Effective listening is crucial to establishing rapport with clients, witnesses, and anyone, really. But effective listening also contributes to lawyers’ analysis, strategy, and future workload in several concrete ways.
Effective listening helps lawyers find the right narrative for the facts, avoid nasty surprises, and generate more work–in a good way. Read more in my guest post at the Legal Productivity blog here.
This week’s end-of-the-week update highlights Listen Like a Lawyer’s growing list of listening resources. The list is here, and can always be found on the left panel of the blog in the menu item “Listening Resources.” The updates include several articles from the Harvard Business Review and the HBR Blog, as well a number of […]
Lawyers have a duty to listen to their clients, as discussed in an earlier post. Lawyers also have a duty not to listen to certain information.
A lawyer may not listen to information provided by a person represented by counsel, as set forth in Model Rule of Professional Conduct 4.2. In short, communication with a represented person is a terrible idea! The rule itself says that in representing one client, a lawyer “shall not communicate about the subject of the representation” with another person represented by counsel. (Exceptions apply when the other person’s lawyer has consented, or when a court order or other law allows the communication.)
Lawyers may not circumvent the prohibition on communicating with represented parties by having non-lawyers take over the communication. Rule 8.4(a) defines professional misconduct to include violations done “through the acts of another.”
The prohibited acts of listening include completely passive listening as well as active questioning. In In re Howes, 940 P.2d 159 (N.M. 1997), the New Mexico Supreme Court upheld sanctions against a prosecutor for listening to several statements by a criminal defendant without his defense counsel’s knowledge. The prosecutor did not initiate the communications and never asked a question during any of these statements. He merely “listened to everything defendant had to say.”
The New Mexico Supreme Court roundly rejected the idea that this was not communication: “To argue that one does not violate [the precursor to Rule 4.2] if one does not ask questions or impart information borders on sophistry. People do not compromise their positions or waive their defenses by listening to an attorney; they do so by talking while the attorney listens.” The attorney, who was quoted by the court as lacking remorse for his actions, was publicly censured and ordered to pay costs.
Inappropriate listening could subject a lawyer to discipline under Rule 8.4 even if it does not involve communications with represented parties. Rule 8.4 defines professional misconduct to include conduct “involving dishonesty, fraud, deceit, or misrepresentation.”
For example, in In re Matter of Schwartz, 599 S.E.2d 184 (Ga. 2004), a lawyer accessed and listened to voicemails at the firm where he no longer worked. He went on to randomly delete some of them. The lawyer admitted violations and was suspended under a voluntary plan, which the Supreme Court of Georgia affirmed. The reasoning in the case did not separate out the wrongfulness of the act of listening to the voicemails from that of randomly deleting some of them. The court found suspension is generally appropriate when “a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal profession.” This case is among those listed in the ABA Annotations to Rule 8.4.
This post continues Listen Like a Lawyer’s end-of-the-week tradition of sharing short links, images, and other concise content about listening.
In the college textbook Listening: Process, Functions, and Competency, authors Debra Worthington and Margaret Fitch-Hauser present brief advice from a trial consultant about listening. “For attorneys, one of the key principles to listening well begins with setting up an atmosphere conducive to the clients’ believing they are listened to,” says Diane Wyzga, trial consultant and founder of Lightning Rod Communications.
To do the job of listening to what clients want or need to say, one phrase is particularly helpful:
“Tell me more.”
This, Wyzga says, is the “most invaluable statement you can ever use to encourage someone to speak.” There is no need to craft strategic questions, she says, and using this simple phrase “allows the client’s narrative story to emerge.”
A recent critique of “digital dualism” got me thinking about lawyers, listening, and e-mail. Digital dualism refers to the mindset that online digital life is something different—and the frequent implication is: something less—than authentic “real life.”
This blog may at times veer to close to digital dualism, as in this early post. It is pretty easy to think that listening to a real conversation is a rich, informative experience, whereas e-mail is a weak, underwhelming medium. To use a visual metaphor from photography, listening in real life is like viewing the rich hues and shades of a photograph taken the old-fashioned way, on real film. An e-mail conversation is like digital photography: easy to use but less subtle in shades and gradations; and subject to digital distortion, conveying only what the limitations of pixels and memory allow.
Lawyers’ responses to this idea would seem to fall along the same lines as non-lawyers’ responses. Some embrace the dualism and the preference for “real life,” arguing that the law profession has become too reliant on digital forms and too hopeful about their promise for the future. In the listening context, lawyers perhaps could do better by themselves and their clients by replacing some e-mail exchanges with real-life conversations.
Some lawyers would go the opposite direction with a pragmatic response: Who cares? Even if e-mail is different or even definitively less than real-life listening, there’s no way a modern law practice could exist on real-time listening alone.
The hope is that many lawyers would seek the benefits of both. They would reconcile the dualism debate by concluding that online and offline communication forms complement and enrich each other. The most effective lawyers strategically inhabit both worlds, picking and choosing their method of communication depending on what is necessary and appropriate. (This reconciliation is suggested in Nathan Jurgenson’s post on digital dualism linked above. As he writes: “our reality is both technological and organic, both digital and physical, all at once.”)
Developing that point, here are some thought on how real-life listening techniques can be useful for handling e-mail:
Much has been written about tone in e-mail. It’s hard to control when you’re writing an e-mail. But what about “hearing” the tone of an e-mail?
Listening to the tone of an e-mail can be valuable in a variety of ways. The e-mail’s tone can tell you about how the sender is positioning his client.
The e-mail’s tone can also guide you in handling further communications in a satisfying and/or strategic way. For example, to acknowledge that you understood the e-mail’s intended tone, you can use “active listening” techniques. Active listening generally involves listening to and processing the speaker’s message, then paraphrasing it back so as to demonstrate understanding and initiate further conversation. (Professor Neil Hamilton has a helpful overview of active listening and some pitfalls for lawyers here.)
For example, active listening could help with managing a hostile-sounding e-mail like this one:
“We have been asking for a new set of draft agreements for more than two weeks. We have received no response from you or anyone on your team throughout this time despite repeated requests. This delay in receiving a new set of drafts is unacceptable.”
Using active listening techniques, a response e-mail could acknowledge and reflect back the sender’s disappointment—while also not admitting an actual significant “delay”:
“We are sorry that you are disappointed in the timing of the drafts.”
By using the active-listening technique in e-mail, a lawyer can demonstrate attention to the matter and good will in continuing to communicate. The lawyer’s e-mail “listening” can also show an understanding of the gamesmanship inherent in some e-mail exchanges, while still moving forward with the matter immediately at hand.
Peter Drucker asserted that “[t]he most important thing in communication is to hear what isn’t being said.” This is true in e-mail and in real-life conversations.
Thus, searching an e-mail for important gaps can be an extremely important communication tool. Discovering what hasn’t been said allows further conversation to close up gaps and finalize details.
Discovering what hasn’t been said can also be part of an effective lawyering strategy. Understanding what the e-mail sender left out of the message can give a lawyer ideas about strategic next steps.
When an e-mail trail goes quiet, that silence may or may not be significant. Acknowledging a significant silence can be a form of listening with empathy:
“After our many exchanges last week on the status of the new draft agreements, I was surprised not to hear from you since my last e-mail on Friday at 2:26 p.m. I hope everything is all right with you and your team.”
Acknowledging a silence can also be somewhat equivalent to nonverbal communication in a real-life conversation, signaling your engagement with and continuing interest in communicating.
So to return for a moment to the idea of digital dualism, it seems the best (and really only) approach is to embrace both forms of communication–both online and offline. Both are necessary to law practice. Both have strengths and weaknesses. Great lawyers use both to get their message across and to listen as well.
“Listening well is a gift.” Malcolm Gladwell explores the gift—and curse—of listening in this BBC profile of Vietnam consultant Konrad Kellen. The profile has some fascinating and sad insights into 20th-century politics and war. But the main point is to explore Konrad Kellen’s abiding gift as a listener. Although Kellen’s work was in public policy, his listening gift has something to teach lawyers as well: he listened without a biased ear, and he listened to all the relevant information in forming his analysis.
Kellen was effective as a listener primarily because he could set aside his biases. Gladwell describes Kellen’s rare ability to really understand field interviews with North Vietnamese during the Vietnam War. He didn’t filter the information through a bias of predicting U.S. victory, as did other policymakers who ultimately carried the day. This prevailing bias not only clouded policymakers’ understanding of the data but also blocked them from accepting what Kellen learned from really listening to the North Vietnamese.
Listening without bias is really crucial for good lawyering. Lawyers’ bias can interfere in many forms, from bias in favor of the client, to bias in favor of the status quo, to bias in favor of personal benefit or avoiding embarrassment or risk. Truly effective listening requires accurate and objective interpretation of the message being heard. In this way, effective listening is difficult to distinguish from critical thought itself.
Related to Kellen’s lack of bias was his ability to listen to all of the information and then synthesize it. He didn’t stop listening when he heard what supported the prevailing view, as Gladwell describes his work with extensive North Vietnamese interview transcripts. And Kellen was able to interpret seemingly conflicting statements together in a way that produced a deep understanding of the subjects’ real mindset toward the war.
Likewise, lawyers certainly should listen comprehensively, recognizing the relationships among discrete bits of data within the message. The press for efficiency and the lure of confirmation bias both can interfere with effective listening. Although lawyers must work efficiently, effective listening also means listening thoroughly and persistently, at least well enough and long enough to be able to hear conflicting information when it exists.
Gladwell ultimately suggests that Kellen’s effective listening was something of a curse. Gladwell points out the “great irony” that “[t]he better listener you are, the less people want to listen to you.”
This idea of listening as a curse seems less applicable to lawyers. Of course, knowing something that others can’t or won’t appreciate—whether gleaned through listening or otherwise—is difficult. Most lawyers will probably face that situation during their careers.
But as a sweeping statement, it does not seem to ring true that lawyers who listen well are less likely to be listened to. Indeed, just the opposite seems more likely in the small-group dynamics common in law practice. By deeply listening to the messages that clients, judges, mediators, opposing parties, witnesses, and others provide, lawyers can make themselves far more effective when they do speak up for their clients.
Last week Listen Like a Lawyer explored the process of effective listening during a job interview from preparation to thank-you note. Callbacks present some special listening opportunities and challenges. Here are some key points to keep in mind about effective listening during the callback process, courtesy of the Assistant Dean for Career Development at the University of Colorado Law School, Todd Rogers.
Many thanks to Assistant Dean Rogers for sharing these thoughts. And good luck to all the law students handling interviews at every stage.
Effective listening at mediation requires empathy with the client’s goals and a “nuanced ear” for perceiving what is said and not said. Gregory J. Parent, mediator with Miles Mediation, shares his thoughts on effective listening.
A job interview presents a listening challenge: Of course you want to show you are a great listener, but it’s also important to talk. “Most impressive are interviewees who are able to enter into a dialogue with their interviewers,” advises a hiring attorney quoted in An Insider’s Guide to Interviewing: Insights from the Employer’s Perspective, available from the National Association for Law Placement here and probably from any law school’s career services office.
Real dialogue requires real listening, which takes preparation beforehand and execution during the interview. You can continue to reap the benefits of good listening with a thoughtful thank-you note afterwards as well.
Listening is very difficult when the listener is confused or nervous. Interview preparation helps cut down on both of these problems.
To minimize confusion, study for the interview. Learn about the type of interview you are facing and what to expect. Review your own resume and make notes on experiences to highlight and themes about your work history and ambitions. Research the interviewer—the agency, firm, or organization, as well as the individual lawyers doing the interviewing, if possible.
To cut down on nervousness, make sure to take advantage of practice interviews. You can practice on your own as well: role-play questions and answers out loud. All of this preparation will help you listen more effectively in the real thing.
Distracting behavior is terrible because (1) it can actually distract you; and (2) it can make you look distracted—and therefore like a bad listener—even if you are neither.
Thus, don’t look at your phone during an interview. Ever. (Having a mortally ill family member might be the rare exception, with an up-front explanation to the interviewer on why the phone is necessary.)
Other objects besides phones can distract as well, from change in the pocket to a pen or corner of a leather folder. Practice interviews can help you identify and eliminate your potential distractions.
Conversely and on a more positive note, your nonverbal behavior can send a message that you are a fantastic listener. Particular cues consistent with effective listening include good eye contact and body posture. When you are listening, your body is likely to use these nonverbal cues on its own. But you can also help your listening by using the nonverbal cues to help yourself focus.
“Liking” is one of the crucial levers of persuasion listed in Robert Cialdini’s great book Influence: The Psychology of Persuasion (2006). Audiences are more likely to be persuaded by speakers that they like.
An extremely effective way to get someone to like you is to have a rewarding conversation with them. Good conversations generate positive feelings, advises Lydia Russo, Emory Law School’s Assistant Dean for Professional Development and Career Strategy:
“Doesn’t it feel good when you are sharing a story and the listener makes you feel like what you have to say matters? It’s the same in an interview. Do your best to convey that you are listening intently and genuinely – this makes the interviewer feel validated.”
Part of what makes a conversation effective is genuine, spontaneous responses, according to Daniel Diffley, a partner at Alston & Bird LLP and the chair of Alston’s Atlanta summer program. “At some point during interviews, I always try to give students the opportunity to ask questions of me, whether about the summer program or practice in general. And you can tell if they are not listening because they ask a question and then I answer it, and then they move on to an unrelated question.”
Diffley noted that the best listeners may use the interviewer’s answers as a chance to respond and ask more questions. “I’ve had some great interviews where I feel like I’m being interviewed,” he said. Effetive listeners also can use the flow of the conversation to smoothly work in their prepared talking points about their own experiences and interests, Diffley said.
You are learning as you listen. Learning theory teaches us that we learn best when we already have a “schema” in place for understanding the new information. Basically that means you have a mental framework in place for how to think about the new information coming in.
Schemas help with learning new information in any form, including by listening. For example: as a first-year law student, your schema for understanding the law was probably not well developed yet, so listening to law school classes could be confusing at times. As a 2L or 3L, you should have a much stronger schema for comprehending and using legal information. (Caution: representative theoretical support on schema and listening comprehension can be found here.)
So in terms of job interviews, you can develop a schema for interviewing. Construct a mental framework for types of questions and conversations that take place in an interview. This does not mean a list of all possible questions that the interviewer could conceivably ask, but an overall framework of what an interviewer is after.
Here’s one nice breakdown of what employers are looking for, in documentation from the University of San Francisco Law School:
This framework (or a similar way of thinking) should help you with listening and thinking during the interview. In particular, it should help you comprehend and formulate quicker, better responses to specific questions.
The interviewer’s nonverbal behavior is sending you messages as well. Listen to them. As the Career Development Office at the UC Berkeley School of Law advises, “You should also ‘listen’ to body language. Be sensitive to cues of boredom or impatience.” If an interviewer indicates interest in a topic by leaning forward and making open gestures, then consider the cue to continue with more information about your point.
“Although most of us don’t like to admit it, we all carry on a stream of internal conversation with ourselves.” – Judi Brownell, Listening: Attitudes, Principles, and Skills 110 (4th ed. 2010).
It’s hard to listen when your brain is talking a mile a minute inside your head. Preparation can reduce some of these nerves, but inner speech will still be there. The trick is to use it to help you during the interview.
Inner speech sits at the intersection where listening and thinking come together. Thus, it can help you “relate or link what you hear to your previous experiences,” as Brownell notes in her book. So in an interview, if your inner speech says, “She is asking about teamwork. Talk about the service trip!” then your inner speech is acting as your helper and advocate. Be thankful.
Inner speech can also help you “regulate or control your behavior as you reflect on the wisdom of your choices” (again from Brownell’s book). In a law school interview, your inner speech may say something like “You’ve been talking a lot. Try asking a question.” Again, here the inner speech is quite helpful.
But when your inner speech is too negative or too frequent, try to push it to the side and focus on the person and conversation right in front of you.
Whether it’s in the form of a letter or an e-mail, your follow-up after the interview can reinforce your listening skills. Alston’s Diffley noted that follow-up notes are just “good form,” and can serve the further purpose of demonstrating your recall of the interview. He advises taking a few notes immediately after the interview to help with crafting a good follow-up.
In sum, effective listening can enhance your overall performance in a job interview in many ways. Good luck!
This photo was taken at the Georgia bar exam in July 2013—but not much has changed in five years. My own transition from the bar exam to law practice felt jarring. The solitude of studying and taking the exam gave way to a cacophony of interpersonal conversations. My listening “muscles” were atrophied, to say the […]
Listen Like a Lawyer 