Category: Clinical legal education

Bar exam prepClinical legal educationLaw schoolLegal communicationLegal education

How important is listening to new lawyers?

What do new lawyers actually do?

In a 2013 report, the National Counsel of Bar Examiners studied this question in detail by undertaking a very large survey of practicing lawyers (attempting to reach 20,000 lawyers although ultimately receiving usable survey data from 1,600). They result of this survey was the “Job Analysis Survey,” The key points of which can be found in this summary. (The survey methodology is described in the full report here.) The purpose of this survey was to provide “a job-related and valid basis for the development of licensing examinations offered by NCBE.”

Hat tip to Professor Ben Bratman of Pittsburgh for discussing this report in his recent post on bar-exam and legal-ed reform. Analyzing the results of the survey, Professor Bratman organized the numerous skills included in the survey into five groups: communication, analysis, research, project management, and professionalism. He suggested that this framework may be useful for developing learning outcomes in law school, particularly in response to new ABA guidelines.

The list of most highly rated skills and abilities was of particular interest here as well. Here’s the top ten:

Screen Shot 2015-10-12 at 1.06.53 PM

As you can see, listening was the third most highly rated skill, with respondents ranking it a 3.60 on a scale of 1-4 in terms of significance and 99 percent of newly licensed lawyers needing to perform this skill. (Apparently one percent of lawyers need to write but don’t need to listen, since the only skill that garnered 100 percent was written communication.)

In addition to the very broad category of “listening,” other related skills of interest included #2 (paying attention to details) and #10 (knowing when to go back and ask questions). Listening seems correlated with #5 (professionalism) as well. “Interpersonal skills” almost made the top ten, coming in at #13 with a 3.44 significance rating and 99 percent of newly licensed lawyers needing interpersonal skills.

Chart reprinted by permission of the National Council of Bar Examiners

Client developmentClinical legal educationEmotional intelligenceFact investigationLaw firm management

Two hemispheres of law practice

 Securities law and divorce law. Lawyers in these practice areas may not be from different planets, but they live in different “hemispheres,” according to sociological work being explored by Deborah Merritt at the Law School Café. Her first post is here and second post here.

Flickr/CC by SA-2.0

Flickr/CC by SA-2.0

Merritt is revisiting the study Chicago Lawyers by sociologists John Heinz and Edwards Laumann. This study generated the “hemispheres” metaphor for categorizing the work done by lawyers:

Heinz and Laumann concluded that a “fundamental distinction” divided lawyers into “two hemispheres.” One group of lawyers “represent[ed] large organizations (corporations, labor unions, or government),” while the other “work[ed] for individuals and small businesses.” The division between these two was so sharp that “[m]ost lawyers reside exclusively in one hemisphere or the other and seldom, if ever, cross the equator.”

The concept of these two hemispheres immediately brought to mind potential differences in listening. Here are some exploratory thoughts. More are certainly welcome in the comments.

First-hemisphere listening

Listening in the “first hemisphere” means listening to large organizations. A single organization may or may not have a single “voice,” notwithstanding established lines of communication between the lawyer and client. A lawyer who represents an organization must know how to listen efficiently but broadly to the different perspectives of that organization. For example, what if the client contact urges an aggressive approach in a particular matter, but the key witnesses are unwilling or ineffective?

First-hemisphere listening may also involve heavy use of e-mail to enable simultaneous communication among a group. This could mean losing the nonverbal nuance of spoken conversation, as many critics of e-mail have pointed out. It’s a truism of e-mail skills that the best communicators know when to pick up the phone.

Listening to an organization also means sensing whether the key players remain satisfied with the work. As I recently heard a law firm’s chief marketing officer say, “When a [big] client isn’t happy with your work, they don’t tell you, because they don’t like confrontation. They just stop giving you any more work.” She made a great case for how a marketing officer in a big firm can help with listening to clients and teasing out more of what they really think.

Second-hemisphere listening

Listening it the “second hemisphere” would involve a different set of challenges. This second hemisphere brings to mind the more traditional image of listening such as one-on-one meetings where the lawyer listens actively and builds rapport. Perhaps the lawyer must guide the conversation to legally relevant facts, while respecting the client’s need to be heard. Many (almost all?) lawyers in this hemisphere also need strong skills in cross-cultural lawyering to be able to effectively listen to and problem-solve with their clients.

The business of law works plays a role here as well: lawyers must work on efficient yet welcoming intake procedures and appropriate listening behaviors from any staff who interact with individual clients. (See Lee Rosen’s tale of woe on Divorce Discourse, in which he interacts with a law firm in an attempt to refer some business.)

Why do these hemispheres exist?

So in terms of listening, are the two hemispheres more different or more alike? To think about that, we should think about why these different hemispheres exist in the first place. Merritt considers several factors such as income and power. Ultimately, she suggests—drawing from Heinz and Laumann’s work as well as Andrew Abbott from the University of Chicago—that the real issue is “professional purity”:

By professional purity, [Abbott] means the ability to resolve problems primarily through application of the profession’s own principles. The most prestigious professionals apply their knowledge to particular problems, but they do not grapple directly with messy facts or human emotions. Lower status professionals, in contrast, resolve problems that reflect a full range of “human complexity and difficulty.” (Andrew Abbott, Status and Status Strain in the Professions, 86 Am. J. Sociology 819, 823 (1981).

This idea helps to delve into the listening question. For the first hemisphere, perhaps listening takes a background role to the foreground role of legal analysis and problem-solving driven by that analysis. As Merritt writes, the lawyer’s role here is doing “some of the most ‘legally’ powerful work in the profession” such as examining “statutes, rules, and precedents to construct new, advantageous ways for the client to conduct its business.”

The privileged role of the lawyer here, doing this “legally” powerful work, perhaps can generate leeway for how and when the lawyer communicates. In the classic law-school legal-memorandum assignment, the legal analysis may lead to additional facts to investigate. Not knowing all the facts to investigate up front does not bring blame on the lawyer because unique legal analysis drives what needs to be known. Individual contacts in an organization may or may not be impressed with a particular lawyer’s communication skills, but one person’s experience may not be the most important criteria for selecting counsel.

Moreover in the first hemisphere, the organizational client’s workplace culture itself may discourage the expression of “messy facts and human emotions.” A non-emotional workplace culture could thus reduce the expression of these emotions in interactions with lawyers. (Merritt implies and I would argue that an emotion-suppressing workplace culture does not in fact mean the effective first-hemisphere lawyer need not worry about those emotions. More on this in a moment.)

For the second hemisphere, perhaps there is more obvious, explicit pressure on listening. It is certainly what is needed to deal with the “full range of ‘human complexity and difficulty.’” For individual problems that can’t really be solved with a neat legal solution, listening can go a long way toward helping and healing. An individual client may not know social-security law, but that client can recognize whether the lawyer is doing a decent job of listening. And the individual client may be less constrained on finding new counsel if the client feels dissatisfied. (However, lack of experience with lawyers and lack of a consumer mentality may cut the other way.)

Ultimately, Deborah Merritt suggests that the differences between the first and second hemisphere are less than we might think:

“Both hemispheres involve mundane, repetitive tasks, as well as intellectually challenging work. Similarly, effective education of ‘second hemisphere’ lawyers is just as intellectually demanding as that for ‘first hemisphere’ ones.”

First-hemisphere lawyers who refuse to delve into “messy facts” ultimately do risk their relationship with organizational clients. Merritt cites the facts that corporations complain when their law firms do not take the time to really understand their business.

What does this mean for law schools?

Merritt makes a number of points about teaching and scholarship. The “most important changes we can make in law schools, for all clients and lawyers” is to reduce the focus on appellate decisions. Instead, she argues law schools should bring client interaction into the entire law-school curriculum, including the sacrosanct first year.

In this way, students would be better prepared for their work as lawyers, in either hemisphere. Perhaps ultimately this type of reform would begin to erode distinctions between hemispheres as well, although they are very deeply rooted, as the sociologists work has repeatedly showed.

Client developmentClinical legal educationCollaborationEmotional intelligenceEthics

Teaching Success > Analyzing Failure

Why blog about listening? It drew me in because it’s different than legal writing—which I honestly love, and love to teach, but sometimes tire of, with its skirmishes in broader linguistic debates about two spaces after a period, commas outside quotation marks, and the indefinite singular pronoun, as well as the temptation to go negative.

Courtesy Flickr/Martin Fisch/CC BY-SA 2.0

Courtesy Flickr/Martin Fisch/CC BY-SA 2.0

Listening is among the softest of the soft skills, so soft it’s hard to perceive and even harder to measure. It’s not talked about as much as writing or speaking—or even the other “receptive” communication channel, reading—but I believe it has a huge impact on every aspect of law students’ and lawyers’ effectiveness, both real and perceived. If a law student gets every relevant fact from an externship client including important gaps in the client’s knowledge and then produces excellent notes for the supervising attorney, but the client does not feel heard, is that a successful interaction? How can law students and lawyers enhance their listening skills?

I hoped to mainly focus the blog on constructive ideas, as opposed to the “what not to do” method so prevalent in some conversations about legal writing. Yet soon as I launched the blog, the most common reaction was to parade out the listening failures:

“Your blog is called Listen Like a Lawyer? Oh, so you mean poorly and with preconceived ideas?”

Thus the temptation. It can be fun to write about bad examples of anything, whether listening or writing or any other skill. I had a little too much fun writing a Halloween post about “scary” listening here. And here’s a more serious post focusing on terrible listening. The attraction—and impact—of talking about failure is based on a larger disturbing reality:

[N]egative information, experiences, and people have far deeper impacts than positive ones.

This is from an article in the Harvard Business Review explaining Roy Baumeister’s paper “Bad Is Stronger than Good.”

Prevention is better than failure

The temptation to talk about any skill in terms of failure came immediately to mind when I read Ken Grady’s latest post at the Seyfarth Shaw Lean Consulting blog SeytLines, “On Teaching Lawyers to Succeed Rather than Fail.” His post focuses on critiquing the case method of law school, in which almost every fact pattern by definition represents a failure of the parties and lawyers to find a mutually beneficial solution and settle the case.

His critique is not unreasonable: why is that a good way to teach lawyers to solve problems? Actually Grady is less interested even in solving problems than in anticipating and preventing them. And he doesn’t think the case method is very good at this at all:

“[T]aken to an extreme and when used as the primary method of teaching students, [the case method] becomes a vicious circle keeping us trapped in a cycle of failure.”

Re-thinking the model to teach law students how to proactively work with clients to prevent legal problems turns out to be very difficult. Prevention is a lot harder to see than failure:

“Much of the best lawyering ever done was not recorded in case books or articles. It went unrecorded because that work prevented failure from happening. The lawyers who provided those services kept their clients out of trouble, kept costs down, and avoided burdens on society.”

Role-playing real situations is one way to get at preventative lawyering, as in the following example from Grady:

“A general counsel is faced with a new business model. She investigates the obvious legal risks of the model and does not find anything at odds with existing law. As far as she can tell the proposed business model is perfectly legal. But still, something does not seem right to her. She pushes further into the model. As she studies it, she realizes how it may conflict with evolving concepts in the law and societal trends. Today the model is perfectly legal, but in three to five years, it most likely will be problematic. Our general counsel could do nothing and leave any problem to the future. She could follow the maxim of make money today and let tomorrow bring whatever it may. Or, she could look for something to mitigate the risk.”

Problem-solving and leadership

Grady’s post “On Teaching Lawyers to Succeed Rather than Fail” reminds me a lot of Emory Law Professor Dorothy Brown’s recent article Law School Without Borders (PDF). In the article, she outlines an alternative approach to teaching law. She gives a case study problem solving and problem prevention for a hypothetical client who happens to be a “nationally known Southern-style celebrity chef” sued for race and sex discrimination. In the article, Brown walks through the possibilities for achieving success through proactive, interdisciplinary, collaborative lawyering. More broadly, she suggests what law schools can and should do to broaden their focus:

“A law school that incorporates more than just teaching students how to think like lawyers, but how to also solve problems and take a leadership role will graduate students better equipped to add value to their firms and clients on the first day. Emotional intelligence should not be underestimated. By emotional intelligence, I mean empathy, exercising good judgment, maturity, wisdom, common sense, and last, but not least, the ability to have difficult conversations successfully.”

Hear, Hear! to the idea of teaching leadership, emotional intelligence, and difficult conversations. The “law school without borders” Professor Brown describes is consistent with Ken Grady’s interest in teaching problem prevention through anticipatory lawyering. Their ideas both fit within and challenge the ongoing conversation about experiential learning in legal education, such as here.

Better listening by analyzing listening successes

This is a huge topic, but what we can do here is to bring the focus back to listening. From time to time, we can turn away from “10 Ways to Be Awful at Listening.” We can instead talk about “10 Ways Great Listening Helped Lawyers Serve Their Clients By Understanding and Avoiding Potential Disputes.” Here are some questions:

  • How have you seen lawyers use listening to successfully prevent and solve problems?
  • What did they do, specifically, that showed their listening?
  • How can proactive, preventative, powerful listening be a tool for lawyering success?
  • What are some ways to teach that kind of listening?
Clinical legal educationLaw practiceLaw schoolLegal educationLegal skills

Defining success for new lawyers

The state bar where I am licensed just blast e-mailed a survey for the Educating Tomorrow’s Lawyers project of the Institute for the Advancement of the American Legal System. According to the survey e-mail, this project has three goals:

  • finding out “what law graduates need to launch successful careers in the legal profession”
  • creating “models of legal education to better fulfill those needs”
  • identifying “tools legal employers can use to make better hiring decisions”

The point of the survey is to clarify what “skills, characteristics, and competencies” are necessary for new lawyers in their first year of practice. The survey addresses a myriad of potential competencies from legal research to finance and accounting to personal resilience. Survey participants are asked to rank each item on a four-part scale from immediately necessary for new lawyers to not relevant (as in not relevant ever, in the survey participant’s area of practice).

The list of potential competencies is fascinating; just taking the survey should be a thought-provoking experience. Legal employers who have set objectives for new attorneys’ professional development — or who want to set such objectives— should be following this survey very closely. Lawyers who want to reflect on their own individual strengths, weaknesses, and possibilities should find it informative as well.

The survey questions were arranged by category, and several questions hit on listening either directly or indirectly. In the communications category, the survey asked about the skill of listening “attentively and respectfully.” In the category for emotional intelligence, the survey asked about reading and understanding others’ subtle cues as well as exhibiting tact and diplomacy.

If you have the opportunity to fill out this important survey, I urge you to do so. Educating Tomorrow’s Lawyers is making a major constructive effort to address the challenges “we” — defined broadly by me to include law students, law schools, lawyers, legal employers, and the clients eventually served by all of the above — together are facing.

Here is more information about the Foundations for Practice initiative. 

Clinical legal educationLaw schoolLegal educationPeople skills

Listen to learn: Four ways listening can help you get the most out of your externship

Listen Like a Lawyer is grateful to welcome this guest post by Kendall L. Kerew, Co-Director of Georgia State University College of Law’s Externship Program.

Kendall_Kerew

An externship (a field placement for academic credit) can be a great opportunity for law students to learn outside of the classroom alongside practicing lawyers and judges. If you are a law student beginning an externship this semester, you might want to consider the following ways listening skills can help you gain the most from your experience. If you don’t have an externship this semester, think about how you might be able to incorporate listening skills into your approach to a current or future internship or summer job.

1. Listen to maximize opportunities.

When you begin your externship, you may have a sense of what you want to learn from the experience. While it is important to clarify your own learning goals and expectations, it will add to your experience if you ask your supervising attorney or judge about his or her goals and expectations. What does he or she want to teach you? What experiences does he or she think you shouldn’t miss? What kind of assignments should you expect? What observation opportunities will you have? If you listen carefully to how your supervisor answers these questions, you will have a good idea of whether your goals are realistic and achievable.

2. Listen to increase understanding.

All externs have the shared goal of delivering a quality, useful work product. To get one step closer to achieving this goal, be sure you know what your supervisor wants. Listen to all parts of the assignment to make sure you understand what you are being asked to do and why you are being asked to do it. Ask clarifying questions to determine the scope and application of the assignment. Listen to the answers and ask follow-up questions.

Listening to your supervisor is just as important after you finish the assignment. Be sure to actively seek your supervisor’s assessment. Hear the feedback. Be open-minded and receptive to constructive criticism. You can’t improve without knowing where you went wrong or what you could have done better.

3. Listen to what others have to say.

You will interact with many non-lawyers during your externship. Be sure to listen to what they have to say. The administrative assistants, court personnel, and other interns/externs who support your supervising lawyer or judge can provide invaluable information about office procedures, preferences, and expectations. Listening to non-lawyers can provide you with a different and important perspective about the practice of law.

4. Listen to yourself.

Throughout your externship experience, you will be expected to actively reflect on what you are learning, not only about the law, but also about yourself and the formation of your professional identity. Set aside a few minutes each day to focus on yourself and engage in self-reflection. Ask yourself questions that will help you to figure out what kind of lawyer you want to be. What did you like or dislike about a particular assignment or area of law? What professional or unprofessional lawyering practices did you encounter and how did they make you feel? What lessons did you learn from observing the lawyers and judges around you? How do you want to practice law? Assess your likes and dislikes, your strengths and weaknesses, and map out your plan for the future (both immediate and long-term). The work you put into figuring out what kind of lawyer you want to be may prove to be the most important work you do all semester.

Kendall L. Kerew, Co-Director, Georgia State University College of Law Externship Program

The author is grateful to her externship program co-director, Andrea Curcio, for her helpful feedback and unflagging support and to Jennifer Romig for inviting her to write this guest post.

Clinical legal educationLaw practiceLegal skillsLitigation

Secrets in the courtroom

Courtesy of the J. Paul Getty Museum

Courtesy of the J. Paul Getty Museum

People over-value secret information, according to a series of studies reported in the New York Times reported earlier this year. Information designed as “classified” is treated as highly valuable precisely because it is secret.

When two groups in an experiment read the same government report—which was labeled “classified” for one group and “public” for the other—the results were stark: “people who thought the information was secret deemed it more useful, important and accurate than did those who thought it was public.” In other words, they applied a heuristic or psychological shortcut—in this case, the “secrecy heuristic.” Study participants were also more impressed by decisions based on secret information as opposed to freely available information.

Reports on these studies prompted some thoughts about listening, jurors, and the secrecy heuristic. Jurors are instructed to listen very carefully to what happens during trial. How, then, do jurors’ minds respond when attorneys object to evidence? The entire purpose of an objection is to prevent the jury from hearing something! (Or seeing it.) Within the flow of events in the courtroom, an objection stops everything.

At this point, the secrecy heuristic could come into play in several ways. If the objections are conducted in open court, the objection process emphatically flags for the jurors that there is something that one of the attorneys doesn’t want them to see or hear. They may be able to listen to the very evidence they will then be instructed to disregard, if it is ruled inadmissible.

If the objections are conducted in a bench conference, the same effect may apply. The theatrics of the courtroom could emphasize the secrecy if the attorneys approach the bench and speak in hushed voices about the “secret” evidence. A bench conference could trigger a double secrecy heuristic: the secrecy of the evidence itself, and the secrecy of the bench conference that they observe but cannot hear. (Or the  jurors may just tune out, regarding the conference as hyper-technical legal maneuverings.) 

Legal scholars such as Jeffrey Rachlinski of Cornell have written at length about heuristics within the legal context. For example, jurors do not appear to disregard information even if a judge asks them to disregard it. If one party asks for a certain amount in damages but the judge instructs the jury not to consider the amount, that amount still serves as an “anchor.” The anchor exerts influence regardless of the instruction to disregard it, pulling the award toward  the anchor for groups exposed to it. Groups with no anchor return very different damage awards. Professor Rachlinski has also written with Judge Andrew Wistrich and Chris Guthrie of Vanderbilt about whether judges can ignore inadmissible evidence that they hear; the answer appears to be “no.”

Under the concept of the secrecy heuristic, it seems possible that judges and jurors who hear inadmissible information and are instructed to disregard it may not only *not* disregard it but actually give it more weight. Jurors who know something is being kept from them may assign more weight to the gap in their knowledge. (If the word “insurance” arises at trial and then is hushed over by an objection, jurors might spend time in deliberations discussing whether to reduce a plaintiff’s award based on the likelihood of coverage. The role of insurance might seem even more important because they are not supposed to hear about it.)

The scholarship does not use the term “secrecy heuristic” in describing this effect but bears it out in different words: In the article on judges and limiting instructions, Wistrich, Guthrie, and Rachlinski cite practical advice from Keeton’s Trial Tactics and Methods: asking the judge to instruct the jury to disregard evidence “calls to the jury’s attention the relevance of the evidence to the very issue on which you are seeking to avoid their considering it.” They also cite a 2001 articleJury Decision Making: 45 Years of Empirical Research on Deliberating Groups, which found that limiting instructions are “associated with a paradoxical increase in the targeted behavior.”

The secrecy heuristic would help to explain the psychology of this paradox. When you instruct someone to listen carefully, but then to disregard certain information, the whole process is likely to reinforce their memory of that information and their assessment of just how important and valuable it really is.

Many thanks to Jeff Rachlinski of Cornell, and Julie Seaman and Paul Zwier of Emory for feedback on an earlier version of this post. For more background on cognitive heuristics and listening, here is an earlier series from Listen Like a Lawyer exploring cognitive biases and listening in the legal context.

Clinical legal educationLaw practiceLaw schoolLegal communicationLegal skills

Listening to yourself speak

With the beginning of the new Supreme Court term and the opening of moot court season in law schools, this is an opportune time to study techniques for listening to yourself. By recording yourself giving a practice speech or oral argument and then studying the tape, you can greatly improve your effectiveness as a speaker.

But watching yourself speak can be challenging. First, there is the hurdle of . . . just watching yourself speak. For many, it’s a painful experience. If you can get past the discomfort, forcing yourself to watch tape can reveal distracting unconscious behaviors that you can then begin to curb.

The analytical content of a presentation may be more difficult to deconstruct by watching tape. Seeing your nonverbal behaviors on tape may prevent you from focusing on the content. And hearing your own speech again may actually reinforce the content in your mind, rather than helping you recognize gaps and weaknesses.

To listen to yourself and engage deeply with your own content, you need to listen specifically and critically. One innovative and powerful method for doing so is demonstrated in a wonderful Brain Pickings post here. In the post and embedded video, presentation guru Nancy Duarte breaks down Martin Luther King’s “I Have a Dream” speech. Her visual analysis deconstructs the speech’s rhythm and rhetorical components. The post and Duarte’s embedded videos are well worth your time for so many reasons.

For lawyers working on a particular speech or oral argument or presentation, Duarte’s methods could be extremely useful. To listen to yourself using Duarte’s method, consider using audio as she does. This eliminates the distraction of seeing yourself. And it frees up your brain to think about the key issues she is focusing on: the segments and breaks in the speech, and the type of content delivered at different times.

Listening to yourself speak

1. First, find the natural breaks in your presentation.

Working from the transcript of your practice presentation, insert hard returns where you paused. This technique reveals the shape of what you are saying. Duarte organizes Dr. King’s speech on a timeline running across the page and inserts the breaks vertically. But you could do it horizontally on a regular typed page to obtain many of the same benefits.

This method by itself can help you hear whether the speech on paper is actually appropriate in spoken form. If you have an overwhelming eight-sentence paragraph in your draft speech, you’re going to have to insert more breaks. This method also can help you hear whether the pauses are coinciding with what you want to emphasize—or, as is sometimes the case, you are hesitating to pause at all.

2. Code your content, and examine proportions and patterns.

The second step in Duarte’s method is to color-code the material to show its proportions and patterns. Duarte uses a coding system appropriate for studying Dr. King’s speech within the rhetorical context of the civil rights movement. Lawyers using Duarte’s method to work on an oral argument or CLE presentation would obviously want to modify the color-coding system to fit the situation. The content you would code for varies by context, but here is a possible idea for coding a practice opening statement:

  • Duarte coded repetition in light blue. In listening to an opening statement, a lawyer might use light blue to code the theme of the case. (Ideally there would be some repetition of the theme. This method would reveal how often and when the theme cropped up.)
  • She coded metaphors and visual words in pink. A lawyer might use pink to code vivid descriptions of the testimony to follow.
  • She coded songs, scriptures, and literature in green. A lawyer might use green for cultural references (although whether to even use cultural references in a jury setting is a topic for another blog).
  • She coded political references in orange. A lawyer might use orange for legal standards and references to the role of the jury.

Duarte appears to have used some sophisticated software to generate the timeline and graphic components of the speech. But with a transcript and a simple word-processing program that allows text highlighting, lawyers could apply the same method. Speech-to-text applications such as Dragon Dictation could make this process even easier.

The benefits of Duarte’s method are not limited to speeches and formal presentations. Lawyers and law students practicing for oral argument could apply the same method to break down the way they are answering questions and managing the argument:

  • Are your answers transitioning from defensive content into more positive, affirmative arguments? [Color-code red for defensive statements and green for affirmative statements.]
  • Are your answers bringing in legal support? [Color-code yellow for facts and green for law.]
  • Are your answers lingering too long on answers or, conversely, are they so concise as to seem clipped or not fully supported? [Color-code orange for the answer to the question and purple for the return to the main argument.]

[Aside on the topic of writing: Breaking down your writing through color-coding for specific content is just as effective when the writing is intended to be read, rather than spoken. Mary Beth Beazley popularized this method for teaching legal writing in The Self-Graded Draft: Teaching Students to Revise Using Guided Self-Critique, available from the Journal of the Legal Writing Institute here. Duarte’s presentation on “I Have a Dream” shows this type of method is not just for beginners confronting a new genre such as “IRAC.” It is revealing and productive for the most sophisticated writers and speakers among us.]

Of course only the rare and gifted orators can even come close to the achievement of “I Have a Dream.” But everyone who prepares and delivers speeches and oral arguments can benefit from practicing and really listening to what that practice reveals. We can then critically examine what we are doing and how to make it better.

Clinical legal educationLaw schoolLegal communicationLegal skillsPeople skills

Effective Listening During Fact Investigation

Today Listen Like a Lawyer brings you this conversation with Emory Law Professor Paul Zwier, director of Emory’s Advocacy Skills Program, co-author of Fact Investigation: Interviewing, Case Analysis, and Case Theory Development, and noted speaker with the National Institute of Trial Advocacy.

Many thanks to Professor Zwier for sharing his thoughts on establishing a rapport with your client, active listening for empathy and for information, and developing listening skills over the course of your legal career. To quote his book, “Without expertise in both asking questions and listening, the lawyer as fact researcher is likely to fail.”

Clinical legal educationEthicsLaw practiceLegal communicationLegal skills

Trial lawyers: five key contexts for listening

Effective listening has universal themes, such as the role of focused attention. But much of listening is also context-specific. Listening in a public meeting is obviously different than in a one-on-one conversation.

Trial lawyers face at least five distinct listening contexts. Each presents different listening opportunities and challenges. Listen Like a Lawyer is grateful to share this Q&A on listening contexts with trial lawyer, mediator, and trial-advocacy instructor Jay D. Brownstein.

brownstein-photo-L

LLL: Jay, thank you for your time. What do you think are the most important contexts that trial lawyers need to be thinking about when they think about their listening?

JDB: Generally speaking, there are several areas where trial lawyers need to effectively listen:

  • First, when speaking with potential and existing clients.
  • Second, in witness examination, both in deposition and at trial. As lawyers, we are often intent on covering a predetermined outline of topics and questions. But effective advocacy requires us to carefully listen and respond to what the witness is saying.
  • Third, communicating with judges at the trial and appellate level.
  • Fourth, communicating with juries. In voir dire, you listen intently to potential jurors’ answers, looking for clues as to their beliefs and predispositions. In trial, you must “listen” to nonverbal communication from jurors (as well as witnesses and the judge).
  • Fifth, mediation, an important tool for conflict resolution. It has become a necessary aspect of litigation and requires strong listening skillls.

LLL: What are the listening challenges in conversing with a potential client?

JDB: The initial client interview can be especially challenging because the client and attorney have somewhat different goals. The client wants to tell her entire story, while the lawyer is trying to quickly determine if the client has a case worthy of further exploration.

In telling their stories, clients usually don’t know what facts are important. They frequently spend time telling you things that may have little legal significance, while leaving out truly important details. The lawyer must carefully listen to what the potential client is saying (or not saying), but also guide the conversation to facts important to the legal claim analysis.

So there is a constant tension between allowing the client to talk (and being professional and courteous), and quickly learning the necessary facts to make a case determination.

LLL: How does the listening task change when your potential client becomes your actual client?

JDB:  Throughout a representation, it is critically important to maintain effective communication with your client, which always requires listening. Clients often try to tell us things that can be very important to a successful outcome of their case, although we may not always be receptive to it. For example, to effectively advocate pain and suffering in a personal injury case the trial lawyer needs to fully explore and come to understand how the client’s injuries have affected them.

In all cases, it is critically important to develop and maintain a relationship of trust with the client that can only occur through effective listening. If clients are to entrust us with their most important confidences—which can be crucial to achieving a successful result in their case—they must know that we are listening and trying to truly understand them and their circumstances.

LLL:​ I saw a statistic from one state’s court system that only 7 percent of cases go to trial. That means a lot of them settle, and the mediation process plays a major role in settlement. How can lawyers use listening to help their clients during mediation?

JDB:  Over the past 10-15 years, mediation has evolved to become the primary means of resolving cases short of a jury trial. Available statistics suggest that a high percentage of mediated cases settle either at mediation or shortly thereafter.  For example, the EEOC reports that in 2012 over 76% of its mediated cases settled within 100 days after mediation. For clients and their lawyers, mediation is often the last best chance for a certain resolution without putting their fates in the hands of strangers (juries and judges). Lawyers should not only prepare themselves for mediation as though preparing for trial (by reviewing all discovery, depositions, research on key legal issues, etc.), but they must also prepare their clients.

This preparation involves not only explaining the mediation process, but also listening and openly talking with clients about their expectations. It does little good to tell a client what she can expect in a mediation without also helping her to set goals and manage her own expectations. Listening plays a key role in this – you must first learn and understand how a client thinks before attempting to help modify that thinking and allow for the best chance of a successful mediation.

LLL:  If the dispute lasts long enough, at some point, the lawyer will take and defend depositions and eventually examine witnesses at trial. What do you think are the keys to effective listening in the context of witness testimony?

JDB:​  Particularly in early years of practice, many lawyers prepare for depositions and trial testimony by developing extensive witness outlines covering numerous topics and containing detailed questions (sometimes including the expected answers). But as trial lawyers well know, testimony never goes exactly as planned or scripted, especially in the case of direct testimony. Learning to get the witness talking, listening to what the witness actually says (as opposed to what we expect or hope to hear), and following up to the actual responses, is critical to effective examination. This is something that, like many experienced practitioners, I am constantly aware of and seeking to improve upon.

The more an examination, even cross examination, is like a true conversation with each side listening and responding to the other, the more effective you can be at eliciting key points (good and bad) you want the jury (or judge on summary judgment) to hear and remember. All witnesses can surprise and frustrate a trial lawyer; the key is to listen and understand what you can and can’t do with a witness.

LLL: For the trial lawyer, a very important audience is the trial judge. How can lawyers use listening to better understand the trial judge?

JDB:  All trial judges are busy with heavy case dockets, and appreciate brevity and clarity. On any given civil motions calendar there could be 40 to 50 cases. The judge needs to know what type of matter is before her (discovery motion, procedural issue, etc.), what she is being asked to do, and why. Judges will generally tell you what they need to understand or hear in order to issue a ruling.

The most skilled lawyers I have observed listen carefully to questions from the bench, whether directed to them or opposing counsel, and react by instantly tailoring their argument to the point or points the judge seems most interested in or confused by. Most importantly, the best lawyers don’t waste the court’s time with unnecessary argument. If a judge indicates, directly or indirectly, that they likely agree with you, acknowledge it and move on. If there is nothing further to say, stop talking and sit down.

LLL:When cases do go up on appeal, listening during oral argument is another intense experience. What are the listening challenges of oral argument, and how do you deal with them?

JDB:  ​In appellate advocacy, the same principals apply but with even greater force. Accomplished appellate lawyers say that the best appellate arguments are like living-room conversations, except that the advocate’s window of opportunity to persuade is narrow and can easily be lost if the lawyer does not carefully listen and directly respond to questions.

Usually, a question from the bench is much more than an opportunity to expound on an issue or portion of your prepared argument. It tells you exactly which part of your argument is most troubling to the court or to the particular judge with the question. And it gives you the chance (in 60 or 90 seconds) to persuade that judge, and perhaps others, to your position.

Preparation is key, as you must anticipate and be ready to immediately give your best response to a myriad of issues and related questions from the bench. But absent insightful listening, the chance to persuade will be lost.

Jay, thanks so much for sharing your thoughts with Listen Like a Lawyer.