Category: Emotional intelligence

Clinical legal educationCross-cultural communicationEmotional intelligenceLegal communicationLegal skills

The “romance” in learning to listen

Education comes in three stages:

romance
precision
generalization

This is according to A.N. Whitehead’s “rhythm of education,” a framework widely shared last month in The Atlantic’s profile of Teller—of Penn and Teller—as a former teacher. He tells the story of his early days as a high-school Latin teacher: Read More

Client developmentEmotional intelligenceLegal communicationPeople skills

Listening under the influence

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Flickr/Keoni Cabral/CC by 2.0

What is the effect of drinking on listening skills?

This matters for lawyers who will be networking over a glass of wine or taking clients to dinner where alcohol is served. What appears to be a still-valid 1975 psychiatric study predicted that drinking would have a variety of effects on communication:

In a group setting, low to moderate doses of alcohol would increase the amount of verbal communication, increase disruptions in communication, and decrease the level of acknowledgment of the other speaker’s communication.

This hypothesis was indeed supported by the study, a study with a most interesting protocol.

Participating couples (married or good friends for several months, and between the ages of 21-30) showed up a testing facility for an afternoon of mild intoxication and testing, or a placebo event. They consumed a “low dose” of either “80-proof vodka in a peppermint-flavored cocktail” or “the masking cocktail without vodka.” In the low-dose experiment, women drank .83 ml per kg of weight, so (after a bit of math) about 1.4 ounces for a 110-pound woman. Men drank 1 ml per kg of weight, so 2.7 ounces for a 175-pound man. In sessions separated by about a week, they tested the other option. And some test subjects came back for another alcohol test at 1.5ml per kg of weight.

After consuming the alcohol, they did some coordination tests and then a 20-minute conversation session. The second 10 minutes of the conversation were transcribed for study. Then participants were “fed and detained” until signs of intoxication wore off, and driven home.

The study’s main finding seems fairly intuitive:

Overall, alcohol appeared to make social communication more disorganized and intoxicated subjects seemed less likely to follow conventional rules of etiquette in their speech.

The specific behavioral findings were a little more complex. The study found “an increase in the amount of interrupting or overlapping speech” that was even more pronounced with the higher dose. Essentially: the more you drink, the more you interrupt.

Separately, the study found with the low dose, participants talked more in the sense of initiating more conversations, and used more words. With the higher dose, these trends reversed. Thus the more intoxicated participants interrupted more but used fewer words and started fewer conversations. And there was a modest but noticeable effect on what the study called acknowledgment, or “the degree to which [a statement] responds, in terms of the content and intent” to the prior statement.

The study authors weren’t exactly sure how these effects happened. They could be from the “disinhibition” and “egocentricity” of drinking, or they could be from “decreased auditory discrimination” and “impaired memory” which had been proven in a similar previous experiment. 

The authors recommended further study. They also ended with a caveat on the “dyadic” setup of the study—meaning just two people speaking one-on-one to each other. The one-on-one setup may have made it relatively easier for participants to maintain the conversation. They noted prior work showing alcohol diminishes participants’ ability to hear complex auditory stimuli. Thus they suspected that intoxicated participants would show greater impairment, relative to the placebo, in a more complicated social situation with more people. Something like an attorney networking event, perhaps.

Postscript to this research: Here’s a 2004 master’s thesis on “alcohol in social context.” The study gathered 54 men (strangers) and assigned them to groups of three, then served them alcohol or a placebo while they stayed seated in their groups for 30 minutes. The study assessed their social behavior and emotional states, finding that the drinking groups did not necessarily talk more on a word count basis, but did engage in more socially coordinated communication within the group. In other words, more members of the group contributed to talk within the group as a whole. The study author reported mild surprise that study participants did not report “improved affect” or a better mood after the experiment. The author suggested that the participants may not have enjoyed the forced interaction of drinking and socializing with strangers. This brings us full circle back to networking.

What are the implications for attorneys who want to drink while still communicating effectively?

Above the Law’s Elie Mystal has some classic advice: “You have to know yourself and what constitutes ‘tipsy’ for you.” Some more excellent advice: “when it starts to feel more like a party and less like work, leave.”

He was writing in 2012 about alcohol and networking, prompted by a Greedy Associates’ post with a “Drink-by-Drink Guide for Networking Events.” Instead of “5 Tips for Networking,” that post organized itself around a sequence of five hypothetical “drinks” from the first drink (“the icebreaker”) to the fifth drink (essentially, go home and send a bunch of LinkedIn invitations). The strategy for the “third drink” was to “shut up and listen” by “resist[ing] the urge to talk about yourself the whole night.”

The Greedy Associates’ post wasn’t actually encouraging networking lawyers to consume five drinks at any networking event. And that is a good thing. One takeaway from the present post is the following: if you get to that third drink too fast, shutting up and listening is probably not going to be an easy option.

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Any article on attorneys and alcohol consumption would be incomplete without noting the study released just in the past week about substance abuse among attorneys. “The level of problem drinking and mental health problems in the legal profession appear to be higher than indicated by previous studies,” reported the ABA Journal. Self-reported problem drinking was at 20.4 percent of the profession. Behavioral questions revealed problem drinking among 36.4 percent of the profession. The ABA article ended in calls for help such as training, mentoring, and bar assistance programs. 

CollaborationEmotional intelligenceLaw firm managementLeadershipPeople skills

Mindful interactions with colleagues

Mindfulness and listening go together in a lot of ways, some obvious and some subtle. A recent HBR Blog post, “See Colleagues as They Are, Not as They Were,” challenged readers to be more mindful in working with colleagues, especially longtime colleagues.

The post defines mindfulness as “noticing what is happening in the present moment, without judgment.” And thus the post raised the question: when we interact with colleagues, are we present and mindful of who they are now? Or are we substituting our own mental shortcuts of who they were and what they’ve done in the past? The post encourages readers to “See your colleague as they are today, not how you remember them from yesterday”:

[A]s an experiment, simply notice your colleague afresh. How do they look today? What is their tone of voice? What are their facial expressions? Are they really saying the same old stuff, or is there something new to be heard that you could notice and appreciate?

Noticing colleagues afresh is a challenge. This is partly general human nature: “By the time we have worked with someone for a few months or years, we have developed expectations for what they will say and do.” It’s always been that way, of course.

The ever-present role of email only exacerbates these expectations. The author, Duncan Coombs, describes his findings that email communications reinforce and solidify expectations about coworkers:

I’ve previously written with my good friend and colleague, Darren Good, about the “flash images” we form about people when we see their names in our inboxes. This flash image, based on past experiences, happens before you even read the content of the email, and then influences the way we read the email. While this is a normal part of brain functioning, it has a potentially adverse impact when our negative lens leads to negative interpretations.

I believe the legal workplace suffers from these issues as much as any other industry, and maybe more so (at least in law firms).

An associate does good work, and she builds the “halo effect” around everything she does—whether the work remains stellar or not. Another associate produces a weak assignment or two, and she her billables just start fading away. The effect cuts the other way too: Associates may develop positive expectations about working with a particular partner, which lead them to enjoy the work and do it well. Conversely some partners may engender a sense of existential dread among associates prodded onto their teams. The same effect influences relationships with paralegals, administrative support staff, and legal professionals throughout the firm. And the e-mail “flash image” reinforces all of the above.

Many would say this is far from a problem; in fact it is (a) reality and (b) a good thing.

In a law firm, an associate builds her reputation—for better or worse. Keith Lee wrote about the difference in personal brand (what you say about yourself) and reputation (what others say about you) . The work inside a law firm flows toward the individual lawyers with strong reputations, and away from others. Individual lawyers’ reputations are important because they contribute to (or detract from) the overall health of the law firm.

This is true in any business of course, but the competitive reality of law practice and the pessimistic mindset of lawyers may exacerbate it. As one lawyer stated to Law360 in giving advice and admonitions to new associates, “what takes years and hard work to build can be lost in a second with one bad decision or lapse of judgment.”

I don’t think the HBR post is arguing against a lawyer’s earned reputation and its deserved effects. Nor am I, here in this post.

I think the post is digging into the process of how a reputation happens in the first place. If a reputation comes about from non-mindful, even lazy mental shortcuts of others based on insufficient, incomplete, or inaccurate information, reputation is not only not a good thing but actually bad or at least far from optimal. Consequences that come to mind include frustrated individual working relationships that result in less accurate information, less effective distributions of work, wastefully “writing off” legal professionals despite achievements and potential, and shrinking or illusory opportunities for professional development.

Is working with someone for “a few months” enough to accurately define that person’s capabilities and, accordingly, their reputation? Even if a working relationship has lasted years, could a person actually change?

These questions open up numerous discussions on assessment and evaluation, as well as a “growth” or “fixed” mindset about human capacity, with implications too big for one post. At the individual level, the HBR post goes on to some positive recommendations for interacting more mindfully with colleagues:

As an experiment, consciously seek to notice something positive about the person. What is one thing about this person that you appreciate? What is one thing they say that is helpful? What is their contribution to the organization? What is their single greatest strength? Focus on that and pay total attention to that one thing. Hold that focus and make that your first “foothold” on the path to an improved relationship.

These are recommendations that some skeptical lawyers may find naive. Supervisors who complete and sign semi-annual evaluations simply don’t need to make this effort. There’s a path of less resistance: directing their work and their time to other associates and legal professionals where the positive reactions come more easily and naturally. (Thus it’s very good advice for new attorneys to treat partners like clients from day one, and try to avoid this situation in the first place.)

But for attorneys and legal professionals who are committed to—or stuck in—working arrangement for some time, this positive advice may be helpful to frame more mindful, constructive interactions.


For more on mindfulness, see the work of Jeena Cho. Her book, The Anxious Lawyer, will be coming out this year. Her course on “Better Lawyering through Mindfulness” touches on mindful listening and many other topics. She writes for Above the Law.

This article originally from the Vermont Bar Journal and now posted on the Ohio Supreme Court’s website also touches on themes of mindfulness in interacting with others.

Emotional intelligenceLaw firm marketingLaw practiceLegal communicationPeople skills

Resolution: Delight them

Delight your clients.

That’s a good New Year’s Resolution for lawyers, right?

It’s an entrenched, almost clichéd piece of general business advice. But should lawyers try to delight their clients? It seems like the answer should be “of course!!” But what does that even mean?

A recent reference to delighting the client prompted this post, “3 Vital Mindsets for Creating Impact for the Legal Industry” by Seyfarth Shaw’s Laura Maecthlen on Medium. She reflected back on her hectic law practice in the final month of 2015, when she wasn’t thinking broadly about the legal industry but rather working away with depositions, negotiations, and a lot of detailed, focused, specifically client-centered work.

This day-to-day level of law practice, Maecthlen suggested, is an under-appreciated source of ideas about legal innovation. Those ideas should come not only from large-scale abstract thinking about the legal industry, but also from “the everyday activities of working lawyers . . . in the trenches of our legal system every day.” As she wrote,

It is in this spacepersonal, one-on-one and face-to-facethat we create real change for ourselves and each other.

And this observation—essentially, “small is the new big”—leads to the question of delight:

With all the talk of innovation in our industry, a person could easily lose track of the real goal of innovation, which is to create positive impact. If you stop to consider what we as practitioners are trying to accomplish, you realize it’s simple: higher-value client solutions aimed to delight our clients. Innovation is only one means to achieve this.

What do others say about delighting clients in the legal industry?

On a positive note, legal marketer Merrilyn Astin Tarlton advised lawyers to surprise and delight their clients in several ways. Drop in on their clients, free of charge, and learn more about their business. (This is common but excellent advice.) Give compliments. Help clients see patterns and prevent those patterns from occurring, such as better training and policies to reduce a pattern of lawsuits. Over-deliver and deliver early, rather than setting suggested deadlines and then meeting them just barely or missing them. Say thank you, often.

But the delight concept often comes wrapped in some more ominous tones.

Non-delighted clients are less likely to be long-term clients, and many lawyers are deluded about their clients’ level of delight. That was a theme developed by lawyer and and knowledge-management consultant V. Mary Abraham interviewed legal leadership consultant Susan Hackett. The post is “Focus on Clients; If You Delight Them They Will Stay.” Hackett’s work shows that 85 percent of outside counsel give themselves an “A” for their work, but only 35 percent of in-house counsel would in fact recommend their outside counsel to other clients.

What can lawyers do to climb into that 35 percent—to get that “A” grade and make the client “fall in love” with their services? One big step has to do with listening, with two necessary sub-parts to make it work. Part one is about asking meaningful questions of clients:

The very best way to deliver value to each client you serve is simply to ask them what it is that they value, what it is that you’re doing right or could do better, what it is that other lawyers or service providers offer them that makes them pleased with the service, and how it is that you personally could improve.  Ask it in person, ask it in surveys, ask it outside the course of matters, ask it during the matters on which you’re serving. Saying once a year over dinner, `so how are we doing?’ is going to get an answer as specific as `just great.’  Trust me, that’s not the feedback you need.

And part two is about listening to and doing something about that feedback:

Asking for feedback is not the same thing as acting on it.  Too many of us ask for feedback and then we sit back and `admire’ (or ignore) the results. Instead, we need to take actions that allow us to improve from the feedback.  If you receive positive feedback, look for ways to apply the principles underlying your success to other kinds of work. At a minimum, when the evaluations relate to performance, include them in the performance reviews of those involved. After all, if lawyers’ compensation and advancement are only tied to the number of hours they’ve billed, and not to how well they serve clients, we’re all in trouble.

Delight also came up in the context of “in-house counsel gripes” which is practically its own genre of posts on Law 360. Rich Baer, then of Qwest Communications and now Liberty Media, urged lawyers to borrow the delight aspiration from non-legal businesses:

When you’re thinking about client service, don’t think like a lawyer, think like the owner of a great restaurant or the manager of a wonderful resort and really strive to delight your client every time you’re dealing with them.”

While this statement itself is positive, the rest of the post (which quoted other in-house counsel as well) essentially bludgeoned the reader with what not to do. Don’t surprise the client, don’t max out bills, and don’t send 50-page memos when short e-mails can give the same information. (The post also quoted Baer criticizing outside counsel who fail to share a “simple thank you for the business”—the mirror-image of Tarlton’s advice to say thank you often.)

Thinking about what not to do brings us back to the business theory of whether delight should be a client service goal at all. If you search “delighting customers,” the top result is a Harvard Business Review piece urging the opposite: “Stop trying to delight your customers.”

The article argued that the vast majority of decisions are made not because someone is delighted and drawn to the amazing service of a business. Rather, these decisions are made because of being annoyed, put off, frustrated, and otherwise subject to terrible service. Customers have the impulse to “punish bad service” much more so than to “reward delightful service.” (This idea is rooted in psychological studies that “Bad Is Stronger than Good” previously discussed on the blog here.)

Therefore, the HBR piece argues, the better approach to customer satisfaction is not delight but “reducing their effort—the work they must do to get their problem solved.”

In her post on goals for 2016, Seyfarth Shaw’s Maecthlen was onto this as well. She urged finding clients’ “pain points” and making “process improvements” to address them. (This rhetoric is consistent with the legal project management movement that sometimes speaks in the language of delight.)

Addressing pain and process comes up in so many different ways. Many process improvements are substantive, like the suggestion above about recognizing and mitigating a pattern of small sporadic lawsuits. Of course the method of communication itself may be a pain point as well.

Here, as I write on a Friday afternoon, a small but specific example comes to mind. Some clients may not enjoy receiving a barrage of legal updates late Friday afternoon as lawyers clean and close their own inboxes. The lawyer may feel a sense of respite and reprieve, while the client now has a list of things to do just at the beginning of the weekend. Other clients may appreciate a regular consolidated end-of-the-week update. What is their preference?

Asking what they want and respecting that preference is not all that innovative. But, to paraphrase Laura Maechtlen, it’s this one-on-one and face-to-face work that can—perhaps—add up to a sense of delight.

 

 

 

Emotional intelligenceLeadershipPeople skillsProfessional developmentProfessional responsibility

The Good Lawyer

levitlinder

“What does it mean to be a good lawyer?” Thus begins The Good Lawyer: Seeking Quality in the Practice of Law by Douglas O. Linder & Nancy Levit (Oxford 2014). The introduction assures readers there will not be chapters such as “The Good Lawyer Uses Proper Citation Format.” (Why not? asks the legal writing professor.)

Instead, The Good Lawyer explores empathy, courage, willpower, valuing others in the legal community, intuition as well as deliberation, realistic thinking, the pursuit of justice, integrity, and persuasion. Its final chapter addresses the difficulty of all of these in the current legal climate. 

The book is largely aspirational but delves into skills and techniques. Its first chapter—”The Good Lawyer Is Empathetic”—would be valuable to any lawyer who wants to be a better listener.

Empathy has been defined as “our ability to identify what somebody else is thinking or feeling and to respond to their thoughts or feelings with an appropriate emotion.”

And what are the actual benefits of a lawyer’s being empathetic?

First, empathy enables you to acknowledge and respect other people’s thoughts, so they feel valued. Second, empathy substantially reduces the likelihood of miscommunications that can lead to wasted effort and counterproductive results. Third, as you become more aware of other people’s feelings, you more readily assess their feelings toward you and can make adjustments to smooth things over when necessary.* . . . Fourth, having walked inside another’s skin, you’ll be better able to compellingly tell that person’s story, should the time and place arise for it.

*The omitted portion of the quote says this: “When others think you’re being a jerk, at least you know it soon enough to stop your jerk-like behavior and apologize.”

I am well aware of the sentiment that being a jerk is necessary or even desirable at times, as a way of serving a client’s interests. It shouldn’t be surprising to learn that’s not the agenda of Linder and Levit. In their chapter on serving the true interests of clients, they walk through various roles a lawyer may serve: helping the client win; being a “mere tool” of the client’s autonomy; or essentially telling the client what to do based on the lawyer’s legal expertise.

Their recommended approach is none of these in isolation. Instead they embrace more of a collaborative deliberation: “The most demanding and also the most rewarding function that lawyers perform is to help their clients decide what it is that they really want, to help them make up their minds as to what their ends should be” (quoting Anthony Kronman). Linder and Levit acknowledge that “many forces today conspire to limit opportunities for lawyers and clients to enter into deep moral conversations, as friends might do.”

They go on to discuss specific communication techniques to help lawyers learn more about their clients’ interests in meaningful conversations. For example lawyers can frame conversations in terms of “we” (i.e. the lawyer and client together). Lawyers can ask clients who else would be affected by various approaches, and how those others might respond. 

These suggested techniques are valuable, yet perhaps meager given what it takes to forge a truly collaborative relationship and be someone’s friend in a moral sense. On this point and others, the book was (lightly) critiqued by David Lat in the Wall Street Journal as being better at issue-spotting than at deeply diving into practical solutions. 

The issues to be spotted include a number of tough questions. For example, are empathetic lawyers born, or can they be made? Linder and Levit review psychological literature showing that empathy can be taught in the sense that people can get better at recognizing emotions. The evidence is weaker for the teachability of the empathetic response. A checklist on “How to Make the Most of Your Empathy” (page 17) would be a good primer for new lawyers, or for more experienced lawyers who want to work on making a better connection with clients. The book also cites the scholarship of Kristin Gerdy and Ian Gallacher on incorporating empathy into legal education and teaching students how to “think like a non-lawyer.”

Another tough issue both individually and socially is whether empathy can  actually be harmful. Highly empathetic people may burn out and run from extremely painful situations, or may cross ethical boundaries to help those with whom they empathize. (In raising the topic of whether judges should be empathetic, the book cites Justice Blackmun’s “Poor Joshua!” dissent, recently in the news again after the death of Joshua DeShaney at age 36.)

The chapter on persuasion features the book’s most specific treatment of listening and lawyering:

Listening and interpreting body language, two skills that allow us to understand—and then better influence—the thinking and emotion of others, receive nothing like the attention each deserves. Only by listening to a client can a lawyer understand what the client wants and develop a theme for a story that might help the client her goal, and listening carefully to a judge’s questions or remarks is essential to the process of addressing any concerns the judge might have with your argument. People, of course, send signals with their bodies, not just with their words, and being attentive to the body language of clients, witnesses, jurors, and judges also can be critical to a lawyer’s success. Sometimes lawyers are so focused on covering each of twenty points on the outline of an argument that they don’t see the judge or juror stifling a yawn, raising eyebrows, or crossing arms; these are all signs that the lawyers are going seriously off track and need to change course. Defense lawyer F. Lee Bailey, describing the work of another lawyer he admired, said that he kept his eyes “ever on his audience.” Bailey continued, “The slightest quizzical brow, a mere change of impression of a single juror, these would be a sign from which he could shift and bear down on a point, paraphrase it if he thought the first shot hadn’t got through, or shift his topic if he thought attention was starting to drift.”

There is no chapter titled “The Good Lawyer Listens.” Yet The Good Lawyer advocates that the good lawyer does listen. Listening helps lawyers understand clients and make them feel valued. If that’s not enough, listening also helps lawyers figure out what to say.

Emotional intelligenceLegal communicationMediationPeople skillsProfessional development

Listening from ignorance to mastery

The Farnam Street blog has this, this morning on becoming a lifelong learner:

When assessing our competence in any particular discipline, we can place our level of ability somewhere along a continuum moving from ignorance, to conversational competence, to operational competence, then towards proficiency, and finally all the way to mastery.

The quote is from Laurence Enderson, Pebbles of Perception: How a Few Good Choices Make All the Difference, a collection of wisdom inspired by Charlie Munger, lawyer and vice chair of Berkshire Hathaway. I haven’t read the book, but Farnam Street extensively quotes its exhortations to move beyond “coasting,” and rather to embrace lifelong learning. The passage on this continuum of learning was of particular interest.

What would this continuum look like as applied to listening?

Ignorance

It seems like many are operating in a state of ignorance about listening as a concept and an improvable skill. Yet they may be decent or even very strong listeners. In the same way, a talented self-taught writer may not use the vocabulary learned at the Iowa Writers’ Workshop but still produce great prose. On the other hand, many others are ignorant of listening and/or ignorant about how bad they are at listening. (This is the Dunning-Kruger effect, a delusion of competence that applies to listening as to any other skill and has been discussed on the blog here and here and here.)

Conversational Competence

For the rest of us—the coachable who haven’t yet been coached—a state of ignorance about listening seems inexcusable, although common. I say it’s inexcusable in part because “conversational competence” can be reached without a lot of effort. A bit of time spent learning active listening could be sufficient.

Operational Competence

The operational competence is harder. Actually practicing active listening is much more of a challenge than talking about it. And what if active listening isn’t even the right strategy?

Professor Neil Hamilton, in a formative law review article on listening, talked about passive listening as well. (Here’s the link: “Effective Requires Listening: How to Assess and Improve Listening Skills.”) Passive listening has three components, according to Hamilton (citations omitted):

First, the attorney should place an emphasis on silence in conversations. “[A] brief but definite pause in a conversation” can be an effective tool, allowing the client to collect his or her thoughts and then provide information in a more comfortable fashion.The failure to allow periodic silence can interrupt a client‟s stream of association and make the client feel cut off, hurried, or pressured. Effective lawyers will often pause and allow the client to reflect before continuing with their dialogue.

The second key to passive listening is the use of “minimal prompts.” While silence can make some clients and lawyers uncomfortable, “minimal prompts” can let the client know that the lawyer is listening and understands what is being said.

The final passive-listening technique is the use of open-ended questions.

Of these three techniques, the first—using silence—seems by far the hardest. The role of silence is a challenge for many, perhaps especially for lawyers. Legal Zoom CEO John Suh recently offered the following statistic:

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Before one becomes operationally competent in tolerating and even encouraging real silence, one must first be operationally competent in remaining silent while someone—such as a client—is talking.

Proficiency and Mastery

What makes a listener not only competent, but even proficient and, eventually, masterful? Malcolm Gladwell profiled “gifted listener” Konrad Kellen, the Vietnam consultant who was able to listen to interviews with the North Vietnamese without bias. This meant he did not allow the prevailing theory of the war to shape his perception of what they meant.

Listening without bias is closely connected to hearing what isn’t being said:

The most important thing in communication is to hear what isn’t being said.

-Peter Drucker

In other words, great listeners overcome the “availability bias” of paying attention to what is on the list or what the witness is saying, instead of what is not.

So proficient listening is in part a set of technical skills such as appropriate body language, recall, notetaking, compensating for cognitive biases such as the availability bias. Professor Neil Hamilton’s article provides a variety of self-assessments and exercises. Taken together, the questions on the self-assessment provide a sort of schematic of a masterful listener. Here’s an excerpt:

  • I use head nods and facial expressions to indicate that I am listening to a speaker.
  • I establish and maintain eye contact with a speaker.
  • I maintain strong posture and avoid slouching during conversations.
  • I notice changes in a speaker’s volume or tone of voice or nonverbal expressions.

But masterful listening can be—and at least sometimes should be—more than a set of techniques. Hamilton ultimately approaches listening as a virtue. He writes that “listening requires the ability to empathize and relate authentically to a speaker, in addition to technical skills.”

One difficulty lawyers face with the “virtuous listener” theory is what to do with those who act and speak in bad faith. Even with their own clients, lawyers may need to “trust, but verify.” 

If the true sign of genius is being able to hold two opposing truths in mind at the same time and still function (paraphrasing F. Scott Fitzgerald), then the lawyer-as-listener who reaches mastery is indeed a sort of genius. The lawyer uses all the technical tools of listening. More broadly, the lawyer achieves the virtues of empathy and connectedness—but only when appropriate. Sometimes, as communication consultant Jennie Grau pointed out in her recent interview here, the lawyer-as-listener just has to “listen to respond” (not to understand). The mastery lies in knowing the difference.

I was going to end on that note, but that’s not quite enough. Sometimes a situation that begins with hostility and distrust can be transformed into a real opportunity to resolve a dispute, such as in mediation. Listening has a key role to play here. It’s certainly not easy, and listening may seem at times like a zero-sum game with many players. For example, what if the client (who may not be an advanced listener) perceives the lawyer has somehow empathized too much with the mediator or “the enemy”? The difficulty of these situations is exactly why there’s a difference between the lawyer with competence and the one with mastery. When the conditions are right, the masterful listener can use the tools and virtues of listening not just to encounter and understand a situation, but to change it.

Clinical legal educationCollaborationEmotional intelligenceLeadershipLegal communication

What is listening? Q&A with Jennie Grau

One of the best things about writing this blog has been the opportunity to talk with and meet (in person, by phone, or by e-mail) a variety of communication experts. One of them is Jennie Grau, President of Grau Interpersonal Communications. Jennie has spent her career training, coaching, writing, and speaking, on the subject of listening. She is a Certified Listening Professional (CLP) of the International Listening Association. Although not an attorney, she is surrounded by attorneys in her family life. In her professional work, she has done a variety of trainings with lawyers and other legal professionals. Listen Like a Lawyer is grateful to Jennie Grau for responding to this Q&A.

What would you say are the classic concepts in listening?

Listening is thought of and explored from many perspectives. Musicians talk about listening in terms of entertainment, emotions, and aesthetics. Listening to music is a form of appreciative listening. While it may not seem pertinent to lawyers, there is a music of the voice which through tone, pace, pause, and quality communicates the emotional undercurrent of human interaction.

In legal contexts and in law school, listening is often thought of as a tool to support critical thinking and analysis. The focus is on critical listening, or reply style listening, to better advocate for a position.

Empathic listening, often associated with medical and therapeutic contexts, is equally important for dispute resolution. Empathic listening involves being able to understand and articulate another person’s perspective. If you can see the world through someone else’s eyes, you are better able to uncover viable solutions which result in more successful negotiations. In addition to dispute resolution, empathic listening is key to building rapport, loyalty, and trust, the foundations of good relationships with both clients and colleagues.

Mindfulness is another form of listening. It involves listening to oneself. Mindfulness can be thought of as the ability to still one’s own thoughts. It expands one’s awareness and ability to concentrate. The aggressive Type-A business personality may not intuitively embrace the idea of listening to self. The need to quiet the noise in our heads, to fully focus, to relinquish the speaker role, is essential for full understanding. Mindfulness is appreciated by the business community when it is recognized as a tool to accomplish their goals.

What package of listening skills do lawyers need?

Stephen R. Covey observed that “most people do not listen with the intent to understand; they listen with the intent to reply.” In fact, one of the skills of advocacy is “listening to reply.” Listening to reply is important because lawyers have to give advice, set an agenda, evaluate, and at times rebut.

But there is a complementary other half of that famous statement—the listening to understand. That second set of skills, inquiry, comprehending, supporting and uniting, is important because the courtroom is not the only legal context where listening happens. In these additional contexts understanding the other party is a powerful skill.

Think about who is encouraged to go to law school. If you are good at debate and rhetoric, people say, “You should be a lawyer!” But if you are a brilliant listener and can understand the human condition, no one says that. They say, “You should be a social worker or psychologist or go into business.”

Among this second set of skills, lawyers need the skill of inquiry. That’s different from interrogation. Inquiry sustains rapport during an interaction while uncovering new information. Lawyers also need skills that demonstrate comprehension such as paraphrasing what was said and sometimes what is not said overtly but implied such as the feelings, needs, and interests of the speaker.

Lawyers also need the skill of unifying parties’ discrepant interests. For example, in a gritty and messy divorce, lawyers benefit from the skill of keeping people at the table and working through the issues. In dealing with family conflict, the lawyer may need to listen through years of emotions and relationship issues. In listening to what lies below the objective statement, the lawyer can recognize possible solutions by understanding what is important to each party.

Why is it important to develop those deeper listening skills?

 Because there are so many benefits, for both tasks and relationships, when you listen deeply. Real listening means getting to a shared understanding between speaker and listener. Without that, we lose vast amounts of data that could help solve problems and resolve conflicts. Deep listening is worth the effort.

How do you know if you are good or bad at listening?

The short answer is you ask key people in your life for feedback: your colleagues, your family, and your friends. Our own perception of our listening skills is usually inaccurate. Ask questions like:

  • Do I focus on you and what you are saying when you want my attention?
  • Do I seem to understand what you mean rather than what I would mean if I had said the same thing?
  • Do I remember what you tell me?
  • Do you feel like I really listen to you?

Most people’s listening is unskilled. We rarely teach this in schools, and we are blind to the fact we are unskilled. Prior to my seminars, I ask people to rate how skillful they are as listeners. On average I get a rating of 80%. After the seminar I ask again. They laugh and tell me they did not know how much they did not know.

What is your advice for lawyers and other legal professionals?

Assume there is more than you are getting

When you are listening begin with the assumption that what you understand may not be accurate or complete. Create opportunities to explore a conversation more fully: “What did you mean?” “Tell me more.” “How does that work?” The beginning of listening is recognizing how likely you are to have misunderstood what the other person meant.

Appreciate the power of the pause

It may seem like a speaker is finished. They may use downward inflection in their speech and break eye contact but still have more to say. A listener can use the pause: count to ten and do a full inhale and exhale before going on or even asking a follow up. You will be surprised to discover how often more will come. This is particularly true when you are listening to someone speaking in a language other than their first language.

Try “the five why’s

This means asking “why” five times. This practice comes from the world of engineering. The theory is that the first time someone answers a question about “why,” their answer is probably superficial. Going beyond the first answer allows the speaker to find the root cause and gives them more time to connect ideas that they had not connected before. This technique is especially effective if you don’t use the word “why” which can cause people to feel defensive. Instead ask a “why question” saying “How come?” “What caused that?” or “What lead to that?”

What else?

Use this technique when you believe everything has been said and you are effectively done with the discussion. Questions such as “Is there anything else?” and “What else should we be talking about?” often elicit new information. It is shocking how often people will add new and often critical content at this time. There is a parallel in the medical field, “the door knob moment” when the doctor is about to leave the exam room and the patient shares new and important health information.

Build the listening container with your non-verbal presence

The way listeners use their face, eyes, body, posture, gesture and voice create a context for interaction. Your non-verbal presence can put people at ease or make them more guarded. People often enter a lawyer’s office with anxiety. They may not be happy to be there. They may be worried about the cost or the outcome. Many people are uncomfortable with conflict. It’s an unfamiliar setting and alien experience. In this context, listening is extremely important for building trust with new clients and ensuring existing clients follow your advice. It is a way for you to develop respect.

This Q&A has been condensed and edited for brevity.

Listen Like a Lawyer is currently working with Jennie Grau and several other lawyers/mediators/Certified Listening Professionals on a possible CLE session in Tucson, Arizona, in March 2016. More information will be forthcoming on the blog when details are more certain. 

Client developmentEmotional intelligenceFact investigationLegal communicationPeople skills

Speaking “business”

Listen Like a Lawyer is a fan of several lawyers who write and blog in ways that touch on listening skills, including but not limited to* Jeena Cho, Keith Lee, Lee Rosen, and Pam Woldow. Another highly, highly recommended blog resource on listening and lawyering is this six-part series from Mark Perlmutter on Trebuchet Legal.

And then there is Kenneth Grady, who writes at Seytlines (for Seyfarth Shaw) and often on Medium. His Medium post today, 5 Reasons to Become a Doctor Dolittle of Lawyer-Client Communications, should be read by any lawyer who interacts with business clients in any way.

Let me repeat that: if you are a lawyer and you ever deal with any client that runs a business, works for a business, or has a background or connection remotely related to business, read this post.

Years ago when I was a summer associate in my first week at a firm, my partner mentor shared the same advice he gave to all new and aspiring attorneys at the time: take more business classes. Now almost 20 years later, Ken’s post updates and magnifies this sentiment, pointing out that the gulf between attorneys and business clients has widened into an even broader gap. And it’s not something one class (or CLE, or blog post) can fix. It’s a cultural chasm, and those who bridge it will succeed.

One thing I really like about Ken’s post is how it presents real-world situations for lawyers to understand the more abstract yet crucial lessons of Daniel Kahneman’s Thinking, Fast and Slow. (This book popularized the finding that Israeli parole judges made different decisions depending on whether they were about to eat lunch, or had just eaten lunch.) Are lawyers guilty of retreating to their legal comfort zone? Do lawyers give easy answers to the wrong questions? Trying to understand a client’s real business issue, explore options, and perhaps create new options is certainly more difficult than quickly selecting and suggesting a commonplace legal approach.

(Thoughts on Thinking, Fast and Slow in the context of listening can be found on this blog here and here and here. Keith Lee also shared advice on getting to know your business client in his book for new attorneys, The Marble and Sculptor, reviewed on the blog here.)

Ken’s post touches on listening in a number of ways both abstract and specific. It exhorts lawyers to learn to “speak business” so they can truly understand their clients and help solve their problems. Of course that does not mean adopting the business buzz words that generate so much mocking. (For a more serious and historical insight into business jargon, see this article from The Atlantic.) Speaking business means tearing down—and not incrementally rebuilding—the “artificial ‘law versus business’ wall.”

One of the post’s anecdotes sums up the techniques and benefits of listening in a way that applies to all client conversations, whether corporate or individual. Its message of listening and problem-solving is a fitting close to this post:

One manager approached me with a request that our company immediately bring a lawsuit against a business partner for breaching a contract. Rather than discussing the lawsuit, we talked about the contract and the relationship. After a long conversation, the client opened up and explained that he had misread the contract years ago and had been overpaying the other party to the contract. The business person on the other side came into the relationship after the contract had been signed and just accepted the payments without checking the contract. After investigating a bit further, I called the general counsel of the other party and we were able to work out a solution fairly quickly.

  • This short list was not meant to be exhaustive; please share suggestions on other bloggers who consistently touch on communication issues for lawyers.
Emotional intelligenceLegal communicationPeople skillsWriting

Speed of speech < speed of thought

You could certainly accuse this blog of idealism about listening. In contrast to e-mail, for example, just go and talk to the person. Through listening to their words and observing their body language, you can pick up so much more subtle and complete information: How do they feel about the subject? What are their expectations and how can you adjust your own work in light of those expectations? How important is this to them, anyway?

A post on Medium last week— “What If We Listened as Well as We Read” —challenges that rosy picture. (Thanks to Ken Grady of Seytlines for bringing it to my attention.)

The downside of all that additional information you get from listening is . . . all that additional information you get from listening:

Before they can even open their mouth, we’ve already made up so many theories about who they are and what they’re going to deliver. And before they can even finish their sentence, we’ve already assumed how it will end, and chosen what we will say in response.

I have previously written about some of the cognitive biases that may arise in particular when listening is involved. See Listen Like a Lawyer blog posts here and here and here covering cognitive biases such as the well-known confirmation bias.

Although the Medium post by Rita Hedley does not delve into cognitive biases explicitly, she does point out one major reason listening is so vulnerable to bias. The reason distracting “theories” and assumptions arise, Hedley points out, is the difference in how fast we think and how fast other people can talk:

As humans, we process 125–250 words per minute as they are being communicated to us. But when we think, we form thoughts at 1000–3000 words per minute. So if we’re too busy thinking when someone is talking, chances are we’ve formulated a novel’s worth of ideas about the speaker before they can begin to validate any of it.

 

The differential between the speed of speech and the speed of thought (what we have the capacity to process) at the heart of many complaints about listening. It is the root cause of distraction. (You may have thought the iPhone is the root cause, but the iPhone is merely a vehicle for using the speech/thought differential in more self-gratifying ways than ever before possible.)

To use Daniel Kahneman’s framework, the great difference between the speed of thought and speed of speech is a space where “System 1” can roam. System 1 is the automatic, always-on system and also the one with all the cognitive biases (in lay terms, mental shortcuts). The more thoughtful “System 2” is where you find the careful “thinking slow” of his great book’s title,Thinking, Fast and Slow.

 

Whatever the task, the most effective communicators are able to use the speech/thought differential without detracting from how others perceive their listening. They achieve attentive listening while using their excess thought capacity to do the background work of lawyering. For experienced lawyers drawing on their wealth of expertise, a lawyer is not as likely to be swayed by the distractions Hedley is concerned about. A lawyer with experience in a certain practice area will pay more attention to facts than to how a client presents. And a lawyer who has been burned by incomplete information shared by clients will be slightly more careful even with a client who presents as credibly as George Washington (“I cannot tell a lie.”)

In the Medium post, Hedley suggests that online reading is a less complicated and more positive experience than listening. Part of this comes from the lack of information that would otherwise be supplied by face-to-face listening: Readers don’t have a lot of background information about the writer. They encounter the text in their own voice—the voice in their mind. They curiously anticipate where the text will go.

The suggestion of hearing the text in your mind’s own voice alludes to the idea that reading and thought proceed at the same pace. (Or at least far closer in pace than the ponderously slow rate of speech compared to the speed of thought.) Because there is no differential or less of a differential, perhaps System 1 has less room to work filling in gaps with cognitive biases.

I’m not sure it’s a fair comparison, looking at face-to-face conversation against light internet reading. Obviously conversations are complicated, inspiring numerous posts such as How to Politely Leave a Conversation. Light internet reading makes no similar claim on the person. All you have to do to leave the experience is click away. That act is a tiny data blip in a system of analytics, meaningful only when aggregated with other data and insignificant as an individual decision.

Not so with conversation. It makes a claim on the person; you are involved even if you may not want to be. Part of that claim is to try to see past the possible distortions your mind may be generating. Another part is to manage the speech-thought differential effectively. System 2’s willpower may be necessary for both tasks.

Emotional intelligenceLeadershipPeople skills

Being “judgeable” is a good thing, mostly

Listen Like a Lawyer previously reviewed Heidi Grant Halvorson’s No One Understands You and What to Do About It. The review (and much of the book) focused on understanding how you are perceived, to have a more accurate effect on others. Accurate in this sense means you are perceived the way you intend to be perceived. It’s a pragmatic concern about how to interact with the world so as to be effective. The portions of the book about trust, power, and ego should be highly relevant to any lawyer working in a group.

What I didn’t talk about enough in the original review, and want to talk about now, is a deeper and more personal aspect of the book: the concept of being “judgeable.” Different people are stronger and weaker at being judgeable. What it means is expressing yourself so that others can perceive you more accurately:

It is definitely better to be judgeable—to have others read you easily and accurately. Research consistently shows that people who are more judgeable are psychologically better adjusted—they are happier; are more satisfied with their personal and professional lives; have more lasting, positive relationships; and have a greater sense of purpose. They feel able to live more authentically and are more confident in their self-knowledge. This makes a lot of sense.  . . . Life is simply easier and more rewarding when people “get you” and provide you with the opportunities and support that are a good fit for you.

Halvorson mentions a connection between being judgeable and living authentically. Within the context of a book all about thinking about how others perceive you, I found that a bit counter-intuitive at first. Before reading No One Understands You, I might have naively described authenticity like this: Proclaim you are living authentically and then stop caring about what other people think; you’re now living authentically and people need to accept you as you are. If they don’t understand you the way you like to express yourself, that’s their problem. You shouldn’t do anything about it because to do so would be compromising your authenticity.

(It should be obvious I hadn’t read very much on authenticity up to this point.) 

In fact, the book implies that living authentically means caring more about what other people think. Thinking about how trust, power, and ego may affect the way others are interacting allows a person to adjust to those distortions. By understanding the perception of others and trying to shape their perception toward what is really intended, a person can become more judgeable. This in turn helps them find the right social and professional fit for their skills and personality, which bears an obvious connection to living and working authentically.

In the professional world, we all know there are times when professionals—including but not limited to lawyers—need to make themselves less judgeable. Masking one’s motives in a negotiation, for example, could be an important skill. Projecting confidence when you are feeling dread seems like a good tool for any trial lawyer.

But negotiating and trying cases call for different skills than effectively managing a team. No One Understands You  is a business book, and Halvorson’s main audience is business leaders. For leaders, coming across to others as they intend helps with both communication and motivation. Thus lawyers interested in leadership and retention would do well to check out No One Understands You. 

So would lawyers who are interested in authenticity on a more individual basis. I had never heard the word “Judgeable” used in this context, and to be honest, the spelling with that “e” in the middle of “judgeable” still makes me cringe a little bit. (Too many years of highlighting “summary judgement” in commenting on legal writing.)

The concept of being judgeable, however, makes a lot of sense, both personally and professionally.