s article exhorting the value of effective listening: “[P]eople whom others perceive as the most effective individuals have strong listening skills.”

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Validating others by listening

Today the Farnam Street blog—which has a fascinating e-mail newsletter I highly recommend subscribing to—collected and released its top posts for July. One of them was “Ten Techniques for Building Quick Rapport with Anyone.” The post is a summary and review of Robin Dreeke’s book It’s Not All About Me: The Top Ten Techniques for Building Quick Rapport with Anyone.

This book looks like something this blog could explore again more fully in the future. For now, here’s what Farnam Street had to say about the book’s coverage of listening. It’s one of the best ways to build rapport by validating the person you’re talking to:

Just listening to someone can produce amazing results. Where we run into problems is keeping our own thoughts, ideas, and stories out of the conversation. [Quoting the book:] “True validation coupled with ego suspension means that you have no story to offer, that you are there simply to hear theirs.” And there is another benefit. When the focus is on the other person and we’re not anxious to tell our own story, we also tend to remember the details. We’re mindful.

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Welcome

Welcome to Listen Like a Lawyer. This blog will explore the theory and practice of effective listening, and how lawyers, law students, and just about everyone involved in the practice of law can benefit from working on their listening. Effective listening provides a distinct advantage to anyone whose job involves communication—a description that certainly fits lawyers.

The motivation for this project is twofold.

1. Good listening makes good lawyering

First, good listening is a necessary component of good lawyering. Lawyers who are powerful listeners can negotiate more effectively, answer judges’ questions more responsively, communicate more completely with clients, and otherwise enhance their relationships and effectiveness in almost all aspects of their practice.

2. Listening is in jeopardy

Second, I have a sense—and don’t think I’m alone in perceiving—that listening skills are deteriorating among lawyers and the general public. Distractions and the dominance of visual media and written communication are sapping our attention and our strength at gleaning auditory information. The foundation for these beliefs, as well as challenges and counter-arguments, will be topics explored during the life of the blog.

Who this blog is for

The intended audience is anyone interested in effective communication by lawyers. I think this group includes, at a minimum, lawyers, law students, in-house counsel and others who regularly work with lawyers, judges and mediators, law professors (particularly clinicians and those who teach communication- and skills-based courses), and other professionals in the legal industry. I hope to draw on a variety of source from academic to practical to totally outside the box.

This is a conversation about listening and lawyering

The benefit of the blog format is that it permits and encourages a flexible, responsive flow of ideas. Please make constructive comments, and e-mail me at jromig@emory.edu if you want to comment privately or discuss possibilities for guest blogging. Thank you, and enjoy the blog’s journey exploring what it means to listen like a (really good) lawyer.