Category: Client development

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Steal their listening

Keith Lee’s book The Marble and the Sculptor: From Law School to Law Practice (ABA 2013) is a bracing, honest, challenging compendium of advice for new lawyers. I would strongly recommend it to upper-level law students and new lawyers. (See also his blog, Associate’s Mind, as well as his columns in Above the Law.) One chapter in Keith’s book that caught my eye is “On the Importance of Stealing.”

In addressing new lawyers, Keith advises the following:

“[S]tealing is an essential skill for you to develop.”

Not for larceny, of course, he says, but “within the framework of learning and growth.” The objects of this stealing are varied: “other lawyers, CLEs, books, anything really.” New lawyers should “steal their pattern of success.”

This is great advice. But it’s easier in some areas than others. We can look at a great legal brief and break down how each section and each sentence works. We can watch a great advocate and recognize skillful pauses and variations in tone. We can admire a senior lawyer who knows literally every statute and case in a given area of expertise and can assemble and reassemble them instantly in response to any factual question.

What about listening?

Listening is hard to observe and very hard to measure. Speaking and writing are productive – i.e. observable – communication skills. Listening is one of the two receptive communication skills, along with reading. “Listening is a hypothetical construct, something you know exists but you can’t physically see. You can see only the behavioral indicators supporting its existence.” This is from Debra L. Worthington and Margaret Fitch-Hauser’s textbook on listening.

So how do you steal from a hypothetical construct?

The behavioral indicators are a place to start.

This is a complex process: you’re observing affirmative actions such as making eye contact, using appropriate body language, asking questions, and providing “discourse markers” such as “um-hm” that encourage conversation. But you’re also observing what the listener doesn’t do: noticeably look away, check a smartphone, interrupt. Noticing what isn’t there is very, very difficult. As Nobel Prize-winning psychologist Daniel Daniel Kahneman tells us, “WYSIATI”: What you see is all there is.

The ease of perceiving what is there may partly explain why active listening is such a popular listening concept. It has a set of specific repeatable, measurable behaviors that go with it, such as repeating what the speaker has said. If you watch a skilled active listener, you can steal the method. But note how this is not really stealing the person’s listening skills. It’s stealing the productive act of speaking in a certain way, by repeating what the listener just heard.

The most important components of listening are hidden: being aware of and receiving the information, placing it into context with one’s previous knowledge, evaluating and (perhaps) remembering the information, and responding. These elements of listening are drawn again from Worthington and Fitch-Hauser’s MATERRS model of listening.

It’s hard to steal someone’s level of awareness. Again here, specific affirmative behaviors may be the only practical proxy. Making eye contact is a sign of awareness, for example. The educational-reform model KIPP teaches children a set of specific classroom behaviors that include “sit up,” “track the speaker,” and “nod your head.”  Body language can shape not only communication behaviors but actual brain chemistry, as Amy Cuddy famously described in her TED Talk and other work on “power posing.” 

The “s” in the MATERRS listening model stands for “stay connected and motivated.” To be a good listener, you have to want to listen.

But how can a person “steal” someone’s else’s motivation? Maybe the answer is an instrumental one: you can observe what their good listening does for them. Specifically, you can observe how you feel when you interact with a skilled listener.

In The Marble and the Sculptor, Keith Lee emphasizes communication — actually over-communication — with clients. This means keeping the client informed, of course. It also means taking time to get to know the client: “Take time out to learn the stock price, industry, day-to-day culture, players and overall goals of your client. Visit their offices and plants. Do it free of charge.”

This is one of Keith’s many kernels of advice to consider stealing. (Actually he got it from and attributes it to Dan Hull of What About Clients.) Before going on an outing to spend the afternoon at the client’s site, it’s a good idea to prepare. Study up on the client, of course. But also, consider inviting a great lawyer to lunch — someone whose client development and communication skills you know to be first rate.

And then steal their listening.

***

Note: I was grateful to meet Keith in person as he spoke to the legal blogging class I am co-teaching at Emory Law School. His advice on lawyering and legal blogging is first-rate (obviously!) and was received with great enthusiasm by the students. After seeing him interact with students, I can say Keith is not only a great speaker but also an excellent listener.

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Resolve to do more than “active listening”

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

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

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

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

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

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

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

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

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

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

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

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Artisanal listening

McSweeney’s post last week, “I Am An Artisanal Attorney,” caused a ripple of laughter and sharing among lawyers on social media. If you have ever eaten small-batch honey from a meadery or had your mustache trimmed at a groomery or considered purchasing an ascot from an ascottery—or if you just need a laugh—stop and read it.

Courtesy Larry Hoffman/Flickr

Courtesy Larry Hoffman/Flickr

Author and very special attorney John Frank Weaver promises not just to write legal documents, but to hand-craft his own paper from local flax and write the text in ancient script using a feather quill and squid ink:

Don’t be lulled into a complacent life filled with more cheap, manufactured goods than you’ll ever need and lawsuits that don’t reflect your uniqueness. Insist on a life well-lived with food, experiences, and litigation that reflect people and skills, not factories and automation.

After I finished laughing, which took a good long time, I wanted to make a semi-serious point. Weaver’s comic post taps into anxiety about new realities and related fears such as “Here Come the Robot Lawyers.”  In contrast, an artisan is “a person or company that makes a high-quality or distinctive product in small quantities, usually by hand or using traditional methods.” How much of the legal market is and should be artisanal — or “bespoke” — and how much should be standardized or automated is a huge, ongoing, and critically important debate stoked by Richard Susskind and many others. (Here’s one article from the ABA’s Legal Rebels on Susskind’s Tomorrow’s Lawyers tapping into this debate.)

Even for those of us who, at heart, want to practice on the bespoke end of the spectrum, we might agree that lawyers don’t need to squeeze their ink out of local squids. They don’t need calling cards printed on Himalayan pressed paper. But it is a requirement of the profession to provide clients with legal services that are customized to the facts of the case. It is an ideal of the profession to tailor these services to the personality and needs of the client as well. And “thinking like an artisan” can be an excellent marketing practice for lawyers because clients may screen their lawyers based on objective criteria and then choose their lawyers based upon more artisanal criteria such as values and fit.

Drawing on what it means to be an artisan, one of the lawyer’s most “traditional methods” is quality face time with people. This relationship building is intertwined with the broader tradition of lawyer as trusted advisor. And one of the traditional techniques of the trusted advisor is listening. Listening is most often and most effectively done in small quantities, such as one-on-one meetings. It takes time and attention to focus on a client and make that client feel special. It takes skill to deploy active as well as passive listening and every other form of listening as needed in the moment. Being really listened to and understood makes a client person feel, well, special—kind of like some people feel when they sip cold-pressed juice infused with artisanal ice and nibble on a side of hand-crafted toast.

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Listening on TV: What Sitcom Clips Can Teach Lawyers

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

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

1. Everybody Loves Raymond, “Father Knows Least”

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

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

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

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

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

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

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

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

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

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

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

3. The Office, “The Whale”

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

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

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

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

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Empathy and communications with clients, spouses, and partners

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

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

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

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

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

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Coaching listening

One way to become a better listener is to work with a coach. Just Google “listening coach” and you may be surprised by how many resources there are.

One coach who reached out to me is Laurie Schloff, Senior Coaching Partner with the Speech Improvement Company. She has worked with professionals including attorneys for more than 25 years, and (not surprisingly) believes that communication competence is essential to attorneys’ professional success. In one-on-one work, she uses this coaching framework:

  1. Assessing goals and developing a plan
  2. Individual or group sessions devoted to communication techniques and practice
  3. Application of skills in business situations, for example, running an important meeting or coaching a new associate
  4. Assessment of progress and future goals

Laurie provides various types of feedback, including her own personal feedback and video feedback. She also encourages attorneys to seek feedback from peers and to reflect and learn how to become their own coach (the concept of self-coaching).

Laurie coaches on all of the communication skills, but has some specific methods for helping attorneys improve their listening. She promotes the idea of “persuasive listening.” According to Laurie, persuasive listening means “conscious use of listening skills as a tool to build positive rapport, engagement and influence with others in your ‘communication world.’”

She encourages attorneys to think about listening in terms of the acronym “E.A.R.”:

  • Engage
  • Attend
  • Respond

For engaging, attorneys can do something they may feel very competent at, which is asking questions:

Attorneys can become stronger listeners by asking different types of questions depending on the situation. Laurie identified three particular types of questions to consider: “open,” “structured,” and “short reply.” An example of an open question is, What are your thoughts about the training lawyers receive in listening skills?” An example of a structured question is, “What are some ways legal training could include listening skills practice?” An example of a short-reply question is, “Do you think lawyers are good listeners in general?”

For attending, the key issue is attention:

Attorneys can demonstrate attention to clients and colleagues by controlling distractions and multitasking. Employing positive behaviors are easy ways to convey attention, including occasional head nods and encouragers such as “uh huh” or “mhm.”  Laurie pointed out that verbal encouragers are especially necessary during phone conferences. In person, even when taking notes, attention should be on the client’s face as much as possible.

And for responding, again Laurie encourages attorneys to think of different types of responses:

The attorney may be responding to Information, for example by paraphrasing or summarizing before offering a fresh perspective: “So you’re looking to settle this by November.” The attorney may be responding to feeling. This means identifying the undercurrent of emotion if appropriate: “I sense a lot of stress around this last minute change in deadline.” The attorney may be responding to a goal. By this, Laurie means moving the client or colleague in a positive direction: “So you’d ideally like to look at possibilities for a national seminar in 2015.”

Laurie intertwines her coaching with hypothetical examples and anecdotes from her experience. On the value of listening, she shared a few words of wisdom from some of her contacts in the legal world:

  • Esther Dezube, a private practice attorney who specializes in personal injury:  “I listen to what is said and how it is said, starting from when the client walks in the door. If you don’t listen, you won’t be an effective trial lawyer.”
  • Tony Garcia Rivas, senior patent attorney at Ironwood Pharmaceuticals: “Attorneys may assume they know the problem and tune out. When I’m talking, I’m not learning.”
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Cognitive diversity and listening skills

This article, “How Cognitive Diversity Affects Your Work” from the ABA Law Practice Today is one of the best things I have read in quite some time about how lawyers and clients interact. The author, Anne Collier, explores a hypothetical legal team’s relationship with its client, where the CEO and general counsel have different cognitive styles and the lawyers on the legal team have different cognitive styles as well — not to mention the huge differences among the CEO and one of the lawyers on the team. These differences emerge from different approaches to the “paradox of structure” in solving problems: “The paradox of structure is the seemingly incongruous fact that structure both enables and limits one’s ability to solve a problem.” A group of professionals can all be operating at a very high level but still have different preferences for structure and innovation. Their differing preferences can lead to clashes in cognitive style. 

The article focuses on some (fascinating) metrics for problem-solving styles and never uses the word “listening.” Yet listening is part of the “bridging” and “coping” strategies it recommends for handling clashes of cognitive styles. My favorite line in the article, other than the one about the paradox of structure, is this example of a nonverbal bridging strategy: “Oscar agrees to give Madison ‘the look’ in meetings when she needs to be more concrete.”

Have you investigated your own cognitive style, or gotten informal or formal feedback on it? How do you use listening skills — including nonverbal signals — to perceive and anticipate problems stemming from cognitive diversity?

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Listening to internal and external clients

A friend recently sent me a nice compliment about the blog. She works in sales and marketing (not within the legal industry) and said she’s finding the listening skills discussed here very useful for communicating with both “internal and external customers.”

Courtesy Flickr/Elliott Brown

Courtesy Flickr/Elliott Brown

The focus on “internal and external customers” (or clients) caught my particular attention. Of course lawyers are going to want to listen intently to their external clients. One way to keep a client is to listen; conversely, a great way to lose a client — especially a senior business executive — is not to listen, such as by checking your smart phone during a meeting.

For lawyers, the idea of internal clients may be more subtle but still should be a given, especially for in-house lawyers and anyone who works in a place where client-service teams are chosen partly based on who the senior team leaders want to work with. Here’s a good post by Timothy Corcoran on better understanding your internal client. And here’s a good post with advice to associates on impressing partners — such as by treating them as an internal client.

But is effective listening different for lawyers’ internal and external clients, or should it be? Apart from what listening practices are most effective, as a descriptive matter might lawyers subconsciously listen differently in internal and external situations?

Active listening provides a focal point for exploring this question. Active listening has been defined by law professor John Barkai as “the lawyer’s verbal response that reflects back to the client, in different words, what the client has just said.”

Barkai suggests that we can evaluate active listening on at least three metrics:

  • accuracy: did the lawyer understand the speaker’s informational content and emotions?
  • intensity: did the lawyer understand the intensity of the speaker’s emotions?
  • form: did the lawyer respond with clean, simple paraphrasing — or did the lawyer use what Barkai views as potentially patronizing and unhelpful introductory phrases such as “I understand” and “What I’m hearing you say is . . .”? 

So with these metrics in mind, we can reflect on whether lawyers listen with different degrees of accuracy, attunement, and form when they are dealing with external versus internal clients. Here are two brief hypothetical case studies:

Lawyer #1 believes in the importance of listening and attempts to be a particularly strong listener with external clients. He focuses on their information and their content, and he accurately perceives the strength of their feelings. But he wants to show them how carefully he listens, and thus habitually and intentionally uses phrases such as “I understand” and “As I see it.”  Sometimes these phrases lead clients to feel a bit patronized, and as a result they may hold back. 

Lawyer #2 is at a stage of her career where she wants to show her technical lawyering skills to senior lawyers. She listens with a strong focus on the information they are sharing, and she concisely reiterates information and tasks to ensure everyone is on the same page. She is not quite as accurate at judging the emotional state of senior lawyers. Sometimes Lawyer #2 asks task-related follow-up questions too quickly. Slowing down the conversation by reiterating general instructions could allow her to glean more global, contextual information about how the senior lawyer feels about the representation and wants to approach it.

Ultimately, whatever the context, effective listening demonstrates strength at each step of the listening process — roughly attention, perception, memory, understanding, analysis, and response. (This outline is drawn very generally from listening frameworks such as Brownell’s HURIER model and Worthington and Fitch-Hauser’s MATERRS model.)

Also regardless of context, effective listeners are “uniform” in their ability to choose and tailor their approach for the particular situation. The best communicators will take the internal/external factor into account — of course. But that’s just one of many other factors such as the length of the relationship; the other person’s stress level; the complexity of the content; the time of day; and the other person’s preferred style of communication such as informal or formal, just to brainstorm a few.

In this sense listening is just like all the other communication tasks a lawyer performs: there is a very broad common framework for effectively performing each task, and the most effective listeners/speakers/writers tailor their approach within the framework to meet the needs of the client — whether internal or external.

*Thanks to Lou Spelios for comments on an earlier version of this post.

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Getting Better at Listening

Thanks to the International Listening Association, I learned of this video  from HuffPost Live. It’s a quick, fun, informative look at problems with listening and ideas for improving. The panelists offer suggestions for managing your own thought process when you feel like you’re about to “check out.” The panelists also delve into different types of listening and the consequences of good and bad listening. I recommend the video for its informative and sometimes funny take on listening problems and solutions. (There is a really funny movie clip about halfway through.)

Please feel free to comment on how the ideas in this video apply to lawyers and legal professionals. I think the critique of listeners who merely “problem-find” is deeply important for lawyers.

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What the rainmakers say about listening

When I talk to professional firms about developing their client relations skills and we go through the list of skills they could acquire or refine, most of them do not consider the skill of listening to very sexy, attractive, or even interesting. And yet, ironically, the most powerful, capable rainmakers in significant firms who have been through skills-training programs have told me that listening was the most important skill they acquired—by a long shot.

Gerald A. RiskinThe Successful Lawyer: Powerful Strategies for Transforming Your Practice 51 (2005).