Category: Clinical legal education

Review of Alan Alda’s If I Understood You

Jennifer RomigLeave a comment

ralph_anneThanks to Anne Ralph, Clinical Professor of Law at the Ohio State University, Michael E. Moritz College of Law, for this guest post reviewing Alan Alda’s new book on listening, If I Understood You, Would I Have This Look on My Face? 

Any lawyer who’s misunderstood (or been misunderstood by) a client, opposing counsel, or judge knows that failed communication can thwart even the best legal knowledge and skills. In If I Understood You, Would I Have This Look on My Face?: My Adventures in the Art and Science of Relating and Communicating, Alan Alda makes the case for an intentional focus on effective communication by highlighting the very real costs of failed communication: “[D]isengagement from the person we hope will understand us” [xvi]. This disengagement can “stand in the way of all kinds of happiness and success” [xvi], including, I think Alda would agree, success in the practice of law.

In Alda’s book, lawyers will find useful insights related to listening. Granted, most of Alda’s case studies and anecdotes center on how scientists communicate their knowledge—which makes sense given that Alda hosted the TV series Scientific American Frontiers for eleven years and founded the Alan Alda Center for Communicating Science at Stony Brook University. But Alda’s friendly writing voice and skill at sharing complex concepts in simple, memorable terms make the book valuable for anyone interested in improving their communication skills.

The book maps Alda’s own personal journey to improve his communication. Alda describes his communication “blunders” when he began hosting Scientific American Frontiers: He assumed he knew more than he actually did, which offended a scientist he was interviewing; he repeatedly ignored the scientist’s obvious body language showing discomfort; and finally, as he barreled along through an interview, he asked a set script of questions instead of questions that grew out of what the scientist was sharing. In short, Alda writes, “I wasn’t really listening to him” [6]. In this list of blunders, lawyers might recognize their own experiences with awkward client interviews, ineffective depositions, or unsuccessful negotiations with opposing counsel.

Alda, a prolific actor and director whose deep insights into human nature are apparent on every page, was disappointed with himself for being so disconnected in the interview. Alda’s acting experience, including his improv training, had taught him to connect to other actors in a deep and immediate sense, creating spontaneous responses between people. As a result, he had expected himself to be naturally better at listening and reacting to his interview partner.

Thus began his quest to better understand the science of communicating–or, as Alda puts it, borrowing a term from director Mike Nichols: “relating.” Relating, as Alda defines it, means “observing” another person with such awareness that “everything about them affect[s] you: not just their words, but also their tone of voice, their body language, even subtle things like where they’re standing in the room or how they occupy a chair” [10].

When Alda consciously used his improv training in his conversations with scientists, he found his way to “responsive listening,” the key first step in relating and a concept that roughly translates to being open to being changed by the other person in the conversation.

The willingness to be changed required him to use both his natural curiosity and an awareness of his own ignorance. It turned out that conversations were hampered when Alda made assumptions about the scientists’ work based on his own limited knowledge—those assumptions led him to ask limiting questions, which reduced the value of the information the scientists provided. But when Alda engaged in the kind of responsive listening that his improv work prepared him to do, the effect was contagious, leading the scientists to become more responsive as well. Alda described it as being “drawn into a kind of dance”[12]: Responsive listening made conversations dynamic because both participants in the conversation were constantly attuned to each other, instead of just waiting for each other to finish talking.

Naturally, Alda wondered if he had stumbled onto something big: would improv training help scientists better communicate complex concepts to the non-scientist world?

The answer is yes, as the rest of the book chronicles. Alda explores how people can develop their skill in relating, leading to better communication. As it turns out, both scientific studies of communication and his personal work with improv and acting bear out the idea that responsive listening is an essential building block in communicating anything to an audience.

For instance, Alda describes taking engineering students through of a series of improv exercises, which teach an ultimate lesson: “The person who’s communicating something is responsible for how well the other person follows him” [30]. In other words, true communication is inseparable from responsive listening and observing: “Communication doesn’t take place because you tell somebody something. It takes place when you observe them closely and track their ability to follow you” [17]. After these exercises, every engineering student’s delivery of a scientific talk improved. Again, Alda uses scientists and doctors in his stories, but the lessons can apply equally well to lawyers and clients or to lawyers and their other audiences.

For lawyers who want to better engage in responsive listening, this true connection that fosters communication, Alda identifies two key capacities:

  • empathy (which Alda describes as an emotional understanding of what the other person is feeling) and
  • Theory of Mind (which he describes as a rational understanding of what another person is thinking).

Both these capacities can be learned, and the book describes how teaching these skills to doctors leads to better outcomes for patients—and, interestingly, even to lower rates of medical malpractice lawsuits.

Because not everyone has access to the improv training or Theory-of-Mind courses the book describes, this blog’s readers might find Alda’s personal experiments at improving his empathy and theory of mind interesting and compelling. Alda participated in some small studies that aimed to increase empathy through practices he incorporated into his everyday life. For instance, he practiced reading the faces of people he encountered every day—from family members to passers-by on the street to cab drivers—trying to observe what they were feeling. He also practiced silently naming the emotions he observed. The results of these small studies suggest that these interventions have the intended effect of increasing empathy, and Alda invites readers to try these themselves. (In addition to describing how these exercises can improve one’s capacity for responsive listening, Alda also covers the role that increased empathy and awareness of Theory of Mind play in effective writing and in making a message memorable.)

I encourage lawyers to read the book—its friendly tone and use of stories makes the content memorable and accessible. Until you do read the book, consider the following as big takeaways for lawyers’ listening:

Listening is an essential part, a necessary precondition, of communicating well. Effective listening requires close attention to another person, thoughtful observation not only of words but of body language, withholding jumping to conclusions, and curiosity.

Thanks again to OSU’s Anne Ralph. She also writes about narrative as it is shaped (distorted?) by the rules of civil procedure. See more of Anne’s legal scholarship here: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1669761

 

 

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.

 

 

 

 

Beyond formal rules of evidence

Jennifer RomigLeave a comment

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?

The hothouse of law school

Jennifer RomigLeave a comment

The great law professor Larry Ribstein used to say that legal education has grown within a hothouse. Flora and fauna grow in different ways in a hothouse than in a natural environment.

-William D. Henderson, quoted in Katrina Lee, The Legal Career: Knowing the Business, Thriving in Practice (2017)

For sixteen years I’ve been teaching in the “hothouse” of legal education. I’m certainly aware of differences between how law and legal skills are taught in the hothouse and how they are practiced in the natural environment.

Some of these differences are unavoidable and in fact beneficial. Education is preparation, and preparation can thoughtfully sequence legal topics and legal skills in a way that law practice does not and cannot.

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But some differences between the hothouse and natural environment of practice are not necessary or helpful. It’s an essential part of the law professor’s task to be aware of this difference and make constant calculations about where to situate each assignment or discussion. A class that is all “hothouse” may leave its delicate, coddled students to wilt in the natural environment; a class that is all natural may damage and weaken its students before they have a chance to thrive.

A class that is all “hothouse” may leave its delicate, coddled students to wilt in the natural environment; a class that is all natural may damage and weaken its students before they have a chance to thrive.

One key to making those calculations is knowing what happens in typical natural environment of law practice. Ann Sinsheimer and David J. Herring did a fascinating study of what lawyers really do at work. Of particular interest to the legal-writing professors, they found that lawyers they spend a ton of time meticulously crafting emails.[i]

Sinsheimer and Herring also found that lawyers spend a lot of time reading—no surprise there. But what they are reading is not nearly as case-driven as expected:

The scope of what these attorneys read was surprising to both the associates and the law student observers, particularly given the emphasis on reading judicial opinions in the traditional law school curriculum. In fact, our law student observers were surprised by the relatively few judicial opinions these attorneys read. Consider, for example, the following excerpt from the 2L observer who followed L, a third year litigation associate at a large law firm:

The types of documents L read varied based on what type of case she was working on and how big her role was within the case. What surprised me most about this was how little time she actually spent reading judicial decisions. While I was there, I witnessed her reading mostly treatises, statutes, case summaries, emails, discovery documents, and secondary sources. She did read some judicial opinions while I was there, particularly when she was researching a legal issue, but not as frequently as one would expect based on the strong focus on what seems like only judicial opinions in law school. A lot of L’s time was actually spent reading documents that most law students never see, such as discovery documents, business documents, contracts, and bids.

Thus, this study points out that legal education may in fact have a “hothouse” problem when it comes to reading. Classes on transactional reading and writing, administrative and procedural skills, and business skills would help bring their experience closer to what they will see in the natural environment.

I think there’s even more of a gap in how listening is approached in legal education versus how it’s practiced in the natural environment.

Yes, there is some excellent training in listening and communication, and I’ll talk about that in a moment. But what do most law students do, most of the time? This is what worries me because this is what I think the answer is:

Go to class. Sit somewhere between 5 and 100 feet away from the professor. Open a laptop. (Maybe) open a chat channel. Take notes. (Maybe) chat with classmates or others. Make eye contact—or not. Take good notes—or not. (Maybe) record the class and listen to it later. (Maybe) ask a question or be asked a question, every couple of weeks at best. Start to gather up books and electronic equipment in the last few minutes of the class as the professor wraps it up. Close the laptop. Leave. Get tested indirectly on listening skills during the midterm and final exam weeks or months later. Never find out if a weakness on that exam was the result of a listening, reading, or thinking deficiency.

This is bad training for listening in law practice.

A student may spend an entire semester never making eye contact, consistently multi-tasking, and never confirming whether the notes they took are accurate or complete. Not to mention the fact that these hundreds of hours spent staring at a screen conditions any human being to . . . want to stare at a screen.

This is a hothouse, big time.

There are some pockets of explicit preparation on listening—some places where legal education is closer to the natural environment of listening in law practice. Simulations and clinics present excellent opportunities for real-world listening skills. I’ve watched a video with Lyn Su of New York Law School where she brilliantly coached a law student on his interaction with a simulated client. That’s just one example of the helpful opportunities that are available for those who take advantage of them.

The Sinsheimer/Herring study did not explicitly address listening skills as such in the workplace. It did, however, suggest that preparation on listening to clients and judges, while better than nothing certainly, is not quite what many new attorneys really need:

Communication skills were fundamental to these attorneys, but the sort of skills they drew upon are not a key part of the traditional law school curriculum. Communicative acts in law school often involve preparation for courtroom appearances or client interviews. In contrast, the sort of communication engaged in by the attorneys we observed was usually intra- and interoffice or business communication. Despite what their law school experience might have suggested, these attorneys made few court appearances and had limited client communication.

So how to get out of the “hothouse” and into more of a natural environment for actively teaching these skills? Having more clinics and simulations is one solution, and the ABA’s new graduation requirement of six experiential-learning credits will definitely have an impact. But students need a lot more than six hours of credit to graduate and could still spend hundreds of hours staring at their screens and typing notes.

One highly promising solution is the idea of team-based learning, where students have to talk and listen to one another in small groups. Working in a small group that is accountable to one another means that each team member’s listening skills (and all people skills) will matter much, much more. Professor Lindsay Gustafson of University of Arkansas-Little Rock has spoken about using team-based learning not for a skills class or clinic but for . . . 1L property class.

I’ll say more in future posts about Gustafson’s work and team-based learning as an escape from the “hothouse.” Professor Anne Mullins of North Dakota has done good work on team-based learning as well.

And I invite comments about what are the right communication skills for the natural environment of law practice, as well as how to teach and promote those skills through legal education.

…….

[i] Legal-writing professors talk all the time about whether memos and appellate briefs are too much like “hothouse” assignments. The rise of the email assignment and shorter assignments in general are a sign that legal-writing classes are evolving to better represent the actual nature of practice. (It can never actually “be” the true experience but only a simulacrum for educational purposes. And that’s as it should be, since it is by definition education and preparation for that experience.)

In speaking, moot court is an excellent advocacy project that is also fairly criticized for being, at times, artificial. An example of a critique is Steven Berenson’s article in the New Mexico Law Journal, Preparing Clinical Law Students for Advocacy in Poor People’s Courts. He argues that students need to be ready to speak in a much less structured and more chaotic environment.

 

New book: Litigation in Practice by Judge Curtis E. A. Karnow

Jennifer RomigLeave a comment

What does a veteran trial judge have to say about . . . everything trial related? On my summer reading list was Litigation in Practice by Judge Curtis E. A. Karnow of the San Francisco Superior Court. It has some of the obvious—be nice to court staff; how to introduce documents into evidence—but also delves deeper into complex litigation, statistical evidence, expert witnesses, and the strategy of timing settlement.

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The book doesn’t directly address listening at trial. But it indirectly touches on listening by criticizing lawyers who interrupt the witness or use “body language such as a raised hand.” Judge Karnow advises lawyers to ask the judge for help directing the witness to answer. He points out that “[y]our questions, too, might be part of the problem, in inviting a meandering, narrative response.” And that leads to my favorite section of the book: “Bad Questions.”

I thought the section on bad questions would be good for this blog because I know I’ve heard many of these questions used repeatedly in depositions and at trial. In fact, one of the questions on Judge Karnow’s list was described to me by a senior trial lawyer as his favorite question.

So I’m interested in blog readers’ reactions to whether they agree these are bad questions. or perhaps just in California where Judge Karnow sits. What are other bad questions you’ve heard lawyers try?

“Is it possible that . . . .” Unless the matter is a logical impossibility (is it possible that 2+2=8?) or a factual impossibility (is it possible you saw a unicorn?) the answer to this question is always “yes.” Anything is possible. Accordingly the question is pointless . . .

“Didn’t you testify that . . . .” This is often a squabble about wording. I assume the jury has been paying attention, and testimony on what a witness has testified about poses the risk of a dangerous infinite regress. Find another way to impeach. . . .

“You heard witness X say . . . (or, “Assume witness X said . . . .) . . . are you calling X a liar?” This is either rhetorical flourish, argument to the jury, calls for speculation, or all of the above.

“Would you be surprised to know . . . .” or “Would it surprise you to learn that . . . .” Nobody cares if the witness is surprisable or not. The question obviously is designed to get a fact in front of the jury whose source is the lawyer, not the witness.”

“Is it fair to say that . . . .” What would it mean if the answer were yes? Or no? Fair to whom, exactly? . . .

Judge Karnow also says that “[a]ny question longer than fifteen words” is a bad question.

For cross examination, he agrees with the “common wisdom” of asking short, focused questions that avoid double negatives. His introduction to the whole section on bad questions serves as a conclusion here: “While most of these are ultimately harmless, they confuse the issues and are a waste of time.”

My question to readers is: Do you agree with Judge Karnow that these are bad questions at trial? Have you used these questions with success? Do you have ideas for better questions that do work across contexts? 

 

 

 

 

Listening Skills in the Law School Classroom

Jennifer Romig4 Comments

This post is for law professors, educators, and anyone interested in listening-related skills training…

Listening contributes to law students’ success in many ways. From participating in class discussion to doing good work in clinics to writing an exam that reflects what was discussed in class, students who listen effectively are in a better position to succeed in law school. They are also in a better position to effectively handle job interviews and real assignments on the job.

Law professors therefore may want to spend some time emphasizing listening skills, either explicitly or implicitly. Here are a few ideas for integrating listening skills into any law school class. Please share feedback and more ideas in the comments.

  1. Model a client interview.

Modeling means showing how to do something the right way. It could also mean showing how to do something with a mix of successful and less successful moments, then discussing the challenges and the process. Either way, students can begin to learn by seeing and hearing models in action.

Modeling a client interview is an excellent way to demonstrate effective listening. “Modeling of listening techniques makes effective practices visible to students,” writes Professor Neil Hamilton writes in his law review article Effectiveness Requires Listening: How to Assess and Improve Listening Skills. (Professor Hamilton’s article was foundational for this blog four years ago and remains so today.)

Modeling an interview during class time would be a significant investment of class time. For teaching in clinics, this investment should pay off directly. Students who have seen and discussed effective listening during an interview are far more likely to do the same in their own work with clients.

In doctrinal classes, a model client interview would be unconventional but could demonstrate good lawyering (including listening) while also covering doctrinal material in a vivid way. One specific idea comes to mind: remedies. Clients may feel they are entitled to some particular measure of compensation that the law actually does not allow. A client interview could bring out the client’s ideas of what he or she deserves, including the lawyer’s careful listening even where the client’s damages theory cannot be supported by law. And then the discussion after the interview could address the substance of remedies as well as the interpersonal challenges of communicating with clients.

  1. Offer listening conferences with assessment and feedback.

The next step after modeling a skill is letting students try it. A “listening conference” is one way to do this, as suggested by Hamilton in his listening article. The listening conference would be a chance for students to role-play a client interview or talk about a doctrinal area of law, and then get feedback on listening.

The conversation partner would be a professor (if time permits) or perhaps a teaching assistant, or a student’s mentor in the legal community. Afterward, the conversation partner would provide feedback and assessment of the student’s listening. The feedback could involve a play-by-play of certain key moments:

  • “I felt like you really heard me when I was talked about xyz because your eye contact and body language were very receptive.”
  • “When I mentioned xyz, it seemed like you started thinking about what you were going to say.”
  • “You used active listening techniques when I described my goals as a client, but you didn’t restate one aspect of my goals, so I wasn’t sure you totally understood that part.”

The assessment could provide more structured feedback on criteria for listening. The criteria’s substance is a topic for future blog posts here. Hamilton has some sample assessment rubrics such as a student’s performance during a client interview.

  1. If you use Power Point, use it to promote listening and learning.

Reading text and listening to words simultaneously just does not work in the brain. The science suggests that far from reinforcing cognitive connections, these redundant inputs impose an “extraneous cognitive load” that interferes with learning.

That is one of many reasons it’s such an awful idea to use text-heavy Power Point slides. Use a blank placeholder slide in every presentation, advises Professor Paul Zwier of Emory Law School, author of Power Point 2003 for Professors. Navigate the Power Point to the blank backdrop when you want students to focus entirely on listening.

To promote effective listening, consider abandoning the bullet points, at least on what you show during a lecture. Intensely visual slides such as what you can make with Haiku Deck or by downloading images from Creative Commons are a great backdrop to help the audience both listen and remember what you say. Seth Godin recommends this best practice in his e-booklet “Really Bad Power Point (and how to avoid it)”:

You can use the screen to talk emotionally to the audience’s right brain (through their eyes), and your words can go right through the audience’s ears to talk to their left brain.

  1. Enforce a classroom 5-second rule.

Another common issue with listening in the classroom is that students may not have enough time to remember—much less process—what was said at key moments. The bounds of working memory are an inherent limitation on effective listening. And in the law school class, the words in a lecture and discussion sometimes come so fast and furious that sometimes students may leave the class with the feeling of “What just happened?”

One protocol that can dramatically improve listening is to impose a “5-second rule”: everyone must wait 5 seconds after a speaker has concluded speaking before raising a hand or otherwise continuing with the conversation. Mark Weisberg and Jean Koh Peters suggest this method in their paper Experiments on Listening.

They report that professors meeting with other professors in small groups found an “astonishing” benefit to this protocol. Participation was both broader—no longer favoring the gunners and turn sharks—and more thoughtful. The same benefit could extend to a law school classroom.

  1. Assign students to listen to a particular case or legal authority in addition to reading it.

Various software, browser apps, and websites can read text out loud. Hearing an entire case read out loud, rather than silently reading it on the page, is a big investment of time. But intensely engaging with one or two cases this way could assist learning, especially for beginners. To use one common error students make when learning the structure of court opinions, where does the review of precedent end and the court’s own decision begin? I believe that listening to the case could help them slow down and recognize the different components of the opinion.

(And please don’t ignore this suggestion because you think “some people aren’t auditory learners.” The idea of a learning style may reflect an individual’s desired learning preference but not necessarily a more effective way for that individual to learn any given material. See here and here.)

The suggestion to listen to a case is better suited for students’ own time outside of class. Class time could also involve short breaks from the lecture in which students read to one another. Bear with me here: Performing the law with a speaker and listener in this way could set up the significance of statutory language or a short segment of a case. The student reading the case out loud would have to decide how to inflect the reading, and the student doing the listening would get the benefit of hearing the words. It may feel forced and awkward to the students and perhaps to the professor as well, but they almost certainly would remember the language better as result of the process.

Better listening leads to better learning as well as better lawyering. These exercises are just a few ideas for focusing on listening in the law school classroom. The articles cited here contain many more ideas, and please also share ideas in the comments to this post.

Stereotype threat

Jennifer RomigLeave a comment

Before a math test, women test-takers reminded of their gender did worse on the test than a control group who took the same test without the reminder. This experiment forms a classic example of stereotype threat, which Professor Susie Salmon from Arizona Law spoke about at the recent Moot Court Advisors’ Conference held by the Legal Writing Institute.

Every identifiable group is in some way vulnerable to stereotype threat, explored for a popular audience in Claude Steele’s Whistling Vivaldi. (For an introductory version, here’s Steele’s 1999 Article in the Atlantic.)

In Whistling Vivaldi, Steele outlines the extra burden caused by stereotype threat:

The problem is that the pressure to disprove a stereotype changes what you are about in a situation. It gives you an additional task. In addition to learning new skills, knowledge, and ways of thinking in a schooling situation, or in addition to trying to perform well in a workplace . . . you are also trying to slay a ghost in the room, the negative stereotype and its allegation about you and your group. You are multitasking, and because the stakes involved are high — survival and success versus failure in an area that is important to you — this multitasking is stressful and distracting.

Professor Salmon explores more open forms of bias as well as stereotype threat in her forthcoming article on gender bias in moot court. Comments to female moot court competitors that their clothes or hair or bodies are distracting or they should make their voices deeper and lower all imply that the ideal of an advocate is male.

The second half of her article delves into stereotype threat, which has a more subtle, more common, and often unintentional effect on students who are members of a group (any group) with associated negative stereotypes. Stereotype threat does not have to be the product of intentional bias. But that doesn’t make it any easier to deal with: “The more that a person cares about performing well at a given task, the more stereotype threat will hinder that performance.”

For a moot court competitor, it’s hard enough to deal with nerves, deliver an organized argument, and answer the moot court judges’ questions. The burden of trying to “slay a ghost in the room” of negative stereotypes makes the competitor’s job that much more difficult.

For professors and supervisors seeking to reduce stereotype threat, there are a number of possible mitigating steps. For one thing, comments about natural ability are actually not constructive.

Legal skills are just that: learnable skills that can be built through work and focus.

Thus, a “growth” rather than “fixed mindset” helps law students in myriad ways including with reduction of stereotype threat.

Another method for reducing stereotype threat is to guide students through a self-affirmation exercise. Before you object, please know: this does not mean the Stuart Smalley-type affirmations about being good enough and smart enough and having people like you. Instead, it means writing about a core value you hold dear that makes you special. This type of writing reinforces the writer’s integrity. It also reduces stereotype threat. The theory, as Salmon outlines in the article, is that it provides the writer with a counter-narrative and interrupts the operation of the threat itself.

My favorite suggestion from Professor Salmon’s talk was the recommendation to give “wise feedback.” Wise feedback means that professors, supervisors, and anyone in a position of authority does two things:

  • Show that they have high standards.
  • Provide personal assurance of their conviction that the students/externs/junior lawyers can meet these standards.

Wise feedback is not just feedback, but mentoring over the long term.

Not only does the wise mentor need to deliver wise feedback consistently, she needs to communicate to each student that she cares about that student’s success and believes in her capacity to achieve.

Professor Salmon acknowledged that stereotype threat is a big topic. The resources below are a sampling of what’s being discussed on stereotype threat in legal education today.

ABA Council on Racial and Ethnic Diversity, Beyond Diversity: How Stereotype Threat and Implicit Bias Contribute to the Status Gap (2012)

Sean Darling-Hammond and Kristen Holmquist, Creating Wise Classrooms to Empower Diverse Law Students, Berkeley La Raza Law Journal (2015)

Russell McClaine, Helping Our Students Reach their Full Potential: The Insidious Consequences of Ignoring Stereotype Threat, Rutgers Race and Law Review (2016)

United States Senior Circuit and Chief Judge Emeritus Judge Harry T. Edwards, Reflections on Racial Stigmas and Stereotyping, Paper Presented at the 2017 African American Alumni Reunion, University of Michigan

Habit-forming classrooms     

Jennifer RomigLeave a comment

How much time do law students spend in class? I’ve been thinking about the behavioral implications of so much time in front of laptop screens. I look forward to reading but don’t actually need to read Irresistible: The Rise of Addictive Technology and the Business of Keeping Us Hooked to know that looking at a screen is some kind of behavioral habit. And the time students spend in law-school classrooms may be feeding that habit.

Yes, some professors ban laptops. Most do not. Yes, some law students use their laptops just exactly like a yellow legal pad and quill pen, never once checking any updated social media feed during class. But most do not. So just how much time do law students spend in front of laptop screens during a typical three-year JD program?

An estimate can be derived from ABA regulations for law schools, which I learned more about at the Legal Writing Institute’s recent conference for moot court advisors helped to answer this question. ABA Standard 311 requires 83 credit hours to graduate, 64 hours of which must constitute  “attendance in regularly scheduled classroom sessions or direct faculty instruction.” The broad topic of ABA requirements came up at the moot court conference because within this 64 hours, students graduating in 2019 and after will need six hours of experiential-learning credits to graduate. Moot court advisors from Oklahoma City College of Law, Mississippi College of Law, the University of North Dakota, and Ohio State University talked about the new ABA requirement for experiential learning.

That number—64 hours—is the key to answering my question about total laptop time.

Let’s use the ABA’s numbers to assume that a student takes only 64 classroom hours to graduate and the rest of the 83 comes from extracurricular activities, externships, and other types of educational activities.

Out of the required 64, let’s further assume six of those are experiential learning in a clinic or simulation, in which students should be closing their laptops and working closely with people a substantial portion of that time.

That leaves another 58 hours of course credit in lecture and Socratic law-school classes. Let’s assume the student uses a laptop during all of that time. Is this an unrealistic assumption? I don’t think so, but you can easily adjust the math below to reach estimates for 80 percent laptop usage or 60 percent laptop usage.

If we do assume the student opens a laptop for notetaking during all of these class sessions throughout law school, what’s the total time that student’s eyeballs will be on the screen?

A credit hour is 50 minutes of classroom time per week plus two hours of preparation time (ignored for purposes of this calculation). Each semester has 15 weeks, but one of those weeks can be used for exam review and exam taking. Thus the total amount of classroom time can be calculated as follows:

50 minutes a week,

14 weeks a semester,

multiplied by 58 credit-hours.

What’s the mathematical result?

40,600 minutes

677 hours

84-and-a-half business days

That’s a lot of time with eyeballs on screens. Taking notes in a law-school lecture may not be habit-forming like Candy Crush, but it’s still a behavior. Repeat a behavior enough, and you have a habit (colloquially defined). Walk into the room, take out the laptop, pop it open and turn it on. When the professor begins to speak, direct attention to the front of the room, and start typing. Listen for a while and keep up with class, typing notes in bullet and sub-bullet form vertically down a Word or notes page of some sort. Then a thought pops up about an expected email reply. Open a tab to quickly check. Keep one ear on the professor’s words and get them down. Close the email tab and return to the notes doc. Rinse and repeat.

The 58 credit-hours of classroom time make up almost two-thirds of a student’s academic time in law school. Assuming that a student gets excellent training and practice on interviewing (including listening skills) somewhere in the other 35 credit-hours, can that training and practice overcome the weeks, days, and hours spent looking at the laptop? Of course people use different communication skills and tools in a large classroom and a one-on-one interview. But are these communication habits so easily siloed and separated? What is the leakage—if any—between classroom listening habits and professional listening habits? As Will Durant said in paraphrasing Aristotle’s Nichomachean Ethics, “We are what we repeatedly do.”

This month tens of thousands of law students are shaking off their final exams and going out into the “real world” for summer work. At courts, agencies, businesses, and law firms, these personal laptops will largely be left behind. But what habits won’t be?

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Here are just a few of many recent articles on laptops in the law-school classroom:

Kristen Murray, Let them Use Laptops: Debunking the Assumptions Underlying the Debate over Laptops in the Classroom

James Levy, Teaching the Digital Caveman: Rethinking the Use of Classroom Technology in Law School

Steven Eisenstat, A Game-Changer: Assessing the Impact of the Princeton/UCLA Laptop Study on the Debate of Whether to Ban Student Use of Laptops during Class

 

 

 

Facilitating Dialogue Across Difference

Jennifer RomigLeave a comment

SilversteinMany thanks to Gail Silverstein, Clinical Professor of Law at the UC Hastings College of the
Law, for this guest post about the ABA Section of Dispute Resolution’s recent conference. Gail co-directs and co-teaches an Individual Representation Clinic and a Mediation Clinic at UC Hastings.

 

The 19th Annual Spring Conference of the ABA Section of Dispute Resolution took place in my hometown of San Francisco, California, on April 19-22, 2017. While participants in the March for Science gathered nationally, conference attendees on Saturday morning learned about facilitating dialogue across difference from the team at the Harvard Negotiation and Mediation Clinical Program at Harvard Law School in a session entitled “Dialogue through Difference: Expanding the Legal Skill Set.”

Harvard’s political-dialogue initiative came out of observing both a national need for dialogues across political differences since the 2012 election and a need at the law-school level as students seemed unable to engage politically in the classroom beyond one standard “liberalish” viewpoint. The three goals of the initiative include:

  1. Educating students to skillfully facilitate and participate in dialogues across difference
  2. Serving the community by providing facilitation services
  3. Creating and sharing pedagogy in this area to build the field

The session described how the initiative is faring thus far and also introduced a new educational video, available soon, entitled “Police-Community Dialogue: A Facilitated Conversation Featuring Commentary with Harvard Law School Professor Robert C. Bordone.” (See trailer for this video here.)

Bookmark Side 2

Session speakers described how the skillset needed for facilitating dialogue across difference contrasts with those of the traditional lawyer. Three of these skills include building connection, unlearning control, and creating comfort with discomfort. Despite the contrasts with the traditional lawyer archetype, all of these named skills relate to listening as both a skill and value that is essential for today’s lawyers.

Building connection

In these dialogues, there is often not a particularized set outcome. Rather, facilitators need to help people connect to one another and their different perspectives and to try to understand where people are coming from in their viewpoints. For Tobias Berkman, who facilitated the police-community dialogue featured in the video, the most important questions used in this sensitive dialogue were ones that engaged the participants personally—for instance “How have these issues impacted you personally?” and “What to do you bring to this?”

Even more important than asking the right questions, listening is the key way we help to build connection with others. The kind of listening that these difficult facilitations require is likely the same type of listening that is helpful to lawyers in early client interviews or during emotionally laden conversation with clients: an open-ended, compassionate listening. I often refer to the work of Peter Elbow on “methodological belief” when I teach my students this type of connection-building listening.  To Elbow, methodological belief is the discipline of listening with the intention to believe what the speaker is saying.  This type of listening, Elbow advances and my experience confirms, allows the listener to feel the power of the other person and his or her ideas, which creates the connection and understanding to which we aspire.

Unlearning control

Second, political-dialogue facilitators need to unlearn that they need to control the process to have a smooth external appearance. Tobias Berkman shared that what looks and feels like a safe place to some participants is actually a “delusion” that privileges a certain kind of engagement. While some appreciate calm and rational conduct, anger and hostility are important for others to express, in order to command respect and power. To maintain a composed exterior on the dialogue does not indicate success for a facilitator as it may be clamping down on important emotions and modalities of expression.

Again, listening is a core component of unlearning control as it is the manner by which we allow the outside world to affect us. In comparison to speaking, which is one of the primary tools by which we impose ourselves on the world, when we listen we allow ourselves to be affected by others. As such, listening is a type of ceding control over ideas, emotions, and narratives to others. All lawyers need to find a good balance between speaking and listening to be effective.

Creating Comfort with Discomfort

Third, political-dialogue facilitators need to build their own comfort with discomfort as they work to move toward the disagreements, instead of shying away from conflict and the multiplicity of emotions. Berkman, along with his co-facilitator Danielle Bart, emphasized that being able to maintain and sustain vulnerability while facilitating can be incredibly powerful and can function as a model for participants. At the same time, it can be demanding for a facilitator to show up authentically as a whole person, particularly in high stakes situations. Rachel Viscomi who teaches Harvard’s “Lawyer as Facilitator” class to law students finds instructive Brené Brown’s vulnerability motto in helping others learning to be genuinely present in these situations:

“Don’t shrink. Don’t puff up. Stand your sacred ground.”

One barrier to effective listening can be our discomfort with our own internal emotions or those that others are expressing to us. Instead of being able to focus on the other person, we become distracted internally or shut down. This lesson of leaning in to the discomfort, which I learned in my mediation training years ago, is a key piece in the internal work necessary to be an effective and skillful listener.

To conclude, in this increasingly polarized world, augmenting lawyers’ skillset to both lead and participate in political dialogue is an incredibly important effort. It harkens to Professor Anthony’s Kronman’s “lawyer-statesman ideal”—that he believed to be failing—where the lawyer possesses qualities such a great practical wisdom, sympathy for others, and a devotion to the public good.

Kudos to the Harvard Negotiation and Mediation Clinic for responding to society’s needs and keeping this ideal alive.

Additional resources:

Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Harvard University Press, 1995).

Peter Elbow, “Methodological Doubting and Believing: Contraries in Inquiry,” in Embracing Contraries: Explorations in Learning and Teaching (Oxford: Oxford University Press, 1986).

Harvard Negotiation & Mediation Clinical Program’s Blog

Access to Harvard Law School’s Police-Community Dialogue Case Study (fee based)

Postscript on “um”

Jennifer RomigLeave a comment

Yesterday I had the pleasure of moderating a Facebook chat on Rutgers law professor Barbara Gotthelf’s article The Lawyer’s Guide to “Um.” She published it in Legal Communication & Rhetoric: JALWD (for which, full disclosure, I’m a social media editor.) The Facebook chat, available here in LC&R’s ongoing Discussion Group, was a chance to explore and, in some cases, push back on her unexpected thesis:

Lawyers who speak before courts, clients, and other discerning audiences should know how fillers function to communicate information; they should understand that the actual effects of fillers on listeners may be less dire than imagined and may even be beneficial under some circumstances.

More specifically, Gotthelf shows in the paper how listeners comprehend speech better when it contains some discourse markers and “fillers” (also known more favorably as “planners”) such as “um.” Taking a text and reading it out loud perfectly, with no fillers, is less effective for speakers  than inserting some speech cues—including, yes, “um.”  Use of fillers such as “um” can signal delay while processing a thought, but can also preserve one’s “turn” to talk, attract attention, or actually help emphasize a point.

Building off of Gotthelf’s paper, the most heated part of the Facebook Discussion, if you can use “heated” to describe a respectful group of people who appear to care very much about the topic as well as one another, concerned whether to explicitly call students out on using “um.” Professor Gotthelf’s strongly held belief is NOT to point them out early in a student’s preparation cycle:

Many of my students begin the semester with annoying habits. Umms, giggling, hair twirling. It’s early nerves. That stuff melts away on its own as the students gain confidence from practicing and thinking about their arguments.

In that sense, Gotthelf said, “ums” are caused by natural unpreparedness, which can be cured naturally as well, by substantive preparation. Georgia Tech professor Brian Larson uses the opposite approach:

I DO point them out. In fact, we count each other’s (I subject myself to video as well) ums and uhs per minute in presentation videos (undergrad presentation class). We do so to draw attention to something that many audiences find annoying. I also draw attention to the fact that as a very experienced public speaker, I still average 4.5 UPM (ums per minute). Thus, there is no point freaking out about a few ums/uhs. Most of them start the semester at 12-15 ums per minute and are down below 8 by end of semester.

This debate is important because, as Gotthelf writes in the paper, there are two causes for uttering “um”: (1) task complexity and (2) task concern. Basically when a task is more complex and more vocabulary options to describe a single idea, the speaker is more likely to say “um.” And—in a painful but all-too-understandable irony—being self-conscious about speaking makes a speaker say “um” more. Which of course leads others to comment on the speaker’s use of “um” as a problem to fix, leading to even more self-consciousness.

Although there was disagreement about whether to be explicit in addressing “um,” the discussion participants seemed to agree that obsessively fixating on “um” is a mistake. As Gotthelf noted in explaining why people hate “um” so much, it’s partly because “um” is simple:

It’s easy and superficial to focus on things like “um.” It’s much harder to evaluate the content of what someone is saying.

She also noted in the paper that historically—in the classical glory days of spoken rhetoric—no one cared about “um.” Only with playback on radio and TV did “um” become a major perceived problem. And now a distaste for “um” has entered the popular view of what good speaking is:

I think people just accept the conventional wisdom about “um” and don’t dig deeper. So that conventional wisdom gets repeated and repeated and becomes cemented.

Still professors have to prepare students for the world that is, not the world we wish for. Thus some thoughtful approach to helping students avoid excessively distracting “ums” was a common theme—even if that means rigorously never mentioning “um” at all.