Category: Cross-cultural communication

CollaborationCross-cultural communicationDiversityEmotional intelligencemindfulness

Today is the International Day of Listening

Today, September 20, 2018, is the International Day of Listening. This event, now in its third year and sponsored by the International Listening Association, aims to promote listening benefits and practices in a variety of ways, encouraging people to:

  • Become more aware of the importance of listening
  • Listen to each other better
  • Gain awareness on their listening behaviors

The theme this year is “Listening—even when you disagree.” Personal activities you can do to observe the International Day of Listening are suggested on the International Day of Listening website. Legal professionals who have 30 minutes at lunch may want to talk to a trusted colleague about their effectiveness as a listener. Or take 20 minutes for a meditative listening walk.

The International Day of Listening has broader aspirations than helping lawyers recharge their batteries by listening to nature, collaborate effectively in the workplace, and do an excellent job representing individual clients—although all of these are excellent goals and high on the priority list for this blog. The International Listening Association’s broader aims with political dialogue raise far more difficult questions about listening and power. Part of a lawyer’s job is to listen effectively in difficult situations. All professionals in the legal industry should have experience listening in difficult situations. Ideally, these skills from the professional realm can serve beneficial purposes in public discourse.

Cross-cultural communicationEmotional intelligenceEmotional laborMentoring

Ready to listen

How can I be an ally? How can I let people know I’m really ready to listen?

At the Georgia Association for Women Lawyers’ CLE on women in leadership held today at the State Bar of Georgia, several participants shared their desire to help and to listen. Discussions around #MeToo are bringing out stories suppressed sometimes for decades, stories often peeled back to more layers of race and class. Although there are no easy answers, many agreed on the value of listening. What can we do? One thing is we can listen, actively, to one another’s stories.

Then a question was raised: what if you’re ready to listen but others aren’t sharing?  “I do want to listen, I am ready to hear. But sometimes I feel people aren’t willing to speak. Maybe they think I won’t understand, or they put up a defensive barrier. How can I prove I really want to listen?”

Listening is such a gift. But—as someone pointed out from the audience—showing up to listen does not obligate others to share their stories. Receptive body language and an open heart does not guarantee others will reciprocate by speaking. Nor should it. If listening is a gift, it must be given without expectation of repayment.

At a different CLE last summer, through the International Listening Association’s annual convention, I co-presented a CLE on “Better Listening for Better Lawyering.” One of the most popular parts of the CLE, according to the feedback, was discussion of the “Preparing to Listen” checklist. People—especially task-driven, problem-solving, professional people like lawyers—just love checklists. You have a focus, broken down into small parts. You can check off the boxes. If you do everything on that checklist, you’re prepared to listen. Right?

That checklist is great, and many people are failing miserably at doing half the tasks it lists. Atul Gawande popularized checklists as a lifesaving measure in surgical units, citing evidence they work because they catch “the dumb stuff.” In the world of listening, “dumb stuff” means looking at your phone or starting a conversation by telling someone they don’t look like a lawyer—another story shared at the GAWL session today.

But today’s conversation also revealed, yet again, that listening is more than checking off boxes. Avoiding the “dumb stuff” is not quite the path to the authentic, vulnerable speaking and listening.

Panelist Gwendolyn Keyes Fleming offered a response that transcends checklists and neat reciprocal obligations: Readiness to listen means being there. It means finding “small points of common interest” with the people around you. It means putting in the work “day by day.”

Someone chimed in that change comes from individual relationships, not the top down. I’m not sure I agree with giving up on top-down measures. But I agree change won’t happen without the relationships—the kind that are built through small, incremental, meaningful gifts of attention and recognition. And perhaps, when the moment is right, speaking and listening.

 

Cross-cultural communicationDiversityEmotional intelligenceLaw schoolLegal education

Civil disagreement

In a recent Time editorial, Yale Law Dean Heather Gerken lionized the law school as a bastion of civil disagreement. She cited the uninterrupted speech of Charles Murray at Yale as an example of civility:

Law school conditions you to know the difference between righteousness and self-righteousness. That’s why lawyers know how to go to war without turning the other side into an enemy.

A student group collectively responded, arguing that Gerken mischaracterized their protest during Murray’s visit to Yale and suggesting limits on law’s social and political influence:

If anything, our legal training has taught us that civility has its limits, and that disruption, creative protest, and rule-breaking are valid and often necessary tactics to effect change.

Amidst this debate and much, much more, a new class of law students is arriving at law schools across the country right now. Thus I was grateful to hear some excellent advice on promoting discussion and civility in legal education, shared at the recent Southeastern Association of Law Schools’ Conference.

Professor Suzanne Rowe of Oregon Law spoke on a panel about building character in the classroom. She briefly stated the character values law school seeks to instill—integrity, trust, respect. And then she focused on specific tools and methods for discourse within the classroom. That may not be all we need right now, but it definitely can help.

What do students need? They need to hear other views, respect other viewpoints, share their convictions with other classmates, and engage across the spectrum of ideas.

But what happens when this “spectrum of ideas” leads to a truly difficult conversation—where someone offers an opinion that fundamentally attacks the integrity, worth, and humanity of another person? Professor Rowe offered a roadmap for responding in these moments:

1.  Recognize what happened.

For example, the professor might describe reactions: “I’m seeing eyebrows raised and people seeming very uncomfortable.”

2.  Share what you feel and believe.

After an objective assessment of what has happened, the professor can share her reaction. For example, “I believe you can say that in a more professional way” or “I feel that the words you’ve used are harmful to members of our community.”

3.  Act

If the professor has prepared for this type of disruption, she might immediately lead students in a discussion of the unprofessional or harmful comment. If not, she might ask the class to take a break and regroup in a few minutes or the next day to engage in that discussion.

Professor Rowe also talked about teaching the value of disengaging. Students can engage more fully when they know they do not have to continue engaging no matter what they may hear. Some students might chose to step out of the classroom during a discussion.

There are no easy answers, but the framework for recognizing, sharing, and acting—plus disengaging at times—may help.

Cross-cultural communicationEmotional laborPeople skills

Extreme listening

Recently I used a ride-sharing service that shall remain nameless. I was with another law professor on our way to the airport from a weeklong conference. It was a 30-minute ride.

The driver was a relatively young person. For the first half of the ride, he drove without speaking. My friend and I discussed the conference, some professional gossip, and what we will be working on next year.

We reviewed the conference and I described one of the sessions I attended, on raising average Americans’ awareness about participating in the regulatory process. Speaking colloquially, I summarized a key point from the session: outside of the realm of law professors, many people are basically “stupid” about the administrative process. It was not a word used in the session; it was my shorthand to mean ill-informed.

That colloquial word somehow emboldened the driver to speak up.

“Are you lawyers?”

Scanned Image 01611

“Antarctica” by Jeremy T. Hetzel is licensed under CC BY 2.0

We told him we are law professors, and we don’t practice law anymore. That did not give him any pause.

“Can I ask you a question?”

Our extreme listening saga began as the driver shared his personal passion and desire to sue the federal government. He has been studying information about a few globally prominent and historically famous billionaire families. He believes they have some connection to the continent of Antarctica. Something is happening in Antarctica, and he wants to know more about it. Specifically, he said, he wants to get into court and have a judge—and the public—take him seriously.

My friend and I gave him some leeway.  “To get into court, you have to have a legal claim. You have to be injured in some way that the courts would recognize as something they spend their time on.”

He did not have a sense what his claim would be. He did say he feels Antarctica has resources that are either not being used or are being used by global families in some way that needs to be discovered and revealed. “I want to do something drastic,” he said. “I want to make a difference.”

This was a listening challenge for several reasons. I didn’t want to listen to him at all; I wanted to talk to my friend. I didn’t believe anything he was saying. And I didn’t agree with his choices to spend his time ruminating on such theories. He’s about the same age as many law students, and it made me feel like he was wasting his off-hours from work staring at various websites. Maybe he needs an outlet for his curiosity and engagement with big questions because he has to work and earn instead of pursuing formal education. That is possible, perhaps even likely. But whatever the reason for his life situation here and now, there is wisdom in focusing one’s efforts on changing one’s actual sphere of influence. (I believe that’s from Stephen Covey.) Yes, the Internet is amazing and allows investigation plus amplification of voices—but it does seem that uncovering a global conspiracy in Antarctica is outside the sphere of a 24-year-old ride-sharing driver in a southern U.S. state.

Whether to keep listening and if so, how to manage this conversation?

I tried echoing about “making a difference.” I asked him if he has family in the U.S. and he said yes, although they live almost a thousand miles away. I said, “When I start to think about making a difference, I think about my family and how I can help them. That’s something I know I can work on.”

My friend nodded toward me, but her eyes signaled a desire for exit.

The driver repeated his desire to do something and make a statement. He mentioned wanting to know what NASA is doing in Antarctica.

I tried to think of something he could actually do. I told him about the Freedom of Information Act. I also told him about the ability to file a public comment if he found an agency that is dealing with Antarctica in some way.

When there was a short lull in the conversation, I turned it back to my friend with a moderately loud question aimed solely at her. She picked up the conversation and we reclaimed the rest of our time—although not really since there were only about five minutes left in the ride and urgent questions about airlines and terminals and such.

A few thoughts lingered after this conversation.

There aren’t that many spaces in this world where people with extremely different viewpoints come together to discuss those viewpoints in a context expected to be civil. I am not sure what persona this guy might use while researching his interests online, but his persona while driving the car was extremely professional and courteous. Reflecting on our conversation raised several important points for engaging with people with different viewpoints.

First, conversations work best in good faith. Try to find some area of common ground. Try to find a way to help the other person on their chosen journey even if you really don’t agree with their choices.

Second, honor the risks that the other person in a conversation takes. This guy took a risk by asking us whether we are lawyers. He used caveats like “I know it might sound crazy, but….” If we had curtly cut off the conversation and used all the time for ourselves, what would his takeaway have been?  Would we have confirmed that lawyers are jerks?

Third, stand for your own beliefs, ideally with kindness. At one point my friend explained what we teach: “The most important thing, really, is critical thinking—the ability to tell what’s true from what’s false.” She was giving him something to think about in the future, and laying out a boundary for the immediate conversation.

Finally, look for opportunities in a conversation. One way to build a conversation is to echo what the other person is saying and add more. You can sometimes shape the conversation by what you choose to echo. The most famous improvisational technique is “Yes, and…”

Also look for opportunities to refocus. Ending a conversation is a skill, especially when you’re in a small car with miles to go until the airport.

Related posts: A high-intensity listening workout and Listening until it hurts

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Client relationshipsCross-cultural communicationEmotional intelligenceEmotional laborGender

Emotions in writing

Listening and speaking can be empathetic. Even reading (reading literary fiction, that is) is connected with empathy. But what about writing? And specifically, what about legal writing? The textbooks concur that writers are supposed to harness not only logos and ethos but also pathos in their appellate briefs and other persuasive writing. But what about the pathos—the emotion—in everyday legal writing?

Ever since learning about IBM’s Watson Tone Analyzer, I’ve wanted to try it on some legal writing. I wanted to find out what a “robot” like Watson has to say about the voice and emotions in contrasting legal-writing samples. Here’s what Watson can do:

The [Watson Tone Analyzer] service uses linguistic analysis to detect and interpret emotions, social tendencies, and language style cues found in text. Tones detected within the General Purpose Endpoint include joy, fear, sadness, anger, disgust, analytical, confident, tentative, openness, conscientiousness, extraversion, agreeableness, and emotional range.

As shown below, Watson offers an overall document-level analysis, and it highlights sentences that score particularly high on certain emotional indicators.

For this exploration, I chose the idea of an email sample because emails should be relatively short. Also, email is so prevalent in law practice. It’s a constant, quotidian part of life for many, many lawyers. Email doesn’t stop to ask, “Is this a good time to talk?” It just arrives. And it can have a major impact on the emotions of the recipient. “”When it comes to emails that are negative in tone, it makes you angry,” Professor Marcus Butts told Time Magazine, in an article about why email puts workers in a nasty mood—especially when checking email after normal business hours. The effect of such emails spills over: “Being angry takes a lot of focus and our resources and it keeps us from being engaged with other things.”

Given email’s potential emotional impact on the daily lives of lawyers, this post explores what the Watson Tone Analyzer had to say about two mocked-up emails. The two versions below both have the purpose of forwarding discovery requests to a client. The first version uses more formal language, and the second more conversational language. What does the Tone Analyzer say about these different versions? And in a more realistic situation, could the Tone Analyzer be useful to lawyers working on their communication skills? Following the text of the two emails, the post compares and contrasts how the Watson Tone Analyzer processed these emails.


Dear Ms. Smith,

Enclosed please find the Request for Production of Documents received yesterday (December 16, 2016) (“the Requests”) in the Acme v. Client matter. The Requests entail 136 different items, comprising five basic categories:

(1) foundational corporate documents for Acme;

(2) documents related to negotiation of the lease in question between Acme and Client;

(3) calendar items and email sent and received by three key employees during the negotiations, Jane Doe, John Smith, and Jamal Jones;

(4) documents related to discussions with Third Party Industrial; and(5) accounting records related to the lease between Acme and Client.

(5) accounting records related to the lease between Acme and Client.

After reviewing these Requests, please respond providing a convenient time next week for a phone conference to review them and discuss response strategies.

Sincerely,

Antoine Associate

Antoine J. Associate

Law Firm LLP

Citytown, RH

 


Dear Janel,

This message follows up on discovery in Acme v. Client. Yesterday we received another round of document requests. I’d like to set up a call with you next week to discuss them after you’ve had a chance to review them.

There were 136 individual requests, which are enclosed with this e-mail. The requests fall into five basic categories:

(1) foundational corporate documents for Acme

(2) documents related to the lease negotiation between Acme and Client

(3) calendar items and email sent and received by three key employees during the negotiations, Jane Doe, John Smith, and Jamal Jones

(4) documents related to discussions with Third Party Industrial

(5) accounting records related to the lease between Acme and Client.

Please take a look at the requests and then let me know when would be best for you to discuss them next week.

Many thanks,

Antoine

Antoine J. Associate

Law Firm LLP

Citytown, RH


So how did Watson analyze the emotions in these two messages?

Tone Analysis of First Sample:

The dominant emotion in this message was perceived as anger. Indications of disgust, fear, joy, and sadness were “unlikely.”

Screen Shot 2017-04-25 at 12.55.55 PM

The sentence-level analysis indicates that the anger emanates from plain, descriptive language (what the requests entail) and the final request (“please respond…”). The pink highlighted sentences below were flagged as moderately angry wording:

Screen Shot 2017-04-25 at 12.58.10 PM

The language in this message was viewed as both analytical and confident, but not tentative. The analytical content is highlighted here in blue, with the dark blue being more intensely analytical than the light blue:

Screen Shot 2017-04-25 at 12.59.25 PM

 

Interestingly, the confidence score appears to come solely from the signature block containing the words “Law Firm.” (The same is true of the second sample, where “Law Firm” were also the only text flagged for confidence. But the second sample’s overall confidence score at the document level is 0.00 (unlikely) compared with .63 (likely) for this first sample. More on that later.)
Screen Shot 2017-04-25 at 1.00.35 PM

The same text can be studied in more depth for its social tendencies including openness, conscientiousness, extraversion, agreeableness, and emotional range. For example, the language “Enclosed please find” was ranked as conscientious but not open, extraverted, or agreeable.  That language also scored high on emotional range. That same language was also flagged for showing anger.

Among the five items in the email’s numbered list of documents, item (3) seemed to be an emotional hot spot for Watson, scoring relatively high on all five of the emotional parameters. This result was notable because item (3) is the only item in the list that included individual people’s full names.

Here are the metrics for agreeableness, which form an interesting contrast with the second sample below. The greeting and sign-off are in light green, indicating moderate agreeableness. The only line with strong agreeableness was that same item (3) listing calendar items and emails sent by specific individuals by name. (In contrast, the second sample below tried to be friendlier and succeeded, as indicated by the more strongly agreeable opening and closing passages.)

Screen Shot 2017-04-25 at 1.05.01 PM

Tone Analysis of Second Sample

The second email was meant to be more friendly. What it accomplished, according to Watson, was slightly lessening the anger score and raising the joy score. The joy score is still “unlikely,” but it’s at .49 instead of 0.18 in the first sample. Although it’s less angry and more joyful, it also completely lost its confidence score.

Screen Shot 2017-04-25 at 1.05.46 PM

Despite the overall attempt to use friendlier language, anger still emanated from the email, specifically the sentence enclosing the discovery requests:

Screen Shot 2017-04-25 at 1.07.41 PM

But joy came from the revised beginning and closing words:

Screen Shot 2017-04-25 at 1.08.32 PMThe message did not rank on sadness, fearfulness, or disgust.

Watson’s evaluation of the language looks for analytical, confident, and tentative language. The more informal email’s language was also measured as analytical and confident, like the more formal first sample. Unlike the formal sample, it was also somewhat tentative. The source of this tentativeness was a sentence about what the writer “would like to do”:

Screen Shot 2017-04-25 at 1.10.19 PM

Not surprisingly, that same sentence was also ranked as agreeable:

Screen Shot 2017-04-25 at 1.11.12 PM

Quantitatively, the informal sample contained more agreeable language, ranking 0.89 on agreeableness compared to 0.67 for the first sample.

Conclusion

What did I conclude from analyzing these two samples using Watson’s Tone Analyzer? Like many AI analysis, it seemed to confirm what I think I already know.

  1. Legal information is not inherently happy, at least not in a litigation setting. The most “angry” language in both messages was the language simply describing the scope of discovery.
  2. Language that is more tentative and less confident may also be more agreeable. This correlation raises many questions: does tentative language compromise clarity? If so is it worth it to sound more agreeable? Different writers, readers, and situations will of course require different decisions.
  3. Watson’s Tone Analzyer may be helpful to some writers on a limited basis. As with any computer analysis of language such as Flesch-Kincaid readability scores, writers should ask whether the computer analysis could help them. I don’t see legal writers building Watson’s Tone Analyzer into a checklist for every email. But it could be a worthwhile exercise just on a couple of messages, to see what predominant tone Watson diagnoses.

And as with any computer analysis of language, take it with a grain of salt. I tested Watson on litigators’ favorite nastygram conclusion:

“Govern yourselves accordingly.”

The results are below but here’s a summary: Its predominant language was sadness (?????). Its most notable social tendencies, according to the Tone Analyzer, were extraversion and agreeableness.

Screen Shot 2017-04-25 at 1.28.57 PM

The “govern yourselves accordingly” analysis notwithstanding, a “robot” such as the Tone Analyzer could create an interesting exercise for trying different words and seeing how they measure. So . . . govern yourselves accordingly.

Note on use of Watson: these screen shots were taken on April 25 and 26, 2017. The metrics appear to have changed slightly from tests about six months earlier on identical language. Thus a final lesson is to know your tool and stay updated. Make sure you’re comparing apples to apples if relying on quantitative analysis of language. 

AdvocacyClinical legal educationCross-cultural communicationEmotional intelligenceLaw school skills competitions

Stereotype threat

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

Client relationshipsCross-cultural communicationEmotional intelligenceGenderLegal communication

Kairos in 2017

Killing time has never been easier, with smartphone settings that feed constant data and the average smartphone user checking it 85 times a day. But what exactly is being killed? How do we describe these moments lost?

One of the first books I read for this blog introduced me to the concepts of chronos and kairos timing. The book was Talk and Social Theory: Ecologies of Speaking and Listening in Everyday Life by Frederick Erickson. Yes, it is an academic work, but with some charmingly concrete moments. Anyone who’s seen a gunner in a law-school classroom will understand a term coined by the conversational turn-taking analysts: “turn shark.”

Erickson also explored the concept of chronos and kairos timing in communication study. Chronos (or kronos) is basically clock or calendar time. Chronos time is measured in equal bits and sequenced perfectly and inexorably one after the other. In contrast kairos timing is about “the opportune time” or “the moment of opportunity.”

Kairos is important to conversation study because mutual timing is what allows people to make sense together in conversations. Kairos moments in conversations are those where the conversation shifts, someone begins to contribute, a person speaking notices someone else shifting their gaze and notices the need for a conversation pause, and so on. Because conversations aren’t defined by automated turn-taking and timed exchanges, communications scholars find multiple kairos moments in conversational analysis:

Kairos is the time of tactical appropriateness, of shifting priorities and objects of attention from one qualitatitvely differing moment to the next….It is a brief strip of right time, marked at its beginning and ending by turning points.

Or, more poetically:

In kairos time there are kinds of time that are apples and others that are oranges. There is a time when rain will fall from a cloud, a time to attack the enemy in battle, a time to negotiate a truce, a point that is qualitatively different in time from the time in kronos just before.

Kairos can be a blessing or a weapon, according to Erickson, who summarizes meticulous moment-by-moment studies of various conversational settings, finding kairos moments of opportunity and of subtle and not-so-subtle power exchanges. A teacher tries to manage a group of students where a shy student continually loses her turn to a “turn shark” who incessantly interrupts. A medical intern and senior supervisor talk about an overdosed patient, with the supervisor offers a smile while implying the intern (who is African-American) might know something about buying illegal drugs. Using “hyperformality,” the intern refocuses the conversation with clinical language about the patient. These conversational studies were done years ago in the era of gas shortages and the Vietnam draft, but connections to today’s topics of gender-based “manterruptions,” cultural competenceimplicit bias, and microaggressions cannot be missed.

And for those kairos moments that are not a weapon but a potential blessing, the fact is they can be squandered. In Reclaiming Conversation: The Power of Talk in a Digital Age, Sherry Turkle details the effects of smartphones on in-person conversations:

The mere presence of a phone signals that your attention is divided, even if you don’t intend it to be. It will limit the conversation in many ways: how you’ll listen, what will be discussed, the degree of connection you’ll feel.

Urban Dictionary now includes a definition of the common, meme-friendly phrase “Wait, what?”:

“[a] phrase used to back the conversation up when you realize you weren’t listening.”

(See Resolve to Use Your Device as a Tool—and to Resist Being Tooled by It, Jack Pringle’s guest post here last week.)

Kairos is a useful idea not just for individual conversations, but also for effective storytelling and understanding broader social situations. In his book Point Made: How to Write Like the Nation’s Top Advocates, legal writing expert Ross Guberman implicitly criticizes chronos timing as a storytelling method:

Few things are duller than a paragraph stuffed with dates.

Instead, he shares a variety of techniques for connecting factual details into a series of meaningful moments. Although not using the terms chronos and kairos, Guberman shows how to play upon a reader’s conception of kairos, in the sense of “the right moment.” His examples show how a fact statement can suggest that certain events happened too slowly or too quickly—or that they shouldn’t have happened at all.

Explicitly applying the kairos idea to advocacy and litigation strategy, Professor Linda Berger explored kairos in Creating Kairos at the Supreme Court: Shelby County, Citizens United, Hobby Lobby, and the Judicial Construction of Right Moments. Berger uses her deep knowledge of rhetorical theory to provide context:

Through their use of two words for time, chronos and kairos, the Greeks were able to view history as a grid of connected events spread across a landscape punctuated by hills and valleys. In chronos, the timekeeper-observer constructs a linear, measurable, quantitative accounting of what happened. In kairos, the participant-teller forms a more qualitative history by shaping individual moments into crises and turning points. From a rhetorical perspective, chronos is more closely allied with the narrative accounting for—how long? what next?—while kairos is the more metaphorical imagining as—at what point? in what space?

The end of any year is an opportunity to make a kairos moment—and the end of this particular year brings to mind thoughts of a crisis or turning point. Berger shows that kairos moments are not passively experienced as one watches a ticking stopwatch measuring off equal seconds and minutes. Kairos moments are sensed and recognized, but they are also shaped. In rhetorical terms, Berger tells us, “kairos presumes that the author will intervene in history’s causal chain.”

So it’s the end of a year. It’s the end of 2016 specifically. It’s a moment of kairos time, or at least it could be—personally, professionally, socially, politically. For 2017, I propose a resolution: let’s not kill time.

 

 

 

 

 

 

 

 

Cross-cultural communicationFact investigationPeople skills

Holiday listening

StoryCorps’ Great Thanksgiving Listen of 2016 wraps up this weekend. StoryCorps is an oral history project with a mission to “preserve and share humanity’s stories in order to build connections with people and create a more just and compassionate world.”

The Great Thanksgiving Listen of 2016  follows up on the first Great Thanksgiving Listen of 2015, facilitated by StoryCorps’ release its app in 2015. The app has lots of stories to listen to, and it also walks users through the process of preparing and recording their own interviews:

Choose someone to interview. Pick great questions. Find a quiet place to record. Listen closely.

StoryCorps seeks to make interviewing a standard part of the high school curriculum, based on the success of the 2015 Thanksgiving Listen:

A 14-year-old in Georgia heard what it was like for her grandmother to go to bed hungry; students in Colorado heard one man’s experience of enlisting during the Vietnam War; and a teen in Louisiana found out that her grandparents got engaged at a drive-in movie.

There’s no reason this endeavor should be limited to high school students. Really, it’s for anyone who wants to make a deeper human connection by listening to someone and helping them memorialize their story. And the interview need not be a Forrest Gump-like overview of historical moments. The ABA Mentorship Project has teamed with StoryCorps to record narratives on mentorship in the legal profession here. The University of South Carolina School of Law’s Pro Bono Program is partnering with StoryCorps to record lawyers’ and students’ stories related to serving the Hispanic community as well as advocating for LGBT clients

Outside the boundaries of required classwork, law students may not be able to record someone’s story in the stressful period between Thanksgiving and the end of final exams. But if finals end in mid-December, the holiday break is an ideal time to rest and recharge by listening to someone else. It builds interviewing skills and may help students clear their heads. More importantly, it creates a human connection and participates in StoryCorps’ mission of creating a more just and compassionate world.

Client developmentClient relationshipsClinical legal educationCross-cultural communicationEmotional intelligence

Loving your lawyer (part 1)

Last week once again America—or at least American lawyers—celebrated “Love Your Lawyer Day.” See also #loveyourlawyerday on Twitter. Beyond the marketing hype, there’s a good question:

What makes people love their lawyers?

The first answer is competence. A 2002 study of how the public perceives lawyers found the majority of consumer clients to be satisfied with their lawyers:

Consumers tell stories of lawyers who apply significant expertise and knowledge to their cases, identify practical solutions, and work hard on behalf of their clients.

The survey also delved into various aspect of lawyers’ performance with clients. 72 percent of clients were very satisfied with their lawyer’s knowledge of the law. The study did go into some factors beyond hard-skill competence. For example, 68 percent were very satisfied with how the lawyer handled the initial conversation.

This study did not ask participants to rank which criteria were most important, or most strongly correlated with satisfaction. It did not ask them whether they found it more important that the lawyer knew the law, as compared to handling the initial conversation effectively.

Analyzing a study of big-firm clients in the U.S. and similar studies in Australia, Professor Clark Cunningham’s paper “What Do Clients Want” delved deeper into the causes of client satisfaction and dissatisfaction. In these studies, the comparative importance of competence appears to be more complicated (emphasis added here):

Many lawyers equate client satisfaction with the outcome achieved; however, studies over the past three decades in three different countries has produced impressive evidence that clients evaluate their lawyers’ competence more in terms of the process experienced by them in the representation than the outcome.

It seems clients see competence as necessary but not sufficient for client satisfaction. Competence is the baseline, and something else is what makes the difference in client satisfaction or dissatisfaction. What is that something else?

Although there was widespread client satisfaction with the specialists’ legal knowledge and skills [in the Australian study of clients], the evaluators also found “consistent evidence of client dissatisfaction with the provision of services, and the quality of the service-delivery process.” According to this study (emphasis added):

Practitioners are concentrating on developing their knowledge and skills to deliver better outcomes; but their clients, expecting both technical competence and results, are being disappointed by the process of getting there. Clients complained about the quality of their lawyers’ services in terms of inaccessibility, lack of communication, lack of empathy and understanding, and lack of respect . . . .

The original idea for this post was to write about the “emotional labor” lawyers perform for their clients and others. Emotional labor means, basically, showing up and being constructive even when it’s difficult: “the effort it takes to keep your professional game face on when what you’re doing is not concordant with how you feel.”  Does a lawyer’s performance of emotional labor make the client “love” the lawyer more?

That question led to the more basic question of what motivates client satisfaction, which led to this overview of the studies above. (There must be more information; please direct my attention to additional good data on client satisfaction.) And the overview here suggests it will be worthwhile to explore emotional labor in more depth in a future post. Emotional labor does seem connected to accessibility, open communication, empathy, and respect.

Feedback would be welcome on clients “loving” their lawyers, client satisfaction generally, and the idea of lawyers performing emotional labor for clients, colleagues, and others. Please share thoughts in the comments or on social media.

Cross-cultural communicationEmotional intelligenceLegal communicationPeople skills

Inclusive Listening: Pushing Through Bias and Assumptions

kellyGuest post by Katherine Silver Kelly, Associate Clinical Professor of Law and Director of Academic Support at the Moritz College of Law, Ohio State University

Lawyers like to think we are excellent listeners. We do it all the time; it’s at the core of our profession. As with any skill, good listening requires ongoing practice and development. But before you say you’re a good listener, determining this is not up to you, it’s up to the recipient of your listening.

I’ll illustrate this with an example: At a professional event not too long ago I was having a conversation with a group of attorneys. The talk turned to college sports and I mentioned I’m from Kentucky. One of the attorneys said to me,

“Huh, you don’t sound like you’re from Kentucky. Where in Kentucky are you from?”

I answered the question and politely moved on with the conversation. What I wanted to say was:

“Really?! How do you know what someone from Kentucky sounds like? How is that relevant to what I’m saying? ”

Yes, it was a casual conversation and maybe the attorney would not have said it to me had we been in a courtroom or meeting but she would have thought it. And it definitely affected how she listened to me going forward. It also distracted me as I couldn’t help but wonder what assumptions she was making about me because I’m from Kentucky and whether her perception of my competency had diminished. All it all, it diminished the authenticity of our communication.

 

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Courtesy Flickr/Sciencesque/CC BY-SA-NC 2.0

 

 All of my life, I have been judged based on where I am from. You cannot see my ethnicity on my skin, but you can hear it. I carry it on my tongue, and I can no more get rid of it than anyone can change their skin color. 

The only way a person can open their mind and their heart is by opening their eyes and seeing that these differences make us stronger and that we are not as different as we might imagine. Only by serving others do we serve ourselves. Only by realizing the beauty of those different from ourselves are we able to realize our own beauty.

-Author Silas House, speech at Berea College (2013)

Truth be told, I’m not “from Kentucky” because I was born in Philadelphia, Pennsylvania. My family moved to rural, southeastern Kentucky when I was 14 and it’s my home.

I never thought I had a Kentucky (or other) accent until a few years ago when I moved to Ohio. People would cut me off mid-sentence to remark on it and how cute it was that I said, “y’all.”

Regardless of whether people are actually biased listeners, pointing out that someone has an accent basically says that the speaker is different and this difference matters. It certainly made me self-conscious of how I spoke and what I said. People have a natural affinity for others like themselves, and pointing out a difference reflects an implicit bias.

Like it or not, we all have subconscious stereotypes that affect our unconscious beliefs and perceptions. Denying this only perpetuates the bias. Instead, by acknowledging that we make assumptions, we can challenge and start to change them. This is especially important for lawyers as effective communication is a basic tenet of our profession. While the type of communication may vary, one overarching fundamental legal skill is the ability to effectively assess and respond to the perspective of the recipient of the communication. This requires inclusive listening.

Inclusive listening makes other people feel valued and understood. When listening to others most of us tend to assume we understand and we reach conclusions based on our point of view and our implicit biases. Inclusive listening doesn’t make assumptions. It requires one to actively engage in critical thinking: notice and question our assumptions, and recognize that assumptions are not truths.

This is not easy to do. I know because writing this post made me quite aware of my habits as a listener. This past week I’ve made it a point to recognize that I have unconscious biases and started to challenge my assumptions (ex: don’t negatively categorize everyone under the age of 30 as a “millennial.”). I’ve made sure my non-verbal cues show respect for the speaker and I’ve worked on better engaging as a listener by affirming the speaker’s contributions and asking clarifying questions.

Consciously engaging in inclusive listening has helped me realize that I’ve expected (maybe even demanded) it from others but wasn’t doing such a great job myself. For so long I’ve been on the other side and this helped me switch my point of view. If I want to be listened to, I’ve got to be an inclusive listener. On a broader level, for lawyers to be truly effective communicators, they must fully understand all aspects of a situation. The only way to gain this understanding is through inclusive and engaged listening.