Category: Fact investigation

Clinical legal educationFact investigationLaw schoolLegal education

Law-school learning outcomes for communication

It’s that time of year when elementary and secondary students’ standardized test scores arrive in the mail. The scores should, ideally, correlate to the school’s stated learning outcomes. Elementary and secondary schools are veterans of the push for learning outcomes, and law schools are now required to determine their learning outcomes as well.

Specifically, the ABA requires law schools to develop and publish learning outcomes in a number of areas including written and oral communication:

A law school shall establish learning outcomes that shall, at a minimum, include competency in the following:

(a) Knowledge and understanding of substantive and procedural law;

(b) Legal analysis and reasoning, legal research, problem-solving, and written and oral communication in the legal context;

(c) Exercise of proper professional and ethical responsibilities to clients and the legal system; and

(d) Other professional skills needed for competent and ethical participation as a member of the legal profession.

Interpretation 302-1 For the purposes of Standard 302(d), other professional skills are determined by the law school and may include skills such as interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency, and self-evaluation.

Interpretation 302-2 A law school may also identify any additional learning outcomes pertinent to its program of legal education.

Thus, outcomes related to “written and oral communication” are mandatory. The law school must also set outcomes for “other professional skills needed for competent and ethical participation as a member of the legal profession.” But determining those other necessary skills stands within the law school’s discretion.

Posted learning outcomes on law school websites show a wide variation, reflecting different preferences in how general or specific outcomes should be. On the streamlined end, the University of Chicago Law School’s Learning Outcomes would fit on half a sheet of paper:

The Law School’s program of instruction is designed to train superb lawyers who will be leaders in all parts of the profession.  To that end, the Law School expects that all students by the time of graduation, will:

  1. Be familiar with the general approaches to the study of law and legal reasoning;
  2. Demonstrate the ability to identify and understand key concepts in substantive law, legal theory, and procedure;
  3. Have the ability to write a competent legal analysis;
  4. Demonstrate the ability to conduct legal research;
  5. Demonstrate communication skills, including oral advocacy;
  6. Demonstrate familiarity with the rules of professional ethics;
  7. Demonstrate professionalism consistent with the legal profession’s values and standards.

Does U. Chicago expect students to be able to listen effectively in a legal context? Item 7 lists oral advocacy—and only oral advocacy—as a specific example of expected communication skills. But standard statutory construction tells us that “including x” does not mean “meaning only x.” Other skills such as listening aren’t excluded, but also aren’t mentioned. U. Chicago’s learning outcomes suggest that oral advocacy holds a special although not exclusive place of honor among communication skills.

On the more specific end of the spectrum, Washburn Law School’s JD outcomes have categories with related goals. The communication category includes not just reading, writing, and speaking, but also listening:

3. Graduates will communicate effectively.

3.1 Students will write in a clear, concise, well-organized, professional manner that is appropriate to the audience and the circumstances.

3.2 Students will speak in a clear, concise, well-organized, professional manner that is appropriate to the audience and the circumstances.

3.3 Students will demonstrate active listening in communications with others, including legal professionals and laypersons.

Washburn Law also mentions fact investigation and interviewing as core legal practice skills:

4. Graduates will demonstrate competency in legal practice skills.

4.1. Students will demonstrate the ability to conduct legal research.

4.2. Students will demonstrate the ability to conduct a factual investigation.

4.3. Students will demonstrate the ability to interview and counsel a client.

4.4. Students will demonstrate the ability to negotiate and advocate on behalf of a client in appropriate circumstances.

4.5. Students will demonstrate the ability to draft documents used in legal practice.

Even more specifically, NYU Law School has published a detailed scheme of goals for its curriculum, including eight separate goals for its 1L lawyering class alone. Among those goals is interviewing, with several specific references to listening:

3. Interviewing

Effective interviewing of a client or fact witness or other individual requires familiarity with the following skills, concepts and processes:

(a)     Communication skills and processes:

(i)     Listening, and impediments to listening;

(ii)    Questioning:

(A)     Choices and effects of question formulation (open and closed questions, leading and non-leading questions, consecutive and non-consecutive questions, etc.);

(B)      Choices and effects of question sequence;

(C)      Effects of formulation, sequence, and the context of the interview on shaping (consciously or inadvertently) the narrative and the opportunity for the client or witness to tell her or his own story.

(D)     “Active listening” and similar techniques;

(E)     Precision in questioning and answering:

(I)     awareness of imprecision, ambiguity, omission, in one’s own communications and others’;

(II)    techniques for systematic control of levels of precision;

(iii)     Analysis of the possible dimensions of description and inquiry;

(iv)    The psychology of perception, memory, conceptualization, and articulation;

(v)     Analysis of the factors that may affect interpersonal dynamics, including those that may arise in cross-cultural and multilingual communications;

(vi)     Non-verbal communications.

The ABA requires law schools to post these learning outcomes. But in terms of reporting student progress on the outcomes, a detailed quantitative individual report like what elementary and secondary students receive for standardized tests seems unlikely to be required or volunteered by law schools.

The closest I’ve heard to such an option is more student-driven: individualized skills trackers for student use, in particular Nebraska Law’s Build Your Character app. The app is based on the Shultz and Zedeck factors for successful lawyering in eight categories: intellectual and cognitive; research and information gathering; communications; planning and organizing; client and business relations; working with others; and identity. Among other features, it helps students choose classes that match up to skills they want to develop and build an online portfolio for employers.

I’m genuinely curious about additional ways law schools are reporting to students (or the ABA) the students’ individual or collective progress on stated learning outcomes. Please share in the comments or on social media.

 

 

 

 

Clinical legal educationCollaborationFact investigationLaw practiceLaw school

The hothouse of law school

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

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

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

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

SAMSUNG CAMERA PICTURES

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

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

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

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

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

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

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

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

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

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

This is bad training for listening in law practice.

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

This is a hothouse, big time.

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

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

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

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

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

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

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

…….

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

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

 

AdvocacyClinical legal educationFact investigationLaw schoolLegal education

Future trial lawyers, take heart

Listen Like a Lawyer will be delving into communication and writing in the next few posts. One reason this blog is generally dedicated to listening is that there are already many excellent legal-writing blogs available for the legal community. (For example: Forma Legalis, Lady Legal Writer, Law Prose, Legible,  and Ziff Blog, just to cite a few.) The writing-related posts here will connect to broad communication themes such as voice, empathy, and the relationship between senior and junior lawyers emerging from a lot of writing and talking as well as reading and listening.

Law professor Philip N. Meyer once did an unusual thing: he spent thirteen weeks observing a federal jury trial on a daily basis. Day after day throughout an entire summer, Meyer sat as a watcher and listener, taking in the spectacle of the trial and everything it entailed—from the painful moments to the surprisingly lighthearted. Leaving court late at night, he spied the lead defense lawyer sitting alone in a car in a remote parking lot with the windows rolled up, practicing his closing argument. This experience is just one of many inspirations for his book Storytelling for Lawyers (Oxford 2014).

Storytelling for Lawyers has neither a chapter on listening nor an index entry on listening. The book is about talking and writing—in other words, producing—narratives, much more than listening as such.  But Meyer mentions listening on page 2, talking about his work as a trial lawyer:

I learned to watch and listen to how my audience listened to me, and I would respond to their concerns, reshaping my stories to fit the shape of their imagining.

The book is about crafting stories that will resonate with audiences, whether at trial or in motions practice. So I recommend it.

But now let me get to the point of this post and why I titled it “Future trial lawyers, take heart.” Meyer teaches a variety of classes including doctrinal classes in criminal law and torts. In his chapter on voice and style, he begins with a reflection on what it’s like to grade law-school examinations:

As I grade these examinations, as best I can articulate it, the singular difference between the mediocre examination answers (C and below) and the middling to good examination answers (B-range grade) is primarily in the “substance”—whether students can identify the relevant issues and accurately articulate the relevant legal rules necessary to analyze the problem.

The distinction between the B exams and the A exams is, however, primarily in the “voice” and “style” of presentation. Voice and style, however, mean something much different in the context of law school examination taking than in the artful trial and appellate narratives that litigation attorneys construct in a factually far more complex and indeterminate world. (This, I think, speaks to why excellent litigation attorneys were often poor law school test takers.)

Meyer goes on to explain that the voice and style of top law school examinations “clamp[] down” on the facts, use clean organization, and employ the King’s English.  The student’s voice must be neutral and must not call attention to itself. “A” exams certainly don’t use colloquialism or humor. And they don’t explore the story embedded within the exam hypothetical in any depth. Meyer quotes a former student describing the events in an exam as “floating factoids.”

This is just one professor’s reflection on his experience grading exams, and he prefaces all of this by saying he grades holistically rather than with a detailed objective checklist. Still, it’s refreshingly transparent and I think every law student should read this—especially those just receiving their first round of law-school grades.

Law students who want to get into the courtroom and try cases may be disappointed that the skills distinguishing great trial lawyers maybe aren’t really tested in this (very popular and prevalent) type of law-school exam. That disconnect is the subject of discussion, critique, and reform, and more discussion, critique, and reform. The positive side here is that Meyer’s reflection invites law students to understand their grades as only loosely related (if there is much of any relationship) to how they might expect to perform in court.

Meyer’s reflection on the emasculated role of facts in many law school exams reminded me of an attorney’s recent #PracticeTuesday tweet. Bryan Gividen was responding to a call to bust law students’ myths of what it means to be a lawyer:

 

Working with the facts, crafting the story, developing a voice, testing whether the voice and the story resonate with an audience, all of these tasks are deeply connected with what it means to be a trial lawyer. The best appellate lawyers experiment with all of these things as well, but there are limits: the idea of “clamping down on the facts” by rigorously adhering to the record, and controlling one’s voice for the genre of the appellate brief and the audience of the appellate panel. Gividen draws this line when he identifies competitive appellate work as an exception to “practicing the facts.”

Any law student or lawyer who wants to develop their skills practicing the facts should benefit from studying Storytelling for Lawyers. Meyers concludes the book with a reflection on why law stories are different from stories told by journalists, filmmakers, and artists:

A final characteristic of law stories, especially the stories told in litigation practice, is that these stories are typically open or unfinished stories—their endings are strongly implied but not ordered or prescribed. It is up to a decision maker to write the ending, provide the closure and the coda that gives the story its meaning, and determine the outcome.

Legal storytelling has a rich literature, and anyone intrigued by this brief exploration of Meyer’s book would enjoy delving into the legal storytelling/applied legal storytelling scholarship. One gem is  Ruth Anne Robbins’ Harry Potter, Ruby Slippers, and Merlin: Telling the Client’s Story Using the Characters and Paradigm of the Archetypal Hero’s Journey, 29 Seattle L. Rev. 767 (2006). She argues that the client should not look to the judge as the hero and savior; the client should show how they are traversing a series of challenges and need the judge’s help in a mentoring role. The client is the real hero, a flawed hero but a hero nonetheless, seeking to carry on with their larger, bigger, more meaningful challenge. So the judge is not supposed to save the client; the client can save themself if they can just get through this lawsuit and carry on with their larger quest. Thus the opposing party is not the true antagonist but merely a “threshold guardian” impeding the client’s real quest.

Law students can take heart in this advice as well, in understanding their own personal story and quest. Law-school exams are basically a “threshold guardian.” They are a gatekeeping challenge the law student must face in the larger quest for something more meaningful.

 

 

 

Client developmentFact investigationLaw schoolLegal technologyPeople skills

Is attention personal or professional?

A law professor’s New York Times op-ed, “Leave Your Laptops at the Door to My Classroom,” prompted lots of discussion on blogs and Twitter. Should law students be told and required to close their screens and (to the extent this is even possible) pay attention in class?  Or should they have the freedom to decide whether to engage in behavior that may (or may not) hurt their learning, disrespect classmates, and create a distraction?

I think a hard question here is this:

Is attention personal or professional?

 

 

If attention is personal, then the student should have the freedom to decide whether and how to use a laptop. It’s the culture of American education to wax nostalgic about daydreaming, note-writing, talking to one’s neighbor.  The teacher takes countermeasures, seizing notes and flashing the light switch on and off. But there’s something heroic about the student’s personal quest for autonomy and freedom to think and stage whisper about . . . whatever. And even more so in law school, which is a professional school for grownups who (opponents to Rosenblum’s position argue) should be able to make the decision when and how to pay attention, and when and how to take notes.

If attention is professional, then law professors have a better argument on laptops. What is a law school? I googled this question and came up with a law review conveniently titled the same, by Prof. Stephen Wizner of Yale. Granted it’s from 1989, but this still seems like a decent answer for today:

What is a law school? That is a question that ought to have a fairly straightforward answer: a law school is a professional school for the education and training of lawyers. If we know what lawyers do – or ought to do – we should be able to design a curriculum that will prepare law students to carry out that professional role in a competent, ethical, socially responsible manner.

Paying attention is part of being competent and ethical. And, I would argue, seeming to pay attention is also part of being competent—or at least part of being able to attract and retain jobs and clients. Judicial ethics rules officially sanction “the appearance of impropriety.” On a far more unofficial level and a far more pervasive scale, potential employers and clients sanction “the appearance of inattention.” They don’t give jobs to candidates who don’t seem to be listening and paying attention in an interview. They don’t return more work to an associate who doesn’t seem to be listening and paying attention when meeting with a partner. And they don’t give their legal business to lawyers and law firms who don’t seem to be listening and paying attention in a “dog and pony” show to demonstrate their desire and ability to take on a new case.

This connection of the law school classroom to what lawyers actually do is part of Professor Rosenblum’s argument for banning laptops:

Students need two skills to succeed as lawyers and as professionals: listening and communicating. We must listen with care, which requires patience, focus, eye contact and managing moments of ennui productively — perhaps by double-checking one’s notes instead of a friend’s latest Instagram. Multitasking and the mediation of screens kill empathy.

Likewise, we must communicate — in writing or in speech — with clarity and precision. The student who speaks in class learns to convey his or her points effectively because everyone else is listening. Classmates will respond with their accord or dissent. Lawyers can acquire hallmark precision only through repeated exercises of concentration. It does happen on occasion that a client loses millions of dollars over a misplaced comma or period.

The importance of these skills leads him to the following conclusion:

My students need to learn how to be lawyers and professionals. To succeed they must internalize an ethos of caution, care and respect. To instill these values and skills in my students, I have no choice but to limit laptop use in the classroom.

The reaction of the legal and broader education communities varied quite a bit, from cheers to jeers. Personally I haven’t banned laptops. I like being able to ask people to quickly look something up as part of their interaction with my writing class, and I share materials on my course site that students can download and take notes on. This is a writing class—not a pretrial lit class with interviewing skills—so listening and paying attention are an implied but not explicit part of the class goals. If I were teaching an interviewing class, listening and paying attention and not looking at a screen would be very open and transparent parts of the evaluation and grade. But I’m not, and neither is Prof. Rosenblum as best I can understand. (He mentions a stilted, unproductive discussion in his class on sexuality and the law as the catalyst for his decision to ban laptops.)

So one way to ask the question is, how much does a professor assume the responsibility of teaching and valuing soft skills relevant to students’ professional success? This is both a question of traditional professorial autonomy and preference (how much does each professor actually want to do so) and of institutional decisions (should soft skills be pervasively taught and modeled; or cabined within certain dedicated classes and domains)? For example, a career services adviser should certainly be giving a student feedback on focus and perceived attention level during a mock interview. And any student who gets distracted by a smartphone in the midst of interviewing a simulated client—or heaven forbid, a real client—should be given a bad grade.

It’s perhaps ironic for a listening blogger that my decision arguably diminishes the value of listening in my own classroom. I don’t think—I know—that paying attention and listening will help students get jobs, get better assignments, and get clients. And paying attention and listening will help them do their jobs, exceed expectations on individual assignments, and lead clients to want to give them more work. I guess I want them to have the freedom to take notes and encounter the world of information necessary for my class using their laptops—while also developing the mental agility and personal willpower to appropriately switch back and forth from computer use to personal listening. Those who can do this are more likely to thrive professionally, and those who cannot are more likely to . . . not thrive.

So there is no clean answer and thus no single approach. Attention is both personal and professional. How law professors teach and train new lawyers will continue to hover delicately over that line.

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 relationshipsFact investigationLegal communicationLegal skillsPeople skills

More on flow and listening

Feeling “flow” means being fully immersed in a challenging task, with a sense of energy and enjoyment. Lawyers might find flow when they have enough skilled experience to know what they’re doing and encounter a new challenge using their skills, as previously mentioned in this post. The founder of flow theory, Mihaly Csikszentmihalyi, created a visual model of flow:

Screen Shot 2016-06-14 at 5.20.20 PM

Credit: Wikipedia (citing Csikszentmihaly, Finding Flow (1997))

As you can see the states inferior to “flow” reflect a mismatch between skill and challenge:

  • Apathy
  • Boredom
  • Worry
  • Anxiety

States with a closer match can be found closer to the upper-right:

  • Control (but the skill slightly outweighs the challenge)
  • Arousal (but the challenge slightly outweighs the skill)

In the far upper right area, where a high skill level meets a high challenge level, you find flow.

The model below is a variation on Csikszentmihalyi’s general model, tailored for lawyers and legal professionals. The examples here all focus on listening.

image

Please use the comments or social media to suggest other examples and share thoughts on lawyers and flow. What types of listening experiences prompt apathy or boredom? What types of experiences prompt worry or anxiety?  And what experiences may lead to flow?

CollaborationFact investigationLegal communicationLegal writingPeople skills

Listening for summer associates

A successful summer-associate experience means doing good work and creating good social impressions. Listening skills can help with both.

The assignment and the work

The most obvious place to talk about listening and work product is in the incredibly important meeting where the senior lawyer communicates the assignment.Here’s a checklist for listening while taking an assignment. One theory of checklists is that they shouldn’t include the obvious things everybody already knows and does. If you read Atul Gawande’s Checklist Manifesto, you will learn that effective checklists should not be overloaded with obvious items no one actually forgets to do. But in case it’s not obvious, let me quote one to-do item (thrice repeated) in The Vault’s advice piece on “Acing Your Law Firm Summer”:

Bring a pad and pen to this meeting. Bring a pad and pen to this meeting. Bring a pad and pen to this meeting. 

The advanced skill is to take notes while still asking good questions and maintaining a conversational tone. And an even more advanced skill is perceiving what isn’t there. Legal writing guru Ross Guberman has suggested that “in this iPhone age, supervisors often forget to relay key information.” Reviewing a checklist before the meeting can help prompt good questions during the meeting to bring out valuable information.

Confirming the assignment in writing after the meeting can prompt the attorney to share further crucial information: “Attorneys are text people, so seeing your write-up might help your supervisor steer you onto the right track before it’s too late.” And this type of confirmation can showcase listening and writing skills as well. But I’ve also heard attorneys express annoyance at receiving e-mail back confirmations of every assignment-related conversation. The more formal and significant the assignment, the more appropriate it is to confirm the facts and assignment in writing.

Listening can play a broader role even before the assigning conference.  It has to do with picking up underlying knowledge and context for doing the job well. The most effective legal work product is effective partly because it is grounded in the lawyer’s understanding of that area of law and how it works in practice. Lawyers with experience in a particular practice area are more effective than beginners at what they do partly because they have “tacit” knowledge—that is, knowledge that is not written down and is difficult to share.

The ABA’s Before the Bar publication highlighted the role of tacit knowledge and why it’s so important to aspiring lawyers:

Your goal should be to gain tacit knowledge in order to build your practical skill set. To do this, attorneys need to transfer their tacit knowledge to you and the most effective way to do this is through extensive personal contact, regular interaction and trust. In other words, tacit knowledge is transferred through practice.

Summer associates cannot be expected to have the tacit knowledge that veteran lawyers in a practice area do. But summer associates who show they can pick up tacit knowledge quickly and apply it in their work are likely to stand out. For example a patent lawyer needs different ways of communicating with engineering clients and generalist judges. That’s maybe not a great example of tacit knowledge because it’s not so difficult to share.

Perhaps a better example is what it’s like to work with clients who don’t necessarily feel a great deal of affection and affinity for the law or lawyers in general. To take this social example a bit further, what is it like to work with clients who have a strong in-group identity? Let’s take doctors or more specifically surgeons, for example. Clients with a strong in-group identity may or not be willing to trust lawyers hovering at the edges of the in-group, and the most effective lawyers are highly perceptive about how to work with such clients. (Highly successful sports and entertainment lawyers come to mind here as well.)

Tacit knowledge about how a lawyer and a law firm go about working with such clients can help not just in a general social sense but with performing the substance of the work. The way a lawyer would communicate with such clients is very different from communicating with a legal writing professor or a senior lawyer. The substance of how to be successful in these settings goes beyond broad statements like “think of your audience” and easily transferable points like “don’t use legal jargon with non-lawyers.” In the ABA article, author Max Rosenthal went on to assert that all practical legal skills are rooted in tacit knowledge—not only writing and communication, but analysis itself.

Listening can help a summer associate begin to access some of this tacit knowledge. Through “shadow” programs and being invited along on a deposition or other legal event, summer associates can  just watch, listen, and learn. As with good law-school externships, these opportunities may be some of the most inclusive and rare opportunities to listen and learn, relatively free as they are of the pressure to bill time.

Tacit knowledge is, by definition, difficult to access directly. But conversations with lawyers in a practice area may be a start. Good conversations before any particular assignment can yield information about how lawyers do their job well in a particular practice area with particular types of clients. Show curiosity. Ask them about their experiences, successes, and challenges in that practice. What do they wish they had known when they started? Listen carefully to their words, and watch their nonverbal communication as they share their experiences. What are they telling with their nonverbal communication, as well as showing with their words? All of this information is valuable toward understanding this person and this person’s experience in this area of law. For good listeners who are curious, every piece of information they collect helps them do their work more effectively.

Social skills

Summer associates need to show that not only can they do the work, but they are also a “good fit” at the firm internally and can be trusted to interact with clients. These concerns mean summer associates should work on all kinds of social skills such as dressing appropriately and monitoring alcohol intake.

Listening helps across the entire spectrum of social skills. Here are just a few examples:

  • Showing curiosity by asking good questions and responding appropriately to the answers to continue the conversation
  • Knowing when to sit back and observe, such as when a senior lawyer is interacting with the client and the summer associate has the good fortune to be there
  • Maintaining focus on the situation even when not playing a direct role
  • Being able to converse informally (such as at a happy hour) by starting a conversation, bringing other people into the conversation, and leaving a conversation
  • Demonstrating recollection of earlier details and bringing them into later conversations appropriately

Evaluating listening

There don’t seem to be any published summer associate evaluation forms, but it is a certainty that they include criteria for effective communication skills. Communication involves four distinct channels: reading, writing, speaking, and listening. Listening may not be mentioned explicitly to the same extent as effective oral and written communication, but it is part of effective communication.

Listening can be subtle and hard to measure. It’s so difficult to say  whether another person is a good listener or a great listener. But when it comes to human perception and evaluation of others, “bad is stronger than good.” That means a hiring committee’s evaluation discussions may focus on problems or concerns, rather than subtle gradations of what went well. Some aspects of poor listening may be hidden—for example, not catching the subtleties of an assignment and therefore writing an acceptable memo that misses an opportunity to add value. (More on adding value below.) But some bad listening is very easy to spot. Looking at one’s smartphone while in the presence of a Very Important Person would be one example of what not to do.

Adding value and building professional identity

Listening can help a summer associate achieve the most nebulous and most important goal of all—“adding value” to the legal work of the firm. It’s a buzzword and maybe even a cliche, but there are ways for summer associates to add value by listening. Observing a deposition could provide an opportunity to watch the witness’s body language and suggest a follow-up question after a break. Shadowing a corporate lawyer could open up conversations about different ways to handle a type of transaction depending on the client’s goals. Asking questions that demonstrate understanding and curiosity about the profession suggests a greater long-term potential for adding value.

And listening can also help the summer associate directly with an more individual goal (one that is also nebulous but also important): building that summer associate’s own professional identity as a lawyer. One definition of professional identity is “the way a lawyer understands his or her role relative to all of the stakeholders in the legal system, including clients, courts, opposing parties and counsel, the firm, and even the legal system itself (or society as a whole).” (This is from Scott Fruehwald’s book Developing Your Professional Identity: Creating Your Inner Lawyer, quoting an article by Martin Katz on teaching professional identity in law schools.)

Certainly law school is a place where professional identity starts to form; taking those skills out into the almost-real-world of being a summer associate should be an even more meaningful opportunity to do so. However the summer turns out, it will have been some kind of step on the way towards a more fully formed professional identity.

This post was updated from its original form to include the ABA article recommending practical experience as the method for law students to acquire tacit knowledge.

For more reading on listening and summer associates: Listening as a hard skill and a soft skill

For more on checklists and legal writing: The Legal Writer’s Checklist Manifesto

CollaborationFact investigationGenderTrial advocacyUncategorized

You should watch The People v. O.J. Simpson

To echo what many have said, I now know what I’ll be doing for the next ten Tuesday nights. The People v. O.J. Simpson: An American Crime Story (FX Networks) is as incredible as everyone is saying. For viewers who lived through the spectacle, it brings back memories (“Where was I the night of the white-Bronco chase?”) and forces connections (an even closer look at the Kardashian family, which didn’t seem possible). More broadly and as the New York Times has pointed out, the opening scenes of the Rodney King beating and subsequent riots (mediated through TV news) set the stage not just for the investigation and “Trial of the [20th] Century” but for connections to police brutality and the Black Lives Matter movement today.

The People v. O.J. Simpson is also a story about lawyers and lawyering, with a deeper view than anyone got in real-time, drawing from Jeffrey Toobin’s book The Run of His Life: The People v. O.J. Simpson (interview with Toobin here).

There’s the distracted Marcia Clark cradling a landline and feeding cereal to her cute but ungrateful kids while she learns about the murders. (Actor Sarah Paulson told the Wall Street Journal: “I didn’t understand what I do now—that it was a great failure of women everywhere to not have come out rallying behind her in what was a real assault on her by the media.”) There’s Robert Shapiro holding court about his greatness in a posh restaurant when he’s interrupted to take O.J.’s call. There’s Robert Kardashian patting his friend O.J.’s shoulder, his eyes widening perhaps just a bit when Shapiro suggests that he reactivate his law license and join O.J.’s defense team. There’s Christopher Darden in an unguarded moment with Johnnie Cochran before either of them knows what is about to hit.

During the first episode, I tried to watch with an eye toward blogging something about listening. The most obvious scene was Shapiro’s show of meeting alone with O.J. to ask him if he did it. O.J. looks him back in the eye and says, “No. I loved my wife.” The police demonstrated some really poor listening and questioning skills in their early taped interview with him, sending Marcia Clark into paroxysm and foreshadowing trouble for the prosecution. (Later listening to the tape, an officer notes how hard it is to question a famous guy like The Juice.) Yet there’s the initially positive and collaborative environment within the prosecutors’ legal team, fueled by confidence at the story they perceived to be coming together.

By the end of the episode, however, I turned off the analytical brain and just watched. Even now, it was too much. How did this all happen? I couldn’t parse it objectively from a distance. And I guess that’s the problem and one of the show’s essential points.

AdvocacyFact investigationLegal skillsLegal writingLitigation

Do you know it when you hear it?

 

When taking a deposition, can you immediately recognize the testimony you want to quote in a later dispositive motion? Do the words jump out at you like a “nugget” in a “treasure hunt”?

Legal writing and nonfiction writing have a lot in common, as a recent New Yorker article by John McPhee suggested. I studied his work in journalism school and continue to follow it more as a hobby than anything strictly related to lawyering. But McPhee’s article on selecting material is very much relevant to what lawyers do in taking depositions and conducting witness examinations to generate powerful, memorable words later used in writing such as motions and briefs.

The article is Omission: Choosing What to Leave Out (September 14, 2015). This post explores his essay and draws some points of contrast with legal writing, before arriving at the real connection to listening, which is the art of the quotation. McPhee is partly a luxury for the novelists disguised as lawyers among us, but here’s the pragmatic sell:

Lawyers who can elicit, recognize, remember, and effectively frame quotations in writing have an advantage in their writing and advocacy just as creative nonfiction writers do. In other words, being an effective listener leads to more persuasive writing and lawyering.

McPhee’s broad point in Omission was to explore the experience and process of cutting his own work and having it cut. From the beginning to the end, “[w]riting is selection”:

Just to start a piece of writing you have to choose one word and only one from more than a million in the language. Now keep going. What is your next word? Your next sentence, paragraph, section, chapter?

And then when the draft is complete, it may need to be cut in order to fit on a magazine page, or just because readers may not persevere through 40,000 words about a topic such as oranges. It’s not surprising that he wrote 40,000 words on oranges because, according to McPhee, the decision to leave something in should be based on whether it is “interesting to you.”

And by “you,” he means the “you” doing the writing, not the hypothetical “you” doing the reading:

At base you have only one criterion: If something interests you, it goes in—if not, it stays out. That’s a crude way to assess things, but it’s all you’ve got. Forget market research. Never market-research your writing. Write on subjects in which you have enough interest on your own to see you through all the stops, starts, hesitations, and other impediments along the way.

This writer-centric view is very different from client-driven legal writing such as trial and appellate advocacy. If you as a lawyer writing on behalf of a client and putting something in because it interests you personally, you may be on the wrong track. In some cases, I’ve seen writers insert comments in their memos and briefs such as “Interestingly, . . . .”

These types of comments are rarely effective. And in that sense, the tenets of good legal writing and good nonfiction writing come back into accord, as McPhee instructs: “If you see yourself prancing around between subject and reader, get lost.”

After exploring these thoughts on how to select material, McPhee narrowed the focus to selecting quotations. He received the following inquiry from a reader:

“I was curious—do you know right away when you hear a quote you want to include in the story, or do you usually mine for it through your notes?”

He responded in part as follows:

Dear Minami—Across my years as a writer and a writing teacher, I have been asked myriad questions about the reporting and compositional process but not before now this basic one of yours. And the answer comes forth without a moment’s contemplation: I know right away when I hear a quote I’ll want to include in the story.

McPhee is a master of weaving themes throughout his writing. (For anyone who likes thinking about themes and structures in writing—such as modifications to the “IRAC” format taught and derided in legal writing—read McPhee’s incredible essay, Structure.)

In the essay on omission, the theme comes back again and again:

Writing is selection.

He doesn’t explicitly mention listening very much, but it runs throughout.

McPhee takes copious notes so he can have lots to choose from later. (In a separate article, Elicitation, he goes into more depth about creating conversational settings for interviews, and how he uses a tape recorder unobtrusively when possible.)

He doesn’t need good notes to recognize a “nugget” in the “treasure hunt” immediately when he hears it.

And he brings affection to his work; about one subject, he says, “I loved just listening to him talk.” The joy McPhee described is perhaps not exactly what a lawyer experiences sitting at the deposition table for hours on end—until that moment of hearing a perfect quote that will ice the dispositive motion. (Forget about the Bluebook;

Forget about the Bluebook; block-quote it for emphasis even if it’s only one word.

That’s a type of joy unto itself.

 

 

 

 

 

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.