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.

Law-school learning outcomes for communication

Jennifer RomigLeave a comment

It’s that time of year when elementary and secondary students’ standardized test scores arrive in the mail. The scores should, ideally, correlate to the school’s stated learning outcomes. Elementary and secondary schools are veterans of the push for learning outcomes, and law schools are now required to determine their learning outcomes as well.

Specifically, the ABA requires law schools to develop and publish learning outcomes in a number of areas including written and oral communication:

A law school shall establish learning outcomes that shall, at a minimum, include competency in the following:

(a) Knowledge and understanding of substantive and procedural law;

(b) Legal analysis and reasoning, legal research, problem-solving, and written and oral communication in the legal context;

(c) Exercise of proper professional and ethical responsibilities to clients and the legal system; and

(d) Other professional skills needed for competent and ethical participation as a member of the legal profession.

Interpretation 302-1 For the purposes of Standard 302(d), other professional skills are determined by the law school and may include skills such as interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency, and self-evaluation.

Interpretation 302-2 A law school may also identify any additional learning outcomes pertinent to its program of legal education.

Thus, outcomes related to “written and oral communication” are mandatory. The law school must also set outcomes for “other professional skills needed for competent and ethical participation as a member of the legal profession.” But determining those other necessary skills stands within the law school’s discretion.

Posted learning outcomes on law school websites show a wide variation, reflecting different preferences in how general or specific outcomes should be. On the streamlined end, the University of Chicago Law School’s Learning Outcomes would fit on half a sheet of paper:

The Law School’s program of instruction is designed to train superb lawyers who will be leaders in all parts of the profession.  To that end, the Law School expects that all students by the time of graduation, will:

  1. Be familiar with the general approaches to the study of law and legal reasoning;
  2. Demonstrate the ability to identify and understand key concepts in substantive law, legal theory, and procedure;
  3. Have the ability to write a competent legal analysis;
  4. Demonstrate the ability to conduct legal research;
  5. Demonstrate communication skills, including oral advocacy;
  6. Demonstrate familiarity with the rules of professional ethics;
  7. Demonstrate professionalism consistent with the legal profession’s values and standards.

Does U. Chicago expect students to be able to listen effectively in a legal context? Item 7 lists oral advocacy—and only oral advocacy—as a specific example of expected communication skills. But standard statutory construction tells us that “including x” does not mean “meaning only x.” Other skills such as listening aren’t excluded, but also aren’t mentioned. U. Chicago’s learning outcomes suggest that oral advocacy holds a special although not exclusive place of honor among communication skills.

On the more specific end of the spectrum, Washburn Law School’s JD outcomes have categories with related goals. The communication category includes not just reading, writing, and speaking, but also listening:

3. Graduates will communicate effectively.

3.1 Students will write in a clear, concise, well-organized, professional manner that is appropriate to the audience and the circumstances.

3.2 Students will speak in a clear, concise, well-organized, professional manner that is appropriate to the audience and the circumstances.

3.3 Students will demonstrate active listening in communications with others, including legal professionals and laypersons.

Washburn Law also mentions fact investigation and interviewing as core legal practice skills:

4. Graduates will demonstrate competency in legal practice skills.

4.1. Students will demonstrate the ability to conduct legal research.

4.2. Students will demonstrate the ability to conduct a factual investigation.

4.3. Students will demonstrate the ability to interview and counsel a client.

4.4. Students will demonstrate the ability to negotiate and advocate on behalf of a client in appropriate circumstances.

4.5. Students will demonstrate the ability to draft documents used in legal practice.

Even more specifically, NYU Law School has published a detailed scheme of goals for its curriculum, including eight separate goals for its 1L lawyering class alone. Among those goals is interviewing, with several specific references to listening:

3. Interviewing

Effective interviewing of a client or fact witness or other individual requires familiarity with the following skills, concepts and processes:

(a)     Communication skills and processes:

(i)     Listening, and impediments to listening;

(ii)    Questioning:

(A)     Choices and effects of question formulation (open and closed questions, leading and non-leading questions, consecutive and non-consecutive questions, etc.);

(B)      Choices and effects of question sequence;

(C)      Effects of formulation, sequence, and the context of the interview on shaping (consciously or inadvertently) the narrative and the opportunity for the client or witness to tell her or his own story.

(D)     “Active listening” and similar techniques;

(E)     Precision in questioning and answering:

(I)     awareness of imprecision, ambiguity, omission, in one’s own communications and others’;

(II)    techniques for systematic control of levels of precision;

(iii)     Analysis of the possible dimensions of description and inquiry;

(iv)    The psychology of perception, memory, conceptualization, and articulation;

(v)     Analysis of the factors that may affect interpersonal dynamics, including those that may arise in cross-cultural and multilingual communications;

(vi)     Non-verbal communications.

The ABA requires law schools to post these learning outcomes. But in terms of reporting student progress on the outcomes, a detailed quantitative individual report like what elementary and secondary students receive for standardized tests seems unlikely to be required or volunteered by law schools.

The closest I’ve heard to such an option is more student-driven: individualized skills trackers for student use, in particular Nebraska Law’s Build Your Character app. The app is based on the Shultz and Zedeck factors for successful lawyering in eight categories: intellectual and cognitive; research and information gathering; communications; planning and organizing; client and business relations; working with others; and identity. Among other features, it helps students choose classes that match up to skills they want to develop and build an online portfolio for employers.

I’m genuinely curious about additional ways law schools are reporting to students (or the ABA) the students’ individual or collective progress on stated learning outcomes. Please share in the comments or on social media.

 

 

 

 

Confronting Judicial Harassment

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The Senate Committee on the Judiciary is holding a hearing now: “Confronting Sexual Harassment and Other Workplace Misconduct in the Federal Judiciary.” The live feed is here Senator Richard Blumenthal is talking now about why federal judges who commit sexual harassment can retire, avoid formal censure, and continue to collect full pay. He also stated that he clerked for Justice Blackmun, who would find harassment in the judiciary to be atrocious.

Witnesses at the hearing are James Duff, Director of the Administrative Office of the U.S. Courts; Jaime Santos, an associate at Goodwin Procter and former federal law clerk; and Jenny Yang, former federal law clerk and former chair of the U.S. EEOC. Ms. Santos’s written testimony begins in substance as follows, previewing the basic difficulty law clerks encounter when dealing with harassment:

Judicial chambers are unlike any other type of working environment. Individuals lucky enough to be hired to work with judges are typically law students, for whom judges are more demigods than they are employers. Judges are titans of the profession who have shaped the law as we know it. A law clerk enters a clerkship with the belief that her judge will challenge her to become a better thinker, be a lifelong mentor, and set an example that she can follow for her entire career. When a law clerk experiences or witnesses harassment, it can be devastating on a personal and professional level. And it is incredibly difficult to speak up against someone who has the unmatched power of a life-tenured federal judge.

Judge Alex Kozinski’s former law clerk Heidi Bond, who writes as Courtney Milan, wrote about her experience here and is live-tweeting the hearing. Her letter about what could help prevent its recurrence was entered into the record by Senator Grassley.

(Note after the hearing: The recording remains available at the link, with hearing statements beginning at approximately minute 15:30.)

The Wisdom of Judge Smith

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Try to listen twice as much as you speak, because when you are new you don’t have a clue. Listen to what people say and notice what they don’t say. Often their body language will verify or betray their words. Ask questions to clarify, distinguish, expose and summarize.

Judge J. Layne Smith of Leon County, Florida, wrote this open letter addressed to a “New Law School Graduate” in the June 2 Tallahassee Democrat. It’s good advice that takes about five minutes to read and a lifetime to implement. (On that note, cf. John Barlow, The 25 Principles for Adult Behavior.)

Unicorn lawyers

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What is a “unicorn skill”? It’s a skill that reasonably performing professionals in the field do not have, which is why they are just…reasonable. They can still do their job but are not “A” players. A unicorn skill is thus rarely found, and those who have it stand out as…unicorns.

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Courtesy Bernard Goldbach/Flickr/CC by 2.0

I learned about the term “unicorn skill” from this article (quoting John Maeda’s Design in Tech report) claiming that for software designers, the unicorn skill is not coding (as traditionally thought) but good writing. Coders who are also great writers are unicorns:

A core skill of the interaction designer is imagining users (characters), motivations, actions, reactions, obstacles, successes, and a complete set of ‘what if’ scenarios. … These are the skills of a writer — all kinds of writers, but particularly fiction, screenwriting, and technical writing.

(This segment of the article is quoted from blogger Susan Stuart.)

The unicorn idea connects to a larger meme within the design community about unicorn designers, who—according to http://www.uxunicorn.com —can be described as follows:

Mythical user experience designer with an advanced and adaptive skill range. Outstanding skills in graphic design, rapid prototyping, front end development, user testing, technical specifications, marketing and branding. It does not have an opinion, it has a process, and will harmonize with any environment.

Unicorn designers are basically “supernatural beings” that may or may not exist, but that hiring managers want. They combine the best of technical skills with the best of soft skills:

It’s important to be able to receive and give feedback and have the necessary soft skills to work efficiently with others. Fortunately, with the understanding and expertise of different skill sets, unicorns should be able to develop deep empathy for the people they are working with.

Obviously there is some skepticism here about whether such a designer exists, or could exist.

Unicorn lawyers?

If that’s a unicorn designer, then what’s a unicorn lawyer? It’s not that far off from the combination of advanced technical plus soft skills described above for designers and coders. Here’s a draft description, inspired by the above and tailored to the legal profession:

Mythical recent law grad with an advanced and adaptive legal skill set. Outstanding skills in client interviewing, case analysis, legal research and analysis, mediation, litigation, transaction, regulatory compliance, social justice, efficiency, people skills, client development, and pro bono. They do not have an opinion, they have a complete skill set, and will enhance the justice production and economic advantage of any firm or agency. They are also qualified to be a solo unicorn needing no further mentoring.

Skepticism about unicorns in design work reminded me of the skepticism within legal education: can a law school can really be expected to produce a practice-ready graduate immediately adaptable to literally any legal environment? Those who aspire to produce or to be unicorns embrace a perhaps radical faith in and dedication to their own professional development.

Assuming for the moment that producing / being a unicorn lawyer is a worthy quest, can we identify one single unicorn skill—a skill that is under-appreciated, not commonly found, and highly correlated with outstanding performance in the field?

After reading the claim that writing is the unicorn skill for designers, I posited on Twitter that legal writing might be the unicorn skill for lawyers:

That idea was instantaneously shot down, with multiple sources confirming that legal writing is necessary but not sufficient—at least not in law firms that need client business. Any skill that is expected as a baseline cannot be a unicorn skill. The skill identified as more unusual and more likely to be rewarded was rainmaking. And rainmaking can, of course, be defined in various degrees of formality:

Listening as the unicorn skill for lawyers?

Listening is not unrelated to client development and even “a**kissing.” So can we say effective listening might be a unicorn skill because it is not commonly practiced at the level of excellence and is highly correlated with overall excellence?

First, it’s important to acknowledge that in almost any lawyering that involves interpersonal interactions, listening should be practiced to at least an average level of competence. Lawyers have to listen to their clients to take the facts, and listen to their supervisors to take assignments, and listen to witnesses to take depositions and conduct witness examinations at trial.

But is listening commonly practiced at the level of excellence? That means picking up the wealth of verbal and nonverbal cues that intense listening can reveal. It means making people truly feel heard. It means hearing and processing what is not being said. It means recognizing the moment of opportunity to interrupt and show engagement, versus the moment to sit back in silence and let the speaker continue unabated. The judgment and skilled intuition needed for this type of listening is why it goes into good lawyering in a technical sense and good rainmaking in the social sense of being liked and trusted. Finding all these skills in one person (plus necessary but not sufficient skills like legal writing) makes for a great lawyer.

And—according to the hypothesis of listening as unicorn skill—you don’t see top lawyers who are not also really strong at listening. You might call it charisma, but listening is part of what these extra-effective professionals do so well, and that others don’t. They take in a lot of information efficiently in their conversations and remember it. When they repeat questions, it’s not because they missed something, but to see if the speaker answers differently or to refocus on a crucial area. They may follow up in writing with precision to pin down the recipients and preserve their “record” for later.

Even in settings not traditionally understood as emotionally charged, they help others feel heard, efficiently, because they subtly manage the conversation. That’s part of what makes for great rainmaking. They may gravitate toward and be promoted in jobs that reward personal networks and interpersonal skills, e.g. negotiation and business development. After interacting with a skilled listener, people may not identify listening as the exact reason they are impressed, but they walk away with a sense of confidence and trust, and a positive impression. Those without the same skills in listening are fine, average, reasonable, even very good—but not unicorns.

Although I’ve made the case for listening as a unicorn skill, I am genuinely interested in others’ opinions of what the unicorn skill for lawyers may be.

For example, Lucy Endel Bassli has gone in a completely different direction, arguing that a unicorn lawyer is someone who “likes process and seeks data.”

When we look across the profession, what skill is under-appreciated, not commonly performed at a high level, and signifying truly excellent performance in the field? Have you ever interacted with someone you consider to be a “unicorn lawyer”? If so, what led you to that conclusion?

Resources for summer associates

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Many summer associates are starting jobs this week. This post may be my shortest ever, but here are some resources for effective communication, especially listening, in the summer-associate setting:

https://listenlikealawyer.com/category/summer-associates/

Here is a post by Georgia State Professor Kendall Kerew on listening for law-school externs, with many lessons for summer associates as well:

https://listenlikealawyer.com/2014/01/08/listen-to-learn-four-ways-listening-can-help-you-get-the-most-out-of-your-externship/

And here is a checklist for taking a new assignment:

https://listenlikealawyer.com/checklists-2/listening-checklist-for-taking-a-new-assignment/

Good luck to all the summer associates of 2018!

Listening to Combat Loneliness    

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According to this study in the Harvard Business Review, lawyers are #1 when it comes to being lonely at work:

In a breakdown of loneliness and social support rates by profession, legal practice was the loneliest kind of work, followed by engineering and science.

(Hat tip to Keith Lee of Associate’s Mind and online lawyer community Lawyer Smack. He wrote more about lawyer loneliness here.)

The legal industry may be particularly prone to loneliness because of the “game face” mentality necessary to represent clients effectively. Putting on a game face on for work can be a professional necessity, but also causes loneliness if it spreads to other facets of life.

People who are lonely often think that everyone else is doing OK while they are not. They think they are the only ones carrying a burden. I have had clients talk about putting their “game face” on rather than sharing truthfully about themselves.

This quote is from British psychotherapist Philippa Perry, board member of a social business called Talk for Health which aims to create a network of long-term peer support systems for meaningful sharing and listening.

Many lawyers and legal professionals and law students already have long-term peer groups in their colleagues and classmates. But if people are gathering on a regular basis with their game faces firmly in place, those peer groups may not be serving a support function at all. Is there anything lonelier than giving a performance that everything is wonderful and there is “nothing to see here”?

Peer groups that provide real support are one of the most valuable ways to combat loneliness. To delve more into the elements of real support, I went to the books—specifically the listening textbook authored by Professors Worthington and Fitch-Hauser of Auburn, Listening: Processes, Functions, and Competency. (I met and talked with them a few years ago and would do so again anytime because they are awesome.) They lay out some helpful categories of listening for social support:

Directive v. non-directive

Directive support provides “unrequested specific types of coping behaviors or solutions for the recipient.”

Non-directive support “shifts the focus of control from the giver to the receiver” and lets the receiver “dictate the support provisions.

Problem-focused v. emotion-focused

Problem-focused support seeks to help the speaker solve a problem.

Emotion-focused support seeks to help the speaker work through their own emotions

To provide effective social support, different strategies are called for at different times and in different contexts. Coworkers who do not know each other all that well are not just going to go out for coffee and start providing open-ended, non-directive emotional support. I recently went to a women’s bar event and heard a white woman explain that she really wanted to “be there” for her minority colleagues, but they didn’t seem willing to open up and share. Someone tactfully pointed out that you can be a good colleague just by being kind and reliable over time. Small talk is not meaningless; by being really interested in someone in a socially appropriate way, maybe a deeper relationship will develop. But no one is entitled to hear another person’s story at work.

Junior lawyers and new law students may seek and crave mentors who give them directive emotional support; I recently overheard a third-year law student lecturing—in a supportive but dominant voice—a first-year student. The 3L forcefully instructed the 1L to stop being distracted by a romantic relationship and focus on school, and everything would fall into place as long as the 1L put priorities where they belonged and made a point of taking this time to do what needed to be done, etc. etc.

This kind of directive advice can feel exactly right for a person who is lonely, unsure of their own path forward and how to be effective, or both. But over time, directive support may become more about the person offering it. Directive support can foster a dependent relationship that just leaves the recipient in an even lonelier place when the “director” is not around. A thoughtful mentor should reflect on their own strategies for providing support. Someone who naturally tends toward directive support should consider mixing it up with non-directive approaches. This means asking more questions, prompting the mentee to reflect and assess what is needed. Ultimately, non-directive listening may help a professional grow and take responsibility for their development.

Assisting someone who appears to be lonely is an advanced communication challenge. Jeena Cho has written about the difficulty lawyers may feel in breaking the cycle of loneliness:

When we feel loneliness, it’s easy to continue on the path to more loneliness rather than to do something about it. It makes sense that lawyers would avoid taking steps to break the loneliness because it would require vulnerability.

Others around a lonely person may be able to sense it and help them break the cycle. Worthington and Fitch-Hauser give an example in their book of the following—something that lawyers and legal professionals may recognize from their own conversations at work:

Person 1: Hey, how are you?

Person 2: Oh hello, I’m fine. How about you?

Person 1: Hmm, you don’t sound like you’re fine. What’s going on?

Person 2: Oh nothing. Really, I’m fine.

They acknowledge that in this scenario, 1 may accept 2’s statement at face value and leave the conversation. But to  really go in for the social support, 1 might push for more with something like “Are you sure? Did something happen at work that upset you? If you’d like to talk about it, I’m here to listen.” They acknowledge this is a heavy-handed response and suggest another, less intrusive way to handle the conversation as well: 1 may choose to sit down next to 2 and ask 2 a bit more specifically how work is going. As Worthington and Fitch-Hauser point out, even the heavy-handed approach can be helpful. It’s uncomfortable and possibly annoying, but it provides the potentially lonely person with the opportunity to respond.

Both of these possible approaches also avoid the “negative social support behaviors.” In terms of what not to do, Worthington and Fitch-Hauser list the following:

  • Giving advice
  • Using platitudes or clichés
  • Saying “I know exactly what you’re going through”
  • Telling people to stop crying or stop being wrong or embarrassing
  • Saying it’s not such a big deal and minimizing the situation
  • Blaming the person seeking support

Other than unsolicited and unwanted advice, these should be pretty easy to avoid. It’s much harder to provide truly effective social support. Really good social support tends to be “invisible”: “The recipient isn’t consciously aware that support is being given and, therefore, doesn’t feel any negative consequences of being the recipient.”

I think this observation crystallizes the true art form of helping a colleague break through their loneliness. If they become aware that (1) you think they’re lonely and (2) you are trying to help, your chance of effectively helping them drops precipitously.  Stealthy, invisible support using discerning, empathetic listening can encourage someone to begin addressing their loneliness by doing what Jeena talks about in her article: taking a tiny step.

Beyond formal rules of evidence

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Last year the Wall Street Journal wrote about problems with sleeping jurors. Brooklyn law professor I. Bennett Capers’ new article Evidence Without Rules, forthcoming in the Notre Dame Law Review, points out a much more pervasive issue: all the information jurors take in when they are awake.

The rules of evidence strictly limit what jurors can consider. They are have been “understood, and continue to be understood, as all-seeing, all-encompassing gatekeepers, checking all of the information juries may hear or see for relevance and trustworthiness.” Capers shows this view to be inaccurate and incomplete:

The assumption is that the rules are all-encompassing, unbounded. But the truth is far different. To be sure, the Rules of Evidence place limits on some of the information jurors hear and see, such as witness testimony and exhibits, the type of information that is formally announced and introduced as evidence by lawyers. Other evidence, however, passes by evidentiary gatekeepers practically unseen and unnoticed. Jurors use it to decide who was right and who was wrong; who committed a crime and who did not.

It is this other evidence that “breeze[s] unchecked” past the gatekeeping function of the evidentiary rules. And, Capers argues, “[i]f the goal of evidence law is ‘that truth may be ascertained and proceedings justly determined,’ then that objective is frustrated when outputs turn on improper and unchecked inputs.”

He gives three major examples pertaining to all the players in the courtroom—parties, witnesses, attorneys, and others:

  1. Their dress
  2. Their demeanor
  3. Their race

First, dress—for example, glasses, which can be used for a “nerd defense” but may also make white-collar defendants look more guilty. As to the role of glasses, the article left me actually speechless with a jury consultant’s advice: “savvy lawyers should spray a defendant’s glasses with PAM cooking spray so that the jury cannot see the person’s eyes, at least when the lawyer fears the defendant might come across as ‘shifty-eyed.’”

Second, demeanor—Capers points out that the lawyer can use nonverbal behavior to supplement or tear down testimony. It was this aspect of the paper that seemed most connected to the topics here on this blog. A lawyer’s demeanor can serve as a kind of “performative listening” that doesn’t just elicit testimony but gives some kind of statement in its own right:

Consider the lawyer who drums her fingers on the table while a witness testifies on the stand, or rolls her eyes or raises a skeptical eyebrow. Or the lawyer who quietly nods along at a certain point in a witness’s testimony. . . . They are in effect vouching for witnesses, or in the case of opposing witnesses, implying a witness is unworthy of belief. They are offering the equivalent of opinion testimony without themselves swearing an oath or taking the stand.

The way the lawyers sit aligned with their client or put a protective arm around the client is itself a form of opinion evidence, Capers argues—unacknowledged evidence that would violate Rule 404(a) if it were considered “evidence” in the first place.

Third, race—which connects with demeanor evidence but is of course much broader. As to demeanor, which has proven crucial in death-penalty juries’ deliberations, the impact of race makes jurors worse at reading faces: “Several studies have found that how jurors interpret facial expressions depends on the race of the juror and the race of the defendant; not only do we have trouble with cross-racial identification; we have trouble with cross-racial identifications of remorse.”

The impact of race also makes jurors worse at remembering the facts fairly:

[In one study,] participants invented aggressiveness when the actor was black, [but] actually failed to remember evidence of aggressiveness when the actor was white. In short, it is not only in cases involving minority defendants where race matters. Race also matters in cases involving white defendants, whom jurors are more likely to view as presumptively innocent, and cases involving white witnesses whom jurors deem presumptively credible.

Beyond these three factors explored in the articles, there is, of course, sexism such as jurors’ bias toward male experts as more authoritative, bias toward people with families, bias against the use of an interpreter, and male bias against overweight women. “Outsider accents” are viewed as less credible, whereas neutral and especially British accents gain extra credibility.

The question Capers struggles with is what to do about all of this. Given the almost impossible bar of overturning a jury verdict, even on evidentiary issues formally recognized as evidence, the basic effect is “What happens in the jury room stays in the jury room.”

And he points out that existing instructions may exacerbate the problem. Telling jurors to decide based on what they “saw and heard in court” may “giv[e] them tacit approval to consider anything they hear or see—including the dress of witnesses, or the presence of supporting family members, or the defendant’s demeanor even if he does not testify—so long as they do not consider as evidence anything the court explicitly prohibited, such as the questions of lawyers.”

Capers goes on to suggest a stronger admonitory instruction, phrased in concrete, plain language. He also suggests providing jurors with an evidentiary checklist of the witnesses and the documents. Capers’ suggestion here fits well within insights from cognitive science. For example, Daniel Kahnemann coined the phrase “WYSIATI”: What You See Is All There Is. Under WYSIATI, people rely heavily on affirmative information in front of them. Thus, an affirmative list of what the evidence actually is could direct attention toward the evidence actually presented and away from the natural tendency to fill gaps using other cognitive shortcuts.

Capers’ most radical suggestion is to redefine the scope of evidence itself. Under his proposed definition, evidence would include “anything that may come to a juror’s attention and factor into a juror’s deliberation.” The implications of such a definition seem vague at times. For example, he says that a rape victim’s clothing might trigger a 403 issue with the risk of unfair prejudice. But there is an aspect of personal autonomy in how people dress for court; if clothing could be prejudicial enough to trigger 403 then could it somehow come within the court’s discretion to order someone to, say, put on a sweater or take off a sweater? This reminded me of the incident from a couple of years ago where a weather reporter was asked to cover up, on air. And what should a judge do with flamboyant courtroom observers in high-profile cases, for example the Tex McIver trial that just wrapped up in Atlanta:

Capers answers most such questions by relying on detailed jury instructions. Footnote 153 in the article cites scholarship that instructions are not futile and do make a difference, especially when repeated and explained clearly.

I appreciated the realism at the end of his article, acknowledging a possible counter-argument: Why does any of this matter? Why shouldn’t jurors consider all that stuff, as they always have? Drawing on Critical Race Theory and his own professional and personal experiences, Capers out that dress, demeanor, race, and all those other factors are not neutral:

Who benefits from the status quo when we pretend dress does not matter, or demeanor does not matter, or the presence of family members does not matter, or language ability or up-speak or race or gender does not matter? Who benefits? And who does not?

Silence for lawyers

Jennifer Romig1 Comment

Silence.

That was the heart of Emma González’s speech at March for Our Lives on March 24. After a introductory remarks, she named the 17 dead and the small experiences in life they would never partake of again. Then she stood, silent, for the remainder of six minutes and 20 seconds—the time it took for the gunman to kill and then escape at Marjory Stoneman Douglas High. The Washington Post called it “the wordless act that moved a nation”:

The absence of language, the extended pause for contemplation, remains a rare thing in public discourse, and even rarer onstage. A moment of silence is the ritualized form of respect we employ on many occasions to mark tragedy, but it’s usually only a moment. González’s silence was an act that felt, in its way, radical. It was as if she dropped the mic — yet a mic was still in front of her.

The length of the silence is what made it more than rote. Long silences challenge the senses and the mind, reflected in an art critic’s visual and auditory hallucinations within a “supersilent anechoic chamber” on exhibit at the Guggenheim in New York.

Silence in these political and artistic contexts operates as rhetorical Silence. On a more pragmatic note, addressing silence with a lowercase “s,” Bret Rappaport recently published “Talk Less”: Elloquent Silence in the Rhetoric of Lawyering, 67 J. Legal Ed. 286 (2017). He quotes Che Guevara:

Silence is argument carried out by other means.

When silence is done correctly, it brings a “participatory dynamic between speaker and audience” in which the audience fills in the unspoken premise of an argument. In his article Rappaport goes on to describe background and techniques of silence. He lists three kinds of silence: simple silence as when you stop speaking so someone else can take a turn, silencing another by not allowing them to speak, and the “eloquent silence.” The article focuses on the latter. Silence can be eloquent when it violates expectations, leads the audience to understand a shared meaning, and is understood by the audience as directed at them. (Here he cites Purdue professor Barry Brummett.)

Rappaport goes on to show that silence enhances thinking by moving past quick, intuitive reactions to the world. Awkward silences can also yield better results in negotiations because the counter-party feels compelled to fill the silence, perhaps to their detriment. Silence also functions as flattery and, since by definition it means not talking, it reduces the risk of unintentional revelations.

Rappaport breaks down examples from movies and well-known trials (O.J. Simpson of course). He says early on that his argument for lawyers is remedial: silence as a “lawyer’s tool [is] one too often unappreciated or outright ignored.” For lawyers who wish to become more powerful public speakers or achieve better strategic results by saying less, I recommend Rappaport’s article.

I also recommend closing all other tabs, notifications, and alerts to watch the full-length version of Emma González’s speech at March for Our Lives.

 

 

 

 

A digression: re-learning to swim

Jennifer RomigLeave a comment

While attempting—as an adult—to learn how to swim properly, the experience gave me a whole new appreciation for what 1L legal writing students go through. The idea of adults trying new things in middle age is a whole genre, found in a variety of essays and books, e.g. What I learned as the worst student in the class and Guitar Zero: The Science of Becoming Musical at Any Age. Law students may or may not start law school in their 40s, but they do bring beliefs, methods, and habits that may or may not help them adjust to legal writing. On this, my final class of the year teaching 1L legal writing, here are some thoughts.

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What you already know—or think you know—can block your learning.

I already “knew” how to swim. As a child, I took just enough swimming lessons to say I could swim. The P.E. teacher stood in the pool and led us in a lot of bobbing up and down, some survival sidestroke, and a little freestyle. Swimming was not an embedded part of my hometown’s culture, though. The local country club closed down and was bowled over to make a Super Wal-Mart. My exposure to swimming over the next 30 years consisted of watching the Olympics. As a result, I had some mistaken ideas.

Take breathing, for example. It seemed like a good idea take stop kicking and just kind of coast while breathing to the side. Swimming is supposed to seem effortless, is it not? This idea was really, really wrong. I also thought I should breathe on alternating sides—a belief that is not wrong, but also not necessary for a beginner. Other issues were far more important to address, such as body rotation and not putting my palm out like a stop sign.

Mistaken and distorted beliefs afflict beginning legal writers as well. Everyone in law school has some kind of writing background, even if it’s been years in between. Memories of long-past writing lessons may bubble to the surface. Some of these memories are good. Yes, a paragraph should have a topic sentence indicating what it’s about, followed by details. That was true in fourth grade and still valuable now.

But some of the writing memories are bad, at least for legal writing. Law students often come at legal writing brandishing a thesaurus because they don’t want to sound repetitive and, they fear, simplistic. In fact as experienced legal writers know, “elegant variation” (a term coined by Richard Wydick) may introduces ambiguity, which most of the time in legal writing is very, very bad. New legal writers should put the thesaurus away and focus more on reading legal language with a legal dictionary at their side. Experienced legal writers can certainly use the thesaurus; they know which words can be varied and which cannot. But that’s the wrong thing to emphasize at the beginning, just as alternate breathing is a skill to save for later in one’s swimming process.

Skills are like muscles.

What you do becomes who you are. Based on years of running, my legs were pretty strong even if orthopedically challenged. But swimming quickly revealed an upper-body deficit. My arms were accomplishing almost nothing. In fact, using arms actually slowed me down at first, as compared to kicking alone.

Similarly in taking on legal writing, students’ past experiences will have contributed to their strengths and weaknesses coming into the course. Those who have been writing lengthy liberal arts papers are more likely to be comfortable bringing in sources, generating content, and highlighting ambiguities. Those who have been working in business may be very comfortable with summaries up front and concise recommendations.

These strengths of each disciplinary background come with weaknesses as well. Spotting ambiguities is necessary but not sufficient to create valuable, reliable legal advice. Concise summaries and recommendations may not go far enough to help a lawyer or client understand the relevant legal context and possibilities.

Learning a new variation of a skill doesn’t mean ignoring what has worked in the past, but it does mean being willing to reflect and modify. Professor Teri McMurtry-Chubb has written a handbook for translating various disciplinary backgrounds into strong legal writing in Legal Writing in the Disciplines: A Guide to Legal Writing Mastery.

It’s harder when people are watching.

Not knowing how to do something can feel very embarrassing. Swimming around other actual swimmers was a psychological obstacle. I would leave the pool rather than share a lane. I saw other people—kids and adults—working with swim coaches. Part of me wanted to get some advice too, but I felt really embarrassed.

When I finally let a swimming coach see me swim, her advice made a world of difference. She quickly diagnosed and suggested specific, effective corrections for the mistakes I was making.

Similarly in beginning legal writing, it can be excruciating for some students to share their work, or any of their thoughts. Raising a hand is the last thing many students would do. Even turning in early assignments just to the professor can be stressful. Just the thought of letting someone reading a piece of writing can interfere with the writing process.

But most of the time, almost everyone in the room is dealing with the same questions and issues in their work. Sharing one’s work is a huge step towards getting a genuine assessment of its strengths and weaknesses. No matter how bad the first attempt, it won’t be the worst piece of legal writing an experienced professor has ever seen. And it probably has some predictable patterns that can be recognized and re-shaped to create much more effective work.

Working with a coach is great, but the coach can’t do it for you.

The coach spent 45 minutes with me and vastly improved the efficiency of what I was doing in the water. She showed me what I needed to be doing with my arms and legs and breathing, correcting my misconceptions. She also let me know about some of the conventions of swimming that didn’t seem important to me but in fact are important to real swimmers. For example, you always touch the wall. Stopping a few inches short because “whatever, it’s just a few inches,” is not what real swimmers do.

As the lesson went on, my brain started to overload and my body started to tire. I got frustrated and may have dropped a particular profane word. The coach could have given me more advice, but I couldn’t learn. She ended with a gentle admonition: “You just need to swim. Are you going to come out here and practice?”

Students must have a similar experience when meeting with their legal writing professors. Skillful feedback can help a new legal writer cut through a lot of ineffective habits. The professor can help the student understand that some practices—such as sticking with the same legally significant term instead of resorting to the thesaurus—need to be accepted for the student to become a real legal writer.

But there’s only so many writing points that a writing conference can cover. At some point, the student (understandably) has maxed out on taking advice. And then the student has to leave the conference, go out, and just write.

Sometimes you need a break. Sometimes you should keep going.

Swimming is really, really tiring. And people who are tired make mistakes. With swimming, at best this means slowing down. It can also mean a noseful of water and coughing fit in the middle of the lap lane. At such moments, the best thing seems to be just to calm down and reset for another try.

And so it is with learning legal writing. Sometimes the writing muscles just get tired. Just sitting at a computer does not lead to writing. As John Wooden once said, “Don’t mistake activity for achievement.” The writing activity in marathon writing sessions may be particularly vulnerable to mistakes. And the problem there is not just sloppy or confusing writing but substantive mistakes that could affect legal advice to a client.

But that does not mean quitting at the first sign of fatigue. It doesn’t mean all mistakes signal break time. Any athlete must push the boundaries of fatigue to improve. As an adult-learner in the swimming world, my workouts are pathetic by lifelong swimmer standards. But challenging myself to do an extra lap or another short set will be what moves me forward.

Similarly with writing, pushing through the frustration is often crucial to making actual progress.

Accomplishment comes in tiny moments at first.

Breakthroughs can be subtle. At some point I started stretching out in front of me and “pulling” more water. (See how I used the word “pulling”? I am pretty sure that’s a real swimming word!) I was able to rotate in the water instead of swimming like a floating ironing board. Progress was slow, but the time in the pool made a lot of difference, and I knew I was getting better.

Similarly for new legal writers, real progress can be halting at first: Read a case and highlighting an important quote. Make an outline and look at how it has a point A without a point B (yikes!). Write a sentence and realizing that it is too specific to start a new paragraph; it’s a detail, not an idea about the law. Nobody else will be there to see these brief flashes, but they are so important.  The progress is subtle and private—but real.

The lesson and the learning are never really “finished.”

I’d like to say I’m a great or even just a strong swimmer now. That’s just not the case. But I’m a lot better. I wear a one-piece, cap, and goggles, and take a lane. I will continue to consult coaches from time to time and work on my own.

Learning legal writing is much the same. At the end of a year in legal writing, the transition is underway but incomplete. There is much to learn from the experts and from continued effort and experimentation. My hope for the students is that they know what to do to get better. My hope is that they feel the satisfaction of gaining a new skill.

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“May it please the Court…”

Jennifer RomigLeave a comment

It’s that time of year when 1Ls start preparing for their first oral argument. In a class on how to prepare, I’ll be sure to share this tweet from experienced SCOTUS advocate Bob Loeb of Orrick:

As the card shows, even expert advocates benefit from a sort of security blanket in a high-pressure situation. And precisely because a SCOTUS argument is so important, holding the card gives the advocates a small bit of extra mental bandwidth. They can reallocate this bandwidth to the actual substance of the argument. Of course, experienced SCOTUS advocates do not really need notes for the opening moments of their arguments. They probably never look at the card. But just having the card can provide some piece of mind.

Beginning advocates also need notes, partly to avoid the possibility of going blank.  (This happened to me in my 2L trial advocacy class and it was a lot like this, but scarier.) Beginners are more likely to cling to their notes and read them even when they don’t need to. But ideally, the notes serve a similar purpose to the Supreme Court card. Having them as a backup can reassure the advocate, freeing up mental bandwidth to think more about substance, and maybe even listen more intently to the questions.

There is one difference in the SCOTUS card and cards that 1Ls might make for themselves—a 1L’s creation does not double as a library card:

Question for readers: How do you make sure your notes are a help, not a hindrance, in public speaking—oral argument or any other formal setting?