In the holiday season, listening to family and friends can be a perfect gift. It doesn’t cost money and it’s deeply meaningful for the recipient. For the giver, sitting down with a cup of coffee and a friend can be a respite from the hectic, distracted, too-many-things-to-do feeling that ushers in the season.
But making the listening happen, which requires cutting through that hecticness and the digital clutter of life (even on Thanksgiving), is hard. For lawyers, one somewhat natural method to help ourselves give the gift of listening is by asking questions. For that, I recommend the TED website’s list of “10 Questions to Ask Your Family Around the Table.”
[S]how up with your natural curiosity, sense of humor and ability to listen. We all want to be seen and heard, and you’re giving a tremendous gift to a prospect or colleague [LLL: or relative or friend] when you really listen and give her your undivided attention.
Happy holidays to Listen Like a Lawyer’s readers. May each of you give and receive the gift of listening this holiday season.
Who can resist a good Hercule Poirot line, especially when it comes to listening?
Here’s another good one in the spirit of brutal honesty: “Mr. Ratchett, I have made enough money to satisfy both my needs and my caprices. I take only such cases now as interest me, and to be frank, my interest in your case is, uh… dwindling.”
Here’s a thoughtful post urging caution in the debate over laptop vs. handwritten notes. Note-taking provides important (although not perfect) evidence of listening, and thus this discussion is pretty important to Listen Like a Lawyer.
What does it mean to think like a lawyer? On Simple Justice, criminal-defense lawyer Scott Greenfield took on this question for the benefit of a curious software engineer who asked. I recommend this post to new law students who also want to know, and to lawyers who are willing to reflect on what they do.
In the post, Greenfield talks a lot about logic, but it’s all wrapped up in and inseparable from the real-world experience of interacting in a complex situation with complex person, i.e. the client:
When someone walks into a lawyer’s office, they will tell their story. It’s usually a long story, convoluted and filled with extraneous details, all of which matter enormously to the story-teller because they suffered the details. It’s the lawyer’s job to focus, to sift through the details and figure out which are relevant (tends to make a fact more or less probable) and material (bears a logical connection to a fact in issue), and which are simply there, background noise of no consequence to whatever the core issue may be.
In this interaction, there will be conflicts in how the client sees the case and how the lawyer sees it: “To the lawyer, only the facts that affect the outcome matter. To the client, every detail matters.” Indeed, “[t]he client demands that the lawyer care about what matters to him.” Different lawyers manage the conflict in different ways, some more effective than others:
Some lawyers prefer to handhold clients, catering to their sensitivities at the expense of addressing the relevant legal issues. Others prefer to guide clients to understand why some things matter and others, deeply important perhaps on an emotional level, are of no relevance at all on a legal level.
Greenfield ended the post by pointing out how lawyers must set aside the issues that interest them personally and focus on the client’s needs. Recognizing and analyzing those issues comprise the “the hard work of a lawyer.”
And then the rest of the day, something kept bothering me.
Is it really a balance? (Just one more balancing test among so very many in legal doctrine and the lawyering-skills literature.)
Yes, it is a balance. Of course. In listening to a client and asking questions, most lawyers are going to show a mix — a balance — of empathy and analysis. Project too much empathy and the client will gain false hope and/or try to use the lawyer as a tool for “tangential beefs.” Project too much logic and the client will turn away.
This is an important point and one that some lawyers struggle with. For those who repeatedly gets entangled with unrealistic client expectations and, on the other hand, for those whose clients repeatedly become distant and wary, working on the balance may be worthwhile.
But it strikes me that Greenfield’s post was saying something more profound and difficult. He is not a fan of superficial thinking, and the idea of a simple balance isn’t exactly true to his point.
What the post said is that lawyers shouldn’t be unempathetic. That’s a lot different than saying lawyers need to balance their logic with their empathy. Actually, he writes, “[t]hinking like a lawyer demands a dedication to harsh logic.” At the core of what we do, the law and its logic reign supreme. So really we are using empathy — and all our other communication tools — to help our clients understand the logic.
We might need to listen more to do this. We might need to listen differently, or less (if the client is fixated on an irrelevant fact, as the post suggests). But we need to listen with discernment. By hearing their words, watching their faces and body language, using our experience and intelligence to notice what they aren’t saying, deftly steering the conversation to relevance, and generally bringing all of our listening skills to bear, we can be faithful to the law’s logic — while also performing the difficult task, articulated in Greenfield’s post, of guiding clients to understand.
Please share comments, particularly on this view of empathy and lawyering. It’s a conversation I hope to continue.
This week I am excited for the opportunity to meet with two big names in the listening field, Debra L. Worthington and Margaret Fitch-Hauser. They are communication professors at Auburn University and, among many other papers, are co-authors of a 2012 textbook, Listening: Processes, Functions, and Competency.
Professor Worthington has studied persuasion and juror decision-making and, more broadly, the effects of different listening styles. One of her papers addresses whether verbal aggression corresponds with any particular listening style. Not surprisingly. verbal aggression is inversely correlated with a people-focused listening style. But it’s not strongly correlated with the other classic listening styles:
action listening (tendency to focus on errors and inconsistencies in a message, and how it relates to a task)
content listening (tendency to focus on claims and support)
time listening (tendency to focus on how much time a communication event takes, and to prefer hurried interactions)
(These listening styles were first identified by listening scholars Kittie Watson, Larry Barker, and James Weaver and have been explored in a variety of papers. How lawyers may use these different listening styles is an interesting topic for future blog posts.)
Professor Fitch-Hauser studies listening fidelity and other measures of listening. Listening fidelity is a useful concept for any professional: when a listener listens to a speaker/source, how similar are their perceptions of the “communication event” they both experienced? Listening fidelity means their perceptions are more congruent. Her work also has touched on listening styles and personality, such as her paper with Stephanie Lee Sargent and James B. Weaver III on “A Listening Styles Profile of the Type A Personality.”
In their textbook, Worthington and Fitch-Hauser survey the listening literature and acknowledge the difficulties of studying listening. It is so difficult to study because it is inherently a “hypothetical construct, something you know exists but you can’t physically see.” Models of listening provide insight into what is really happening in this hypothetical construct. Thus listening models help with identifying where listening success and failure may occur.
The Worthington Fitch-Hauser model of listening is “MATERRS”:
Mental stimulus – intentionally attending to a noise or stimulus
Awareness – beginning the mental sorting process, which can be adversely impacted by a high cognitive load such as multitasking
Translation – processing the message rationally, emotionally, or both
Evaluation – using existing frameworks for understanding to connect the message to one’s existing knowledge
Recall – storing the message in working memory and possibly long-term memory as well
Response – deciding how to respond
Staying connected & motivated – building relationships, evaluating and perhaps changing one’s own frameworks for understanding future listening events, maintaining motivation to listen, and challenging one’s own personal biases
The last aspect of the WFH listening model — staying connected and motivated — was particularly interesting to me. It represents listening as not just a one-time event but an overall life competency. That’s just one of many reasons I am excited to meet and learn from Professors Worthington and Fitch-Hauser.
This post begins a series on listening and writing.
Being a better listener can help with being a better writer. There are broad, non-law-specific reasons this is true, supported in the general communications literature. And there are law-specific reasons as well.
Listening plays a role in writing skills in both an outward-facing and inward-facing way:
Listening in childhood builds vocabulary and the ability to generate complex sentences.
“Internal listening” is part of the writing process. Lundsteen gives the example of children talking to themselves when writing: “Let’s see, I’m going to write about a dog that ate a mean man.”
Problems with either type of listening could compromise the ability to generate strong writing. And strengths in these areas seem likely to correlate with strong writing.
The application to legal writing is pretty obvious. If a (legal) writer has a strong vocabulary and ability to generate complex sentences, that person’s (legal) writing is likely to be more advanced. Likewise, if a (legal) writer is able to engage a meaningful internal dialogue about writing (“now I’m going to address the other element”), the writing is likely to be stronger. While reading helps with all of the above — of course — reading alone seems insufficient. Listening to words in context and using those words in conversation with others, listening to how words are arranged in spoken sentences, and listening to one’s own ideas about what is worth communicating and how to make that happen — all of these forms of listening can enrich one’s writing.
The claim that better listening leads to better writing is difficult to prove, Lundsteen acknowledges. Several causes could make writing improvement difficult to discern: “complexity, the slow pace of such growth, and the imprecision in measurement of language arts skills.”
Yet this claim has an intuitive appeal, as she points out: “Not all problems [with language] are solved by using effective listening and reading, but it is doubtful that many are solved without help from these subskills.”
Listen Like a Lawyer received an early birthday present: an invitation from Brian Rogers, a.k.a. the Contracts Guy, to participate in this blog hop on “why I write.” The end of Listen Like a Lawyer’s first year is the perfect time for reflection. One obvious benefit of blogging has been the chance to network with folks like Brian as well as those tagged at the end of this post for the next leg of the blog hop.
Right now I’m focusing particularly on listening and summer associates, since it’s that time of year. Next I will be delving into the relationship between listening and writing, in preparation for the Legal Writing Institute’s biennial meeting in Philadelphia this summer.
How does my writing differ from others of its genre?
I aspire to the kind of writing that informs and entertains lawyers and other legal professionals as well as law students. This blog is only a year old and I’m still working on writing style and frequency of posting. Where my writing differs is in its specific focus on listening.
Listening plays a big role in professional success as a lawyer, yet the value and methods of listening don’t seem to get much attention in books, articles, and online content — at least when compared with the attention given to speaking and writing. Some excellent law review articles have been written about listening, and my friend Professor Tami Lefko is now writing about listening as well. Through researching the blog I have found some wonderful resources, many of which are listed in the Resources section of Listen Like a Lawyer. I’m also grateful for the guest speakers and writers (here and here) who have already contributed their thoughts. Lawyers’ enthusiastic response when they hear about Listen Like a Lawyer tells me that there is an appetite and a need for more.
Why do I write what I write?
My main goal and the biggest reason I write is a substantive one: to explore the topic of listening. From my experience as a journalist and practicing lawyer, I remember many professional successes based on part of good listening:
taking extensive notes on an interview, adaptable for sharing with others, with key phrases in quotations
observing witnesses’ revealing facial expressions and body language during depositions
participating in mediations and motions practice where the key to success was to “quit while you’re ahead”
And of course less successful moments where I could have listened better:
not picking up on what made a client angry about his situation and then ham-handedly repeating the trigger
interrupting a partner during lunch with a client
not differentiating when senior attorneys were loosely brainstorming versus when they were identifying their core strategies and priorities
I could also remember the satisfaction of working with senior attorneys who engaged with conversation with me as a junior attorney — as well as the frustration of meetings with certain senior attorneys during which their eyes would wander towards Microsoft Outlook. Was I talking too long or about the wrong things? Did they have urgent client business necessitating absolute e-mail vigilance? Or were they just addicted to their e-mail? Yes, yes, and yes. These questions are even more valid, and these tensions even more present, in today’s device-laden legal workplace.
Since leaving practice and over the past 13 years teaching legal writing, it has become apparent to me that part of students’ performance in law school is affected by their underlying skill at listening. Better listeners understand more information, catch its context, prioritize it better, and ask better questions. They also “read people” better and understand speakers’ attitudes toward their own statements with more subtlety. Thus they are more prepared for clinics, externships, and law practice.
In contrast, truly bad listeners — and most people aren’t this terrible, but here’s a worst-case scenario — don’t get all the information they need, don’t understand people’s reactions to events, don’t ask good questions, and come across as ineffectual or even rude.
And those are just the outward aspects of listening. There is also the inward aspect of effectively listening to oneself, which is closely related to emotional intelligence. Being able to hear — and manage — one’s inner voice is so important to lawyers and law students’ resilience and professional satisfaction.
On a selfish note, I write because I like to. Writing teachers think about writing so very much but often struggle for time to do their own writing. Starting a blog was a public commitment to write, kind of like signing up for a gym membership — and then posting about it on social media — as motivation to work out. So far it has been a good experience.
How does my process work?
I keep a file of ideas in Evernote, drawn from Twitter, Zite, and other sources. I have a large stack of textbooks, trade books, scholarship, and other sources that I refer to for questions and explore as time allows. I tend to write groups of several posts at a time, saving drafts and then coming back later to revise before publication.
For the next leg of this blog hop, I’m highlighting three blogs, all by lawyers:
Lady (Legal) Writer is written by Megan Boyd, an adjunct professor of advanced legal writing at Mercer Law. Megan is smart and funny, and has fun with legal writing. Her blog shows it.
Dogs Don’t Eat Pizza is written by Karen Cooper, a lawyer and fantastic writer who is channeling her passion into the Do It Yourself community. Karen can choose a great paint chip just as easily as she chooses between “IRAC,” “TREAC,” and “CREAC.”
Connecticut Employment Lawyer is written by Daniel Schwartz. I don’t know a lot about Connecticut law, but I do know something about good writing. Exhibit A is anything Dan Schwartz writes. Twitter’s suggested follows led me to his blog, and his work impressed me so much that I asked him to for advice on some early posts from Listen Like a Lawyer. He took the time to read them and make suggestions — proving he’s a nice guy, too.
The checklist is a surprisingly simple yet effective tool for improving performance in fields from aviation to construction to medicine to law. Checklists help professionals catch what Dr. Atul Gawande, the chief evangelist of checklists in the workplace, calls “the stupid stuff.”
Checklists also assist with collaborative work on large, complex projects. Complex challenges may not have a right answer, but project-management-style checklists help teams communicate and collaborate efficiently to handle uncertainty and forge a path forward.
For example, a listening checklist should be very useful for face-to-face meetings to discuss a new assignment. During a face-to-face meeting, forgetting to talk about a key topic would fall under Gawande’s definition of “stupid stuff.” Running down the checklist at the end of a meeting can help ensure key topics are covered. This process minimizes inefficient interruptions and follow-ups later. It also maximizes the value of the initial face-to-face time. Click here for a sample checklist for summer associates and legal interns.
Listening checklists could also be useful for client intake meetings, prep sessions such as deposition or mediation prep, feedback on assignments, and so on. Checklists for lawyering tasks are not a novel idea, which raises the question: is a “listening checklist” really that different from a regular checklist of relevant tasks?
Just as a pilot has numerous checklists in the flight manual for a variety of scenarios, a lawyer may have a listening checklist for handling meetings and a different kind of checklist for preparing an SEC filing, for example. The categorical name of the checklist doesn’t matter, but Gawande’s great work on checklists, The Checklist Manifesto, teaches that a long, cumbersome, everything-but-the-kitchen-sink checklist is not a particularly good one. Any clear checklist that encourages efficient, effective communication is a valuable checklist for lawyers.
Thanks to Professor Tami Lefko for feedback on this post.
Name a skill that summer employers may or may not evaluate directly, but that can enhance performance on every skill they do evaluate.
Yes, it’s listening.
Most obviously, listening is relevant to the soft skills most employers are likely to evaluate. But listening also influences “harder” skills such as research and writing. And listening is certainly an aspect of a law student’s overall potential as a lawyer.
Never looking at your phone while talking with another attorney or client without a convincing explanation (e.g., “Excuse me for one moment. I’m waiting for partner x to let me know if I can attend the deposition right after this lunch.”)
Strong listening during any opportunities to observe events such as mediations and depositions (e.g. asking a senior attorney afterwards, “I noticed that the witness kept qualifying her statements with the words ‘as I sit here.’ Does that language mean something specific?”)
Active listening during lunch with a mentor (E.g., “You mentioned that your first year in practice was really challenging. What was hard for you?”)
Respectful behavior and body language during the evaluation process, especially with any constructive criticisms (e.g. keeping arms gently resting in one’s lap during a discussion of how an assignment could have been stronger)
Listening indirectly influences performance of hard skills such as fact-gathering and research and writing. Here are some examples of listening behaviors that may lead to strong evaluations of hard skills:
Noticing and asking about important information that a supervising attorney forgot to mention, such as the desired format for an assignment
Discerning what an assigning attorney’s word choice indicates about whether he or she thinks the assignment should be relatively easy or hard
Taking notes effectively during a meeting so that follow-up questions are kept to a minimum
Observing and understanding a fact witness’s body language and asking questions that follow up on an area where the witness may be hesitant to share information
Professors Marjorie Schultz and Sheldon Zedeck have generated a list of 26 “lawyering effectiveness” factors. These factors provide a useful outline of what makes a lawyer effective; thus, law students who show potential in these areas are showing potential to be an effective practicing lawyer. Listening is explicitly listed under the “communications” category, and it indirectly influences many others. Showing effective listening is thus likely to positively influence the overall evaluation of a law student’s potential as a lawyer.
Earlier this week I had the pleasure of celebrating graduation with another class of law students. Writing Listen Like a Lawyer has me thinking a lot about how lawyers and law students interact with conversation, voice, and sound. Thus I approached this year’s graduation with a particular focus on sound.
Graduation ceremonies are memorable for so many reasons. The sun rises, and faculty and students don their velvet-corded regalia. There is something about wearing that beret with the yellow tassel. Maybe the hat changes the way sound conducts into the ears? I can certainly hear the tassel brushing against the velvet whenever my head moves. Likewise the dark heavy fabric of the gown whispers with every movement.
And then there is the ceremony itself. At the law school where I teach, graduation always starts with a rousing prelude of bagpipes. If the true sign of intelligence is, as Fitzgerald said, the ability to hold two opposing ideas in one’s mind and retain the ability to function, then bagpipes are a musical intelligence test: screeching yet sonorous, grating yet glorious. When the pipers stop, their last hiss of muscular breath dies away. The silence that follows is sanctified.
And then, the speeches. Fed through a huge sound system, the voices echo as statements from the podium ring out through amplifiers. Experienced speakers project short sentences deliberately and then pause, letting those sentences expand and settle on the ears of hundreds or thousands in the audience. Inexperienced speakers — for example, students — may speak too quickly and audibly shuffle their notes at the podium. Yet their flushed faces and nervous laughter give us all a moment to appreciate youth and their accomplishment. The faculty and family laugh at their jokes and silently send well wishes toward them and all the graduates seated in rows.
And then there is the reading of the names. It is . . . interminable. Looking from page to page in the program to search where we are in the sequence, audience members including faculty sit, wriggle, writhe, fidget, and wait. One can see students, family, and faculty alike cycle between attentive body language, distracted fidgeting, and a kind of numb surrender. As the reading of the names goes on. Each name is so special to the person hearing it. And to their families and friends, of course. Of course. I absolutely love hearing my former students’ names. But together in minute upon minute upon minute, the names start to run together.
But then there are . . . the cowbells! And the ululations! And the kazoos and vuvuzelas! The sounds of celebration lend a festive air and give everyone a focus and even a chuckle among the onslaught of name after name after name. This year, the loving outburst from the audience: “That’s my sister!!!”
My student memories of graduation are more visual than auditory. I can remember how I checked my mortarboard in the mirror because it kept tipping, how the stages looked with speakers and administrators arrayed in their finery, and how the sun seemed to shine just a little bit brighter and the clouds to look a bit puffier than on another typical beautiful day. And to a degree, I can remember the essence of what they said. (Okay maybe not this speech, which somehow was bland enough to warrant coverage years later in the Onion.)
Although the sounds blur and are mostly forgotten, the sounds of the day contribute to a vivid sensory experience that makes a unique memory. And there is one word, repeated over and over in so many voices, in small groups and in large circles, in a parent or mentor’s murmur into the ear of a velvet-capped graduate: “Congratulations.”
Thanks to Jenn Mathews for reviewing an earlier version of this essay.